CONSENT AND AGREEMENT









Exhibit

10.52




 




SUBLEASE

CONSENT AND AGREEMENT




 




This Sublease Consent and Agreement (“Agreement”)

dated for reference purposes only as February 7, 2002, is made by and

among SQUARE 24 ASSOCIATES, a District of Columbia limited partnership (d.b.a.

SQUARE 24 ASSOCIATES, L.P.) (“Landlord”),  ZAMBA CORPORATION, a Delaware corporation (“Tenant”),

and PARK PLACE CAPITAL CORPORATION, a California corporation (“Subtenant”).




 




RECITALS:




 




A.            Landlord

and Tenant are parties to that certain Office Lease dated as of September 14,

1998 (the “Original Master Lease”), by and between Landlord and The

Quicksilver Group (“Quicksilver”) for certain premises within that

certain building commonly known as “Hacienda West”, located at 3875 Hopyard

Road, Pleasanton, California (the “Original Premises”), as more

particularly described in the Original Master Lease.




 




B.            Quicksilver

and Racotek, Inc., a Delaware corporation (“Racotek”), entered into that

certain Agreement and Plan of Merger and Reorganization dated as of July 6,

1998 (the “Assignment”) in which Quicksilver was merged into Racotek,

and Racotek assumed all of Quicksilver’s interest under the Lease.  Racotek subsequently changed its name to

Zamba Corporation, a Delaware corporation.




 




C.            The

Original Master Lease was amended by that certain First Amendment to Lease

dated as of October 15, 1998 (the “First Amendment”), and that certain

Second Amendment to Lease dated as of December 21, 2000 (the “Second

Amendment”), pursuant to which, among other things, the parties added

additional space (the “Expansion Space”) to the Original Premises and

extended the term of the Original Master Lease.  The Original Premises, together with the Expansion Space, is

collectively referred to herein as the “Premises”.  The Original Master Lease, as amended by the

Assignment, the First Amendment and the Second Amendment, is referred to herein

as the “Master Lease”.




 




D.            Tenant

desires to sublease all of the Premises (the “Subleased Premises”) to

Subtenant in accordance with that certain sublease (the “Sublease”)

dated January 9, 2002, between Tenant and Subtenant, a copy of which is

attached hereto as Exhibit A.




 




E.             Landlord

is willing to agree to consent to the Sublease upon the terms and conditions of

this Agreement.




 




AGREEMENT:




 




NOW, THEREFORE, in consideration of the foregoing and

the covenants, promises and undertakings set forth herein, and for other good

and valuable consideration, the receipt and sufficiency of which is hereby

acknowledged, the parties hereto agree as follows:




 




1.          Landlord’s Consent. 

Landlord hereby consents to the Sublease in the form attached hereto as

Exhibit A.  The Sublease shall not

be amended or modified without the prior




 




 




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written consent of Landlord. 

This consent is granted only upon the terms and conditions of this

Agreement, and Tenant and Subtenant hereby agree to each of such terms and

conditions.




 




2.          Master Lease.




 




2.1              The Sublease shall be subject and

subordinate at all times to the Master Lease and to all of its provisions,

covenants and conditions.  Landlord

shall not be bound or estopped in any way by any of the terms, covenants, or

conditions of the Sublease, nor shall any provision of the Sublease or this

Agreement operate as an express or implied consent to or approval or

ratification by Landlord of any specific provisions of the Sublease or as an

endorsement, representation or warranty of any kind by Landlord regarding the

Premises, Tenant, the Master Lease or any other matter, all of which are

expressly disclaimed.  In case of any

conflict between the provisions of the Master Lease and the provisions of the

Sublease, as between Landlord and Tenant, the provisions of the Master Lease

shall prevail unaffected by the Sublease. 

Tenant and Subtenant agree that the Sublease is hereby amended to

conform to the terms and conditions of this Agreement.




 




2.2              Notwithstanding any provision of

the Sublease to the contrary, including, without limitation, anything contained

in the paragraphs entitled “Rent”, “Operating Expenses” and “Miscellaneous”,

nothing contained in the Sublease shall alter, amend, expand or reduce any of

the obligations of Landlord or Tenant under the Master Lease, nor impose on

Landlord any obligation to provide notice to, or obtain consent from, Subtenant

with respect to amendments, defaults, waivers or any other matters pertaining

to the Master Lease or the Premises. 

Except to the extent the Sublease becomes a direct lease between

Landlord and Subtenant pursuant to Section 4.1 below, all communications

with Landlord regarding the Master Lease, the Premises, the Sublease or

Subtenant shall be recognized by Landlord only if made by Tenant, not

Subtenant, including without limitation, requests for approvals as required

under the Master Lease and requests for any service to be supplied by Landlord

to the Subleased Premises.  Tenant

consents that Landlord may elect to communicate directly with Subtenant

regarding Subtenant’s occupancy of the Subleased Premises or the Sublease

without any implied waiver of this provision. 

Tenant shall indemnify, protect, defend and hold Landlord harmless from

any liability of, or claim against Landlord by Subtenant which arises from

Tenant’s failure to timely provide notice to Landlord of requests made by

Subtenant to Tenant, as the sublandlord under the Sublease.




 




2.3              Notwithstanding any provision to

the contrary contained in the paragraph entitled “Operating Expenses” of the

Sublease, Tenant and Subtenant acknowledge and agree that, pursuant to Section

13 of the Schedule to the Original Master Lease, the Base Year for the Original

Premises is 1998, and, pursuant to Section 9 of the Second Amendment, the Base

Year for the Expansion Space is 2001.




 




3.          Relationship with Landlord.




 




3.1              Except as otherwise provided by

law, nothing contained in this Agreement or the Sublease shall be deemed to

create privity of contract between Landlord and Subtenant, to make Subtenant a

third party beneficiary of the provisions of the Master Lease, or to create or

permit any direct right of action by Subtenant against Landlord for breach of

the covenant of quiet enjoyment or any other covenant of Landlord under the

Master Lease. Landlord shall have no obligations nor incur any liability to

Subtenant with respect to any warranties of any nature,




 




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whether pursuant to the Master Lease or the Sublease, or otherwise,

including, without limitation, any warranties respecting use, compliance with

zoning, construction, or fitness of the Subleased Premises for Subtenant’s

purposes.




 




3.2              Tenant and Subtenant acknowledge

that, pursuant to Section 4 of the Sublease, Subtenant is required to pay the

rental amounts required thereunder directly to Landlord.  Such payments to Landlord shall satisfy and

discharge Subtenant’s obligation for the payment of rent under the Sublease to

the full extent of such payments made to Landlord.




 




4.          Termination of Master Lease.




 




4.1              Any termination of the Master

Lease for any reason shall constitute, without further act or deed, a

termination of the Sublease, provided that Landlord shall have the option, at

its sole election, to:




 




(a)           elect by written notice to continue

the Sublease solely with respect to the Subleased Premises without any

additional or further agreement of any kind on the part of Subtenant and with

the same force and effect as if Landlord, as landlord, and Subtenant, as

tenant, had entered into a lease as of the effective date of such expiration,

termination or surrender of the Master Lease for a term equal to the then

unexpired term of the Sublease, and containing the same terms and conditions as

those contained in the Sublease (except as specifically provided in this

Agreement), in which event Landlord shall assume Tenant’s obligations as

sublandlord thereunder and Subtenant shall attorn to Landlord as landlord on

such terms and conditions.




 




(b)           enter into a lease directly with

Subtenant for the balance of the term remaining under the Sublease, for the

same consideration and upon the same terms and conditions as in the

Sublease.  If Landlord exercises such

option, Landlord and Subtenant shall enter into a new lease directly between

Landlord and Subtenant upon such terms and conditions.




 




4.2              If Landlord elects to proceed

under either Sections 4.1(a) or 4.1(b) above, in no event shall Landlord

be:




 




(a)           bound by or liable for any rent paid

by Subtenant to Tenant; or any security deposit paid by Subtenant to Tenant

that is not transferred to Landlord;




 




(b)           liable for any act or omission of

Tenant or for any default of Tenant under the Sublease which occurred prior to

Landlord’s assumption;




 




(c)           subject to any defenses or offsets

that Subtenant may have against Tenant which arose prior to Landlord’s

assumption; or




 




(d)           bound by any changes or modifications

made to the Sublease without the written consent of Landlord.




 




5.          Non-Release of Tenant.  Nothing contained in this Agreement or the Sublease, including,

without limitation, Subtenant’s obligation to pay Landlord directly, shall be

deemed to alter the primary liability of Tenant to pay the Rent and perform all

of Tenant’s obligations under the Master Lease (including, without limitation,

the payment of all bills rendered by Landlord for




 




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charges incurred by Subtenant for services and materials supplied to

the Subleased Premises), nor release Tenant from its obligations under the

Master Lease, nor waive any rights that Landlord may now have or later acquire

against Tenant under the Master Lease, except to the extent of Rent received by

Landlord from Subtenant.  The acceptance

of any sums by Landlord from Subtenant or any third party shall not be deemed a

waiver by Landlord of Tenant’s obligation to pay Rent or any other amounts as

provided in the Master Lease.  The

performance of any obligation required of Tenant under the Master Lease by

Subtenant or any third party shall not be deemed a waiver by Landlord of

Tenant’s duty to perform such obligation. 

Any act or omission by Subtenant or any of its agents, employees or

invitees in, on, or about the Premises or the Building, or any act by Subtenant

or any of its agents, employees or invitees pursuant to the terms and

conditions of the Sublease, shall constitute the act or omission of

Tenant.  Any sums that may be payable

under the Master Lease by virtue of any act or omission of Subtenant shall be

the obligation of Tenant to pay and discharge in accordance with the terms of

the Master Lease.




 




6.             Further

Transfers.  The consent of Landlord

is limited solely to the Sublease.  Any assignment

of the Master Lease or the Sublease or further subletting of any part of the

Premises shall be subject to Landlord’s consent as provided in the Master

Lease.  Landlord may consent in its

absolute and sole discretion to subsequent subleases and assignments of the

Sublease or any amendments or modifications to the Sublease without notifying

Tenant or anyone else liable under the Master Lease, and without obtaining

their consent.  No such action by

Landlord will relieve those persons from any liability to Landlord or otherwise

with regard to the Subleased Premises, and Tenant and Subtenant waive any

provision of California law to the contrary, including without limitation

Sections 2787 to 2855, inclusive, of the California Civil Code.  In addition, no provision of the Sublease or

this Agreement shall limit Landlord’s right, in the event of a proposed future

assignment or subletting of any portion of the Premises, including the

Subleased Premises, to recapture such portion of the Premises, including the

Subleased Premises, affected by that proposed assignment or subletting, as

provided in Section 17.F) of the Master Lease, or to receive any payment

required under Section 17.E of the Master Lease, and, without limiting the

generality of any of any other provision of this Agreement relating to the

Sublease, no provision of the Sublease pertaining to sharing of excess rentals

or profits on further subletting shall in any way diminish or affect Landlord’s

rights under Section 17 of the Master Lease.




 




7.            Conditions to Landlord’s Consent.  Landlord’s consent to the Sublease is

expressly conditioned on the following:




 




7.1            Prior to the Subtenant’s taking

occupancy of the Subleased Premises, Tenant shall deliver to Landlord

certificates of insurance evidencing Subtenant’s compliance with Section 8

of the Master Lease and indicating that Landlord is named as an additional

insured on such policies.




 




7.2            In accordance with Section 17.A of

the Master Lease, Tenant shall pay all of Landlord’s attorneys’ fees and other

expenses incurred in connection with Landlord’s consent to the Sublease and

this Agreement within ten (10) days following Tenant’s receipt of an invoice.




 




7.3            Tenant shall pay to Landlord as and

when required under the Master Lease, the amounts set forth in Section 17.E of

the Master Lease regarding Excess Rent.




 




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7.4             Subtenant shall waive to the extent

permitted by law, any claims it may have against Landlord or its officers,

directors, employees or agents for business interruption or damage to property

sustained by Subtenant as the result of any act or omission of Landlord, its

agents or employees, as set forth in Section 8.A of the Master Lease.




 




7.5             Subtenant shall indemnify, defend

and hold harmless Landlord and its officers, directors, employees and agents

against any claim by any third party for injury to any person or damage to or

loss of any property occurring in or around the Project and arising from the

use of the Premises or from any other act or omission, negligence or

intentional misconduct of Subtenant, its employees, agents or invitees, or

Subtenant’s breach of its obligations under the Sublease or this Agreement, as

set forth in Section 8.B of the Master Lease. 

Subtenant’s obligations under this Section shall survive the termination

of the Sublease.




 




8.            Representations of Tenant and Subtenant.




 




8.1            Tenant and Subtenant represent and

warrant to Landlord that a true copy of the Sublease, and all agreements

relating to Subtenant’s use and occupancy of the Subleased Premises, and all

exhibits, addendum, amendments, modifications and supplements thereto, is

attached hereto as Exhibit A.




 




8.2            Tenant and Subtenant represent and

warrant to Landlord that, except as set forth in the Sublease and Bill of Sale

attached hereto as Exhibit A, Subtenant is not paying to Tenant any rent,

additional rent or other consideration whatsoever in connection with the

Sublease and/or Subtenant’s use and/or occupancy of the Subleased Premises or

any portion thereof (including, but not limited to, payments for Tenant’s

assets, trade fixtures, equipment and/or other personal property, goodwill,

intangible property and/or any capital stock or other equity ownership of

Tenant).




 




8.3            Tenant and Subtenant represent and

warrant to Landlord that Tenant has provided Subtenant with a complete copy of

the Master Lease, and Subtenant further represents and warrants to Landlord

that Subtenant is familiar with the provisions thereof.




 




8.4             Tenant and Subtenant represent and

warrant that Landlord will not be liable for any brokerage commission or

finder’s fee in connection with the consummation of the Sublease or this

Agreement.  Tenant and Subtenant,

jointly and severally, shall protect, indemnify, defend and hold Landlord

harmless from and against any claims for any such commissions, fees or costs,

and for all costs, expenses and liabilities incurred in connection with such

claims, including, without limitation, attorneys’ fees and costs.




 




9.           Miscellaneous.




 




9.1             Should any party to this Agreement

bring an action against another party, by reason of or alleging the failure of

the other party to comply with any or all of its obligations hereunder, whether

for declaratory or other relief, then the party which prevails in such action

shall be entitled to its reasonable attorneys’ fees and expenses related to

such action, in addition to all other recovery or relief.  A party shall be deemed to have prevailed in

any such action (without limiting the generality of the foregoing) if such

action is dismissed upon the payment by the other party of the sums allegedly

due or the performance of obligations allegedly not complied with, or if such

party obtains substantially the relief sought by it in the action,




 




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 irrespective of whether such

action is prosecuted to judgment. 

Attorneys’ fees shall include, without limitation, fees incurred in

discovery, contempt proceedings, and bankruptcy litigation.  The non-prevailing party shall also pay the

attorneys’ fees and costs incurred by the prevailing party in any post-judgment

proceedings to collect and enforce the judgment.  The covenant in the preceding sentence is separate and several

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




 




9.2.            Promptly upon Landlord’s request,

Tenant and Subtenant shall execute and deliver such further customary documents

and/or instruments and perform such further customary acts as may be required

to give full effect to the transaction herein contemplated.




 




9.3             Capitalized terms used but not

defined herein shall have the respective meanings ascribed to them in the

Master Lease.  Captions to the

paragraphs and sections in this Agreement are included for convenience only and

do not modify any of the terms of this Agreement.  No one party shall be deemed to have drafted this Agreement and

it shall be construed according to its fair meaning and not against any

party.  All indemnity obligations under

this Agreement and any other provision hereof the survival of which is

necessary to its enforcement shall survive the expiration or earlier

termination of the Sublease and this Agreement.




 




9.4             LANDLORD, TENANT AND SUBTENANT EACH

ACKNOWLEDGES THAT IT HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO

ITS RIGHTS TO TRIAL BY JURY UNDER THE CONSTITUTIONS OF THE UNITED STATES AND

THE STATE OF CALIFORNIA.  EACH PARTY

EXPRESSLY AND KNOWINGLY WAIVES AND RELEASES ALL SUCH RIGHTS TO TRIAL BY JURY IN

ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE

OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY RELATED TO, EITHER DIRECTLY

OR INDIRECTLY, THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF, SUBTENANT’S USE OR

OCCUPANCY OF THE SUBLEASED PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE.




 




Landlord’s Initials                       Tenant’s Initials                         Subtenant’s

Initials                           




 




9.5              Landlord’s consent hereunder shall

not be effective until Landlord has received a copy of this Agreement, fully

executed with original signatures of Tenant and Subtenant thereon.




 




9.6              If any provision of this Agreement

shall be invalid, unenforceable or ineffective for any reason whatsoever, all

other provisions hereof shall be and remain in effect.




 




9.7              This Agreement is the entire

agreement between the parties with respect to the subject matter hereof, and no

alteration, modification or interpretation hereof shall be binding unless in

writing and signed by all parties. This Agreement shall be construed and

enforced in accordance with the laws of the State of California. This Agreement

may be executed and delivered in any number of counterparts, each of which so

executed and delivered shall be deemed to be an original and all of which shall

constitute one and the same instrument.




 




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IN WITNESS WHEREOF, the parties hereto have executed

this Agreement on the date set forth above.




 




	

  LANDLORD:


  
	

   


  
	

  SQUARE

  24 ASSOCIATES,


  a District of Columbia limited partnership


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


  
	

   


  
	

  By:


  	

  Carr Real Estate

  Services, L.L.C., a Delaware limited liability company


  
	

  Its:


  	

  General Partner


  
	

  By:


  	

  Carr Real Estate

  Services Partnership, a Delaware partnership 


  
	

  Its:


  	

  Sole Member


  
	

  By:


  	

  Carr Realty,

  L.P., a Delaware limited partnership 


  
	

  Its:


  	

  Managing Partner


  
	

  By:


  	

  CarrAmerica

  Realty Corporation, a Maryland corporation 

  


  
	

  Its:


  	

  General Partner


  
	

   


  	

   


  
	

   


  	

   


  
	

  By:


  	

   


  	

  /s/ Philip L.

  Hawkins


  
	

   


  	

  Philip L.

  Hawkins 


  
	

  Its:


  	

  Chief Operating

  Officer 


  
							





 




	

  TENANT:


  	

   


  	

  SUBTENANT:


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  ZAMBA

  CORPORATION, a


  	

   


  	

  PARK

  PLACE CAPITAL 


  	

   


  
	

  Delaware corporation


  	

   


  	

  CORPORATION, 

  


  	

   


  
	

   


  	

   


  	

  a California corporation 


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Michael Carrel


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

  By: 


  	

  /s/ Jon Daurio


  	

   


  
	

  Name: 


  	

  Michael Carrel


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Name:


  	

  Jon Daurio


  	

   


  
	

  Title:


  	

  CFO


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

  Title:


  	

  EVP


  	

   


  
										





 




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