EX-10.38 Indemnity Agreement



 





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:





	1.	 	DEFINITIONS





In this Agreement:





	 	(a)	 	“Building” means 20 Bay Street located in the City of Toronto.
	 
	 	(b)	 	“Lease” means the lease between Landlord and Tenant dated August 22, 2006 covering
the
Premises.
	 
	 	(c)	 	“Premises” means 2,251 square feet of space on the 14th floor of the Building, as
shown hatched on
Schedule A hereto.
	 
	 	(d)	 	“Tenant” means The Ultimate Software Group of Canada, Inc.
	 
	 	(e)	 	All other capitalized words and phrases, unless otherwise defined herein, have the
meanings
attributed to them in the Lease.






	2.	 	INDEMNIFIER’S OBLIGATIONS






	 	a)	 	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.
	 
	 	 	 	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





 









 






the Lease (“Aggregate Liability”), with respect to the Tenant’s observance and
performance of all terms, covenants and conditions contained in the Lease.




	 	b)	 	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.
	 
	 	c)	 	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.






	3.	 	SURVIVAL OF OBLIGATIONS






	 	a)	 	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.
	 
	 	b)	 	This indemnity is absolute and unconditional. Subject to the Aggregate Liability,
Indemnifier’s
liability will only be released by full payment of all amounts expressed in the Lease to be
payable by
Tenant for the Term and the full performance of all obligations on the part of Tenant
expressed in the
Lease to be performed by the Tenant for the Term. Indemnifier’s obligations under this
Agreement
will not be affected by (i) any modifications to Landlord’s or Tenant’s rights or
obligations under the
Lease; (ii) the fact that Landlord does not enforce any of the terms of the Lease; (iii)
any assignment
of the Lease by Tenant or by any trustee, receiver or liquidator; (iv) any consent which
Landlord
gives to any Transfer; (v) any waiver by Tenant of its rights under the Lease; (vi) any
additional
security accepted by Landlord from Tenant; (vii) the expiry of the Term; (viii) the release
or
discharge of Tenant or any other person liable under the Lease by Landlord or in any
receivership,
bankruptcy, winding-up or other creditors’ proceedings or by operation of law: or (ix) lack
of notice
of any of the foregoing.
	 
	 	c)	 	Indemnifier’s obligations will not be affected by any repossession of the Premises by
Landlord,
except that if Landlord re-lets the Premises then the payments received by Landlord (after
deducting
all costs and expenses of repossessing and reletting the Premises) will be credited by
Landlord
against Indemnifier’s obligations under this Agreement. Indemnifier’s obligations will
continue to
apply to the periods before and after the release or discharge as if it had not occurred.






	4.	 	NOTICES




Landlord is not required to notify Indemnifier that Landlord has accepted this Agreement or that
Tenant has failed to perform any of its obligations under the Lease. Nevertheless, if Landlord
wishes to send any notice to the Indemnifier, it will deliver it or mail it by prepaid registered
mail addressed to Indemnifier at 2000 Ultimate Way, Weston, Florida, U.S.A., 33326 or, at
Landlord’s option, at the Premises. Any notice will be considered to have been given on the day it
was delivered, or if mailed, three (3) days after the date it was mailed. Indemnifier may notify
Landlord in writing of a substitute address for the above address. If two or more parties are named
as Indemnifier, Landlord may give any notice to be given to Indemnifier to only one of the parties,
and in doing so all of them will be considered to have been notified. No notice given by email or
by other similar electronic means will be considered to have been given in writing.





	5.	 	LANDLORD’S RIGHTS






	 	a)	 	If there is a default under the Lease or under this Agreement, Landlord will not
be required to (i) proceed against or pursue anything against Tenant first; (ii) proceed
against any security of Tenant





 









 






held
by Landlord; or (iii) pursue any other remedy whatsoever. Indemnifier is not
a mere guarantor; Indemnifier is primarily responsible for Tenant’s obligations
under the Lease.




	 	b)	 	Even though Landlord may have already taken action against Indemnifier
under this Agreement because of a default under the Lease, and whether or not
that action has succeeded or been completed, Landlord may take further action
against Indemnifier under this Agreement if there is any further default under
the Lease.






	6.	 	JOINT AND SEVERAL LIABILITY




If two or more parties are named as Indemnifier, each party is jointly and severally
responsible for the obligations of Indemnifier.





	7.	 	ACKNOWLEDGEMENT




The Indemnifier acknowledges receipt of a copy of the Lease.





	8.	 	GOVERNING LAW




This Lease shall be governed by and construed under the laws of the jurisdiction in
which the Building is located, and its provisions shall be construed as a whole
according to their common meaning and not strictly for or against Landlord or
Indemnifier.





	9.	 	BINDING EFFECT




This Agreement shall enure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, trustees, administrators, successors and assigns, as
the case may be.



IN WITNESS WHEREOF the parties have signed and sealed this Agreement.




	 	 	 	 	 	 	 	 	 
	LANDLORD:	 	INDEMNIFIER:	 	 
	OMERS Realty Corporation and	 	The Ultimate Software Group, Inc.	 	 
	CPP Investment Board Real Estate Holdings Inc.	 	 	 	 	 	 
	by their agent (without personal liability)	 	 	 	 	 	 
	OPGI Management GP Inc. as general partner of the	 	 	 	 	 	 
	OPGI Management Limited Partnership	 	 	 	 	 	 
	 

	 	 	 	Per:
	 	/s/ Robert Manns	 	 
	Per:

	 	/s/ Daniel A. Holmes
	 	Name:
	 	ROBERT MANNS
	 	 
	 

	 	Authorized Signing Officer
	 	Title:
	 	VICE PRESIDENT	 	 
	 

	 	DANIEL A. HOLMES	 	 	 	 	 	 
	 

	 	ASSISTANT SECRETARY	 	 	 	 	 	 
	 

	 	 	 	Per:
	 	/s/ Scott Schbrr	 	 
	Per:

	 	/s/ David Costello
 

	 	Name:
	 	 

SCOTT SCHBRR 
	 	 
	 

	 	Authorized Signing Officer
	 	Title:
	 	 PRESIDENT	 	 
	 

	 	David Costello	 	 	 	 	 	 
	 

	 	Vice President	 	 	 	 	 	 
	 

	 	Real Estate Management	 	 	 	 	 	 
	 	 	 	 	Having authority to bind the corporation.	 	 
	 
	 	 	 	 	 	 	 	 
	Having authority to bind the corporation.