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INDEMNITY AGREEMENT
DATE: August 22,2006
BETWEEN:
OMERS Realty Corporation
CPP Investment Board Real Estate Holdings
Inc.
("Landlord")
AND
The Ultimate Software Group, Inc.
("Indemnifier")
IN CONSIDERATION OF the sum of two dollars and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Indemnifier hereby agrees as follows:
In this Agreement:
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(a)
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"Building" means 20 Bay Street located in the
City of Toronto.
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(b)
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"Lease" means the lease between Landlord and
Tenant dated August 22, 2006 covering the Premises.
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(c)
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"Premises" means 2,251 square feet of space on
the 14th floor of the Building, as shown hatched on Schedule A
hereto.
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(d)
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"Tenant" means The Ultimate Software Group of
Canada, Inc.
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(e)
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All other capitalized words and phrases, unless
otherwise defined herein, have the meanings attributed to them in
the Lease.
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2.
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INDEMNIFIER’S OBLIGATIONS
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a)
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Throughout the Term of the Lease and any
extension or renewal, Indemnifier will (i) promptly pay all Rent
and any other amounts payable by Tenant under the Lease, whether to
Landlord or anyone else; (ii) promptly perform each and every
monetary and financial obligation of Tenant under the Lease; and
(iii) indemnify and protect Landlord from any losses or costs
incurred by Landlord (including legal fees) if Tenant fails to pay
the Rent or other amounts or to perform any of its obligations
under the Lease.
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Notwithstanding anything else contained in this
Agreement and the Lease, the aggregate liability hereunder of the
Indemnifier shall be limited to the maximum amount of four hundred
thousand Dollars ($400,000.00) which shall decline on a straight
line basis to zero over the initial Term of
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the Lease ("Aggregate Liability"), with respect to the
Tenant’s observance and performance of all terms, covenants
and conditions contained in the Lease.
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b)
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Indemnifier acknowledges and agrees that it is
primarily liable to the Landlord and that it is entering into this
Agreement as principal and not as a surety.
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c)
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Indemnifier agrees that it is jointly and
severally liable with Tenant under the Lease and Landlord may
proceed against Indemnifier as if Indemnifier was named as Tenant
under the Lease.
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3.
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SURVIVAL OF OBLIGATIONS
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a)
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Even if there is a disaffirmance, disclaimer,
repudiation, rejection or termination of the Lease (as a result of
court proceedings or otherwise), or a surrender of the Lease which
Landlord did not accept in writing, which occurs prior to the
originally specified expiry date of the Term, Indemnifier will
remain obligated under this Agreement. Subject to the Aggregate
Liability, Indemnifier will, in such event and at Landlord’s
sole option, be treated as though it was the tenant under the terms
of the Lease for the balance of the Term. Indemnifier’s
obligations in such event, however, are not subject to the Landlord
granting the Indemnifier a lease as aforesaid.
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b)
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This indemnity is absolute and unconditional.
Subject to the Aggregate Liability, Indemnifier’s liability
will only be released by full payment
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