**EXHIBIT 10.1**

 

**SUBLEASE TERMINATION AGREEMENT**

 

                                                THIS SUBLEASETERMINATION AGREEMENT (this “**Agreement**”)is made and entered into as of August 29, 2003 by and between RADIAN GUARANTYINC., a Pennsylvania corporation (“**Radian**”),and CLICK COMMERCE, INC., a Delaware corporation (“**Click**”).

 

**W****ITNESSETH:**

 

                                                WHEREAS,Radian, as sublessor, and Click, as sublessee, entered into that certainSublease Agreement dated January 14, 2000 (the “**Sublease**”) pursuant to which Radian subleased to Click certainpremises described therein consisting of 29,520 square feet on the 49thfloor (the “**Premises**”) within thatcertain building commonly known as 200 East Randolph Drive, Chicago, Illinois;and

 

                                                WHEREAS, as ofthe date of this Agreement, Click owes Radian rental payments for the months ofJune, July and August, 2003 in the total amount of $213,060.60.

 

                                                WHEREAS, Radianand Click wish to settle Radian’s actual and potential claims against Clickconsensually to avoid the costs of litigation and to terminate their respectiverights, duties and obligations under the Sublease, but only upon the terms andconditions herein set forth.

 

                                                NOW, THEREFORE,the parties hereto, in consideration of the foregoing recitals, which arehereby incorporated as if fully set forth herein, and the mutual agreementshereinafter set forth and other good and valuable consideration, mutually agreeand covenant as follows:

 

                                                1.                                       Termination ofSublease.  Except asexpressly set forth herein, the respective rights, duties and obligations ofRadian and Click under the Sublease shall terminate and the Sublease shall beof no further force or effect as of September 2, 2003 (the “**Termination Date**”). Click agrees to vacateand surrender the Premises on or before the Termination Date in a conditionacceptable to Radian.

 

                                                2.                                       Settlement ofAmounts Due.

 

                                                (a)                                  Notwithstandinganything to the contrary contained herein, this Agreement is expressly madesubject 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 “**PaymentDeadline**”), payable as follows:

 

                                                (i)                                     $700,000 bywire transfer to the following account:

 

                                                Bank Name:First Union National BankABA Number: 031-201-467Bank Account Number: 2030000861563Company Name: Radian Guaranty Inc.

 

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(ii)                                  $200,000 byRadian’s successful exercise of that certain Letter of Credit No. 60751185 withBank One, NA (the “**Letter of Credit**”)being held as a security deposit under the Sublease. If required, Click willassist and fully cooperate with Radian in drawing on the full amount of theLetter of Credit, which assistance shall include, without limitation, issuing areplacement letter of credit if necessary. If, despite the best efforts ofRadian and Click, Radian has not yet received the full proceeds of the Letterof 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 byRadian for such payment. Radian shall return to Click the original Letter of Creditpromptly upon confirmation that the full amount of the Letter of Credit havebeen received by wire transfer pursuant to the directions set forth in Section2(a)(i) above.

 

                                                (b)                                 As furtherconsideration for Radian’s agreement to terminate the Sublease, Click herebyagrees to convey all of its right, title and interest in all moveable furnitureand 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 onor before the Payment Deadline a Bill of Sale in the form attached hereto as ExhibitA.

 

                                                (c)                                  Subject toClick’s obligations under Section 3 below, payment of the complete SettlementAmount and transfer of the Furniture by Click to Radian shall be in full andcomplete satisfaction of Click’s obligations under the Sublease. In the eventthat Click fails to pay the Settlement Amount or transfer the Furniture toRadian by the Payment Deadline (subject to such extensions as Radian may agreeto in writing in its sole discretion with respect to drawing on the Letter ofCredit), this Agreement shall be deemed null and void, the Sublease shallcontinue in full force and effect, and Radian shall have all rights andremedies against Click as provided under the Sublease and at law and equity.

 

                                                3.                                       Waiver andRelease; Indemnity.

 

                                                (a)                                  Click herebywaives all claims against and releases Radian, its parent company, subsidiariesand affiliates and the officers, directors, employees, agents, representatives,successors and assigns of each of them (the “**RadianParties**”) from any and all costs, expenses, claims, actions, causesof 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 connectionwith the Premises and the Sublease.

 

                                                (b)                                 Click shallindemnify, defend and hold harmless the Radian Parties from and against any andall costs, claims, actions, damages, demands, expenses (including reasonableattorneys’ and consultants’ fees), injuries, judgments, liabilities, penalties,losses and suits, suffered, sustained or incurred by the Radian Parties, or anyof them, in connection with, or as a result of, directly or indirectly, inwhole or in part, the use or occupancy of the Premises by Click or any act oromission of Click, its licensees, servants, agents, employees, invitees,guests, suppliers or contractors. The scope of this indemnification shall, at Radian’soption, include, but not be limited to, defending or resisting, with attorneysreasonably satisfactory to Radian, any

 

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actions suit, claim, demand or proceedingthat may be filed, instituted or brought against Radian or to which Radian maybe made a party.

 

                                                4.                                       Repayment.  In the event that Radian is required by lawto (i) repay the Settlement Amount, or any portion thereof, or (ii) return theFurniture or the value thereof, or any portion thereof, to Click, any futurebankruptcy estate of Click, or trustee thereof, or any other party challengingthis Agreement, (x) Radian shall have the right to enforce against Click thepayment obligation set forth in Section 2 above; and (y) this Agreement shallbe deemed null and void and Radian shall have all rights and remedies againstClick at law or in equity.

 

                                                5.                                       Authority.  Click and Radian, by their execution of thisAgreement, each represent and warrant to the other that (i) it is fullyauthorized to enter into and perform this Agreement without any further orother consent or authorization from any person or entity and (ii) that theperson signing on its behalf has authority to bind it to the terms of thisAgreement.

 

                                                6.                                       Successors.  This Agreement and all provisions hereofshall extend to, be obligatory upon and inure to the benefit of the respectivesuccessors and assigns of the parties hereto.

 

                                                7.                                       Severability.  In, the event that any agreement or covenantcontained in this Agreement shall become unenforceable or void as a matter oflaw, all other agreements and covenants contained herein shall continue to bebinding upon Radian and Click.

 

                                                8.                                       Controlling Law.  This Agreement shall be construed inaccordance with and governed by the laws of the State of Illinois.

 

                                                9.                                       Counterparts.  This Agreement may be signed in one or morecounterparts, each of which shall be deemed an original, and all of which, whentaken together, shall constitute one Agreement.

 

 

[Signaturepage to follow]

 

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                                                IN WITNESSWHEREOF, Radian and Click have caused this Agreement to be executed as of theday and year first above written.

 
|   | **RADIAN:**          |
|--------|----------------------|
|   |                 |   |
|   | RADIAN GUARANTY INC. |
|   |                 |   |
|   | By:                  | /s/ JOHN J. CALAMARI |
|   | Name:                | John J. Calamari |
|   | Title:               | Senior Vice President,  Corporate Controller |
|   |                 |   |
|   |                 |   |
|   | **CLICK:**           |
|   |                 |   |
|   | CLICK COMMERCE, INC. |
|   |                 |   |
|   | By:                  | /s/ JUSTIN C. DEARBORN |
|   | Name:                | Justin C. Dearborn |
|   | Title:               | VP Corp. Legal Affairs  & HR |

 

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**EXHIBIT A**

 

BILLOF SALE

 

                                                Seller, ClickCommerce, Inc., a Delaware corporation (“**Seller**”),in consideration of Ten and no/100 ($10.00) Dollars, receipt whereof is herebyacknowledged, does hereby sell, assign, transfer and set over to RadianGuaranty Inc., a Pennsylvania corporation (“**Buyer**”),any and all existing moveable furniture and office equipment located on thepremises commonly known as 200 East Randolph Drive, 49th Floor,Chicago, Illinois (the “**Property**”)as of the date hereof.

 

                                                Seller herebyrepresents and warrants to Buyer that Seller is the absolute owner of theProperty, that the Property is free and clear of all liens, charges andencumbrances, and that Seller has full right, power and authority to sell saidpersonal property and to make this bill of sale.  *All warranties of quality,fitness and merchantability are hereby excluded*.

 

                                                IN WITNESSWHEREOF, Seller has caused this bill of sale to be signed in its name by itsofficers thereunto duly authorized this 2nd day of September, 2003.

 
|   | CLICK COMMERCE, INC. |
|--------|----------------------|
|   |                 |   |
|   | By:                  | /s/ JUSTIN C. DEARBORN |
|   | Name:                | Justin C. Dearborn |
|   | Title:               | VP Corp. Legal Affairs  & HR |

 

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