Common use of Agreement to Pay; Subordination Clause in Contracts

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Party has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent or such other Secured Party as designated thereby in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such Obligations. Upon payment by the Guarantor of any sums to the Collateral Agent or any Secured Party as provided above, all rights of the Guarantor against the Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of the Borrower or any Subsidiary now or hereafter held by the Guarantor is hereby subordinated in right of payment to the prior payment in full of the Obligations. If any amount shall be paid to the Guarantor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at any time when any Obligation then due and owing has not been paid, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Administrative Agent or any other Secured Party has at law or in equity against the any Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party to pay any Obligation (other than Excluded Swap Obligations) when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the each Guarantor hereby promises to and will 1821445.29\C072091\0303228 forthwith pay, or cause to be paid, to the Collateral Administrative Agent or such other Secured Party as designated thereby in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such Obligations. Upon payment by the any Guarantor of any sums to the Collateral Administrative Agent or any Secured Party as provided above, all rights of the such Guarantor against the Borrower applicable Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness debt or Lien of the Borrower or any Subsidiary other Loan Party now or hereafter held by the any Guarantor is hereby subordinated in right of payment and priority to the prior payment in full in cash of the ObligationsObligations and the Liens created under the Loan Documents (provided that, payments on such debt may be made at any time when no Event of Default has occurred and is continuing). If any amount shall erroneously be paid to the any Guarantor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at any time when any Obligation then due and owing has not been paiddebt of the Borrower or such other Loan Party, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Collateral Administrative Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Lender Party has at law or in equity against the Guarantor Ultimate Parent by virtue hereof, upon the failure of Kimco to pay (after the Borrower giving of any required notice and the expiration of any cure period expressly granted to Kimco in the Credit Agreement or any other Loan Party to pay Document evidencing any Guaranteed Obligation) any Guaranteed Obligation when and as the same shall become due, whether at maturity, upon mandatory prepayment, by acceleration, after notice of prepayment or otherwise, the Guarantor Ultimate Parent hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Administrative Agent or such other Secured Party as designated thereby for the benefit of the Lender Parties, in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such ObligationsGuaranteed Obligation. Upon payment by the Guarantor Ultimate Parent of any sums to the Collateral Agent or any Secured Party as provided above, all rights of the Guarantor Ultimate Parent against the Borrower Kimco or any other Person arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Guaranteed Obligations. In addition, any indebtedness of the Borrower or any Subsidiary Kimco now or hereafter held by the Guarantor Ultimate Parent is hereby subordinated in right of payment to the prior payment in full in cash of the Guaranteed Obligations. If any amount shall erroneously be paid to the Guarantor Ultimate Parent on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at any time when any Obligation then due and owing has not been paidof Kimco, such amount shall be held in trust for the benefit of the Secured Lender Parties and shall forthwith be paid to the Collateral Administrative Agent to be credited against the payment of the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Party Bank has at law or in equity against the Guarantor Kimco by virtue hereof, upon the failure of the Borrower to pay (after the giving of any required notice and the expiration of any cure period expressly granted to the Borrower in this Agreement or any other Loan Party to pay Document evidencing any Guaranteed Obligation) any Guaranteed Obligation when and as the same shall become due, whether at maturity, upon mandatory prepayment, by acceleration, after notice of prepayment or otherwise, the Guarantor Kimco hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent or such other Secured Party as designated thereby Bank, in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such ObligationsGuaranteed Obligation. Upon payment by the Guarantor Kimco of any sums to the Collateral Agent or any Secured Party as provided above, all rights of the Guarantor Kimco against the Borrower or any other Person arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Guaranteed Obligations. In addition, any indebtedness of the Borrower or any Subsidiary now or hereafter held by the Guarantor Kimco is hereby subordinated in right of payment to the prior payment in full in cash of the Guaranteed Obligations. If any amount shall erroneously be paid to the Guarantor Kimco on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at any time when any Obligation then due and owing has not been paidof the Borrower, such amount shall be held in trust for the benefit of the Secured Parties Bank and shall forthwith be paid to the Collateral Agent Bank to be credited against the payment of the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Party Obligee has at law or in equity against the any Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party Obligor to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent or such other Secured Party Obligee as designated thereby in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such Obligations. Upon payment by the any Guarantor of any sums to the Collateral Agent or any Secured Party Obligee as provided above, all rights of the such Guarantor against the Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of the Borrower or any Subsidiary now or hereafter held by the any Guarantor is hereby subordinated in right of payment to the prior payment in full of the Obligations. If any amount shall be paid to the any Guarantor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at any time when any Obligation then due and owing has not been paidof the Borrower, such amount shall be held in trust for the benefit of the Secured Parties Obligees and shall forthwith be paid to the Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Credit Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Party has at law or in equity against the Guarantor Terex by virtue hereof, upon the failure of the any Subsidiary Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Guarantor Terex hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent or such other Secured Party as designated thereby in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such Obligations. Upon payment by the Guarantor Terex of any sums to the Collateral Agent or any Secured Party as provided above, all rights of the Guarantor Terex against the any Subsidiary Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of the Borrower or any Subsidiary Borrower now or hereafter held by the Guarantor Terex is hereby subordinated in right of payment to the prior payment in full of the Obligations. If any amount shall erroneously be paid to the Guarantor Terex on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at of any time when any Obligation then due Subsidiary Borrower, and owing has not been paidif an Event of Default shall have occurred and be continuing, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent Agents or any other Secured Party has at law or in equity against the any Subsidiary Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the each Subsidiary Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent or such other Secured Party as designated thereby in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such Obligations. Upon payment by the any Subsidiary Guarantor of any sums to the Collateral Agent or any Secured Party as provided above, all rights of the such Subsidiary Guarantor against the Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of the Borrower or any Subsidiary now or hereafter held by the any Subsidiary Guarantor is hereby subordinated in right of payment to the prior payment in full of the Obligations. If any amount shall erroneously be paid to the any Subsidiary Guarantor on account of (ia) such subrogation, contribution, reimbursement, indemnity or similar right or (iib) any such indebtedness at any time when any Obligation then due and owing has not been paidof the Borrower, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.Secured

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent an Agent, Issuing Bank or any other Secured Party Bank has at law or in equity against the any Guarantor by virtue hereof, upon the failure of the either Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent such Agent, Bank or such other Secured Party Issuing Bank as designated thereby in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such Obligations. Upon payment by the any Guarantor of any sums to the Collateral Agent an Agent, Issuing Bank or any Secured Party Bank as provided above, all rights of the such Guarantor against the either Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of the either Borrower or any Subsidiary thereof now or hereafter held by the any Guarantor is hereby subordinated in right of payment to the prior payment in full of the Obligations. If any amount shall erroneously be paid to the any Guarantor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at of either Borrower or any time when any Obligation then due and owing has not been paidSubsidiary thereof, such amount shall be held in trust for the benefit of the Secured Parties Banks and the Issuing Banks and shall forthwith be paid to the Collateral an Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Lender Party has at law or in equity against the Guarantor Kimco by virtue hereof, upon the failure of any Borrower to pay (after the giving of any required notice and the expiration of any cure period expressly granted to such Borrower in this Agreement or any other Loan Party to pay Document evidencing any Guaranteed Obligation) any Guaranteed Obligation when and as the same shall become due, whether at maturity, upon mandatory prepayment, by acceleration, after notice of prepayment or otherwise, the Guarantor Kimco hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Administrative Agent or such other Secured Party as designated thereby for the benefit of the Lender Parties, in cash an amount equal to and the unpaid principal relevant currency, the amount of such Obligations then due, together with accrued and unpaid interest and fees on such ObligationsGuaranteed Obligation. Upon payment by the Guarantor Kimco of any sums to the Collateral Agent or any Secured Party as provided above, all rights of the Guarantor Kimco against the applicable Borrower or any other Person arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash and the relevant currency of all the Guaranteed Obligations. In addition, any indebtedness of the any Borrower or any Subsidiary now or hereafter held by the Guarantor Kimco is hereby subordinated in right of payment to the prior payment in full in cash of the Guaranteed Obligations. If any amount shall erroneously be paid to the Guarantor Kimco on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at of any time when any Obligation then due and owing has not been paidBorrower, such amount shall be held in trust for the benefit of the Secured Lender Parties and shall forthwith be paid to the Collateral Administrative Agent to be credited against the payment of the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Party Lender has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party Designated Borrowers to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Guarantor hereby promises to and will forthwith upon demand pay, or cause to be paid, to the Collateral Agent or such other Secured Party Lender as designated thereby in cash an amount equal to the unpaid principal amount of such Guaranteed Obligations then due, together with accrued and unpaid interest and fees on such Guaranteed Obligations. Upon payment by the Guarantor of any sums to the Collateral Agent or any Secured Party Lender as provided above, all rights of the Guarantor against the Borrower other Borrowers arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Guaranteed Obligations. In addition, any indebtedness of the Borrower Designated Borrowers or any Subsidiary now or hereafter held by the Guarantor is hereby subordinated in right of payment to the prior payment in full of the Guaranteed Obligations. If any amount shall be paid to the Guarantor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at any time when any Guaranteed Obligation then due and owing has not been paid, such amount shall be held in trust for the benefit of the Secured Parties Lender, and shall forthwith be paid to the Collateral Agent Lender to be credited against the payment of the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.

Agreement to Pay; Subordination. In furtherance of the foregoing and not in limitation of any other right that the Collateral Administrative Agent or any other Secured Party has at law or in equity against the any Guarantor by virtue hereof, upon the failure of the Parent Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Administrative Agent or such other Secured Party as designated thereby in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest and fees on such Obligations. Upon payment by the any Guarantor of any sums to the Collateral Administrative Agent or any Secured Party as provided above, all rights of the such Guarantor against the Parent Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of the Parent Borrower or any Subsidiary now or hereafter held by the any Guarantor is hereby subordinated in right of payment to the prior payment in full of the ObligationsObligations during the existence of an Event of Default. If any amount shall erroneously be paid to the any Guarantor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness at any time when any Obligation then due and owing has not been paidof the Parent Borrower, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Collateral Administrative Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.to