EXHIBIT 10.2
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is dated as of the 1st day of February, 0000
X X X X X X X:
FIRST REAL PROPERTIES LIMITED,
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("Landlord')
FIRST PARTY,
- and -
METASOLV SOFTWARE INC.,
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("Indemnitor")
XXXX
SECOND PARTY.
In order to induce the Landlord to agree to accept an assignment of lease
dated as of the 24th day of August, 1994, as amended by agreements dated as of
January 10, 1995, August 14, 1995, January 23, 1996, September 11, 1997 and May
27, 1998, (the said lease, amendments and assignments, collectively the
"Lease"), and made between the Landlord and Architel Systems Corporation, as
tenant, to MetaSolv Software Canada Inc. (the "Tenant") in respect of premises
municipally known as 000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx, (the "Premises), for
the term therein described (the "Term") and for other good and valuable
consideration, the receipt and sufficiency whereof is hereby acknowledged, the
Indemnitor hereby makes the following indemnity and agreement ("Indemnity")
with and in favour of the Landlord:
1. The Indemnitor hereby agrees with the Landlord that at all times during
(i) the Term, (ii) any extension or renewal thereof, and (iii) any other period
when the Tenant is in possession of the Premises, the Indemnitor shall be
bound to the Landlord for the performance of all the obligations of the Tenant
under the Lease, and the Indemnitor's liability shall be that of a direct and
primary obligor, and, in this regard, the Indemnitor shall:
(a) make due and punctual payment of all Rent (as defined in the Lease),
loan repayments, moneys, charges and other amounts of any kind
whatsoever due and payable under or pursuant to the Lease by the
Tenant, whether to the Landlord or to any other person or entity
whatsoever and whether the Lease has been disaffirmed, disclaimed,
terminated or surrendered;
(b) effect prompt and complete performance of all the terms, covenants
and conditions contained in the Lease on the part of the Tenant to be
kept, observed and performed; and
(c) promptly indemnify and save the Landlord harmless from and against
any and all claims arising out of any failure by the Tenant to pay
all Rent, loan repayments, moneys, charges or other amounts of any
kind whatsoever due and payable under the Lease or resulting from any
failure by the Tenant to observe or perform any of the terms,
covenants and conditions contained in the Lease on the part of the
Tenant to be kept, observed and performed.
2. The Indemnitor hereby expressly acknowledges and agrees that this
Indemnity is absolute and unconditional and the obligations of the Indemnitor
shall not be released, discharged, mitigated, impaired or affected (whether or
not the Indemnitor has notice thereof or is a party thereto) by:
(a) any extension of time, indulgences or modifications which the
Landlord extends to or makes with the Tenant in respect of the
performance of any of the obligations of the Tenant under the
Lease;
(b) any waiver by or failure of the Landlord to enforce any of the terms,
covenants, agreements, stipulations, provisos, conditions and Rules
and Regulations contained in or resulting from the Lease;
(c) any assignment, sublease or parting with possession (the "Transfer")
of the Lease or of all or any part of the Premises by the Tenant or
by any subsequent transferee of the Tenant, or by any trustee,
receiver, receiver-manager or liquidator;
(d) any change of control (as defined in the Lease) of the Tenant or of
any transferee of the Tenant;
(e) any consent which the Landlord gives to any Transfer or change of
control;
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(f) any relocation, expansion or reduction of the Premises and any
changes to the Lease resulting therefrom;
(g) any amendment or modification to the Lease whether made between the
Landlord and the Tenant or between the Landlord and any transferee of
the Tenant;
(h) any waiver by the Tenant or any transferee of the Tenant of any of
its rights under the Lease;
(i) any alterations, leasehold improvements, reconstruction or
reconfiguration in, to or for the Premises or any part thereof;
(j) the expiration of the Term or termination of the Lease;
(k) any overholding by the Tenant of the Premises or any part thereof;
(l) any renewal or extension of the Lease pursuant to any option or right
of the Tenant or otherwise, it being understood and agreed that this
Indemnity shall extend throughout the Term, as renewed or extended;
(m) any loss of, or any loss in respect of, any security received or
intended to have been received by the Landlord from the Tenant or any
other person or entity, whether or not occasioned or contributed to
by or through the act, omission, default or neglect of the Landlord
or those for whom the Landlord is in law responsible;
(n) any act, omission, default or neglect of the Landlord or any other
person or entity whereby the Tenant (or any one or more persons or
entities comprising the Tenant), or the
Indemnitor (or any one or more persons or entities comprising
the Indemnitor) is released or has its (or their) obligations under
the Lease or this Indemnity, as the case may be, discharged,
mitigated, impaired or affected in any way whatsoever; or
(o) any present or future statute or any existing or future common law
under which the Tenant (or any one or more persons or entities
comprising the Tenant), or the Indemnitor (or any one or more persons
or entities comprising the Indemnitor) is released or has its (or
their) obligations under the Lease or this Indemnity, as the case may
be, discharged, mitigated, impaired or affected in any way whatsoever.
Nothing but payment and satisfaction in full of all Rent and the due
performance and observance of all terms, covenants and conditions on the part of
the Tenant to be paid and performed under the Lease shall release the
Indemnitor from its obligations under the Lease or this Indemnity, as the case
may be.
3. The Indemnitor hereby expressly waives notice of the acceptance of this
Agreement and any notice of non-performance, non-payment or non-observance on
the part of the Tenant of any of the terms, covenants and conditions contained
in the Lease. Without limiting the generality of the foregoing, any notice which
the Landlord desires to give to the Indemnitor shall be sufficiently given if
addressed to the Indemnitor and delivered to the Premises, or, if mailed by
prepaid registered or certified post addressed to the Indemnitor at the
Premises, and every such notice is deemed to have been given on the day it was
so delivered, or, if mailed, twenty-four (24) hours after it was mailed. The
Indemnitor may designate by notice in writing a substitute address for that set
forth above and thereafter notices shall be directed to such substitute
address. If two or more persons or entities are named as the Indemnitor, any
notice given hereunder or under the Lease shall be sufficiently given if
delivered or mailed in the foregoing manner to any one of such persons or
entities.
4. In the event of a default by the Tenant under the Lease, the Indemnitor
expressly acknowledges and agrees that the Landlord may proceed directly
against the Indemnitor, and in this regard the Indemnitor waives any right to
require the Landlord first to:
(a) proceed against the Tenant or any other indemnitor, guarantor or
person or entity or pursue any rights or remedies against the Tenant
or any other indemnitor, guarantor or person or entity with respect
to the Lease;
(b) proceed against or exhaust any security of the Tenant held by the
Landlord; or
(c) pursue any other remedy available to the Landlord under the Lease, in
equity or at law.
The Landlord has the right to enforce this Indemnity regardless of the
acceptance of additional security from the Tenant and regardless of any release
or discharge of the Tenant by the Landlord or by others or by operation of any
law.
5. Without limiting any other provision contained in this Indemnity, the
liability of the Indemnitor under this Indemnity shall continue in full force
and effect and shall not be, or be deemed to have been, waived,
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released, discharged, impaired or affected by reason of the release or
discharge of the Tenant in any receivership, bankruptcy, winding-up or other
creditors' proceedings, or the rejection, disaffirmance, disclaimer,
termination or surrender (whether or not accepted by the Landlord) of the Lease
pursuant to any statute or otherwise, and shall continue with respect to the
periods prior thereto and thereafter, for and with respect to the Term as if
the Lease had not been rejected, disaffirmed, disclaimed, terminated or
surrendered, and, in furtherance hereof, the Indemnitor agrees, on any such
rejection, disaffirmance, disclaimer, termination or surrender (collectively,
"Surrender"), that the Indemnitor shall, at the option of the Landlord, and
upon written request from the Landlord, immediately execute a lease (the "New
Lease") with the Landlord for the Premises between the Landlord as landlord and
the Indemnitor as tenant.
Such New Lease shall be prepared by the Landlord at the Indemnitor's expense
and shall contain the same terms and conditions contained in the Lease which
would apply to and be enforced for that portion of the Term which by the
original terms of the Lease would have remained unexpired at the date of such
Surrender, except that:
(i) the term of the New Lease shall commence on the date of such Surrender
and expire on the date on which the Lease would have expired if it
had run its full Term without default by the Tenant and without such
Surrender;
(ii) the Indemnitor (as tenant) shall accept the Premises in an "as
is" condition as of the date on which the Landlord exercises its right
to require the Indemnitor to enter into such New Lease; and
(iii) the Landlord shall have no obligation under such new Lease to pay or
provide to the Indemnitor (as tenant) any allowance, concession or
inducement of any nature, or pay or provide to the Indemnitor (as
tenant) any free Rent or discounted Rent of any nature, or provide
any fixturing period, or do or perform any landlord's work in, to or
for the Premises.
In addition to such New Lease, the Indemnitor shall immediately execute any
other documents, prepared by the Landlord at the Indemnitor's expense, that
the Landlord requires in connection therewith. The liability of the Indemnitor
shall not be affected by any repossession of the Premises by the Landlord,
provided, however that any net payments received by the Landlord after
deducting all costs and expenses, including, without limitation, all
professional, consultant and legal fees (on a solicitor and his/her own client
basis) of repossessing and reletting the Premises shall be credited from time
to time by the Landlord against the indebtedness of the Indemnitor hereunder,
and the Indemnitor shall pay any balance owing to the Landlord from time to
time immediately upon demand therefor.
6. No action or proceedings brought or instituted under this Indemnity and no
recovery in pursuance thereof shall be a bar or defence to any further action
or proceeding which may be brought under this Indemnity by reason of any
further default hereunder or in the performance and observance of any of the
terms, covenants and conditions contained in the Lease.
7. No modification of this Indemnity shall be effective unless such
modification is in writing and is executed by both the Indemnitor and the
Landlord.
8. If the Indemnitor is a corporation, it shall not, directly or indirectly,
change, or permit to be changed, the effective voting control thereof from that
existing as of the date of the acceptance of the Offer to Lease resulting in
the Lease, or, if none, as of the Commencement Date (as defined in the Lease)
and, if the Indemnitor is a partnership, joint venture or co-tenancy, it shall
not change, or permit to be changed, the persons or entities comprising the
partnership, joint venture or co-tenancy as of the earlier of such dates
without in either case obtaining the Landlord's prior written consent in each
and every instance, which consent may be unreasonably withheld.
9. If more than one individual, corporation, partnership or other business
association (or any combination of them) executes this Indemnity as the
Indemnitor, the liability of each such individual, corporation,, partnership or
other business association hereunder is joint and several. In like manner, if
the Indemnitor named in this Indemnity is a partnership or other business
association, the members of which are by virtue of statutory or common law
subject to personal liability, the liability of each such member is joint and
several. If two or more persons or entities are named as an Indemnitor in this
Indemnity, the release of one or more of such persons or entities does not
release any remaining person or entity named as an Indemnitor in this Indemnity.
10. All debts, obligations and liabilities of the Tenant to the Indemnitor,
present and future, are hereby assigned to the Landlord and postponed to all
the liabilities of the Tenant to the Landlord. All money, property and other
benefits received by the Indemnitor from the Tenant shall be received in trust
for the Landlord and, forthwith upon receipt thereof, the Indemnitor shall pay
it or them to the Landlord on account of any outstanding obligations of the
Tenant to the Landlord.
11. The Indemnitor shall be bound by any account settled between the Landlord
and the Tenant.
12. This Indemnity constitutes the complete agreement between the Indemnitor
and the Landlord, and
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none of the parties hereto shall be bound by any representations or agreements
made by any person or entity which would in any way reduce or impair the
obligations of the Indemnitor other than any which are expressly set out
herein, or in any modification of this Indemnity in writing and executed by
both the Indemnitor and the Landlord.
13. All the terms, covenants and conditions of this Indemnity extend to and
are binding on the Indemnitor, his, her or its heirs, executors,
administrators, successors and assigns, as the case may be, and enure to the
benefit of and may be enforced by the Landlord, its successors and assigns, as
the case may be, and by any mortgagee or other encumbrancer of all or any part
of the Premises. The obligations of the Indemnitor shall not be affected by the
death or incapacity of the Indemnitor.
14. The Indemnitor shall, without limiting the generality of the foregoing, be
bound by this Indemnity in the same manner as if the Indemnitor were the Tenant
named in the Lease. The Indemnitor acknowledges that it has received a true
copy of the Lease and is familiar with the terms, covenants and conditions
contained therein.
15. Wherever in this Indemnity reference is made to either the Landlord or
the Tenant, the reference is deemed to apply also to the respective heirs,
executors, administrators, successors and assigns of the Landlord or of the
Tenant, as the case may be, named in the Lease, including specifically the
assignee of the Lease, MetaSolv Software Canada Inc. Any assignment by the
Landlord of any of its interest in the Lease operates automatically as an
assignment to such assignee of the benefit of this Indemnity.
16. This Indemnity shall be construed in accordance with the laws of the
Province of Ontario.
17. The Indemnitor acknowledges the suggestion of the Landlord that, before
executing this Indemnity, the Indemnitor should obtain independent legal advice.
IN WITNESS WHEREOF, the Landlord and the Indemnitor have signed and sealed
this Indemnity.
FIRST REAL PROPERTIES LIMITED
By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx - Secretary
I have authority to bind the Corporation.
METASOLV SOFTWARE INC.
By /s/ [ILLEGIBLE]^^
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Name:
Title:
