SHALL BE ABSOLUTE AND UNCONDITIONAL UNDER ANY AND ALL
CIRCUMSTANCES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING IN ANY RESPECT,
IT IS UNDERSTOOD AND AGREED THAT THE OCCURRENCE OF ANY ONE OR MORE OF THE
FOLLOWING SHALL NOT ALTER OR IMPAIR THE LIABILITY OF SYSTEMAX HEREUNDER, WHICH
SHALL REMAIN ABSOLUTE AND UNCONDITIONAL AS DESCRIBED ABOVE:
(I)
AT ANY TIME OR FROM TIME TO TIME,
WITHOUT NOTICE TO SYSTEMAX, THE TIME FOR ANY PERFORMANCE OF OR COMPLIANCE WITH
ANY OF THE BUYER GUARANTEED OBLIGATIONS SHALL BE EXTENDED, OR SUCH PERFORMANCE
OR COMPLIANCE SHALL BE WAIVED;
(II)
ANY CHANGE IN THE CORPORATE EXISTENCE,
STRUCTURE OR OWNERSHIP OF A BUYER, OR A BUYER BECOMES THE SUBJECT OF A LEGAL
PROCEEDING UNDER ANY BANKRUPTCY LAW;
(III)
THE MATURITY OF ANY OF THE BUYER GUARANTEED
OBLIGATIONS SHALL BE ACCELERATED, OR ANY OF THE BUYER GUARANTEED OBLIGATIONS
SHALL BE MODIFIED, SUPPLEMENTED OR AMENDED IN ANY RESPECT, OR ANY RIGHT UNDER
THIS AGREEMENT OR ANY OTHER AGREEMENT OR INSTRUMENT REFERRED TO HEREIN SHALL BE
WAIVED OR ANY OTHER GUARANTEE OF ANY OF THE BUYER GUARANTEED OBLIGATIONS OR ANY
SECURITY THEREFOR SHALL BE RELEASED OR EXCHANGED IN WHOLE OR IN PART OR
OTHERWISE DEALT WITH;
(IV)
ANY LIEN OR SECURITY INTEREST GRANTED TO, OR
IN FAVOR OF, THE SELLER AS SECURITY FOR ANY OF THE BUYER GUARANTEED OBLIGATIONS
SHALL FAIL TO BE PERFECTED;
(V)
THE EXISTENCE OF ANY CLAIM, SET-OFF OR OTHER
RIGHTS THAT SYSTEMAX MAY HAVE AT ANY TIME AGAINST A BUYER, WHETHER IN CONNECTION
HEREWITH OR WITH ANY UNRELATED TRANSACTIONS, OR ANY MODIFICATION OR AMENDMENT OF
OR SUPPLEMENT TO THE OPERATIVE AGREEMENTS;
(VI)
ANY INVALIDITY OR UNENFORCEABILITY IN ANY
JURISDICTION RELATING TO OR AGAINST A BUYER FOR ANY REASON OF THIS AGREEMENT, OR
ANY PROVISION OF ANY APPLICABLE LAW PURPORTING TO PROHIBIT THE PERFORMANCE BY A
BUYER OF ANY OF ITS OBLIGATIONS UNDER THE OPERATIVE AGREEMENTS; OR
(VII)
ANY OTHER ACT OR OMISSION TO ACT OR DELAY OF ANY
KIND WHATSOEVER BY A BUYER, OR ANY OTHER CIRCUMSTANCE WHATSOEVER THAT MIGHT, BUT
FOR THE PROVISIONS OF THIS SECTION 10.16, CONSTITUTES A LEGAL OR EQUITABLE
DISCHARGE OF THE OBLIGATIONS OF A BUYER UNDER THE OPERATIVE AGREEMENTS.
(C)
SYSTEMAX HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) NOTICE OF ACCEPTANCE OF THE
GUARANTY PROVIDED IN THIS SECTION 10.16 AND NOTICE OF ANY LIABILITY TO WHICH
THIS GUARANTY MAY APPLY, (II) ALL NOTICES THAT MAY BE REQUIRED BY APPLICABLE LAW
OR OTHERWISE TO PRESERVE INTACT ANY RIGHTS OF THE SELLER AGAINST A
42
BUYER, INCLUDING ANY DEMAND, PRESENTMENT, PROTEST, PROOF OF NOTICE OF
NON-PAYMENT, NOTICE OF ANY FAILURE ON THE PART OF THE SELLER TO PERFORM AND
COMPLY WITH ANY COVENANT, AGREEMENT, TERM, CONDITION OR PROVISION OF ANY
AGREEMENT AND ANY OTHER NOTICE TO ANY OTHER PARTY THAT MAY BE LIABLE IN RESPECT
OF THE OBLIGATIONS GUARANTEED HEREBY (INCLUDING A BUYER), AND (III) ANY RIGHT TO
THE ENFORCEMENT, ASSERTION OR EXERCISE BY THE SELLER OF ANY RIGHT, PRIVILEGE OR
REMEDY CONFERRED UPON