EXHIBIT 10.39
LEASE TERMINATION AGREEMENT
THIS AGREEMENT is made and entered into as of the 28th day of April
2003, by and between WESTLAKE PARK ASSOCIATES, a Washington limited partnership,
having an address at c/o Mayflower Park Hotel 000 Xxxxx Xxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000 ("Landlord") and LOUDEYE CORPORATION, a Delaware corporation,
having an address at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain lease (the
"Lease"), dated October 28, 1999, as amended on December 30, 1999, for that
certain premises (the "Premises") described in the Lease as Centennial Building,
0000 Xxxxxx Xxx., Xxxxxxx, Xxxxxxxxxx and currently containing approximately
12,129 square feet.
WHEREAS, Tenant desires to terminate the Lease prior to its stated
expiration date and be relieved of its obligations thereunder, and Landlord is
willing to terminate the Lease on the terms and conditions of this Agreement
notwithstanding the foregoing loss of rentals.
NOW THEREFORE, in consideration of the mutual terms and conditions
herein contained, the parties hereby agree as follows:
1. Termination of Lease. The Lease shall terminate effective as of
April 30, 2003 (the "Termination Date"). The Premises shall be deemed
surrendered to Landlord by Tenant on the Termination Date. Tenant shall deliver
the Premises to Landlord in its existing "as is" condition as of the Termination
Date. If any action is taken by the Tenant, or its successor, including a
trustee in bankruptcy, to recover any of the consideration paid to Landlord
under Section 2, the Landlord at its sole option elect to reinstate the lease to
its original condition and the money received hereunder shall be applied to the
rent due and the next rent to become due as a prepayment.
2. Termination Payment. As consideration for this Agreement, and to
cover Landlord's administrative, processing and legal fees, and to reimburse
Landlord for any loss of rentals that may be sustained after the Expiration Date
as a result of the termination of the Lease by this Agreement, Tenant will allow
Landlord, upon Landlord's execution of this Agreement, to retain Tenant's
security deposit in the amount of Twenty Thousand Two Hundred Fifty Dollars
($20,250.00) and will also pay to Landlord a termination payment of One Hundred
and Seventy Nine Thousand Seven Hundred and Fifty Dollars ($179,750.00) via wire
transfer.
3. Mutual Releases. In consideration of Landlord releasing Tenant from
the obligation to pay the balance of the rentals due under the Lease, Landlord
and Tenant hereby release and forever discharge each other, and their respective
partners, officers, directors, agents, trustees, beneficiaries, guarantors and
employees, of and from any and all claims, acts, damages, demands, rights of
action and causes of action which each party ever had, now has, or in the future
may have, against the other, arising from or in any way connected with the
Lease. This release is intended as a full settlement and compromise of each,
every, and all claims of every kind and nature.
Landlord and Tenant understand and agree that by execution of this
Agreement, the other party and its partners, officers, directors, agents,
trustees, beneficiaries, guarantors and employees do not admit any liability of
any nature whatsoever. This Agreement is made entirely as a compromise and for
the purpose of terminating the Lease and settling and extinguishing the
respective claims, acts, damages, demands, rights of action or causes of action
of the parties hereto.
4. Authority. Each party represents to the other that it has full power
and authority to execute this Agreement.
5. No Disclosure. Tenant agrees not disclose any of the matters set
forth in this Agreement or disseminate or distribute any information concerning
the terms, details or conditions hereof to any person, firm or entity without
obtaining the written approval of Landlord.
6. Brokers. The parties represent and warrant to each other that they
have not dealt with any broker, finder or like agent in connection with this
Agreement and they agree to indemnify and hold each other, their agents and
their officers, directors, shareholders, partners and employees harmless of and
from any claim of, or liability to, any broker, finder, or like agent claiming a
commission or fee by reason of having dealt with either of the parties in
connection with the negotiation, execution or delivery of this Agreement, and
all expenses related thereto, including, without limitation, attorneys' fees and
disbursements.
7. No Offer. This Agreement shall not be binding until executed and
delivered by the Landlord to Tenant and upon the funds described in paragraph 2
herein having been paid to the Landlord within 24 hours of the Landlord having
signed and delivered this Agreement to Tenant. The delivery of the wired funds
within the 24 hour period shall be deemed to be the acceptance by the Tenant of
this agreement. If the funds have not been received by the required time, this
agreement shall terminate.
8. Whole Agreement. The mutual obligations of the parties as provided
herein are the sole consideration for this Agreement, and no representations,
promises or inducements have been made by the parties other than as appear in
this Agreement. This Agreement shall not be amended or modified except in
writing signed by both parties.
9. Miscellaneous. The warranties, representations, agreements, and
obligations contained in this Agreement shall survive the execution and delivery
of this Agreement and shall survive any and all performances in accordance with
this Agreement. This Agreement may be executed in any number of counterparts
which together shall constitute the Agreement. This Agreement shall inure to the
benefit of, and be binding upon, the heirs, successors and assigns of the
parties. This Agreement shall be construed and enforced in accordance with the
laws of the State of Washington.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
LANDLORD:
WESTLAKE PARK ASSOCIATES, A WASHINGTON LIMITED PARTNERSHIP
by WPI, LLC, general partner
Signature _________________________________________
Xxxxxx X. Xxxxxx, managing agent
TENANT:
LOUDEYE CORPORATION
Signature _________________________________________
Xxxxxxx Xxxxxx
President and CEO
