Exhibit

10.06




 




LEASE TERMINATION AGREEMENT AND MUTUAL RELEASE OF CLAIMS




 




This Lease Termination Agreement and Mutual Release of

Claims (“Agreement”) is made, for reference purposes, as of the 4th day of

October, 2002, by and between SQUARE 24 ASSOCIATES dba SQUARE 24 ASSOCIATES,

L.P. (“Landlord”), on the one hand, and ZAMBA CORPORATION (“Tenant”), on the

other hand, with reference to the following facts:




 




A.            Landlord

and Tenant entered into an Office Lease dated as of September 14, 1998 (the

“Original Lease”), as amended by that certain First Amendment to Lease dated as

of October 15, 1998 (the “First Amendment”), that certain Second Amendment to

Lease dated as of December 21, 2000 (the “Second Amendment”), and that certain

Third Amendment to Lease dated as of February 6, 2002 (collectively, the

“Lease”), pursuant to which Tenant agreed to lease from Landlord certain office

space located at Hacienda West, Suite 345, 3875 Hopyard Road, Pleasanton, CA

(“the Premises”), which Premises are more fully described in the Lease.




 




B.            Under

the Original Lease, Tenant provided Landlord with a security deposit in the

amount of $10,791.00.  Under the Second

Amendment, Tenant provided Landlord with an additional security deposit of

$24,815.91.  The original security

deposit and the additional security deposit shall be referred to collectively

as the Security Deposit.




 




C.            On

or about January 9, 2002, Tenant and Park Place Capital Corporation (“Park

Place”) entered into a Sublease dated as of January 9, 2002 (the “Sublease”), pursuant

to which Park Place agreed to sublease from Tenant approximately 6,201 rentable

square feet, as more particularly described in the Sublease (the “Sublease

Premises”).  Landlord granted its

consent to the Sublease pursuant to that certain Sublease Consent and Agreement

dated as of February 7, 2002 between Landlord, Tenant, and Park Place (the

“Consent”).




 




D.            On

or about July 12 and July 15, 2002, Landlord served Tenant with a Three-Day

Notice To Pay Or Quit Possession Of The Premises And Notice Of Termination.




 




E.             On

or about July 12, 2002, Landlord served Park Place with a Notice Of Election To

Continue Sublease Following Termination Of Master Lease pursuant to Section

4.1(a) of the Sublease Consent and Agreement (the “Notice”).




 




F.             Except

for Park Place’s continued occupancy of the Sublease Premises, Tenant has

vacated the Premises.




 




G.            The

parties now desire to settle and compromise any and all claims which they have

against each other arising out of the Lease and/or the Premises.




 




NOW, THEREFORE, in consideration of the foregoing, and

the mutual promises contained herein, and for other good and valuable

consideration, the parties agree as follows:




 




1.             Payment.  Tenant shall pay Landlord as follows:




 




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(a)           Upon

execution of the Agreement, Tenant relinquishes all right, interest and

entitlement to the Security Deposit.




 




(b)           On

or before October 4, 2002, Tenant shall pay, by cashier’s check made payable to

“Square 24 Associates,” the sum of Thirty Thousand Dollars and no cents

($30,000.00).




 




(c)           On

or before October 18, 2002, Tenant shall pay, by cashier’s check made

payable to “Square 24 Associates,” the sum of Twenty Thousand Dollars and no

cents ($20,000.00).




 




2.             Assignment of Tenant’s Interest in Sublease. 

Tenant hereby acknowledges that, pursuant to Section 4.1(a) of the

Consent, Landlord has elected to continue the Sublease as a direct lease,

subject to the provisions of Section 4.2 of the Consent.  In connection therewith, Tenant hereby

assigns and transfers to Landlord all of Tenant’s right, title and interest in

and to the Sublease, effective as of July 19, 2002.  Without limiting the foregoing, Tenant hereby irrevocably assigns

to Landlord any and all claims, of any nature whatsoever, arising from or

relating to the Sublease which Tenant has against Park Place.  If the assignment of any of such claims is

deemed to be unlawful or otherwise unenforceable, Tenant shall nevertheless be

obligated to assign the other, assignable claims to Landlord.  Nothing herein shall obligate the Landlord

to prosecute or take any other action on the claims assigned to them by

Tenant.  In addition, Tenant agrees that

it shall take all action necessary to transfer to Landlord all of Tenant’s

rights in connection with the security deposit provided by Park Place pursuant

to the Sublease.




 




3.             Lease Termination. 

Landlord and Tenant acknowledge and agree that the Lease is deemed

terminated as of July 19, 2002, and Tenant and Landlord shall have no further

rights, obligations, or claims with respect to each other arising under the

Lease, except for (a) the waivers of claims or rights and the releases and the

obligations of Tenant under the Lease to indemnify, protect, defend and hold

harmless Landlord and other Indemnitees (as defined in Section 5 below), and

(b) any obligations arising under this Agreement.  Tenant hereby agrees that any and all options granted to Tenant

under the Lease to extend the term of the Lease and any rights of first refusal

or first offer granted to Tenant under the Lease, if any, shall be of no

further force or effect.




 




4.             Releases.




 




(a)           Release

of Tenant.  Following satisfaction

of the payment obligations specified in Paragraph 1, Landlord, for itself and

its past, present and future parents, subsidiaries, affiliated entities,

directors, partners, officers, shareholders, members, agents, employees,

successors and assigns, and each of them (the “Landlord Releasing Parties”), do

hereby release and forever discharge Tenant, its past, present and future

parents, subsidiaries, affiliated entities, directors, partners, officers,

shareholders, members, agents, employees, successors and assigns (collectively

“the Tenant Released Parties”) of and from any and all claims, demands,

damages, debts, liabilities, actions and causes of action of every kind and

nature whatsoever (hereinafter “Claims”), whether now known or unknown, which

the Landlord Releasing Parties ever had, now have, or may have against the

Tenant Released Parties, or any of them, which relate in any




 




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way to the Lease, the Premises, the Sublease, and/or the Consent,

except as specified in paragraph 3 hereof. 

Nothing herein, however, shall be construed as a release of any Claims

that the Landlord Releasing Parties may have against Park Place.




 




(b)           Release

of Landlord.  Upon execution of the

Agreement, Tenant, for itself and its past, present and future parents,

subsidiaries, affiliated entities, directors, partners, officers, shareholders,

members, agents, employees, successors and assigns, and each of them

(collectively, the “Tenant Releasing Parties”), do hereby release and forever

discharge Landlord, its past, present and future parents, subsidiaries,

affiliated entities, directors, partners, officers, shareholders, members,

agents, employees, successors and assigns, and each of them (the “Landlord

Released Parties”), of and from any and all Claims, whether now known or

unknown, which the Tenant Releasing Parties ever had, now have, or may have against

the Landlord Released Parties, or any of them, which relate in any way to the

Lease, the Premises, the Sublease, and/or the Consent.




 




(c)           Waiver

of Civil Code Section 1542.  It is

understood that there is a risk that subsequent to the execution of this

Agreement, each of the Parties might incur or suffer loss, damage or injury

which is in some way related to, or caused by, matters or transactions which

are the subject of this Agreement, but which were unknown or unanticipated at

the time this Agreement is signed.  It

is understood that the facts with respect to which this general release is

given may hereafter turn out to be different from the facts now known to it or

believed to be true, and each of the Parties expressly assume the risk of the

facts turning out to be so different and agree that the foregoing general

release shall be in all respects effective and not subject to termination or

rescission as a result of any such difference in facts.  Each of the Parties acknowledge that they

have been advised by legal counsel and are familiar with the provisions of

California Civil Code section 1542, which provides as follows:




 




A general release does not extend to claims which the

creditor does not know or suspect to exist in his favor at the time of executing

the release, which is known by him must have materially affected his settlement

with the debtor.




 




Each of the Parties hereto, being aware of said code section, with full

knowledge and intent to execute a full and complete release, hereby expressly waive

any rights they may have thereunder, as well as under any other statute or

common law principles of similar effect.




 




5.             Representations and Warranties.




 




(a)           Tenant’s

Representation.  Tenant represents

and warrants to Landlord that (i) with the exception of the Sublease, Tenant

has not assigned, encumbered or otherwise transferred the Lease or any interest

under the Lease or any claim, obligation, action or cause of action arising

from the Lease; (ii) all corporate action has been taken by Tenant to approve

this Agreement, and the person signing this Agreement on behalf of Tenant has

been duly authorized to sign and deliver this Agreement on behalf of Tenant;

(iii) no proceeding has been commenced by or against Tenant which seeks to

declare Tenant a bankrupt or an insolvent or to liquidate or dissolve the

corporation, Tenant has made no general assignment of its assets for the

benefit of its creditors, and no corporate action has been taken by Tenant

authorizing any such proceeding,




 




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action, or assignment; (iv) to the best of Tenant’s knowledge, Tenant

did not use, manufacture, store, or dispose of any hazardous or controlled

substances or wastes which are regulated by any state, local or federal laws or

ordinances on the Premises and to the best of Tenant’s knowledge, no such

hazardous or controlled substances or wastes have been spilled or otherwise

disposed of on the Premises during the term of this Lease; and (v) this

Agreement constitutes a legal, valid and binding Agreement of Tenant

enforceable against Tenant in accordance with its terms.




 




(b)           Landlord’s

Representation.  Landlord represents

to Tenant that (i) all partnership and/or corporate action has been taken by

Landlord to approve this Agreement and the person signing the Agreement on

behalf of Landlord has been duly authorized to sign and deliver this Agreement

on behalf of Landlord; and (ii) this Agreement constitutes a legal, valid and

binding Agreement of Landlord enforceable against Landlord in accordance with

its terms.




 




6.             Miscellaneous.




 




(a)           Voluntary

Agreement.  This Agreement is

executed voluntarily and without duress or undue influence on the part of or on

behalf of the parties, or of any other person, firm or other entity.




 




(b)           Parties

Represented by Counsel.  The parties

represent and acknowledge that each of them has been represented by counsel of

their choice in the negotiations for and in the preparation of this Agreement

and all matters covered by or related to this Agreement.  Each party has read this Agreement and has

been advised by such counsel with respect to all rights which are affected by

this Agreement and is fully aware of the contents of this Agreement and its

legal effect.  Each party hereby

authorizes and directs its respective attorneys to execute and deliver such

other and further documents as may be required to carry out the terms of this

Agreement.




 




(c)           Construction

and Enforceability.  This Agreement

is the product of negotiations between the Landlord and Tenant and shall not be

construed strictly for or against either party.  If any provision of this Agreement shall be held to be invalid or

unenforceable, it shall be adjusted rather than voided, if possible, in order

to give effect to the intent of the Landlord and Tenant, and all other

provisions of this Agreement shall continue in full force and effect to the

extent permitted by law.




 




(d)           Entire

Agreement.  The parties agree and

acknowledge that this Agreement represents the entire understanding between

them, and that no promises or representations of any kind other than as set

forth herein have been made by, or on behalf of, the parties to one

another.  Each party specifically agrees

that, in entering into this Agreement, he, she or it has not relied on any

representation or opinion of fact, law or otherwise, made by any other party or

attorney, other than the representations set forth in writing herein.




 




(e)           Successors

and Assigns.  This Agreement is

binding upon and shall inure to the benefit of the Parties and their respective

successors, assigns, predecessors, agents, servants, partners, officers,

directors, attorneys, employees and representatives, and their respective

present, former and future heirs, executors and administrators.




 




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(f)            Attorneys’

Fees and Costs.  Landlord and Tenant

shall each bear their own costs and attorneys’ fees incurred in connection with

this Agreement.  In any arbitration,

quasi-judicial or administrative proceedings or any action in any court of

competent jurisdiction, brought by either party to enforce any party’s rights

or remedies under this Agreement, including any action to collect any payments

required under this Agreement, the prevailing party shall be entitled to

reasonable attorneys’ fees and all costs, expenses and disbursements in

connection with such action, including the costs of reasonable investigation,

preparation and professional or expert consultation, which sums may be included

in any judgment or decree entered in such action in favor of the prevailing

party.  This provision is separate and

several and shall survive the merger of this Agreement into any judgment on

this Agreement.




 




(g)           Venue.  Any suit, action, arbitration or other

proceeding of any nature whatsoever filed or initiated to enforce or interpret

the provisions of this Agreement shall be filed in the Superior Court of the

City and County of Alameda, California or in the Federal District Court for the

Northern District of California, if appropriate under federal law, and in no

other forum.




 




(h)           Governing

Law.  This Agreement is entered into

in accordance with the laws of the State of California and shall be governed by

and interpreted in accordance with those laws.




 




(i)            Modifications

and Amendments.  No amendment,

change or modification of this Agreement shall be valid unless made in writing

and signed by all parties hereto.




 




(j)            Further

Assurances.  Each of the parties

hereto shall execute and deliver any and all additional papers, documents and

other assurances and shall do any and all acts or things reasonably necessary

in connection with the performance of their obligations hereunder to carry out

the express intent of the parties hereto.




 




(k)           Parties

to Bear Own Costs.  All parties to

this Agreement shall bear their own attorneys’ fees and costs of suit in the

negotiations for and completion of this Agreement.




 




(l)            Headings.  The various headings used in this Agreement

are solely for the convenience of the parties and shall not be used to

interpret this Agreement.




 




(m)          Authority.  Each signatory hereto represents that each

has the requisite and actual authority to bind the party for whom such

signatory signs.




 




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IN WITNESS

WHEREOF, the undersigned have executed this Agreement as of the first date

hereinabove written.




 




	

  TENANT:


  	

  LANDLORD:


  
	

   


  	

   


  
	

  ZAMBA CORPORATION,


  a Delaware corporation


  	

  SQUARE 24 ASSOCIATES


  (d.b.a. Square 24 Associates L.P.)


  
	

   


  	

   


  
	

   


  	

  By:


  	

  Carr Real Estate Services, L.L.C.,


  
	

  By:


  	

  /s/ Ian Nemerov


  	

   


  	

  Its:


  	

  General Partner


  
	

   


  	

   


  
	

  Name: Ian Nemerov


  	

  By:


  	

  Carr Real Estate Services Partnership


  
	

   


  	

  Its:


  	

  Managing Partner


  
	

  Its:      General

  Counsel


  	

   


  
	

   


  	

  By:


  	

  Carr Realty, L.P.,


  
	

   


  	

  Its:


  	

  Managing Partner


  
	

   


  	

   


  
	

   


  	

  By:


  	

  CarrAmerica Realty Corporation


  
	

   


  	

  Its:


  	

  General Partner


  
	

   


  	

   


  
	

   


  	

  By: 


  	

  /s/ Christopher Peatross


  	

   


  
	

   


  	

   


  	

  Christopher Peatross


  Managing Director


  
													





 




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