DATE SUCH PAYMENT WAS REQUIRED TO BE MADE THROUGH THE DATE SUCH PAYMENT IS
ACTUALLY MADE.
BUYER AGREES TO PROMPTLY DISSOLVE AND LIQUIDATE AND DISTRIBUTE
ITS ASSETS IN ACCORDANCE WITH DELAWARE LAW IF THE MERGER IS NOT CONSUMMATED BY
11:59 P.M. EASTERN STANDARD TIME ON NOVEMBER 14, 2009.
(E)
IN THE EVENT THAT THE MERGER IS CONSUMMATED AND SELLER HAS NOT
RECEIVED THE AGGREGATE PURCHASE PRICE AND THE FEES BY NOVEMBER 20, 2009, THEN
BUYER SHALL PAY TO SELLER IN IMMEDIATELY AVAILABLE FUNDS AN AMOUNT EQUAL TO THE
LESSER OF (I) 4.0% OF THE PURCHASE PRICE PER SHARE PER MONTH (PRO-RATED ON A
DAILY BASIS BASED ON THE DATE WHEN PAYMENT IS REQUIRED AND THE DATE SUCH PAYMENT
IS MADE) OR (II) THE HIGHEST LAWFUL RATE, FOR EACH SHARE HELD BY SELLER FROM THE
DATE SUCH PAYMENT WAS REQUIRED TO BE MADE THROUGH THE DATE SUCH PAYMENT IS
ACTUALLY MADE.
2
4.
REPRESENTATIONS AND WARRANTIES OF THE SELLER.
SELLER MAKES THE
FOLLOWING REPRESENTATIONS AND WARRANTIES TO AND FOR THE BENEFIT OF BUYER ON THE
DATE HEREOF AND ON THE CLOSING.
(A)
SOPHISTICATED SELLER.
SELLER IS SOPHISTICATED IN FINANCIAL
MATTERS AND IS ABLE TO EVALUATE THE RISKS AND BENEFITS ATTENDANT TO THE SALE OF
SHARES TO BUYER.
(B)
INDEPENDENT INVESTIGATION.
SELLER, IN MAKING THE DECISION TO SELL
THE SHARES TO BUYER, HAS NOT RELIED UPON ANY ORAL OR WRITTEN REPRESENTATIONS OR
ASSURANCES FROM BUYER OR ANY OF ITS OFFICERS, DIRECTORS OR EMPLOYEES OR ANY
OTHER REPRESENTATIVES OR AGENTS OF BUYER, EXCEPT AS ARE CONTAINED IN THIS
AGREEMENT.
SELLER HAS HAD ACCESS TO ALL OF THE FILINGS MADE BY PROSPECT WITH
THE SEC, PURSUANT TO THE SECURITIES EXCHANGE ACT OF 1934 (THE "EXCHANGE ACT")
AND THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") IN EACH CASE
TO THE EXTENT AVAILABLE PUBLICLY VIA THE SEC'S ELECTRONIC DATA GATHERING,
ANALYSIS AND RETRIEVAL SYSTEM.
(C)
AUTHORITY.
THIS AGREEMENT HAS BEEN VALIDLY AUTHORIZED, EXECUTED
AND DELIVERED BY SELLER AND, ASSUMING THE DUE AUTHORIZATION, EXECUTION AND
DELIVERY THEREOF BY BUYER, IS A VALID AND BINDING AGREEMENT ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS, SUBJECT TO THE GENERAL PRINCIPLES OF EQUITY AND TO
BANKRUPTCY OR OTHER LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY SELLER
DOES NOT AND WILL NOT CONFLICT WITH, VIOLATE OR CAUSE A BREACH OF, CONSTITUTE A
DEFAULT UNDER, OR RESULT IN A VIOLATION OF (I) ANY AGREEMENT, CONTRACT OR
INSTRUMENT TO WHICH SELLER IS A PARTY WHICH WOULD PREVENT SELLER FROM PERFORMING
ITS OBLIGATIONS HEREUNDER OR (II) ANY LAW, STATUTE, RULE OR REGULATION TO WHICH
SELLER IS SUBJECT.
(D)
NO LEGAL ADVICE FROM BUYER.
SELLER ACKNOWLEDGES THAT IT HAS HAD
THE OPPORTUNITY TO REVIEW THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT WITH SELLER'S OWN LEGAL COUNSEL AND INVESTMENT AND TAX ADVISORS.
SELLER IS NOT RELYING ON ANY STATEMENTS OR REPRESENTATIONS OF BUYER OR ANY OF
ITS REPRESENTATIVES OR AGENTS FOR LEGAL, TAX OR INVESTMENT ADVICE WITH RESPECT
TO THIS AGREEMENT OR