EXHIBIT 10.60
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into as of
this 16th day of January, 2003 (the "Assignment Effective Date"), by and between
Universal Music Group, Inc., a California corporation ("UMG"), and Geneva Media,
LLC, a Delaware limited liability company ("Geneva") (which is an affiliate of
Xxxxxxxx Merchandisers, LP, a Texas limited partnership ("Xxxxxxxx")) with
reference to that Option and Purchase Agreement, dated as of November 15, 2002
(as amended by that Amendment No. 1 to Option and Purchase Agreement dated as of
January 6, 2003 (the "Option Amendment"), the "Option Agreement"), by and
between UMG and Liquid Audio, Inc. ("Liquid"). Capitalized terms used herein and
not otherwise defined shall have the same meanings described to them in the
Option Agreement. UMG and Geneva shall be referred to herein as the "Parties".
WITNESSTH:
WHEREAS, subject to the terms and conditions set forth in the
Option Agreement, UMG has the right to assign its rights and obligations
thereunder to Xxxxxxxx;
WHEREAS, UMG has received a Trigger Event Notice from Liquid,
and UMG therefore has the right (but not the obligation) to exercise the option
described in the Option Agreement, on the terms and conditions set forth therein
(but has not done so); and
WHEREAS, Liquid has previously consented to the assignment of
the Option Agreement to Xxxxxxxx, and the consent of Liquid to this Agreement is
required to effectuate the assignment to Geneva hereunder;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby confirmed and acknowledged, the parties
hereto agree as follows:
1. UMG and Liquid hereby agree that references to
Xxxxxxxx in the Option Amendment will be deemed to be replaced
with Geneva;
2. Pursuant to the terms of this Agreement and the
Option Agreement, UMG hereby irrevocably sells, transfers,
conveys, assigns and delivers to Geneva, as of the Assignment
Effective Date, all of UMG's rights and obligations to and under
the Option Agreement. Each of the Parties represents that it has
all necessary authority to enter into this Agreement and to
effectuate the transactions contemplated herein. Notwithstanding
the foregoing, the parties hereto acknowledge and agree that UMG
retains each of its obligations under Paragraph 2(b) of the
Option Amendment.
3. Pursuant to the terms of this Agreement and the
Option Agreement, Geneva hereby assumes and agrees that it is
bound by all of UMG's obligations under the Option Agreement,
and agrees to perform all of the obligations of UMG under the
Option Agreement. Geneva does not hereby
assume and shall have no liability for any debt, liability or
obligation of UMG of whatsoever kind or nature other than as
specifically set forth herein or in the Option Agreement. Liquid
shall be an express third party beneficiary of Geneva's
assumption and other agreements in this Section 3.
4. This Agreement and all of the provisions hereof
shall be binding upon and insure to the benefit of the parties
hereto and their respective successors and assigns.
5. This Agreement shall be governed by and
construed in accordance with the laws of the State of
California.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day and year first above written.
UNIVERSAL MUSIC GROUP, INC.
By: /s/ Xxxxx X. Ring
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Name: Xxxxx X. Ring
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Title: VP Bus Dev & Bus Affairs, eLabs
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GENEVA MEDIA, LLC
By: [Name], its
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By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: PRESIDENT
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CONSENT AND AGREEMENT OF LIQUID AUDIO, INC.
Liquid hereby consents to the assignment by UMG of its rights and obligations
under the Option Agreement as set forth in the foregoing Agreement and agrees to
the terms and conditions as set forth in Section 1 and 2 of this Agreement only.
The undersigned is duly authorized to sign this consent and agreement on behalf
of Liquid.
LIQUID AUDIO, INC.
By:
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Xxxxxxx X. Xxxx
Its: CEO
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day and year first above written.
UNIVERSAL MUSIC GROUP, INC.
By:
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Name:
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Title:
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GENEVA MEDIA, LLC
By: [Name], its
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By:
------------------------------------
Name:
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Title:
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CONSENT AND AGREEMENT OF LIQUID AUDIO, INC.
Liquid hereby consents to the assignment by UMG of its rights and obligations
under the Option Agreement as set forth in the foregoing Agreement and agrees to
the terms and conditions as set forth in Section 1 and 2 of this Agreement only.
The undersigned is duly authorized to sign this consent and agreement on behalf
of Liquid.
LIQUID AUDIO, INC.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Its: CEO
