COMMERCIAL OFFICE LEASE
THIS LEASE, made and entered into this 16th day of November,
1993 by and between XXXX X. XXXXXXXXX, TRUSTEE (hereinafter referred to as
"Landlord"), and THE ULTIMATE SOFTWARE GROUP, LTD. (hereinafter referred to as
"Tenant");
W I T N E S S E T H: THAT
In consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be observed and
performed, the Landlord demises and leases to the Tenant, and Tenant takes,
accepts and rents from Landlord, the premises hereinafter described, for the
period, at the rental, and upon the terms and conditions hereinafter set forth.
ARTICLE I
PREMISES
SECTION 1.01. PREMISES. Landlord leases to Tenant, and
Tenant leases from Landlord, on the terms and for the rental set forth, the
premises known as Suite C-307, in the Office Building located at 0000 Xxxxxxxx
Xxxx, in the City of Ft. Lauderdale, County of Broward, and State of Florida,
which demised premises contains three thousand four hundred sixty (3,460)
square feet, more or less, of net leasable area (as hereinafter defined)
referred to herein as the "Premises." The Premises are outlined on the floor
plan drawing attached as Exhibit A and made a part hereof. The Landlord
reserves the right, at any time, to relocate the various tenants at the expense
of Landlord. The Landlord also reserves the right to reduce, enlarge or
reconfigure the Office Building and automobile parking areas.
SECTION 1.02. NET RENTABLE AREA. The term "net rentable
area" shall refer to the area calculated within the boundaries defined by any
exterior walls bounding the Premises (measured to the outside surface of the
outer glass walls and the midpoint of outer finished column walls, the center
line of any common wall separating the Premises from any public corridors and
other common areas on such floor). No deduction from the net rentable area
shall be made for columns or projections of the Building. Net rentable area in
the Premises is stipulated for all purposes to be three thousand four hundred
sixty (3,460) square feet, more or less as a result of minor variations.
Neither the rent nor any other obligation of Tenant shall be reduced, increased
or otherwise affected by determination that the amount of net rentable area
contained in the Premises as determined by calculations made pursuant to the
definition set forth above after construction of the tenant improvements is
more or less than the amount set forth herein.
SECTION 1.03. GROSS RENTABLE AREA. The term "Gross Rentable
Area" shall mean 115% of the net rentable area. For purposes of this Lease,
all payments due Landlord by Tenant which are determined by square footage
shall be based upon a Gross Rentable Area of three thousand nine hundred
seventy nine (3,979) square feet.
SECTION 1.04. USE OF ADDITIONAL AREA. The use of occupancy by
the Tenant of the Premises shall include the use in common with others entitled
thereto of the automobile parking areas, driveways, pathways, entranceways,
means of ingress and egress, loading and unloading facilities, and other
facilities as may be designated from time to time by the Landlord, subject,
however, to the term and conditions of this agrement, and to reasonable rules
and regulations for the use thereof, as prescribed from time to time by the
Landlord.
ARTICLE II
TERM
SECTION 2.01. LENGTH OF TERM. The length of this Lease shall
be for a term of one (1) year and eleven (11) months, unless otherwise
terminated or extended as provided herein.
SECTION 2.02. COMMENCEMENT DATE. The term of this Lease shall
commence on February 1, 1994 and shall expire on December 31, 1995, unless
otherwise terminated or extended as provided herein. If the Tenant occupies the
Premises prior to the Commencement Date, such early occupancy shall be subject
to all terms and conditions contained in this Lease. All property of Tenant
brought upon the Premises shall be kept at Tenant's sole risk.
ARTICLE III
RENT
SECTION 3.01. PAYMENT OF RENT. Tenant hereby covenants and
agrees to pay Rent to Landlord as hereinafter provided. The payment of said
Rent shall begin on the Commencement Date. In the event the Commencement Date
occurs on a day other than the first day of a month, Tenant shall pay rent for
the fractional month on a per diem basis (calculated on the basis of a thirty
[30] day month) until the first day of the month following such Commencement
Date, and thereafter the Rent shall be paid in equal monthly installments on
the first day of each and every month in advance. Said Rent shall be paid to
the Landlord at c/o Becker & Xxxxxxxxx, P.A., X.X. Xxx 0000, Xxxx Xxxxxxxxxx,
XX 00000, or at such other place as may be designated in writing from time to
time by Landlord.
SECTION 3.02. BASE RENT
A. Rent. Tenant agrees to pay Landlord as Base Rent annually
(to be adjusted as provided in Section 3.03 hereof, without any right of
setoff, counterclaim or deduction, the annual sum of Eighty Three Thousand Four
Hundred Thirty Six and 60/100 ($83, 436.60) Dollars ($20.97) per square foot of
Gross Rentable Area per year), plus all applicable sales or rental tax thereon,
payable in equal monthly installments of Six Thousand Nine Hundred Fifty Three
and 05/100 ($6,953.05) Dollars plus sales tax (as adjusted). Notwithstanding
the provisions of the previous sentence, the monthly rent
2
for the period beginning February 1, 1994 and ending December 31, 1994 shall be
Six Thousand Nine Hundred Fifty Three and 05/100 ($6,953.05) Dollars plus sales
tax. Beginning January 1, 1995, the monthly rent shall be Six Thousand Nine
Hundred Fifty Three and 05/100 ($6,953.05) Dollars plus sales tax and plus the
adjustment provided in Section 3.03. All past due installments of rent or any
other sums due by Tenant to Landlord hereunder shall bear interest at the
maximum lawful rate from date due until paid.
B. Late fee. Any payment not received by Landlord by the
tenth (10th) day of the month shall be considered in arrears and in default of
the terms hereof and shall be subject to a late charge in the amount of the
greater of five (5%) percent of the outstanding amount or $100.00, which Tenant
agrees to pay along with the late rent in the form of a cashier's check,
certified check or money order.
C. Returned Checks. In the event that Tenant's check is
returned for any reason, Tenant agrees to pay Landlord $50.00 as a handling
charge in addition any applicable late charge. Returned checks must be redeemed
by cashier's check, certified check or money order. In the event that more than
one (1) check is returned, Tenant agrees to pay all subsequent rents and
charges by cashier's check, certified check or money order.
SECTION 3.03. RENTAL ADJUSTMENT. The Base Rent shall be
adjusted as follows:
(a) For the purposes of this Section 3.03, the following
definitions shall apply:
(i) The term "CPI Index" shall mean the Consumer Price
Index for all Urban Consumers based upon the U.S. City
Average (all items included, 1967 = 100) published by
the United States Department of Labor, Bureau of Labor
Statistics;
(ii) The term "Base Index" shall mean the CPI Index
publicly reported for the calendar month during which
the Commencement Date occurs;
(iii)The term "Anniversary Month" shall mean December of
the calendar year in which the Commencement Date
occurs and each successive December thereafter during
the Term;
(iv) The term "Percentage Increase" shall mean the
percentage equal to the fraction, the numerator of
which shall be the CPI Index in the Anniversary Month
and the Denominator of which shall be the Base Index.
3
In the event the CPI Index publicly reported in an
Anniversary Month shall exceed the Base Index, then
Tenant shall pay to Landlord each month during the
ensuing calendar year, and thereafter until a new
index comparative statement is sent to Tenant an
amount equal to the product obtained by multiplying
(i) the Percentage Increase by (ii) the monthly base
rental for the prior year. Landlord shall send to
Tenant an index comparative statement setting forth
(i) the CPI Index in the Anniversary Month preceding
the date of the statement, (ii) the Base Index, (iii)
the Percentage Increase and (iv) the increase in
monthly rent. On the first day of the calendar month
following the month in which the index comparative
statement was rendered, Tenant shall pay to Landlord
as additional rent, said increase in monthly rent
multiplied by the number of calendar months of the
term then elapsed since the previous January 1st and
thereafter, until a different index comparative
statement is sent to Tenant. During the last year for
which such payments were payable, any necessary
adjustments will be made when the next index
comparative statement is rendered to Tenant.
In the event (i) the CPI Index ceases to use the 1967
average of 100 as the basis of calculation, or (ii) a
substantial change is made in the quality or quantity
of the terms utilized in determining the CPI Index, or
(iii) the publishing of the CPI Index shall be
discontinued for any reason, the United States
Department of Labor may furnish a new index comparable
to the CPI Index together with the information which
will make possible the conversion of such new index to
replace the CPI Index for the purposes of computing
the Additional Rent, if any, payable under this
Section 3.03. If, for any reason, the United States
Department of Labor does not furnish such an index and
information, the parties shall thereafter accept and
use such other index or comparable statistics to
measure the cost of living as shall be computed and
published by an agency of the United States government
or by a reasonable financial periodical of recognized
authority selected by Landlord.
The Tenant's failure to pay, when due, any amounts
payable pursuant to the provisions of this Section,
shall be deemed a default of the Tenant's covenant to
pay rent and shall entitle the Landlord to avail itself
of any of the rights and remedies reserved in this
Lease or available under applicable laws on account of
such default.
The Tenant's obligation to pay any amounts due pursuant
to the provisions of this Section 3.03 shall survive
the expiration or sooner termination of the term of
this Lease.
4
Any amounts payable under this Section 3.03 for a
portion of a month shall be prorated.
Nothing contained herein shall be deemed or
construed to reduce the Base Rent and other charges
payable under the other provisions of this Lease in
the event of a decrease in the CPI Index below the
Base Index.
(b) Notwithstanding the provisions of subparagraph (a) above,
the Base Rental shall increase a minimum of four percent
and a maximum of eight percent each year.
ARTICLE IV
IMPROVEMENTS
SECTION 4.01. IMPROVEMENTS BY LANDLORD. Landlord shall not
be responsible for any improvements to the Premises. Tenant takes the Premises
in an "as is" condition. All alterations, additions or improvements upon the
Premises, including partitions made by either Tenant shall become the property
of Landlord and shall remain upon and be surrendered with the Premises upon the
expiration of the term of this lease. Upon Landlord's request, Tenant shall at
termination of this lease, remove any such improvements and place the Premises
in the condition they were in prior to such improvements.
SECTION 4.02. IMPORVEMENTS BY TENANT. Unless otherwise
agreed in a writing attached hereto, Tenant, at its sole cost and expense,
shall be responsible for all improvements to the Premises. Provided however,
that before any such improvements are made, Tenant shall submit its plans,
drawings and specifications to Landlord for Landlord's approval which approval
shall not be unreasonably withheld. All bills shall be paid for in full, and
Tenant does hereby agree to indemnify, defend and hold harmless Landlord from
any and all liens, claims or demands in connection therewith. If any liens are
placed against the Premises or the Office Building itself, Tenant shall be
responsible for clearing all such liens immediately and, to the extent Landlord
incurs any expenses (including attorney fees), Tenant shall be responsible for
reimbursement.
SECTION 4.03. INSTALLATION OF FIXTURES. Prior to the
commencement of the term, if Tenant enters upon the Premises for the purpose of
installing trade fixtures and furnishings, such activity on the part of the
Tenant shall be done only in such manner as not to interfere with the normal
operations of the Office Building or any work being done by Landlord and
Landlord shall not be liable to Tenant for damage to or loss of such fixtures,
equipment or furnishings. Any equipment or work done which the Landlord
installs or constructs in the Premises on the Tenant's behalf shall be paid for
by the Tenant as Additional Rent, and shall be subject to all of Landlord's
lien rights for unpaid rent. It is mutually agreed that all work performed or
requested by the Tenant shall be subject to the approval of the Landlord's
architect, mechanical and electrical engineers.
5
SECTION 4.04. ATLERATIONS. Tenant shall not make any
alterations or additions to the Premises, nor make any contract therefor,
without first procuring Landlord's written consent. All alterations, additions
and improvements made by Tenant to or upon the Premises, except signs,
electrical equipment or other removable trade fixtures or furnishings shall,
when made or installed, be deemed to have attached to the Premises and to have
become the property of Landlord; provided, however, if prior to termination of
this Lease, or within fifteen (15) days thereafter, Landlord so directs by
written notice to Tenant, Tenant shall promptly remove the additions,
improvements, trade fixtures and installations which were placed in the
Premises by the Tenant and which are designated in said notice and shall repair
any damage occasioned by such removal, and in default thereof, Landlord may
effect said removal and repair at Tenant's expense. All signs, electrical
equipment, fixtures, furnishings and other personal property of Tenant kept on
the Premises and not removed prior to the expiration of the term or earlier
termination thereof shall become the property of the Landlord, to do with as
Landlord exclusively deems appropriate.
ARTICLE V
USE BY TENANT
SECTION 5.01. USE OF PREMISES. Tenant shall occupy and use
the Premises for general office use and for no other purpose. Tenant shall
continuously and uninterruptedly during the term of this Lease conduct its
customary business activity therein during all normal business days and hours,
unless prevented from so doing by strikes, fire, casualty or other causes
beyond Tenant's control.
SECTION 5.02. RESTRICTIONS ON USE. Tenant shall not use nor
permit the Premises to be used for any purpose other than that set forth in
Section 5.01 above, and further covenants and agrees to execute and comply
promptly with all statutes, ordinances, rules, orders, regulations and
requirements of federal, state, county and city governments regulating the use
by Tenant of the Premises. Tenant will not use, or permit the use of the
Premises in any such manner that will tend to create a nuisance or tend to
disturb other tenants or occupants of the Office Building. The restrictions set
forth in this Paragraph shall extend to all agents and employees of the Tenant.
Tenant shall take good care of the Premises, fixtures, appurtenances and all
alterations, additions and improvements thereof; shall make all repairs in and
about the Premises as may be necessary to preserve same in good order and
condition, which repairs shall be equal in quality to the original work; shall
promptly pay the expenses of such repairs and shall promptly notify Landlord of
damage that may occur to the Premises.
NO SMOKING POLICY: PURSUANT TO THE INTENT OF THE FLORIDA
INDOOR CLEAN AIR ACT AND WITH A VIEW TOWARDS THE HEALTH AND SAFETY OF THE
TENANTS, GUESTS AND INVITEES, THERE SHALL BE NO SMOKING ANYWHERE WITHIN THE
PREMISES OR THE BUILDING OF WHICH IT IS A PART. SMOKING SHALL BE ALLOWED IN
DESIGNATED AREAS ONLY. FAILURE TO OBSERVE AND ENFORCE THIS POLICY SHALL
CONSTITUTE A VIOLATION OF FLORIDA LAW AND A DEFAULT UNDER THE LEASE.
6
SECTION 5.03. BUILDING ACCESS. The main (Atrium) entrance
shall be open to the public from 8 a.m. to 7 p.m. Monday through Friday. Access
to the Premises during any other times shall be limited to other entry doors,
if any.
SECTION 5.04. PARKING. Tenant's employees, principals,
agents, contractors and others working on the Premises shall not park in spaces
designated as visitor parking. Vehicles are limited to passenger cars and vans;
other than normal commercial office deliveries, no trucks or heavy equipment is
permitted. Tenant shall give Landlord a list of the make, model and license
number of the automobiles of all persons working at the Premises.
SECTION 5.05. SIGNS. Without Landlord's prior consent and
approval, Tenant shall not (a) install any exterior lighting, awnings, shades
or exterior decorations or painting; (b) erect or install any exterior or
interior window or door signs or advertising media, window or door lettering or
placards or (c) keep or display any merchandise on, or otherwise obstruct the
areaways adjacent to the premises. It is the intention of this Section, as
related to signs, to maintain an overall sign control for the protection of all
tenants. All signs must conform with the Landlord's sign specifications and/or
be approved by Landlord prior to installation.
ARTICLE VI
MAINTENANCE, REPAIRS AND SERVICES
SECTION 6.01. MAINTENANCE BY TENANT. Tenant shall at all
times keep the Premises, fixtures, appurtenances, and all alterations,
additions and improvements thereof, including, but not limited to all
partitions, doors, equipment and all heating, air conditioning, lighting and
plumbing fixtures, in good order, condition and repair, any damage by
unavoidable casualty excepted. Provided however that structural portions of the
Premises, shall be maintained by Landlord; but if Landlord is required to make
repairs to structural portions by reason of Tenant's negligent acts or omission
to act, Landlord may add the cost of such repairs to the rent which shall
thereafter become due. Tenant shall keep the Premises and the areaways adjacent
thereto at all times in a neat, clean and sanitary condition, free from waste
or debris and shall neither commit nor permit any waste or nuisance thereon.
Tenant shall procure trash containers adequate to handle Tenant's trash
accumulation.
SECTION 6.02. MIANTANANCE BY LANDLORD. If Tenant refuses or
neglects to repair promptly the premises as required in Sections 6.01 and 6.03
hereof, in a reasonable time after written demand by the Landlord, the Landlord
may make such repairs without liability to Tenant for any loss or damage that
may accrue to Tenant's equipment, fixtures and/or other property; or to the
loss of business occasioned by reason thereof; and further, upon completion of
such repairs, Tenant shall pay Landlord's incurred costs occasioned by such
repairs. It is further agreed and understood that said billing of costs so
incurred shall include interest at the highest rate allowed by law from the
date of completion of the repairs by the Landlord.
7
SECTION 6.03. REPAIRS BY TENANT. Tenant shall make all
repairs to the Premises, except those which Landlord is specifically obligated
to make under the provisions of Sections 6.01 and 6.04 hereof, and except that
Tenant shall not be obligated to make structural repairs to the Premises.
Tenant shall be responsible for replacement of all plate glass.
SECTION 6.04. REPAIRS BY LANDLORD. Landlord shall keep the
foundations, exterior and structural walls and roof of the Premises and the
Office Building, in good order, condition and repair, and make modifications or
replacements which become necessary or required by governmental authority or by
reason of the acts of Tenant, its agents, servants or employees, providing
however that Tenant shall reimburse Landlord its pro rata share of all expenses
of such repairs for each Lease year. Tenant's share of such costs shall be that
fractional part of the total of such costs as the total leaseable ground floor
area of the Premises bears to the total leaseable ground floor area of the
Office Building.
SECTION 6.05. SERVICES TO BE RENDERED BY LANDLORD. Landlord
will furnish Tenant, while occupying the Premises, with hot and cold water at
those points of supply provided; central heat and air conditioning in season,
at such time as Landlord normally furnishes these services to other tenants in
the Building and at such temperatures and in such amounts as are considered by
Landlord to be necessary; provided, however, such service on Saturdays, Sundays
and legal holidays shall be provided only upon Tenant's request and agreement
in advance to bear the cost of operations attributable to such additional
services; and routine maintenance and electrical lighting service for all
public areas and special service areas of the building in the manner and to the
extent deemed by Landlord to be standard. Landlord will furnish janitorial
services on a five (5) day week basis at an additional cost of $-0- per month,
proper electrical facilities to furnish sufficient power to typewriter,
calculating machines and other office machines of similar low electrical
consumption, but not including electricity for electronic data processing
equipment, special lighting in excess of Building standard, or any other item
of electric equipment, or similar use or kilowatt capacity or a voltage other
than 120 volts, single phase; fluorescent bulb replacement in Premises; and two
(2) keys for each corridor door entering the Premises.
SECTION 6.06. SPECIAL SERVICES. In the event that by prior
agreement with Tenant, Landlord furnishes extra or additional services to be
paid by Tenant, a failure to pay for such services within ten (10) days after
notice shall authorize Landlord, at Landlord's discretion and with further
notice, to discontinue all such services and the services herein provided. Sums
due for extra or additional services shall be deemed additional rental due
hereunder and the same shall be subject to the provisions herein pertaining to
the payment of rent.
SECTION 6.07. INTERRUPTION OF SERVICE. Landlord does not
warrant that any services will be free from interruption caused by repairs,
renewals, improvements, changes of service, alterations, strikes, lockouts,
labor controversies, accidents, inability to obtain fuel or power or other
causes beyond Landlord's control. No such interruptions shall be deemed an
eviction or disturbance of Tenant's use and possession or a breach by
8
Landlord of Landlord?s obligations, or render Landlord liable for damages, by
abatement of rent or otherwise, or relieve Tenant from any obligation
hereunder. Failure by Landlord to any extent to provide any services as set
forth herein shall not work as an abatement of rent or relieve Tenant from the
fulfillment of any covenant hereof.
SECTION 6.08. WAIVER OF CLAIMS. Neither Landlord or
Landlord?s agents nor servants shall be liable, and Tenant waives all claims
for damage to persons or property sustained by Tenant or any occupant of the
Premises or other part of the Office Building, or any equipment or appurtenance
becoming out of repair, or resulting from any accident in or about the Premises
or the Office Building, or resulting directly or indirectly from any act or
neglect of any tenant or occupant or of any other person. This Paragraph shall
apply especially, but not exclusively, to the flooding of basements or other
subsurface areas, and to damage caused by roof leaks, air conditioning
apparatus, sprinkling devices, water, excessive heat or cold, falling plaster,
broken glass, sewage, gas odors or noise, or the bursting or leaking of pipes
or plumbing fixtures, and shall apply equally whether any such damage results
from the act or neglect of Landlord or of other tenants, occupants or servants
in the Office Building or of any other person and whether such damage be caused
or result from any thing or circumstances above mentioned or referred to, or
any other thing or circumstances, whether of a like nature or of a wholly
different nature. All property belonging to Tenant or any occupant of the
Premises or the Office Building shall be there at the risk of Tenant or such
other person only, and Landlord shall not be liable for damage thereto or theft
or misappropriation thereof.
SECTION 6.09. LANDLORD'S RIGHT OF ACCESS. Landlord and its
agents shall have free access to the Premises during all reasonable hours for
the purpose of examining same and to ascertain if they are in good repair, to
make reasonable repairs which the Landlord may be required to make hereunder
and to exhibit the same to prospective purchasers, lenders or tenants. In case
of any emergency originating in or threatening the Premises, regardless of the
time of day or whether the Tenant is present at the time of such emergency, the
Landlord, its agents and employees, shall have the right to enter the Premises
for the purpose of remedying or abating the cause of such emergency and such
right of entry shall be immediate and without the necessity of prior notice to
or consent of Tenant. To facilitate entry in the event of such emergency, the
Tenant shall deposit under the control of the Landlord a key to the Premises.
ARTICLE VII
INSURANCE
SECTION 7.01. INSURANCE BY TENANT. Tenant agrees that, at
its own cost and expense, it shall procure and continue in force, in the name
of Tenant and with Landlord as an Additional Insured, general liability
insurance against any and all claims for injuries to persons and property
occurring in, upon, or about the Premises, during the term of this Lease; such
insurance, at all times, to be in an amount not less than One Million
($1,000,000) Dollars combined single limit per occurrence. Such insurance shall
be written in a company or companies authorized to engage in the business of
general
9
liability insurance in the State in which the Premises are located, and there
shall be delivered to the Landlord customary certificates evidencing such
paid-up insurance, which certificates are to be issued by the insurance
companies.
The policies of insurance provided herein are to be provided
by the Tenant, and shall be for a period of not less than one (1) year, it
being understood and agreed that fifteen (15) days prior to the expiration of
any policy of insurance, the Tenant will deliver to the Landlord a renewal or
new policy to take the place of the expiring policy, with the further
understanding that, should the Tenant fail to furnish policies, as is provided
in this Lease, and at the times herein provided, the Landlord may obtain such
insurance, and the premiums on such insurance shall be deemed Additional Rental
to be paid by the Tenant to the Landlord upon demand. Tenant shall make no
claim for recovery against Landlord and expressly waives any right of recovery
against Landlord for damage to or loss of the Premises, or improvements
thereon, which damage or loss may arise by fire or any other peril covered by
any policy of insurance containing a waiver of subrogation right against the
Landlord in which said policy the Tenant is or may be the insured and when said
loss is caused by or results from any acts of carelessness or negligence of the
Landlord, its officers, employees or other persons under its control. Tenant
further covenants and agrees to apply to its insurers for waiver of subrogation
against Landlord, its agents and employees, and to obtain same if Tenant's
insurers will issue such waiver without cost.
SECTION 7.02. INSURANCE BY LANDLORD. Landlord shall maintain
at its own cost and expense during the term of this Lease, fire, windstorm, and
extended coverage insurance on the Office Building; provided, however, Tenant
shall reimburse Landlord for its share of the actual net cost and expense to
Landlord of such insurance for that Lease Year. Tenant's share of such costs
shall be that fractional part of the total of such costs as the total leasable
ground floor area of the Premises bears to the total leasable ground floor area
of the Office Building.
SECTION 7.03. INDEMNITY FOR ACCIDENTS. Tenant covenants and
agrees that it will protect, defend and save and keep the Landlord forever
harmless and indemnified against and from any penalty or damage or charges
imposed for any violation of any laws or ordinances, whether occasioned by the
neglect of Tenant or those holding under Tenant, and that Tenant will at all
times protect, defend, indemnify and save and keep harmless the Landlord
against and from any and all claims, loss, cost, damage or expense arising out
of or from any accident or other occurrence on or about the Premises, causing
injury to any person or property whomsoever or whatsoever, and will protect,
defend, indemnify and save and keep harmless the Landlord against and from any
and all claims, loss, cost, damage or expense arising out of any failure of
Tenant in any respect to comply with and perform all the requirements and
provisions of this Lease.
SECTION 7.04. DESTRUCTION BY FIRE OR CASUALTY. The Tenant
shall give immediate notice to Landlord in case of fire or, other casualty in
or about the Premises or the Office Building. In the event the Premises shall
be damaged by fire, explosion, windstorm or any other casualty, then Landlord
shall repair such damages and put the
10
Premises in good condition as rapidly as reasonably possible, and Tenant shall
be entitled to an equitable abatement of the Fixed Minimum Rent, unless
Landlord shall establish that such damage was occasioned by the acts of Tenant,
its agents or employees.
Notwithstanding any other provisions of this Paragraph to the
contrary, if the Premises shall be damaged during the last two (2) years of the
lease term, and such damage shall be to the extent of more than twenty-five
percent (25%) of the value of the Premises at the time of such damage, then
Landlord may, at its election, upon notice to Tenant, within ninety (90) days
after such damage, terminate this Lease as of the date of such damage.
ARTICLE VIII
TAXES
SECTION 8.01. REAL ESTATE TAXES. Landlord shall pay all real
property taxes and assessments levied or payable during the term hereof, by the
county and municipality upon the demised land, building and other improvements
making up the Office Building.
SECTION 8.02 PERSONAL PROPERTY TAXES AND ASSESSMENTS. The
Tenant shall pay, before delinquent, any and all taxes, licenses, fees and
public charges levied, assessed or imposed, and which become payable during the
lease term upon Tenant's fixtures, furniture, appliances and personal property
located or installed in the Premises.
ARTICLE IX
TITLE
SECTION 9.01. POSSESSION BY TENANT. Tenant covenants and
warrants that it has full right and authority to enter into this Lease for the
full term hereof. Landlord covenants that Tenant, upon paying the Rent provided
for herein and upon performance of the covenants and agreements of this Lease
to be performed by said Tenant, will have, hold and enjoy quiet possession of
the Premises.
SECTION 9.02. SUBLEASE AND ASSIGNMENT. Landlord shall have
first refusal right to recapture the premises, on a request by Tenant to
sublease or assign. If Landlord does not desire to recapture the premises, then
Tenant shall not sublease, sublet or assign the Premises or any portion thereof
except by written permission and consent of Landlord, references elsewhere
contained herein to assignees notwithstanding. Any such subleasing or
assignment, even with the approval of the Landlord, shall not relieve the
Tenant from liability for payment of the rental and any other monies due
Landlord herein provided for or from the obligation to keep and be bound by the
terms, conditions and covenants of this Lease. The acceptance of rent from any
other person shall not be deemed to be a waiver of any of the provisions of
this Lease or a consent to the assignment or subletting of the Premises. Any
change in twenty percent (20%) or more
11
of the equitable or beneficial ownership of Tenant shall be deemed on
assignment of this Lease.
SECTION 9.03. FINANCING. Tenant agrees that Tenant's rights
under this Lease are and shall always be subordinate to the lien of any
mortgage or trust deeds now or hereafter placed from time to time upon the land
and the Office Building. Tenant shall, upon written demand from Landlord,
execute such other and further instruments or assurances subordinating this
Lease to the lien or liens of any such mortgage or trust deeds. If any mortgage
or trustee under a trust deed elects to have Tenant's interest in this Lease
superior to any such interest by notice to Tenant, then this Lease shall be
deemed superior to any such mortgage or trust deed whether this Lease was
executed before or after such mortgage or trust deed.
SECTION 9.04. SURRENDER OF PREMISES. Tenant shall, upon the
expiration date or sooner termination of this Lease, surrender to Landlord the
Premises, together with all replacements thereto in good order, condition and
repair, except for ordinary wear and tear and loss by fire or other casualty.
If Tenant fails to surrender the Premises as required herein, Tenant shall be
deemed a month-to-month tenant and shall pay Landlord, as holdover rent, the
monthly rental amount as was payable in the last month of the lease term
multiplied by three (3), in addition to all other costs or payments required
under this Lease Agreement, for the duration of such holdover period.
SECTION 9.05. EMINENT DOMAIN. In the event the Premises, or
any part thereof, shall be taken or condemned for public purposes by any
competent authority, the entire compensation awarded therefore shall belong to
the Landlord, without any deduction therefrom for any present or future estate
of Tenant; provided, however, that in the event any part of the Premises itself
or more than twenty percent (20%) of the Office Building shall be so taken or
condemned, then either the Landlord or Tenant shall have the option of
terminating the term of this Lease upon giving to the other written notice of
such election within thirty (30) days after possession of the part condemned
has been taken by proper authorities, whereupon the term of this Lease shall be
terminated, as of the date on which possession is so taken. If neither Landlord
or Tenant so elects to terminate the term of this Lease, the Landlord at its
own expense, shall repair and restore the premises not affected by the taking
and thereafter, if a part of Premises itself has been taken or condemned, the
Fixed Minimum Rent to be paid by the Tenant shall be equitably and
proportionately reduced.
ARTICLE X
DEFAULT
SECTION 10.01. DEFAULT BY TENANT. All of the rights and
remedies of Landlord herein enumerated shall be cumulative, and none shall
exclude any other right or remedy allowed by law. It is agreed that in the
event:
(i) That the Tenant shall fail, neglect or refuse to pay any
installment of Fixed Minimum Rent or Additional
12
Rent at the time, and in the amount as herein provided, or
to pay any other monies agreed by it to be paid promptly
when and as the same shall become due and payable under the
terms hereof;
(ii) That any voluntary or involuntary petition or similar
pleading, under any section or sections of any bankruptcy
act, shall be filed by or against Tenant, or any voluntary
or involuntary proceeding in any court or tribunal shall be
instituted to declare Tenant insolvent or unable to pay
Tenant's debts, and the same shall not be dismissed or
discharged within thirty (30) days after notice thereof in
writing;
(iii)That the Tenant shall fail, neglect or refuse to keep and
perform any of the other covenants, conditions,
stipulations or agreements herein contained and to be kept
and performed by it, and in the event any such default
shall continue, for a period of more than thirty (30) days
after notice thereof in writing given to the Tenant, by the
Landlord; provided, however, that if the cause for giving
such notice involves the making of repairs, or other
matters reasonably requiring a longer period of time than
the period of such notice, the Tenant shall be deemed to
have complied with such notice so long as it has commenced
to comply with said notice within the period set forth in
the notice, and is diligently prosecuting compliance with
said notice, or has taken proper steps or proceedings,
under the circumstances, to prevent the seizure,
destruction, alteration or other interference with said
Premises by reason of noncompliance with the requirements
of any law or any ordinance or with the regulations, rules
or directions of any government authority, as the case may
be;
(iv) That the Tenant makes any assignment of its property for
the benefit of creditors, or should the Premises be taken
under a levy of execution or attachment, in an action
against the Tenant, and such levy, attachment or assignment
is not dismissed and discharged within thirty (30) days
after written notice thereof to Tenant by Landlord, the
Tenant does hereby authorize and fully empower said
Landlord or Landlord's agent to cancel or annul this Lease
at once and to re-enter and take possession of said
Premises immediately, and remove all persons and their
property therefrom, and
13
to use such force and assistance in effecting and
perfecting such removal as said Landlord may deem necessary
and advisable to recover at once full and exclusive
possession of all of said Premises, whether in possession
of said Tenant or of their persons or otherwise. At
Landlord's option, Landlord may declare all installments of
Minimum Rent and Additional Rent as adjusted at the time of
default for the remainder of the Lease term, to be
immediately due and payable whereupon the same shall become
immediately due and payable.
The Landlord may, however, at its option, at any time after
such default or violation of condition or covenant, reenter and take possession
of said Premises without such re-entering working a forfeiture of the rents to
be paid and the covenants, agreements and conditions to be kept and performed
by said Tenant for the full term of this Lease. In such event, the Landlord
shall have the right, but not the obligation, to divide or subdivide the
Premises in any manner the Landlord may determine and to lease or let the same
or portions thereof for such periods of time and at such rentals and for such
use and upon such covenants and conditions as Landlord may elect, applying the
net rentals from such letting first to the payment of Landlord's expenses
incurred in dispossessing the Tenant and the costs and expenses of making such
improvements in the Premises as may be necessary in order to enable the
Landlord to relet the same, and to the payment of any brokerage commissions or
other necessary expenses of the Landlord in connection with such reletting. The
balance, if any, shall be applied by the Landlord from time to time, but in any
event not less than once each month, on account of the payments due or payable
by the Tenant hereunder, with the right reserved to Landlord to bring such
actions or proceedings for the recovery of any deficits remaining unpaid as it
may deem advisable from time to time, without being obligated to await the end
of the term hereof for a final determination of the Tenant's account and the
commencement or maintenance of one (1) or more actions shall not bar the
Landlord from bringing other or subsequent actions for further accruals
pursuant to the provisions of this Paragraph. Any balance remaining, however,
after full payment and liquidation of Landlord's account, as aforesaid, shall
be paid to the Tenant from time to time with the right reserved to the Landlord
at any time to give notice in writing to the Tenant of Landlord's election to
cancel and terminate this Lease and all Tenant's obligations hereunder and upon
the giving of such notice and the simultaneous payment by Landlord to Tenant of
any credit balance in Tenant's favor that may at the time be owing to Tenant
shall constitute a final and effective cancellation and termination of this
Lease and the obligations thereunder on the part of either party to the other.
In addition to the foregoing, collection costs and reasonable
attorneys' fees shall be paid by Tenant if delinquencies are referred for
collection.
SECTION 10.02. LIEN OF LANDLORD FOR RENT, TAXES AND OTHER
SUMS. Landlord shall have, and Tenant hereby grants, a security interest in
any furnishings, equipment, fixtures, inventory, accounts receivable, or other
personal property of any
14
kind belonging to Tenant, or the equity of Tenant therein, on the Premises. The
security interest is granted for the purpose of securing the payment of rent,
other charges, assessments, penalties and damages herein covenanted to be paid
by Tenant and for the purpose of securing the performance of all other
obligations of Tenant under this Lease. Upon Tenant's default or breach of any
covenants of this Lease, Landlord shall have all remedies available under the
law of the State where the Premises are located including, but not limited to,
the right to take possession of the above mentioned property and dispose of it
by public or private sale in a commercially reasonable manner. Tenant shall,
upon demand, reimburse Landlord for all filing and recording fees and taxes
incurred in connection with filing and recording of Financing Statements if the
same be necessary to perfect Landlord's security interest. Landlord's statutory
lien for rent is not hereby waived, the express contractual lien herein granted
being in addition and supplementary thereto.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. NOTICES. Whenever under this Lease a provision
is made for any demand or notice of any kind, or where it is deemed desirable
or necessary by either party to give or serve any such notice or demand to the
other, it shall be in writing sent by overnight mail or certified mail,
return-receipt requested, postage prepaid, if to the Tenant addressed to the
Tenant at 0000 Xxxxxxxx Xxxx, Xxxxx X000, Xx. Xxxxxxxxxx, XX 00000, and if to
the Landlord addressed to the Landlord at c/o Becker & Xxxxxxxxx, P.A., X.X.
Xxx 0000, Xx. Xxxxxxxxxx, XX 00000, and either party may by like notice at any
time and from time to time designate a different address to which notices shall
be sent. Such notices or demands shall be deemed sufficiently served or given
for all purposes hereunder at the time they shall be mailed by an overnight
delivery service or by United States certified mail, as aforesaid.
SECTION 11.02. WAIVER. One (1) or more waivers of any
covenant, term or condition of this Lease by either party shall not be
construed by the other party as a waiver of a subsequent breach of the same
term, covenant or condition. The consent or approval of either party to or of
any act by the other party of a nature requiring consent or approval shall not
be deemed to waive or render unnecessary consent to or approval of any
subsequent similar act.
SECTION 11.03. RELATIONSHIP OF PARTIES. Nothing contained in
this Lease nor any act or acts of the parties shall be deemed or construed by
the parties hereto or by any third party to create the relationship of
principal and agent or of partnership or of joint venture or of any association
whatsoever between Landlord and Tenant, other than the relationship of landlord
and tenant.
SECTION 11.04. GOVERING LAWS. The laws of the State in which
the Premises is situated shall govern the validity, performance and enforcement
of this Lease.
15
SECTION 11.05. SAVINGS CLAUSE. The inva1idity or
unenforceability of any provision of this Lease shall not affect or impair the
validity of any other provision.
SECTION 11.06. MARGINAL HEADINGS. The paragraph titles
herein are for convenience only and do not define, limit or construe the
contents of such paragraph.
SECTION 11.07. COVENANT TO BIND SUCCESSORS. It is agreed
that the provisions, covenants and conditions of this Lease shall be binding on
the legal representatives, heirs, successors and assigns of the respective
parties hereto.
SECTION 11.08. FINANCIAL STATMENTS. Throughout the term of
this lease, Tenant shall provide Landlord at the time such statements are
available to Tenant and without notice or demand its most current and complete
financial statement, including, but not limited to, its balance sheet and
profit and loss statement.
SECTION 11.09. CREDIT REPORTS. The Tenant's performance
under this Lease Agreement may be reported to credit reporting agencies. The
Landlord may also obtain a consumer report of Tenant's credit history from a
credit reporting agency. Upon request, Tenant will be informed whether a
consumer report was obtained and if so, the name and address of the agency
furnishing the report.
SECTION 11.10. NO RECORDATION. This Lease shall not be
recorded by Tenant in the Public Records of Broward County, Florida or in any
other place. Any attempted recordation by Tenant shall render this Lease null
and void and entitle the Landlord to the remedies provided against Tenant's
default. However, at the request of Landlord, Tenant shall promptly execute,
acknowledge and deliver to Landlord a memorandum of Lease in respect of any
modification of this Lease, sufficient for recording. Such memorandum shall not
be deemed to change or otherwise affect any of the obligations or provisions of
this Lease.
SECTION 11.11. ESTOPPEL CERTIFICATE. Within ten (10) days
after request therefor by Landlord, the Tenant shall furnish an estoppel
certificate. Tenant agrees to deliver in recordable form a certificate to any
proposed mortgagee or purchaser, or to Landlord, certifying (if such be the
case) that this Lease is in full force and effect and there are no defenses or
offsets thereto, or stating those claimed by Tenant.
SECTION 11.12. EXCULPATION. Tenant agrees that Tenant shall
look solely to Landlord's interest in the Office Building for the satisfaction
of any claims, judgments or decrees requiring the payment of money by Landlord
based upon default hereunder. No other property or assets of Landlord, its
successors or assigns shall be subject to levy, execution or other enforcement
procedure.
SECTION 11.13. FORCE MAJEURE. Landlord or Tenant shall not
be required to perform any term, condition or covenant in this Lease so long as
such performance is delayed or prevented by Acts of God, strikes, lockouts,
decree or restriction by any governmental authority, civil riot, floods,
financing, and any other cause not reasonably within the control of Landlord or
Tenant, and which by the exercise of due diligence Landlord or Tenant is
unable, wholly or in part to prevent or overcome.
16
SECTION 11.14. PREVAILING PARTY. In the event that
litigation is required to enforce this Agreement, the prevailing party shall be
entitled to reimbursement of its legal costs and attorney's fees, including
appeals.
SECTION 11.15. RADON GAS. In accordance with the provisions
of Florida Statutes Chapter 404.29(8), notification is hereby tendered
concerning the possible existence of Radon Gas in or about the Property. Please
be advised that:
"RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are
exposed to it overtime. Levels of radon that exceed Federal
and State guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may
be obtained from your County Public Health Unit."
SECTION 11.16. ENTIRE AGREEMENT. This Lease, and the
Exhibits and Rider, if any, attached hereto and forming a part hereof, set
forth all of the covenants, promises, agreements, conditions and understandings
between the Landlord and the Tenant governing the Premises. There are no
covenants, promises, agreements, conditions and understandings, either oral or
written, between them other than those herein set forth. Except as herein
provided, no subsequent alterations, amendments, changes or additions to this
Lease shall be binding upon the Landlord or Tenant, unless reduced to writing
and signed by both parties.
SECTION 11.17. NEGOTIATION AND EXECUTION. The furnishing of
this Lease by the Landlord to the prospective Tenant shall not be considered an
offer to lease, even though completed in every respect, until and unless the
document has been executed by the appropriate officers of Landlord. No
correspondence or other communication respecting this Lease shall create any
obligation to go forward with this Lease until the Lease document is fully
completed and executed by both the Landlord and Tenant.
17
IN WITNESS WHEREOF, the parties hereto have executed this
Lease this day and year first above written.
Signed and Acknowledged Landlord
In the Presence Of: XXXX X. XXXXXXXXX, TRUSTEE
/s/ Xxxxxx Siena /s/ Xxxx X. Xxxxxxxxx, Trustee
----------------- -------------------------------
/s/ Xxxxxx Xxxxx
-----------------
Tenant:
THE ULTIMATE SOFTWARE
GROUP, LTD.
/s/ Xxxxxx Xxxx By: /s/ Xxxxx Xxxxxx
----------------- -----------------
/s/ Xxxxxx Xxxxxxxxxx Its: General Partner
----------------------- ----------------
Federal Tax I.D. No. (if
corporation) or Social Security
No. (if individual):
00-0000000
---------------------------
(Must be filled in)
18
GUARANTY
--------
In consideration of the execution by Xxxx X. Xxxxxxxxx, as
Trustee, ("Landlord") of that certain Lease Agreement dated 11-16-1993 with THE
ULTIMATE SOFTWARE GROUP, LTD., a Florida limited partnership, ("Tenant"), the
undersigned being the majority shareholder of the general partner of the Tenant
hereby unconditionally and irrevocably guarantees the Tenant's performance of
its obligations under the lease including the payment of all sums due and owing
Landlord by Tenant.
The undersigned further consents that the Landlord shall have
the absolute right, without notice to the undersigned, to extend the time
performance of the obligations of Tenant or to vary or modify any of the terms
of the lease without affecting the undersigned's liability hereunder. This
Guaranty shall remain in full force and effect notwithstanding any failure of
the Landlord to exercise any right against the Tenant. This Guaranty shall
inure to the benefit of the Landlord, his beneficiaries, successors, and
assignees and shall be binding upon the successors and assignees of the
undersigned.
WITNESSES:
/s/ Xxxxxx Xxxx
-----------------
/s/ Xxxxxx Xxxxxxxxxx /s/ Xxxxx Xxxxxx
----------------------- --------------------------------
Xxxxx Xxxxxx
19
LEASE MODIFICATION AGREEMENT
----------------------------
THIS LEASE MODIFICATION AGREEMENT is made and entered into
this 6 day of December, 1993, by and between XXXX X. XXXXXXXXX, TRUSTEE
(hereinafter referred to as "Landlord"), and THE ULTIMATE SOFTWARE GROUP, LTD.
(hereinafter referred to as "Tenant");
W I T N E S S E T H:
--------------------
WHEREAS, Landlord and Tenant entered into that certain Lease
Agreement (hereinafter referred to as "Lease"), dated November 16, 1993
regarding certain leased premises more particularly described as Suite 308 in
the Office Building located at 0000 Xxxxxxxx Xxxx, in the City of Ft.
Lauderdale, County of Broward, and State of Florida, which premises contains
three thousand four hundred sixty (3,460) square feet, more or less, of net
leasable area (as hereinafter defined) referred to herein as the "Premises"
(which Lease is attached hereto), and,
WHEREAS, Landlord and Tenant desire to modify the Lease as
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained and other good and valuable considerations, the
parties hereto agree as follows:
1. Representations. The representations set forth above are
true and correct and made a part hereof.
2 Premises/Net Rentable Area. The Premises is hereby enlarged
and expanded to include Suite 307, adjacent to Suite 308, all comprising a part
of the Office Building located at 0000 Xxxxxxxx Xxxx, in the City of Ft.
Lauderdale, County of Broward, and State of Florida. The total Net Rentable
Area of the Premises, as hereby enlarged and expanded, contains four thousand
nine hundred twenty four (4924) square feet, more or less, of net leasable area
(as hereinafter defined) referred to herein as the "Premises" (which Lease is
attached hereto), and,
3 Gross Rentable Area. Gross Rentable Area in the Premises,
as defined in Section 1.03 of the Lease Agreement, is stipulated to be five
thousand six hundred sixty three (5663) square feet, more or less as a result
of minor variations.
4. Base Rent. The modified Base Rent, as defined in Section
3.02 of the Lease Agreement, and as hereafter adjusted as provided in Section
3.03 in the Lease Agreement, is the annual sum of One Hundred Eighteen Thousand
Two Hundred Thirty Six and sixty/100ths ($118,236.60) Dollars, plus all
applicable sales or rental tax thereon, payable in equal monthly installments
of Nine Thousand Eight Hundred Fifty Three and 05/100ths ($9853.05) Dollars
plus sales tax (as adjusted). Beginning January 1, 1995, the monthly Base Rent
installment shall be Nine Thousand Eight Hundred, Fifty Three and
05/100ths ($9853.05) Dollars plus sales tax and plus the adjustment provided in
Section 3.03 of the Lease Agreement.
5. Remaining Lease Provisions. All remaining terms and
conditions of the Lease shall remain in full force and effect and are hereby
reaffirmed, restated and ratified except as specifically modified herein.
6 IN WITNESS WHEREOF, Landlord and Tenant have set their
hands and seals on the date set forth above.
Landlord:
XXXX X. XXXXXXXXX, TRUSTEE
/s/ Xxxx X. Xxxxxxxxx, Trustee
-------------------------------
Tenant:THE ULTIMATE SOFTWARE
GROUP, LTD.
By: /s/ Xxxxx Xxxxxx
-----------------
Its: General Partner
----------------
2
[Letterhead of Xxxx X. Xxxxxxxxx, Trustee]
November 18, 1997
Xxxxx Xxxxx, President
Ultimate Software Group
0000 Xxxxxxxx Xxxx, #X-000
Xxxx Xxxxxxxxxx, XX 00000
Re: Extension of Lease for an Additional One Year Term
Expiring on December 31, 1998.
Dear Xxxxx:
It's hard to believe another year has past. I trust your new
building is moving forward and that you will soon be able to relocate into your
new home. For the past two years I have accommodated your need to remain in
place; and in fact have allowed you to utilize every available nook and
cranny -- far beyond the anticipated occupancy limitations. I have also frozen
your rental notwithstanding the fact that both the real estate taxes and cost
of maintenance have increased.
I am prepared to grant an additional one year extension,
through December 31, 1998, at a slight increase of rental. Ultimate Software is
currently paying $15,867.00 monthly, exclusive of sales taxes. [This does not
include your sub-let of Suite B from Xxxxxx & Xxxxxxxxx, P.A.] I propose an
increase of $500.00 per month for the term of the lease. If this meets with
your approval, kindly indicate same by signing and returning one original to my
attention.
Sincerely,
/s/ Xxxx X. Xxxxxxxxx, X.X.
---------------------------
XXXX X. XXXXXXXXX, X.X.
Gap / AE
Agreement to extend the expiring lease for an additional term
of one year commencing on January 1, 1998 and ending on December 31, 1998,
under the same terms and conditions of the existing lease and all addenda
thereto, at the monthly rental of $16,367.00 plus applicable sales taxes.
Ultimate Software Group
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------
Xxxxxxxx Xxxxxxxx, CFO
