Exhibit 10.3
THIS INDEMNITY AGREEMENT is made this 4/th/ day of June, 2002.
TO: ZARLINK SEMICONDUCTOR INC.
(the "Sublandlord").
RECITALS:
A. The Sublandlord and MetaSolv Software Canada Inc. (the "Subtenant") entered
into a Sublease Agreement dated the date hereof (the "Sublease Agreement")
with respect to certain premises (the "Sublet Premises") in the building
municipally known as 360 Legget Drive, in the City of Ottawa, in the
Province of Ontario.
B. The Sublandlord and the Subtenant entered into a side letter agreement
dated the date hereof (the "Side Letter Agreement").
(collectively, the Sublease Agreement and the Side Letter Agreement are referred
to herein as the "Agreement")
THEREFORE, the undersigned (the "Indemnifier") agrees as follows:
1. The Indemnifier represents and warrants to and covenants and agrees with
the Sublandlord that:
(a) each capitalized term used herein shall have the meaning ascribed to
it herein and if not defined herein then in the Agreement.
(b) the Indemnifier has full power and authority to enter into this
Indemnity Agreement and to perform its obligations contained herein;
(c) this Indemnity Agreement is valid and binding upon the Indemnifier and
enforceable against it in accordance with its terms;
(d) in entering into this Indemnity Agreement, the Indemnifier is not
contravening section 20 of the Ontario Business Corporations Act (or
section 44 of the Canada Business Corporations Act as the case may
be);
(e) the Indemnifier shall be bound, as principal obligor, to perform all
of the obligations contained in the Agreement (other than those
required of the Sublandlord or the Head Landlord) to the same extent
and with the same effect as if the Indemnifier were named in the
Agreement as the sole Subtenant and irrespective of:
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(i) the repudiation or disclaiming of the Agreement by the
Subtenant;
(ii) the unenforceability of the Agreement as against the Subtenant;
(iii) the termination, release or discharge of any obligations of the
Subtenant under the Agreement by operation of law or action by
the Sublandlord or otherwise;
(iv) the bankruptcy, insolvency, dissolution or other liquidation of
the Subtenant including, without limitation, any surrender or
disclaimer of the Agreement by a trustee in bankruptcy of the
Subtenant; or
(v) the assignment of the Agreement to any third party or any
permitted subletting of the Sublet Premises by the Subtenant to
any third party;
(f) the obligations of the Indemnifier under this Indemnity Agreement are
absolute and unconditional and shall be in no way released, discharged
or reduced, and the rights of the Sublandlord under this Indemnity
Agreement shall be in no way prejudiced or impaired, by any neglect,
delay or forbearance of the Sublandlord in demanding, requiring or
enforcing performance by the Subtenant or any other obligated person
of any of its obligations under the Agreement, or by the Indemnifier
of any of its obligations under this Indemnity Agreement, or by
granting any extensions of time for performance, or by waiving any
performance (except as to the particular performance which has been
waived), or by permitting or consenting to any assignment or by the
bankruptcy, receivership, insolvency or any other creditor's
proceedings of or against the Subtenant, or by the winding up or
dissolution of the Subtenant or by the repudiation of the Agreement,
or any other event or occurrence which would have the effect at law of
terminating the existence of obligations of the Subtenant prior to the
termination of the Agreement or by any agreements or other dealings
between the Sublandlord and the Subtenant having the effect of
amending or altering the Agreement or the obligations of the Subtenant
thereunder or by any want of notice by the Sublandlord to the
Indemnifier of any default of the Subtenant or by any other matter,
thing, act or omission of the Sublandlord whatsoever;
(g) with respect to the Agreement, the obligations of the Indemnifier
under this Indemnity Agreement extend not only to the Subterm and to
any overholding by the Subtenant thereafter but also to any renewal or
extension of the Subterm which results from the exercise by the
Subtenant of any right contained in the Agreement;
(h) the benefit of the Indemnifier's obligations under this Indemnity
Agreement may be assigned by the Sublandlord and will benefit and be
enforceable by the successors and assigns of the Sublandlord;
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(i) in the event of either the termination of the Sublease Agreement or
the Side Letter Agreement (except by a surrender of the Sublease
Agreement or the Side Letter Agreement by the Subtenant which is
accepted in writing by the Sublandlord) or a disclaimer or repudiation
of the Agreement pursuant to any statute, then in either case, at the
sole option of the Sublandlord, exercisable at any time within six
months of such termination or disclaimer or repudiation, as the case
may be, the Indemnifier agrees to execute and deliver a new lease of
the Sublet Premises between the Sublandlord as lessor and the
Indemnifier as lessee for a term equal to the residue of the Subterm
remaining unexpired at the time of such termination or disclaimer or
repudiation. Such new lease shall contain the same obligations and the
same covenants, obligations, agreements, terms and conditions in all
respects as are contained in the Agreement save for the term which
shall be as aforesaid;
(j) if any provision of this Indemnity Agreement is determined to be
illegal or unenforceable, all other provisions shall remain effective;
(k) this Indemnity Agreement is binding upon the Indemnifier and its
successors and assigns; and
(l) the Indemnifier agrees to do, make and execute all such further
documents, agreements, assurances, acts, matters and things and take
such further action as may be reasonably required by the Sublandlord
in order to more effectively carry out the true intent of this
Indemnity Agreement.
2. Upon the fulfillment of all of the obligations of the Subtenant contained
in the Agreement, or upon the surrender of the Sublease Agreement and the
Side Letter Agreement by the Subtenant, which is accepted in writing by the
Sublandlord, this Indemnity Agreement shall automatically terminate and the
Indemnifier shall cease to have any further obligations or liability
hereunder.
3. This Indemnity Agreement shall be interpreted in accordance with the laws
of Ontario and the federal laws of Canada applicable therein.
4. This Indemnity Agreement is the sole agreement between the Sublandlord and
the Indemnifier relating to the indemnity and there are no other written or
verbal agreements or representations relating thereto. This Indemnity
Agreement may not be amended except in writing and signed by the party or
parties to be bound by such amendment.
The remainder of this page intentionally left blank. Signature page follows.
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IN WITNESS OF WHICH the Indemnifier has duly executed this Indemnity Agreement.
METASOLV, INC.
By: /S/ Jonathan K. Hustis
Name: Jonathan K. Hustis
Title: VP Business Services and General
Counsel
By:
Name:
Title:
I/We have authority to bind the
corporation.