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Click Commerce - Sublease Termination Agreement
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EXHIBIT 10.1
SUBLEASE TERMINATION AGREEMENT
THIS SUBLEASE TERMINATION AGREEMENT (this " Agreement") is made and entered into as of August 29, 2003 by and between RADIAN GUARANTY INC., a Pennsylvania corporation (" Radian"), and CLICK COMMERCE, INC., a Delaware corporation (" Click").
W I T N E S S E T H :
WHEREAS, Radian, as sublessor, and Click, as sublessee, entered into that certain Sublease Agreement dated January 14, 2000 (the " Sublease") pursuant to which Radian subleased to Click certain premises described therein consisting of 29,520 square feet on the 49th floor (the " Premises") within that certain building commonly known as 200 East Randolph Drive, Chicago, Illinois; and
WHEREAS, as of the date of this Agreement, Click owes Radian rental payments for the months of June, July and August, 2003 in the total amount of $213,060.60.
WHEREAS, Radian and Click wish to settle Radian's actual and potential claims against Click consensually to avoid the costs of litigation and to terminate their respective rights, duties and obligations under the Sublease, but only upon the terms and conditions herein set forth.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing recitals, which are hereby incorporated as if fully set forth herein, and the mutual agreements hereinafter set forth and other good and valuable consideration, mutually agree and covenant as follows:
1. Termination of Sublease . Except as expressly set forth herein, the respective rights, duties and obligations of Radian and Click under the Sublease shall terminate and the Sublease shall be of no further force or effect as of September 2, 2003 (the " Termination Date"). Click agrees to vacate and surrender the Premises on or before the Termination Date in a condition acceptable to Radian.
2. Settlement of Amounts Due .
(a) Notwithstanding anything to the contrary contained herein, this Agreement is expressly made subject to Radian's receipt of the sum of $900,000.00 (the " Settlement Amount") no later than 4:00 p.m. (Eastern time) on the Termination Date (the " Payment Deadline"), payable as follows:
(i) $700,000 by wire transfer to the following account:
Bank Name: First Union National Bank ABA Number: 031-201-467 Bank Account Number: 2030000861563 Company Name: Radian Guaranty Inc.
(ii) $200,000 by Radian's successful exercise of that certain Letter of Credit No. 60751185 with Bank One, NA (the " Letter of Credit") being held as a security deposit under the Sublease. If required, Click will assist and fully cooperate with Radian in drawing on the full amount of the Letter of Credit, which assistance shall include, without limitation, issuing a replacement letter of credit if necessary. If, despite the best efforts of Radian and Click, Radian has not yet received the full proceeds of the Letter of Credit by the Payment Deadline, then Click shall cause the payment of $200,000 to be made within one (1) business day following written request by Radian for such payment. Radian shall return to Click the original Letter of Credit promptly upon confirmation that the full amount of the Letter of Credit have been received by wire transfer pursuant to the directions set forth in Section 2(a)(i) above.
(b) As further consideration for Radian's agreement to terminate the Sublease, Click hereby agrees to convey all of its right, title and interest in all moveable furniture and office equipment located at the Premises as of the date hereof (collectively, the " Furniture") free and clear of any liens, claims or encumbrances by delivering to Radian on or before the Payment Deadline a Bill of Sale in the form attached hereto as Exhibit A .
(c) Subject to Click's obligations under Section 3 below, payment of the complete Settlement Amount and transfer of the Furniture by Click to Radian shall be in full and complete satisfaction of Click's obligations under the Sublease. In the event that Click fails to pay the Settlement Amount or transfer the Furniture to Radian by the Payment Deadline (subject to such extensions as Radian may agree to in writing in its sole discretion with respect to drawing on the Letter of Credit), this Agreement shall be deemed null and void, the Sublease shall continue in full force and effect, and Radian shall have all rights and remedies against Click as provided under the Sublease and at law and equity.
3. Waiver and Release; Indemnity .
(a) Click hereby waives all claims against and releases Radian, its parent company, subsidiaries and affiliates and the officers, directors, employees, agents, representatives, successors and assigns of each of them (the " Radian Parties") from any and all costs, expenses, claims, actions, causes of actions, suits, debts, controversies, judgments, obligations, demands, damages, liens and liabilities whatsoever, in law or equity, known or unknown, now existing or hereafter arising out of, under, related to, or in connection with the Premises and the Sublease.
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