Circuit City 2005 Annual Report Download - page 109

Obligations, (d) any duty on the part of Landlord to disclose to Guarantor any facts it may know or may hereafter
acquire regarding Tenant, (e) any defense based on lack of diligence on the part of Landlord in the collection of any
and all of the Obligations, or (f) any demand for payment, presentment, notice of protest or dishonor, notice of
acceptance of this Guaranty and any and all other notices or demands to which Guarantor might otherwise be entitled
by law.
6. Subordination; Waiver of Subrogation; Preference and Fraudulent Transfer Indemnity . Any indebtedness
(including, without limitation, interest obligations) of Tenant to Guarantor now or hereafter existing shall be, and such
indebtedness hereby is, deferred, postponed and subordinated to the Obligations. Guarantor hereby unconditionally and
irrevocably agrees that (a) Guarantor will not at any time assert against Tenant (or Tenant’s estate in the event Tenant
becomes bankrupt or becomes the subject of any case or proceeding under the bankruptcy laws of the United States of
America) any right or claim to indemnification, reimbursement, contribution or payment for or with respect to any and
all amounts Guarantor may pay or be obligated to pay Landlord, including, without limitation, any and all Obligations
which Guarantor may perform, satisfy or discharge, under or with respect to this Guaranty; (b) Guarantor waives and
releases all such rights and claims and any other rights and claims to indemnification, reimbursement, contribution or
payment which Guarantor, or any of them, may have now or at any time against Tenant (or Tenant’s estate in the event
Tenant becomes bankrupt or becomes the subject of any case or proceeding under any bankruptcy laws); (c) Guarantor
shall have no right of subrogation, and Guarantor waives any right to enforce any remedy which Landlord now has or
may hereafter have against Tenant; (d) Guarantor waives any benefit of, and any right to participate in, any security
now or hereafter held by Landlord; and (e) Guarantor waives any defense based upon an election of remedies by
Landlord which destroys or otherwise impairs any subrogation rights of Guarantor or the right of Guarantor to proceed
against Tenant for reimbursement. The waivers hereunder shall continue and survive after the payment and satisfaction
of the Obligations, and the termination or discharge of Guarantor’s obligations under this Guaranty. Guarantor further
hereby unconditionally and irrevocably agrees and guarantees (on a joint and several basis) to make full and prompt
payment to Landlord of any of the Obligations or other sums paid to Landlord pursuant to the Lease which Landlord is
subsequently ordered or required to pay or disgorge on the grounds that such payments constituted an avoidable
preference or a fraudulent transfer under applicable bankruptcy, insolvency or fraudulent transfer laws; and Guarantor
shall fully and promptly indemnify Landlord for all costs (including, without limitation, attorney’s fees) incurred by
Landlord in defense of such claims of avoidable preference or fraudulent transfer.
7. Choice of Law — This Guaranty is to be performed in the State of Georgia and shall be governed by and
construed in accordance with the laws of the State of Georgia, without regard to its conflicts laws or choice of law
rules.
8. Time of Essence — Time is of the essence of this Guaranty.
9. Notices —
Wherever any notice or other communication is required or permitted hereunder, such notice or
other communication shall be in writing and shall be delivered by hand, or by nationally-recognized overnight express
delivery service, by U. S. registered or certified mail, return receipt requested, postage prepaid to the addresses set out
below or at such other addresses as are specified by written notice delivered in accordance herewith:
Any notice or other communication mailed as hereinabove provided shall be deemed effectively given (a) on the date
of delivery, if delivered by hand; or (b) on the date mailed if sent by overnight express delivery or if sent by U.S. mail.
Such notices shall be deemed received (a) on the date of delivery, if delivered by hand or overnight express delivery
service; or (b) on the date indicated on the return receipt if mailed. If any notice mailed is properly addressed but
Landlord: Hamilton Mill Business Center, LLC
c/o IDI, Inc.
3424 Peachtree Road, N.E., Suite 1500
Atlanta, Georgia 30326
Attn: Manager
-
Lease Administration
Guarantor: Systemax, Inc.
___________________
___________________
Attn: _______________