{"id":41050,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/guaranty-and-pledge-agreement-bay-area-multimedia-inc-ray.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"guaranty-and-pledge-agreement-bay-area-multimedia-inc-ray","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/guaranty-and-pledge-agreement-bay-area-multimedia-inc-ray.html","title":{"rendered":"Guaranty and Pledge Agreement &#8211; Bay Area Multimedia Inc, Ray Musci and Transcap Trade Finance"},"content":{"rendered":"<pre>                         GUARANTY AND PLEDGE AGREEMENT\n\n     This Guaranty and Pledge Agreement (the \"Agreement\") is made on the 25\nday of February, 2000, by RAY MUSCI (the \"Guarantor\") in favor of TRANSCAP TRADE\nFINANCE, an Illinois general partnership (the \"Contractor\"), as follows:\n\nBACKGROUND OF AGREEMENT:\n\nA.   The Contractor and BAY AREA MULTIMEDIA, INC., a California corporation (the\n     \"Manufacturer\"), have on this day entered into a Master Purchase Order\n     Assignment Agreement (the \"Assignment Agreement\") under the terms of which\n     the Manufacturer will assign customer purchase orders to the Contractor and\n     request the Contractor to purchase the required materials to fulfill such\n     purchase orders; the Contractor will retain the Manufacturer to\n     manufacture, process and ship ordered goods; and fees will be paid to the\n     Contractor and the Manufacturer for their services thereunder.\n\nB.   The Guarantor has a substantial financial stake in the Manufacturer and\n     will substantially benefit from the performance by Contractor of its\n     obligations under the Assignment Agreement.\n\nC.   The execution of this Agreement is an express condition to the consummation\n     of the transactions contemplated by the Assignment Agreement and the\n     Contractor is unwilling to enter into or perform in accordance with the\n     Assignment Agreement in the absence of the execution of this Agreement.\n\n     THEREFORE, in consideration of the services to be performed, the payments\nto be made, and the obligations to be assumed by the Contractor pursuant to the\nAssignment Agreement, and further as an inducement to the Contractor to enter\ninto and perform in accordance with the Assignment Agreement, the Guarantor\nhereby agrees as follows:\n\n     1.   DEFINITIONS. In this Agreement, the following frequently used terms\nare defined as set forth in this Paragraph 1:\n\n     (a)  Any terms used in this Agreement which are defined in the Assignment\nAgreement will have the same meaning herein as is ascribed to such term in the\nAssignment Agreement.\n\n     (b)  The \"Contract Documents\" are, collectively, the Assignment Agreement,\nthe Security Agreement and Financing Statement between the Contractor and the\nManufacturer dated this day, the Subordination Agreement between the Contractor,\nthe Manufacturer, and the Senior Lender dated this day, and this Agreement.\n\n     (c)  The \"Obligations\" mean all of the obligations of the Manufacturer and\nthe Guarantor pursuant to the Contract Documents.\n\n     (d)  The term \"Guarantor\" means Ray Musci.\n\n\n   2\n\n\n     (e)  The \"Securities\" means the securities of the Manufacturer listed on\nSchedule I attached to this Agreement and made a part hereof; together with all\nother or additional securities to which the Guarantor (without additional\nconsideration) now is, or hereafter may be, entitled by virtue of his ownership\nof any of the securities as a result of any corporate reorganization, merger or\nconsolidation, stock split, stock dividend, or otherwise.\n\n     (f)  A \"Default\" means the occurrence of an event of default by the\nManufacturer pursuant to or in accordance with the provisions of any of the\nContract Documents or the failure of the Guarantor to perform any covenant or\nagreement contained in this Agreement or if any representation or warranty\ncontained in this Agreement is found to have been untrue, incomplete or\nmisleading in any material respect when furnished.\n\n     (g)  The \"Collateral\" means all assets, property, and interests in assets\nand property in which a security interest is granted and a pledge is made by the\nGuarantor pursuant to paragraph 3 below.\n\n     2.   GUARANTY. The Guarantor unconditionally and irrevocably guaranties to\nContractor the full and prompt payment and performance when due, whether at\nmaturity or earlier (by reason of acceleration) and at all times thereafter, of\nall of the Obligations, and further agrees to pay all costs and expenses\nincluding, without limitation, all court costs and reasonable attorneys' fees\nand expenses paid or incurred in endeavoring to collect all or any part of the\nObligations from, or in prosecuting any action against, Manufacturer or the\nGuarantor.\n\n     3.   PLEDGE OF SECURITIES. In addition, to secure the payment and\nperformance of the Obligations, the Guarantor hereby grants to Contractor a\nsecurity interest in and hereby pledges and assigns to Contractor the\nSecurities, with stock powers attached thereto all duly endorsed in blank,\nherewith delivered to Contractor, and any and all dividends, distributions and\nother proceeds thereof.\n\n     4.   TERMS AND CONDITIONS. (a) Subject to the provisions of the Contract\nDocuments, Contractor shall have the exclusive right to determine the\napplication of payments and credits, if any, received by Contractor from the\nundersigned, the Manufacturer, the Senior Lender, and any Customer.\n\n     (b)  Contractor is authorized, without notice or demand, and without\naffecting the liability of the Guarantor, from time to time to (i) renew,\nextend, accelerate or otherwise change the time for payment or performance of;\nor other terms relating to, the Obligations or any of them, or otherwise modify,\namend or change the terms of the Contract Documents or any of them, or any other\nagreement, document or instrument now or hereafter executed by the Manufacturer\nand delivered to Contractor; (ii) accept partial payments on or performance of\nthe Obligations; (iii) take and hold security or collateral for the\nundersigned's Obligations under this Agreement, or any other guaranties of, or\nsupport or security agreement relating to, the Obligations and exchange,\nenforce, waive and release any such security or collateral; (iv) apply such\nsecurity or collateral and direct the order or manner of sale as in its sole\ndiscretion it may determine; and (v) settle, release, compromise, collect or\notherwise liquidate the Obligations and any security or collateral in any\nmanner, without affecting or impairing the Obligations of the undersigned.\n\n\n                                       2\n\n   3\n\n\n     (c)  At any time after a Default, Contractor may, at its discretion, upon\nnotice to the Guarantor and regardless of the acceptance of any security or\ncollateral for the payment, appropriate and apply toward the payment and\nsatisfaction of the Obligations (i) any indebtedness due or to become due from\nContractor to the Guarantor; and (ii) any monies, credits or other property\nbelonging to the Guarantor, at any time held by Contractor on deposit or\notherwise.\n\n     (d)  Contractor shall not be required to take any steps to preserve any\nrights against prior parties (if any) to or in any of the Collateral or\nObligations.\n\n     (e)  Contractor may, but shall not be obligated to, and the undersigned\ndesignates Contractor as attorney-in-fact to, contest, pay and\/or discharge all\nliens, encumbrances, taxes or assessments on, or claims, actions or demands\nagainst any of the Collateral upon notice to, but without the consent of, the\nundersigned and to take all actions and proceedings in their name or in the name\nof the Manufacturer or of any other appropriate person to remove or contest such\nliens, encumbrances, claims, actions, demands, taxes or assessments by\nlitigation or otherwise. The undersigned agrees to pay on demand all costs,\nattorneys' fees, expenses, and all other sums advanced or paid by Contractor\npursuant to this paragraph 4(e).\n\n     (f)  Contractor may, at its discretion, file one or more financing\nstatements, and in that respect to serve as the attorney-in-fact for the\nundersigned for the purpose of executing such financing statements under the\nUniform Commercial Code, naming the Guarantor as debtor and Contractor as\nsecured party, and describing the types or items of Collateral. Contractor may\nfurther serve as the attorney-in-fact for the Guarantor for the purpose of\nexecuting any additional notices, affidavits or other documents as Contractor\nmay deem necessary to protect its security interest. The Guarantor agrees to pay\non demand the amount of any and all filing fees and expenses which Contractor\ndeems necessary to incur to protect its interest in the Collateral.\n\n     (g)  Contractor shall exercise reasonable care in the custody and\npreservation of the Collateral to the extent required by applicable statute, and\nshall be deemed to have exercised reasonable care if it takes such action for\nthat purpose as the undersigned shall reasonably request in writing; but under\nno circumstances shall any omission to comply with any such request of itself be\ndeemed a failure to exercise reasonable care. The undersigned agrees to pay on\ndemand any cost or expense, including without limitation, attorneys' fees and\ncosts incurred by Contractor in the reasonable preservation of the Collateral.\n\n     (h)  The Guarantor consents and agrees that Contractor shall be under no\nobligation to marshal\/ any assets against, or in payment of, any or all of the \nObligations. Guarantor further agrees that to the extent that the Manufacturer\nmakes a payment(s) to Contractor, which payment(s) are subsequently invalidated,\ndeclared to be fraudulent or preferential, set aside and\/or required to be\nrepaid to a trustee, receiver or any other party under any bankruptcy act, state\nor federal law, common law or equitable cause, then to the extent of such\npayment or repayment, the obligation intended to be satisfied shall be renewed\nand continued in full force and effect as if said payment had not been made, and\nthe Guarantor shall, upon demand by Contractor, immediately satisfy such\nobligation in full in accordance with the terms of this Agreement. The Guarantor\nfurther agrees that any and all claims of the Guarantor against the Manufacturer\nor against its properties, arising by\n\n\n                                       3\n\n   4\n\n\nreason of any loan, advance, investment or other payment by the undersigned to\nContractor shall be subordinate and subject in right of payment to the prior\npayment, in full, of all sums due pursuant to the Obligations.\n\n     (i)  The Guarantor assumes responsibility for keeping himself, herself or\nitself informed of the financial condition of the Manufacturer and of all other\ncircumstances bearing upon the risk of Default. Contractor shall have no duty to\nadvise the Guarantor of information known to Contractor regarding such condition\nor circumstances.\n\n     (j)  No delay on the part of Contractor in the exercise of any right or\nremedy shall operate as a waiver or constitute a discharge any of the\nGuarantor's obligations under this Agreement, and no single or partial exercise\nby Contractor of any right or remedy shall preclude the further exercise to any\nextent; nor shall any modification or waiver of any of the provisions of this\nAgreement be binding upon Contractor except as expressly set forth in a writing\nduly signed and delivered by an authorized officer of Contractor. Contractor's\nfailure at any time to require strict performance by the Manufacturer or any\nother party of any of the provisions, warranties, terms and conditions contained\nin the Contract Documents shall not discharge any of the Guarantor's obligations\nunder this Agreement, nor shall it waive, affect or diminish any right of the\nContractor at any time to demand strict performance and such right shall not be\ndeemed to have been waived by any act or knowledge of Contractor unless such\nwaiver is contained in an instrument in waiting, signed by an officer of\nContractor specifying such waiver. No waiver by Contractor of any default shall\noperate as a waiver of either any other default or the same default on a future\noccasion, and no action or inaction by Contractor including, without limitation,\nContractor's failure to take any steps to preserve its rights in the Collateral,\nshall in any way affect or impair Contractor's rights or the obligations of the\nGuarantor under this Agreement. The Guarantor agrees that his obligations under\nthis Agreement will not be discharged except by complete performance of all of\nthe Obligations. Any determination by a court of competent jurisdiction of the\nsums owing by the Manufacturer to Contractor shall be conclusive and binding on\nthe Guarantor irrespective of whether the Guarantor was a party to the suit or\naction in which such determination was made.\n\n     5.   WARRANTIES AND REPRESENTATIONS. The Guarantor hereby represents and\nwarrants to the Contractor that:\n\n     (a)  The execution, delivery, and performance by the Guarantor of this\nAgreement will not violate any provision of law, any order of any court or other\nagency of government, or any agreement or other instrument to which the\nGuarantor is a party or by which the Guarantor is bound or be in conflict with,\nresult in a breach of or constitute (with due notice or lapse of time, or both)\na default under any such agreement or other instrument, or result in the\ncreation or imposition of any lien, charge, or encumbrance of any nature\nwhatsoever upon any of the property or assets of the Guarantor, except as\ncontemplated by the provisions of this Agreement;\n\n     (b)  This Agreement constitutes the legal, valid and binding obligation of\nthe Guarantor and is enforceable against the Guarantor in accordance with the\nterms hereof;\n\n\n                                       4\n\n   5\n\n\n     (c)  As to such of the Collateral deposited with the Contractor on the date\nhereof (i) the Guarantor is the legal and beneficial owner of the Securities;\n(ii) the Securities are validly issued, fully paid and non-assessable, and\nrepresent the percent of issued and outstanding shares of stock of (or other\ninterest in) the Manufacturer as set forth in Schedule I; (iii) the securities\ntransfer forms attached to the Certificates representing such Collateral have\nbeen duly executed and delivered by the Guarantor to Contractor; and (iv) none\nof the Collateral is subject to any security interest, pledge, lien or other\nencumbrance or adverse claim of any nature whatsoever.\n\n     6.   VOTING RIGHTS. Unless and until a Default hereunder shall have\noccurred, the Guarantor shall be entitled to exercise all voting powers\npertaining to the Securities owned by the Guarantor for any purposes not\ninconsistent with, or in violation of, the provisions of this Agreement in all\ncorporate matters.\n\n     7.   DEFAULT. (a)     Upon and during the continuance of any Default,\nContractor may, at its sole election: (i) proceed directly and at once, without\nnotice, against the Guarantor to collect and recover the full amount or any\nportion of the Obligations, without first proceeding against the Manufacturer or\nany collateral or any other party or any other person, firm or corporation; (ii)\nwith or without notice, transfer to or register in the name of itself or its\nnominee any of the Securities, and whether or not so transferred or registered,\nreceive the income and dividends, including stock dividends and rights to\nsubscribe, and hold the same as a part of the Collateral to secure the\nperformance and payment of the Obligations, and\/or apply the same as provided in\nthis Agreement; (iii) exchange any of the Securities for other property upon the\nreorganization, recapitalization, or other readjustment of the Manufacturer, and\n(iv) vote the Securities and exercise or cause its nominee to exercise all or\nany powers with the same force and effect as an absolute owner. All of the above\nrights and powers may be exercised by Contractor without liability, except the\nobligation to account for property actually received.\n\n     (b)  In addition to any other rights given by law and under this Agreement,\nContractor shall have the rights and remedies with respect to the Collateral of\na secured party under the Illinois Uniform Commercial Code (whether or not that\nCode is in effect in the jurisdiction where the rights and remedies are\nasserted) all of which remedies shall be cumulative, and none exclusive, to the\nextent permitted by law. Contractor may sell or cause to be sold, in one or more\nsales or parcels, at such price or prices as Contractor may deem best, and for\ncash or on credit or for future delivery, without assumption of any credit risk,\nall or any of the Collateral, at public or private sale, without demand of\nperformance but with notice to the undersigned, and the purchaser of any or all\nof the Collateral so sold shall then hold the same absolutely, free from any\nclaim or right of any kind including (but not limited to) any equity of\nredemption of the Guarantor. Any requirements of reasonable notice shall be met\nif such notice is mailed, postage prepaid, to the Guarantor at the address set\nforth below at least ten (10) days before the time of the sale or disposition.\nAny other requirement of notice, demand or advertisement for sale is waived.\nContractor may, in its own name, or in the name of its designee, buy at any\npublic or, if permitted by law, any private sale, and, in lieu of the actual\npayment of the purchase price, Contractor may set off the amount of such price\nagainst the Guarantor's obligations hereunder. The undersigned will pay to\nContractor all expenses (including attorney's fees) of, or incident to, the\nenforcement of any of the provisions of this Agreement.\n\n\n                                       5\n\n   6\n\n\n     (c)  Any right to set-off exercised by Contractor shall be deemed to have\nbeen exercised immediately on the occurrence of a Default, even though such\nset-off is made or entered on the books of Contractor at any subsequent time.\n\n     (d)  In view of the fact that federal and state securities laws may impose\ncertain restrictions on the method by which a sale of the Securities may be\neffected, it is agreed that in the event of a Default, Contractor may from time\nto time attempt to sell all or any part of the Collateral by means of a private\nplacement, restricting the bidders and prospective purchasers to those who will\nrepresent and agree that they are purchasing for investment only and not for\ndistribution. The undersigned agrees that acceptance by Contractor of the\nhighest offer after soliciting offers from two or more potential buyers would be\ncommercially reasonable.\n\n     (e)  Contractor, at any time and at its option, may apply all or any net\ncash receipts from the sale of Collateral to the payment of the Obligations,\napplying or reapplying, or distributing or allocating the same as it shall\nelect, whether or not then due. In case of any sale by Contractor of any of the\nCollateral on credit or for future delivery, the property sold may be retained\nby Contractor until the selling price is paid by the purchaser, but Contractor\nshall incur no liability in case of failure of the purchaser to take and pay for\nthe property so sold. In case of any such failure, the property so sold may be\nagain similarly sold.\n\n     8.   INDEMNIFICATION. The Guarantor will at all times, now and hereafter,\nindemnify and hold Contractor harmless from and against all loss or damage\narising in connection with this Agreement and against all claims, liability,\ndemands, actions or suits, and all liabilities, payments, costs, charges and\nexpenses including, but not limited to, attorneys' fees and costs incurred by\nContractor on account of or in connection with the Agreement or the transactions\nor assertions of rights contemplated or permitted hereunder.\n\n     9.   MISCELLANEOUS. (a)      This Agreement shall be binding upon the \nundersigned and upon the heirs, executors, successors and assigns of the\nundersigned and shall inure to the benefit of Contractor's successors and\nassigns; all references to the Manufacturer and to the undersigned shall be\ndeemed to include their respective successors, assigns, participants, receivers\nor trustees (as the case may be).\n\n     (b)  This Agreement embodies the entire understanding of the parties\npertaining to the subject matter hereof, and shall constitute a continuing\nagreement applicable to future as well as existing transactions between the\nContractor and the Manufacturer.\n\n     (c)  THIS AGREEMENT HAS BEEN DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN\nMADE IN CHICAGO, ILLINOIS, AND SHALL BE INTERPRETED, AND THE RIGHTS AND\nLIABILITIES OF THE PARTIES DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE\nOF ILLINOIS, AND AS PART OF THE CONSIDERATION FOR CONTRACTOR'S PERFORMANCE\nPURSUANT TO THE CONTRACT DOCUMENTS, THE UNDERSIGNED CONSENTS TO THE JURISDICTION\nOF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF ILLINOIS, AND\nFURTHER CONSENT THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED OR\n\n\n                                       6\n\n   7\n\nREGISTERED MAIL DIRECTED TO THE UNDERSIGNED AT THE ADDRESS STATED HEREIN AND\nSERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED TWO (2) DAYS AFTER THE SAME\nSHALL HAVE BEEN POSTED. THE UNDERSIGNED FURTHER CONSENTS TO THE GRANTING OF SUCH\nLEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.\n\n     (d)  The headings used in this Agreement are for the convenience of the\nreader only; such headings constitute no part whatsoever of the Agreement\nbetween the parties.\n\n     (e)  No invalidity, irregularity or unenforceability of the Obligations (or\nany of them) hereby secured shall affect, impair or be a defense to any\nprovision contained in this Agreement. If any term, condition or provision of\nthis Agreement is determined to be invalid or unenforceable, such determination\nshall not affect the validity or enforceability of any other term, condition or\nprovision of this Agreement.\n\n     (f)  If this Agreement shall differ or conflict in terms with any of the\nContract Documents, the Agreement which gives Contractor the greater right, as\ndetermined by Contractor, shall prevail.\n\n                                   GUARANTOR:\n\n\n                                         Ray Musci\n\n                                         \/s\/ RAY MUSCI\n                                         --------------------------------\n\n                                         Address:  333 W Santa Clara St.\n                                                   Suite 930\n                                                   San Jose, CA 95113\n\n\n\n                                       7\n\n   8\n\n\n\n                                   SCHEDULE I\n                         SECURITIES OF THE MANUFACTURER\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6843],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9560,9565],"class_list":["post-41050","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bam-entertainment-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-finance","corporate_contracts_types-finance__guaranty"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41050","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41050"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41050"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41050"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41050"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}