Common use of Appointment and Obligations of Remarketing Agent Clause in Contracts

Appointment and Obligations of Remarketing Agent. (a) The Company hereby appoints [________] and [________] hereby accepts such appointment, (i) as the Remarketing Agent to determine, in consultation with the Company, in the manner provided for herein, in the Purchase Contract Agreement and in the Notes, the Reset Rate that, in the opinion of the Remarketing Agent, will, when applied to the Remarketed Notes, enable the aggregate market value of the Remarketed Notes equal 100.25% of the aggregate principal amount of such Remarketed Notes as of the Remarketing Date or as of any Subsequent Remarketing Date, as the case may be, and (ii) as the exclusive Remarketing Agent (subject to the right of such Remarketing Agent to appoint additional remarketing agents hereunder as described below) to remarket the Remarketed Notes to be included in the remarketing on the Remarketing Date, and, if necessary, on February 4, 2009 and, if necessary, on February 5, 2009 and, if necessary, on February 6, 2009 and, if necessary, on February 9, 2009 and, on February 10, 2009 and, if necessary, on February 11, 2009, as the case may be. The Remarketing Agent shall have the right, on 15 Business Days' notice to the Company, to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company; provided that any such appointment shall not increase the Remarketing Fee (as defined in Section 4 hereof). Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such additional remarketing agent. (b) Subject to the terms and conditions set forth herein and in the Purchase Contract Agreement, the Remarketing Agent shall use its reasonable best efforts to (i) remarket on the Remarketing Date the Remarketed Notes at the Reset Rate, (ii) in the event the Remarketing Agent cannot establish such a Reset Rate on the Remarketing Date, attempt to remarket such Notes on February 4, 2005, and, if necessary, on February 5, 2009 and, if necessary, on February 6, 2009 and, if necessary, on February 9, 2009 and, if necessary, on February 10, 2009 and, if necessary, on February 11, 2009, in each case at the Reset Rate and (iii) in the event of a Last Failed Remarketing, promptly return the Pledged Notes, if any, included in such Last Failed Remarketing to the Collateral Agent to be held by the Collateral Agent in accordance with Section 4.5(b) of the Pledge Agreement (which Section is incorporated herein by reference) and return any Separate Notes included in the remarketing to the Custodial Agent in accordance with Section 4.5(d) of the Pledge Agreement, Section 5.4(b)(ii) of the Purchase Contract Agreement and Section 2.19 of the Supplemental Indenture (which Sections are incorporated herein by reference). After deducting the fee specified in Section 4 below, the proceeds of any such successful remarketing shall be delivered to the Purchase Contract Agent or the Custodial Agent, as applicable, in accordance with Sections 4.5(a) and 4.5(d) of the Pledge Agreement (which Section is incorporated herein by reference) and Section 5.4(b) of the Purchase Contract Agreement (which Section is incorporated herein by reference). The right of each Holder of Normal Units or Separate Notes to have Notes included in any remarketing shall be subject to the conditions that (i) the Remarketing Agent conducts a remarketing on such date pursuant to the terms of this Agreement, (ii) the Notes included in a remarketing have not been called for redemption upon the occurrence of a Special Event, (iii) the Remarketing Agent is able to find a purchaser or purchasers for the Remarketed Notes at the Reset Rate and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required. (c) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Notes, whether in a remarketing held on the Remarketing Date or on any Subsequent Remarketing Date or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Notes for remarketing or to otherwise expend or risk its own funds or incur or be exposed to financial liability in the performance of its duties under this Agreement, and, without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Notes. The Company shall not be obligated in any case to provide funds to make payment upon delivery of Notes for remarketing. (d) The Remarketing Agent shall also, if required by the Securities Act or the rules and regulations promulgated thereunder, deliver to each purchaser a Prospectus in connection with the Remarketing. (e) If, by 4:30 p.m., New York City time, on the Remarketing Date, the Remarketing Agent is unable to remarket all Remarketed Notes included in the Remarketing, a failed Remarketing (the "Failed Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall so advise by telephone the Depositary and the Company. (f) The Remarketing Agent shall advise, by telephone, the Company of the Reset Rate determined in a Successful Remarketing (as defined in Section 4 hereof) as soon as practicable after such determination. (g) By approximately 4:30 p.m., New York City time, on the Trading Day following the Remarketing Date, PROVIDED that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone, (i) the Depositary of the Reset Rate determined in the Remarketing and the number of Remarketed Notes sold in the Remarketing, (ii) each purchaser (or the Depositary Participant thereof) of the Reset Rate and the number of Remarketed Notes such purchaser is to purchase and (iii) each purchaser to give instructions to its Depositary Participant to pay the purchase price on the Settlement Date in same day funds against delivery of the Remarketed Notes purchased through the facilities of the Depositary.

Appointment and Obligations of Remarketing Agent. (a) The Company ------------------------------------------------ hereby appoints [________] Xxxxxxx Xxxxx and [________] Xxxxxxx Xxxxx hereby accepts such appointment, (i) as the Remarketing Reset Agent to determine, determine in consultation with the Company, in the manner provided for herein, in by the Purchase Contract Agreement and in terms of the NotesPreferred Shares, the Reset Rate thatRate, that in the opinion of the Remarketing Reset Agent, will, when applied to the Remarketed NotesPreferred Shares, enable the aggregate a Preferred Share to have an approximate market value of the Remarketed Notes equal 100.25approximately 100.5% of the aggregate principal stated liquidation amount in the case of such Remarketed Notes as of Preferred Share provided that the Remarketing Date or as of any Subsequent Remarketing Date, as Company may limit such Reset Rate to be no higher than the case may berate on the One-month Treasury Xxxx plus . basis points (.%), and (ii) as the exclusive Remarketing Agent (subject to the right of such Remarketing Agent to appoint additional remarketing agents hereunder as described below) to remarket the Remarketed Notes Preferred Shares, of such Preferred Shareholders electing to be included have their Preferred Shares remarketed, or of such Income PRIDES holders who have not early settled the related Purchase Contracts and have failed to notify the Purchase Contract Agent, on or prior to the fifth Business Day immediately preceding the Purchase Contract Settlement Date, of their intention to settle the related Purchase Contracts through Cash Settlement, for settlement on the Purchase Contract Settlement Date, pursuant to the Remarketing Underwriting Agreement with the Company and the Purchase Contract Agent, substantially in the remarketing on the Remarketing Date, and, if necessary, on February 4, 2009 and, if necessary, on February 5, 2009 and, if necessary, on February 6, 2009 and, if necessary, on February 9, 2009 and, on February 10, 2009 and, if necessary, on February 11, 2009, form attached hereto as the case may be. The Remarketing Agent shall have the right, on 15 Business Days' notice to Exhibit A (with such changes as the Company, the Purchase Contract Agent and the Remarketing Agent may agree upon, it being understood that changes may be necessary in the representations, warranties, covenants and other provisions of the Remarketing Underwriting Agreement due to appoint changes in law or facts and circumstances). Pursuant to the Remarketing Underwriting Agreement, the Remarketing Agent, either as the sole remarketing underwriter or as the representative of a syndicate including the Remarketing Agent and one or more additional other remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company; provided that any such appointment shall not increase underwriters designated by the Remarketing Fee (as defined in Section 4 hereof). Upon any such appointmentAgent, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such additional remarketing agent. (b) Subject will agree, subject to the terms and conditions set forth herein therein, that the Remarketing Agent and in any such other remarketing underwriters will purchase severally the Preferred Shares to be sold by the holder or holders of Preferred Shares or Income PRIDES on the third Business Day immediately preceding the Purchase Contract AgreementSettlement Date and use their reasonable efforts to remarket such Preferred Shares (such purchase and remarketing being hereinafter referred to as the "Remarketing"), at a price of approximately 100.5% of such Preferred Shares aggregate stated liquidation amount plus any accumulated and unpaid dividends. Notwithstanding the preceding sentence, the Remarketing Agent shall use its reasonable best efforts not remarket any Preferred Shares for a price less than 100% of the aggregate stated liquidation preference of such Preferred Shares, plus accumulated and unpaid dividends. The proceeds of such remarketing shall be paid to (i) remarket on the Remarketing Date the Remarketed Notes at the Reset Rate, (ii) in the event the Remarketing Agent cannot establish such a Reset Rate on the Remarketing Date, attempt to remarket such Notes on February 4, 2005, and, if necessary, on February 5, 2009 and, if necessary, on February 6, 2009 and, if necessary, on February 9, 2009 and, if necessary, on February 10, 2009 and, if necessary, on February 11, 2009, in each case at the Reset Rate and (iii) in the event of a Last Failed Remarketing, promptly return the Pledged Notes, if any, included in such Last Failed Remarketing to the Collateral Agent to be held by the Collateral Agent in accordance with Section 4.5(b) 4.6 of the Pledge Agreement (which and Section is incorporated herein by reference) and return any Separate Notes included in the remarketing to the Custodial Agent in accordance with Section 4.5(d) of the Pledge Agreement, Section 5.4(b)(ii) 5.4 of the Purchase Contract Agreement and Section 2.19 (each of the Supplemental Indenture (which Sections are incorporated herein by reference). After deducting the fee specified in Section 4 below, the proceeds of any such successful remarketing shall be delivered to the Purchase Contract Agent or the Custodial Agent, as applicable, in accordance with Sections 4.5(a) and 4.5(d) of the Pledge Agreement (which Section is incorporated herein by reference) and Section 5.4(b) of the Purchase Contract Agreement (which Section is incorporated herein by reference). The right of each Holder of Normal Units or Separate Notes to have Notes included in any remarketing shall be subject to the conditions that (i) the Remarketing Agent conducts a remarketing on such date pursuant to the terms of this Agreement, (ii) the Notes included in a remarketing have not been called for redemption upon the occurrence of a Special Event, (iii) the Remarketing Agent is able to find a purchaser or purchasers for the Remarketed Notes at the Reset Rate and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required. (c) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Notes, whether in a remarketing held on the Remarketing Date or on any Subsequent Remarketing Date or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Notes for remarketing or to otherwise expend or risk its own funds or incur or be exposed to financial liability in the performance of its duties under this Agreement, and, without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Notes. The Company shall not be obligated in any case to provide funds to make payment upon delivery of Notes for remarketing. (d) The Remarketing Agent shall also, if required by the Securities Act or the rules and regulations promulgated thereunder, deliver to each purchaser a Prospectus in connection with the Remarketing. (e) If, by 4:30 p.m., New York City time, on the Remarketing Date, the Remarketing Agent is unable to remarket all Remarketed Notes included in the Remarketing, a failed Remarketing (the "Failed Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall so advise by telephone the Depositary and the Company. (f) The Remarketing Agent shall advise, by telephone, the Company of the Reset Rate determined in a Successful Remarketing (as defined in Section 4 hereof) as soon as practicable after such determination. (g) By approximately 4:30 p.m., New York City time, on the Trading Day following the Remarketing Date, PROVIDED that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone, (i) the Depositary of the Reset Rate determined in the Remarketing and the number of Remarketed Notes sold in the Remarketing, (ii) each purchaser (or the Depositary Participant thereof) of the Reset Rate and the number of Remarketed Notes such purchaser is to purchase and (iii) each purchaser to give instructions to its Depositary Participant to pay the purchase price on the Settlement Date in same day funds against delivery of the Remarketed Notes purchased through the facilities of the Depositary.

Appointment and Obligations of Remarketing Agent. (a) The Company hereby appoints [________] and [________] hereby accepts such appointment, (i) as the Remarketing Agent to determine, in consultation with the Company, in the manner provided for herein, in the Purchase Contract Agreement and in the Notes, the Reset Rate that, in the opinion of the Remarketing Agent, will, when applied to the Remarketed Notes, enable the aggregate market value of the Remarketed Notes equal 100.25% of the aggregate principal amount of such Remarketed Notes as of the Remarketing Date or as of any Subsequent Remarketing Date, as the case may be, and (ii) as the exclusive Remarketing Agent (subject to the right of such Remarketing Agent to appoint additional remarketing agents hereunder as described below) to remarket the Remarketed Notes to be included in the remarketing on the Remarketing Date, and, if necessary, on February 4May 3, 2009 2007, and, if necessary, on February 5May 4, 2009 2007 and, if necessary, on February 6May 7, 2009 2007 and, if necessary, on February 9May 8, 2009 and, on February 10, 2009 2007 and, if necessary, on February 11May 9, 20092007 and, if necessary, on May 10, 2007, as the case may be. The Remarketing Agent shall have the right, on 15 Business Days' notice to the Company, to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company; provided that any such appointment shall not increase the Remarketing Fee (as defined in Section 4 hereof). Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such additional remarketing agent. (b) Subject to the terms and conditions set forth herein and in the Purchase Contract Agreement, the Remarketing Agent shall use its reasonable best efforts to (i) remarket on the Remarketing Date the Remarketed Notes at the Reset Rate, (ii) in the event the Remarketing Agent cannot establish such a Reset Rate on the Remarketing Date, attempt to remarket such Notes on February 4May 3, 20052007, and, if necessary, on February 5May 4, 2009 2007 and, if necessary, on February 6May 7, 2009 2007 and, if necessary, on February 9May 8, 2009 2007 and, if necessary, on February 10May 9, 2009 2007 and, if necessary, on February 11May 10, 20092007, in each case at the Reset Rate and (iii) in the event of a Last Failed Remarketing, promptly return the Pledged Notes, if any, included in such Last Failed Remarketing to the Collateral Agent to be held by the Collateral Agent in accordance with Section 4.5(b) of the Pledge Agreement (which Section is incorporated herein by reference) and return any Separate Notes included in the remarketing to the Custodial Agent in accordance with Section 4.5(d) of the Pledge Agreement, Section 5.4(b)(ii) of the Purchase Contract Agreement and Section 2.19 of the Supplemental Indenture (which Sections are incorporated herein by reference). After deducting the fee specified in Section 4 below, the proceeds of any such successful remarketing shall be delivered to the Purchase Contract Agent or the Custodial Agent, as applicable, in accordance with Sections 4.5(a) and 4.5(d) of the Pledge Agreement (which Section is incorporated herein by reference) and Section 5.4(b) of the Purchase Contract Agreement (which Section is incorporated herein by reference). The right of each Holder of Normal Units or Separate Notes to have Notes included in any remarketing shall be subject to the conditions that (i) the Remarketing Agent conducts a remarketing on such date pursuant to the terms of this Agreement, (ii) the Notes included in a remarketing have not been called for redemption upon the occurrence of a Special Event, (iii) the Remarketing Agent is able to find a purchaser or purchasers for the Remarketed Notes at the Reset Rate and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required. (c) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Notes, whether in a remarketing held on the Remarketing Date or on any Subsequent Remarketing Date or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Notes for remarketing or to otherwise expend or risk its own funds or incur or be exposed to financial liability in the performance of its duties under this Agreement, and, without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Notes. The Company shall not be obligated in any case to provide funds to make payment upon delivery of Notes for remarketing. (d) The Remarketing Agent shall also, if required by the Securities Act or the rules and regulations promulgated thereunder, deliver to each purchaser a Prospectus in connection with the Remarketing. (e) If, by 4:30 p.m., New York City time, on the Remarketing Date, the Remarketing Agent is unable to remarket all Remarketed Notes included in the Remarketing, a failed Remarketing (the "Failed Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall so advise by telephone the Depositary and the Company. (f) The Remarketing Agent shall advise, by telephone, the Company of the Reset Rate determined in a Successful Remarketing (as defined in Section 4 hereof) as soon as practicable after such determination. (g) By approximately 4:30 p.m., New York City time, on the Trading Day following the Remarketing Date, PROVIDED that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone, (i) the Depositary of the Reset Rate determined in the Remarketing and the number of Remarketed Notes sold in the Remarketing, (ii) each purchaser (or the Depositary Participant thereof) of the Reset Rate and the number of Remarketed Notes such purchaser is to purchase and (iii) each purchaser to give instructions to its Depositary Participant to pay the purchase price on the Settlement Date in same day funds against delivery of the Remarketed Notes purchased through the facilities of the Depositary.

Appointment and Obligations of Remarketing Agent. (a) The Company Bank and the REIT hereby appoints [________] appoint Xxxxxxx Xxxxx and [________] Xxxxxxx Xxxxx hereby accepts such appointment, (i) as the Remarketing Reset Agent to determine, determine in consultation with the CompanyREIT, or, in the event of an Automatic Exchange, the Bank (the REIT or the Bank, as the case may be, the "Issuer"), in the manner provided for herein, in the Purchase Contract Agreement herein and in the NotesAmended and Restated Articles of Incorporation of the Issuer with respect to the PRIDES Preferred Stock, (1) the Reset Rate that, in the opinion of the Remarketing Reset Agent, will, when applied to the Remarketed Notesremarketed shares of PRIDES Preferred Stock, enable the aggregate such PRIDES Preferred Stock to have an approximate market value on the Remarketing Date of the Remarketed Notes equal 100.25100.5% of the aggregate principal amount liquidation preference of such Remarketed Notes as of PRIDES Preferred Stock; provided, that the Remarketing Date or as of any Subsequent Remarketing Issuer by notice to the Reset Agent prior to the Forward Purchase Contract Settlement Date, as shall, if applicable, limit the case may beReset Rate so that it does not exceed the maximum rate permitted by applicable law, and (ii) as the exclusive Remarketing Agent (subject to the right of such Remarketing Agent Xxxxxxx Xxxxx to appoint additional remarketing agents hereunder as described below) to remarket the Remarketed Notes to be included in the remarketing on PRIDES Preferred Stock that is, at the Remarketing Date, and, part of an Income PRIDES if necessarythe holder thereof has failed to notify the Forward Purchase Contract Agent, on February 4or prior to the seventh Business Day immediately preceding the Forward Purchase Contract Settlement Date, 2009 andof its intention to settle the related Forward Purchase Contracts through Cash Settlement. In connection with the remarketing contemplated hereby, if necessarythe Remarketing Agent will enter into a Remarketing Underwriting Agreement (the "Remarketing Underwriting Agreement") among the Issuer, on February 5the Company and the Forward Purchase Contract Agent, 2009 and, if necessary, on February 6, 2009 and, if necessary, on February 9, 2009 and, on February 10, 2009 and, if necessary, on February 11, 2009, which shall either be (i) substantially in the form attached hereto as Exhibit A (with such changes as the case Issuer and the Remarketing Agent may beagree upon, it being understood that changes may be necessary in the representations, warranties, covenants and other provisions of the Remarketing Underwriting Agreement due to changes in law or facts and circumstances or in the event that Xxxxxxx Xxxxx is not the sole remarketing agent, and with such further changes therein as the Remarketing Agent may reasonably request, or (ii) in such other form as the Remarketing Agent may reasonably request, subject to the approval of the Company and the Issuer (such approval not to be unreasonably withheld). Anything herein to the contrary notwithstanding, Xxxxxxx Xxxxx shall not be obligated to act as Remarketing Agent or Reset Agent hereunder unless the Remarketing Underwriting Agreement is in form and substance reasonably satisfactory to Xxxxxxx Xxxxx. The Remarketing Agent REIT and the Bank agree that Xxxxxxx Xxxxx shall have the right, on 15 Business Days' Days notice to the Company, Issuer to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company; provided that any such appointment shall not increase the Remarketing Fee (as defined in Section 4 hereof)Issuer. Upon any such appointment, the REIT or the Bank, as applicable, shall promptly notify the Collateral Agent and the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such additional remarketing agent. (b) Subject Pursuant to the Remarketing Underwriting Agreement, the Remarketing Agent, either as sole remarketing agent or as representative of a group of remarketing agents appointed as aforesaid, will agree, subject to the terms and conditions set forth herein and in therein, to use its reasonable efforts to (i) remarket, on the fifth Business Day immediately preceding the Forward Purchase Contract AgreementSettlement Date (the "Remarketing"), the shares of PRIDES Preferred Stock that the Collateral Agent shall have notified the Remarketing Agent have been tendered for, or otherwise are to be included in, the Remarketing, at a price of approximately 100.5% of the liquidation preference of such PRIDES Preferred Stock. Notwithstanding the preceding sentence, the Remarketing Agent shall use its reasonable best efforts to not remarket any PRIDES Preferred Stock for a price less than the aggregate liquidation preference of such PRIDES Preferred Stock (i) remarket on the "Minimum Remarketing Date the Remarketed Notes at the Reset Rate, (ii) in the event the Remarketing Agent cannot establish such a Reset Rate on the Remarketing Date, attempt to remarket such Notes on February 4, 2005, and, if necessary, on February 5, 2009 and, if necessary, on February 6, 2009 and, if necessary, on February 9, 2009 and, if necessary, on February 10, 2009 and, if necessary, on February 11, 2009, in each case at the Reset Rate and (iii) in the event of a Last Failed Remarketing, promptly return the Pledged Notes, if any, included in such Last Failed Remarketing to the Collateral Agent to be held by the Collateral Agent in accordance with Section 4.5(b) of the Pledge Agreement (which Section is incorporated herein by reference) and return any Separate Notes included in the remarketing to the Custodial Agent in accordance with Section 4.5(d) of the Pledge Agreement, Section 5.4(b)(ii) of the Purchase Contract Agreement and Section 2.19 of the Supplemental Indenture (which Sections are incorporated herein by referencePrice"). After deducting the fee specified in Section 4 3 below, the proceeds of any such successful remarketing Remarketing shall be delivered paid to the Purchase Contract Collateral Agent or the Custodial Agent, as applicable, in accordance with Sections 4.5(a) and 4.5(d) Section 4.6 of the Pledge Agreement (which Section is incorporated herein by reference) and Section 5.4(b) 5.2 of the Forward Purchase Contract Agreement (each of which Section is Sections are incorporated herein by reference). The right of each Holder holder of Normal Units or Separate Notes Income PRIDES to have Notes PRIDES Preferred Stock included in any remarketing such Income PRIDES tendered for the Remarketing shall be subject limited to the conditions extent that (i) the Remarketing Agent conducts a remarketing on such date Remarketing pursuant to the terms of this Agreement, (ii) the Notes included in a remarketing PRIDES Preferred Stock tendered have not been called for redemption upon the occurrence of a Special Eventredemption, (iii) the Remarketing Agent is able to find a purchaser or purchasers for tendered PRIDES Preferred Stock at a price of not less than the Remarketed Notes at the Reset Rate Minimum Remarketing Price, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required. (c) It is understood and agreed that neither the Remarketing Agent nor the Reset Agent shall not have any obligation whatsoever to purchase any Notes, whether PRIDES Preferred Stock in a remarketing held on the Remarketing Date or on any Subsequent Remarketing Date or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Notes PRIDES Preferred Stock for remarketing or to otherwise expend or risk its their own funds or incur or be exposed to financial liability in the performance of its their respective duties under this Agreement or the Remarketing Underwriting Agreement, and, without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Notesremarketed PRIDES Preferred Stock. The Company Neither the Company, the REIT nor the Bank shall not be obligated in any case to provide funds to make payment upon delivery tender of Notes shares of PRIDES Preferred Stock for remarketing. (d) The Remarketing Agent shall also, if required by the Securities Act or the rules and regulations promulgated thereunder, deliver to each purchaser a Prospectus in connection with the Remarketing. (e) If, by 4:30 p.m., New York City time, on the Remarketing Date, the Remarketing Agent is unable to remarket all Remarketed Notes included in the Remarketing, a failed Remarketing (the "Failed Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall so advise by telephone the Depositary and the Company. (f) The Remarketing Agent shall advise, by telephone, the Company of the Reset Rate determined in a Successful Remarketing (as defined in Section 4 hereof) as soon as practicable after such determination. (g) By approximately 4:30 p.m., New York City time, on the Trading Day following the Remarketing Date, PROVIDED that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone, (i) the Depositary of the Reset Rate determined in the Remarketing and the number of Remarketed Notes sold in the Remarketing, (ii) each purchaser (or the Depositary Participant thereof) of the Reset Rate and the number of Remarketed Notes such purchaser is to purchase and (iii) each purchaser to give instructions to its Depositary Participant to pay the purchase price on the Settlement Date in same day funds against delivery of the Remarketed Notes purchased through the facilities of the Depositary.