INSTRUMENT OF ASSUMPTION AND JOINDER
Instrument of ASSUMPTION AND JOINDER AGREEMENT dated as of May
14, 1998 (the "Assumption Agreement") made by Dove Audio, Inc., a California
corporation (the "Company") in favor of The Chase Manhattan Bank, as Lender (the
"Lender"), under that certain Credit, Security, Guaranty and Pledge Agreement
dated as of November 4, 1997 (as the same may be amended, supplemented or
otherwise modified, renewed or replaced from time to time, the "Credit
Agreement") among Dove Entertainment, Inc. (now known as NewStar Media Inc.), a
California corporation, the Corporate Guarantors referred to therein and the
Lender.
W I T N E S S E T H
- - - - - - - - - -
The Company is a California corporation and is a Subsidiary of
NewStar Media Inc. Pursuant to Section 6.22 of the Credit Agreement, the Company
is required to execute this document (as a newly formed Subsidiary of NewStar
Media Inc).
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Company hereby agrees as follows:
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1. ASSUMPTION AND JOINDER.
(a) The Company hereby expressly confirms that
it has assumed, and hereby agrees to perform and observe, each and every one of
the covenants, rights, promises, agreements, terms, conditions, obligations,
appointments, duties and liabilities of (i) a Corporate Guarantor under the
Credit Agreement and all the other Fundamental Documents applicable to it as a
Corporate Guarantor, (ii) a Contributor (as such term is defined in the
Contribution Agreement) under the Contribution Agreement and (iii) a Grantor (as
such term is defined in the Copyright Security agreement) under the Copyright
Security Agreement. By virtue of the foregoing, the Company hereby accepts and
assumes any liability of (x) a Corporate Guarantor and/or a Credit Party related
to each representation or warranty, covenant or obligation made by a Corporate
Guarantor and/or a Credit Party in the Credit Agreement or any other document
and hereby expressly affirms, on the date hereof, for the benefit of the Lender,
each of such representations, warranties, covenants and obligations, (y) a
Contributor related to each covenant or obligation made by a Contributor in the
Contribution Agreement and hereby expressly affirms, on the date hereof, each of
such covenants and obligations and (z) a Grantor related to each covenant or
obligation made by a Grantor in the Copyright Security Agreement and hereby
expressly affirms, on the date hereof, each of such covenants and obligations.
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(b) All references to the term "Corporate
Guarantor" or "Credit Party" in the Credit Agreement or any other Fundamental
Document, or in any document or instrument executed and delivered or furnished,
or to be executed and delivered or furnished, in connection therewith shall be
deemed to be references to, and shall include, the Company.
(c) All references to the term "Contributor" in
the Contribution Agreement, or in any document or instrument executed and
delivered or furnished, or to be executed and delivered or furnished, in
connection therewith shall be deemed to be references to, and shall include, the
Company.
(d) All references to the term "Grantor" in the
Copyright Security Agreement, or in any document or instrument executed and
delivered or furnished, or to be executed and delivered or furnished, in
connection therewith shall be deemed to be references to, and shall include, the
Company.
2. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Lender as follows:
(a) The Company has the requisite corporate
power and authority to enter into this Assumption Agreement and to perform its
obligations hereunder and under the Credit Agreement, the Contribution
Agreement, the Copyright Security Agreement and the other Fundamental Documents
to which it is a party. The execution, delivery and performance of this
Assumption Agreement by the Company and the performance of its obligations under
the Credit Agreement and the other Fundamental Documents have been duly
authorized by the Board of Directors of the Company and no other corporate
proceedings on the part of the Company are necessary to authorize the execution,
delivery or performance of this Assumption Agreement, the transactions
contemplated hereby or the performance of its obligations under the Credit
Agreement or any other Fundamental Document. This Assumption Agreement has been
duly executed and delivered by the Company. This Assumption Agreement and the
Credit Agreement each constitutes a legal, valid and binding obligation of the
Company enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors rights
generally and to general principles of equity.
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(b) The representations and warranties set forth
in Article 3 of the Credit Agreement are true and correct on and as of the date
hereof (except to the extent that such representations and warranties expressly
relate to an earlier date) with the same effect as if made on and as of the date
hereof.
(c) The authorized capitalization of the Company, the
number of shares of its capital stock outstanding on the date hereof, and the
ownership of the outstanding shares of its capital stock is set forth on
Schedule 1 hereto.
(d) On the date hereof the Company has not done
business, is not doing business and does not intend to do business other than
under its full corporate name, including, without limitation, under any trade
name or other doing business name except as set forth on Schedule 1 hereto, and
is in good standing in all jurisdictions where the failure to be in good
standing as a foreign jurisdiction would give rise to a material liability of
the Company.
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(e) The chief executive office of the Company is
located at 0000 Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, XX 00000. Such office is the
place where the Company keeps the records concerning the Collateral attributable
to it on the date hereof. The only places at which the Company regularly keeps
any goods included in the Collateral attributable to it on the date hereof are
the places listed on Schedule 2 hereto.
3. FURTHER ASSURANCES. At any time and from time to time, upon
the Lender's request and at the sole expense of the Company, the Company will
promptly and duly execute and deliver any and all further instruments and
documents and take such further action as the Lender reasonably deems necessary
to effect the purposes of this Assumption Agreement.
4. BINDING EFFECT; ASSIGNMENT. This Assumption Agreement shall
be binding upon the Company and shall inure to the benefit of the Lender and its
successors and assigns.
5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered by its duly authorized officer as of
the date first above written.
DOVE AUDIO, INC.
By: /s/ XXXXXX XXXXXX
---------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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SCHEDULE 1
Capital Stock of Dove Audio, Inc.
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Authorized capitalization: 1,000 shares of Common Stock
Number of shares of capital stock 1,000 shares of Common Stock outstanding:
Ownership of the outstanding
capital stock: NewStar Media Inc. owns all of
all of the outstanding Capital Stock
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SCHEDULE 2
Location of Collateral
----------------------
0000 Xxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
