exv10wxby



 



Exhibit 10(b)



SURRENDER OF LEASE



	 	 	 	 	 
	DATE:	 	
September 9, 2003	 	 
	 	 	 	 	 
	BETWEEN:	 	
7700 FRANCE AVENUE LLC

a Minnesota limited liability company
	 	(“Landlord”)
	 	 	 	 	 
	AND:	 	
NET PERCEPTIONS, INC.
a Delaware corporation
	 	(“Tenant”)





LANDLORD AND TENANT hereby agree as follows:


	1.	 	In this Surrender of Lease:



	 	(a)	 	“Lease” means the Office Lease Agreement between DRF Holdings
LLC and Tenant dated April 5, 2000, as amended by First Amendment to
Office Lease Agreement dated June 7, 2000, Second Amendment to
Office Lease Agreement dated September 12, 2000, and Third Amendment
to Office Lease Agreement dated April 30, 2001.



	 	(b)	 	“Building” means 7700 France Avenue South located in the city
of Edina, Minnesota.



	 	(c)	 	“Premises” means 125,800 square feet of Rentable Area on the
first, second, fourth and fifth floors of the Building, as set out
in the Lease.



	 	(d)	 	“Office Furniture” means the office furniture leased by
Tenant from Landlord as set out in the Lease.



	 	(e)	 	“Surrender Date” means the business day written approval of
this Surrender of Lease is received from the holder of the mortgage
on the Building or one business day later.



	2.	 	Subject to each party performing its obligations hereunder, Tenant hereby
surrenders and yields up the Lease, the Premises and the Office Furniture
to Landlord from and after the Surrender Date for the unexpired portion of
the term of the Lease, and Landlord hereby accepts this surrender of the
Lease, the Premises and the Office Furniture from and after the Surrender
Date.



	3.	 	Tenant shall promptly quit and surrender possession of the Premises and
surrender the Office Furniture to Landlord on the Surrender Date in good
order and condition, reasonable wear and tear excepted. Tenant will be
responsible for any damage to the Premises or the Building arising from
Tenant’s removal of its personal property, equipment, furniture and trade
fixtures from the Premises. Subject to the provisions of Section 10
herein, any property of Tenant not removed from the Premises on or before
the Surrender Date shall be and become the property of Landlord
absolutely.




 







 




	4.	 	Subject to Sections 10 and 11 and the truth of the representations in
Section 6 and 12 herein, and the truth of the representations in Section 4
of the Assignment of Leases attached as Exhibit A, upon surrender of the
Premises and vacation of the Premises by Tenant, payment of the Surrender
Payment (defined below), and performance of Tenant’s other obligations
under this Surrender of Lease: a) The Lease will terminate and be of no
further force and effect; and b) Tenant shall be released by Landlord from
any and all now existing or hereafter arising obligations, liabilities and
claims of any kind or character under the Lease or otherwise arising from
or in connection with the use or occupancy of the Premises, whether known
or unknown which may or could be asserted against the Tenant by Landlord
(“Tenant Claims”); and c) Landlord shall be released by Tenant from any
and all now existing or hereafter arising obligations, liabilities and
claims of any kind or character under the Lease or otherwise arising from
and in connection with the use or occupancy of the Premises, Building, or
Common Area whether known or unknown which may or could be asserted
against the Landlord by the Tenant. The parties agree that Landlord will
have no right to assess Tenant for more Additional Rent if the Estimated
Operating Cost or Estimated Tax Cost is less than the actual Operating
Cost or Tax Cost nor shall Tenant be entitled to a reimbursement of
Additional Rent if the Estimated Operating Cost or Estimated Tax Cost is
greater than the actual Operating Cost or Tax Cost.



	5.	 	Tenant covenants with Landlord that Tenant has in itself the absolute
right, power and authority to surrender the Lease, the Premises and the
Office Furniture as provided herein, and that Tenant has not taken any
action whereby the Lease or the unexpired portion of the term of the
Lease, or the Premises or Office Furniture, is or may be charged,
encumbered or assigned. Subject to obtaining the written approval of this
Surrender of Lease from the holder of the mortgage on the Building,
Landlord hereby indemnifies and holds harmless Tenant against any cost
incurred by Tenant as a result of any claim that Landlord does not have in
itself the absolute right, power and authority to accept the surrender of
the Lease, the Premises and the Office Furniture as provided herein.
Tenant hereby indemnifies and holds harmless Landlord against any cost
incurred by Landlord as a result of a claim that Tenant does not have in
itself the absolute right, power and authority to surrender the Lease, the
Premises and the Office Furniture as provided herein.



	6.	 	Tenant represents and warrants to Landlord that there has been no labor
or materials furnished to the Premises by or on behalf of Tenant for which
full payment has not been made.



	7.	 	In consideration of Landlord’s acceptance of this Surrender of Lease and
the forgiveness of rent and all other Lease obligations, and as a
condition thereto, Tenant shall pay to Landlord by no later than the
Surrender Date the sum of $4,930,000 in immediately available funds
(“Surrender Payment”).



	8.	 	On the Surrender Date, Tenant will assign to Landlord and Landlord will
accept an assignment of the subleases between Tenant and Winstorage, Inc.,
Verispace LLC, Conagra Foods, Inc. and Great Clips as and to the extent
such subleases have been or are hereafter approved by Landlord and any
personal guaranties of such subleases. The assignment of the subleases
will be in the form attached as Exhibit A.



	9.	 	On the Surrender Date, Landlord will release and transfer to Tenant 100%
of the Security Deposit made pursuant to the Lease. Tenant shall pay to
Landlord on the




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	 	 	Surrender Date any cash security deposits and transfer any letter of
credit to Landlord by way of an amendment of a letter of credit from the
issuer of the letter of credit. Tenant represents and warrants that the
security deposits are as follows:




	 	 	 	 	 
	(a)	 	
Great Clips
	 	$37,110 letter of credit
	(b)	 	
Conagra Foods, Inc.
	 	$0
	(c)	 	
Winstorage, Inc.
	 	$2,000
	(d)	 	
Verispace, LLC
	 	$41,625.25





	10.	 	Notwithstanding anything herein to the contrary, Tenant may elect to hold
over in that portion of the Premises shown on Exhibit B (“Holdover
Premises”) containing approximately 3,000 square feet of Rentable Area on
a month-to-month basis, subject to termination by either Landlord or
Tenant on not less than one month’s advance written notice. The
month-to-month holdover will be on all terms of the Lease to the extent
they are applicable to a month-to-month occupancy, except that (i) no Base
Rent will be payable by Tenant for the holdover period, but Tenant will
pay Additional Rent and any other charges payable under the Lease for the
holdover period for the useable space occupied by Tenant in the Holdover
Premises plus 15% (and such Additional Rent will not be limited by any
Operating Cost Cap), (ii) Tenant will be responsible for all costs of
constructing or altering any demising walls and other improvements
necessary to separate the holdover space from the Premises surrendered on
the Surrender Date and otherwise preparing the holdover space for
occupancy, and (iii) the rights of Tenant under Exhibit E of the Lease
will not apply to the holdover space and will be of no further force or
effect.



	11.	 	In the event that a court requires the payment set forth in Section 7 to
be disgorged because of insolvency or bankruptcy of Tenant or for any
other reason, then the parties shall be restored to the position they were
in before surrender of the Lease, subject to any subleases whether
executed before surrender of the Lease or afterwards by the Landlord, and
the Lease shall be declared valid and enforceable.



	12.	 	Tenant Representations. Tenant represents and warrants to Landlord that
to the best knowledge of the Tenant (a) Tenant is not insolvent and will
not be made insolvent by the payment required by this agreement, (b)
Tenant has not breached Section 14(d) of the Lease relating to dangerous,
toxic or hazardous substances nor received any claims described in Section
14(e) of the lease relating to such dangerous, toxic or hazardous
substances, (c) Tenant has not received any written claims for personal or
property damage relating to the Premises or any condition of the Premises
or Common Areas (as defined in the Lease), (d) Tenant has not received any
written notice from any governmental body or agency or any insurance
company requiring changes to the Premises or Common Areas, (e) there are
no unpaid Tenant obligations which could if not paid entitle a third party
to a lien on the property on which the Premises are located. All
representations and warranties set forth in this agreement shall be deemed
made effective as of the Surrender Date unless disclaimed in writing by
Tenant by notice delivered to Landlord at the time of Tenant making its
payment required by Section 7 of this Surrender of Lease. If Tenant
disclaims any representation and warranty, Landlord may declare this
Surrender of Lease null and void. As used herein, the term “best
knowledge of the Tenant” means and the above representations are therefore
limited to




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	 	 	the actual knowledge of Thomas Donnelly who has responsibility for
facilities management for Tenant. The representations in this agreement
shall survive the surrender of the Lease for a period of six (6) months
from the date of this document.



	13.	 	This Surrender of Lease shall be binding on the heirs, administrators,
successors and assigns (as the case may be) of the parties hereto.




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IN WITNESS OF THIS SURRENDER OF LEASE Landlord and Tenant have properly
executed it as of the date set out at its head.



	 	 	 	 	 	 	 
	LANDLORD:	 	7700 FRANCE AVENUE LLC
	 	 	 	 	 	 	 
	 	 	
By
	 	/s/ David Frauenshuh	 	 
	 	 	 	 	
	 	 
	 	 	 	 	its Manager	 	 
	 
	TENANT:	 	NET PERCEPTIONS, INC.
	 	 	 	 	 	 	 
	 	 	
By
	 	/s/ Thomas M. Donnelly	 	 
	 	 	 	 	
	 	 
	 	 	 	 	its President	 	 






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EXHIBIT A


ASSIGNMENT OF SUBLEASES



	 	 	 	 	 
	DATE:	 	
September 9, 2003	 	 
	 	 	 	 	 
	BETWEEN:	 	
NET PERCEPTIONS, INC.

a Delaware corporation
	 	(“Tenant”)
	 	 	 	 	 
	AND:	 	
7700 FRANCE AVENUE LLC

a Minnesota limited liability company
	 	(“Landlord”)





TENANT AND LANDLORD hereby agree as follows:


	1.	 	Tenant hereby assigns, transfers, and conveys to Landlord all of Tenant’s
right, title and interest in and to the subleases and any guaranties of
the obligations thereunder, as described in Exhibit 1 attached hereto
(“Subleases”), and any security deposits, escrows and prepaid rent under
the Subleases.



	2.	 	Landlord hereby accepts all of Tenant’s right, title and interest in and
to the Subleases, and assumes each and every of Tenant’s covenants and
obligations under the Subleases as though Landlord were named as party
therein.



	3.	 	Tenant covenants with Landlord that Tenant has in itself the absolute
right, power and authority to assign the Subleases as provided herein, and
that Tenant has not taken any action hereby the Subleases are or may be
charged, encumbered or assigned.



	4.	 	Tenant represents and warrants that to the best knowledge of Tenant (a)
true, complete and correct copies of the Subleases have been provided by
Tenant to Landlord and each such Sublease represents the entire agreement
between Tenant and its subtenants, has not been modified or amended in any
respect, and is in full force and effect in accordance with its terms, (b)
no rent or other amounts owing by the subtenants under the Subleases have
been paid in advance of their due date, no deposits have been made by any
of the subtenants to Tenant in respect of any sublease except for security
deposits delivered to Landlord herewith, and no subtenant has made any
charge, lien or claim of offset under the Sublease or otherwise against
the rent or other amounts due Tenant under any Sublease, (c) neither
Tenant nor, to the best of Tenant’s knowledge, any subtenant is in default
of any of the Subleases and no event has occurred which with the giving of
notice or lapse of time or both would be an event of default under the
Subleases, nor has any claim or demand been raised or threatened or
defense asserted against Tenant in connection with any of the Subleases,
and (d) Tenant has completed all construction work required under the
Subleases and performed all of its other obligations under the Subleases
arising or accruing prior to the date hereof. As used herein the term
“best knowledge of Tenant” means and the above representations are
therefore limited to the actual knowledge of Thomas Donnelly who has
responsibility for facilities management for Tenant. The representations
in this assignment shall survive the assignment of the subleases for a
period of six (6) months from the date of this document.




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IN WITNESS WHEREOF, Tenant and Landlord have duly executed this instrument as
of the date set out at its head.



	 	 	 	 	 	 	 
	TENANT:	 	NET PERCEPTIONS, INC.
	 	 	 	 	 	 	 
	 	 	
By
	 	/s/ Thomas M. Donnelly	 	 
	 	 	 	 	
	 	 
	 	 	 	 	its President	 	 
	 	 	 	 	 	 	 
	LANDLORD:	 	7700 FRANCE AVENUE LLC
	 	 	 	 	 	 	 
	 	 	
By
	 	/s/ David Frauenshuh	 	 
	 	 	 	 	
	 	 
	 	 	 	 	its Manager	 	 







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