ONE OR MORE SUSPENSIONS HAVING AN AGGREGATE DURATION IN
EXCESS OF 90 DAYS OCCUR DURING ANY 12-MONTH PERIOD (AN "EVENT"), THE COMPANY
SHALL PAY IN CASH TO THE INVESTOR LIQUIDATED DAMAGES IN THE AMOUNT OF 1.0% OF
THE AGGREGATE PURCHASE PRICE PER MONTH THEREAFTER (PRO RATA FOR ANY PORTION
THEREOF) UNTIL THE EARLIER OF (I) THE FIRST DATE AFTER SUCH EVENT ON WHICH THE
INVESTOR EITHER RECEIVES COPIES OF A SUPPLEMENTED OR AMENDED PROSPECTUS PREPARED
AND FILED BY THE COMPANY OR IS ADVISED IN WRITING BY THE COMPANY THAT THE
CURRENT PROSPECTUS MAY BE USED, OR (II) THE SECOND ANNIVERSARY OF THE CLOSING
DATE, ANY SUCH PAYMENTS TO BE MADE MONTHLY IN ARREARS.
5.4.
INDEMNIFICATION. FOR THE PURPOSE OF THIS SECTION 5.4, THE TERM
"REGISTRATION STATEMENT" SHALL INCLUDE ANY PRELIMINARY OR FINAL PROSPECTUS,
EXHIBIT, SUPPLEMENT OR AMENDMENT INCLUDED IN OR RELATING TO THE REGISTRATION
STATEMENT REFERRED TO IN SECTION 5.1 AND THE TERM "RULES AND REGULATIONS" MEANS
THE RULES AND REGULATIONS PROMULGATED UNDER THE SECURITIES ACT.
(A)
INDEMNIFICATION BY THE COMPANY. THE COMPANY AGREES TO INDEMNIFY, DEFEND
AND HOLD HARMLESS THE INVESTOR, ITS OFFICERS, DIRECTORS, AGENTS, INVESTMENT
ADVISORS, PARTNERS, MEMBERS, MANAGERS, STOCKHOLDERS, TRUSTEES AND EMPLOYEES, AND
EACH PERSON, IF ANY, WHO CONTROLS THE INVESTOR (OR ANY OF SUCH OTHER PERSONS)
WITHIN THE MEANING OF THE SECURITIES ACT, AGAINST ANY LOSSES, CLAIMS, DAMAGES,
LIABILITIES, COSTS OR EXPENSES TO WHICH THE INVESTOR OR OTHER PERSON MAY BECOME
SUBJECT (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND OTHER COSTS AND
EXPENSES OF PREPARING, INVESTIGATING, DEFENDING, SETTLING, COMPROMISING OR
PAYING SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES, COSTS OR EXPENSES)
(COLLECTIVELY, "LOSSES"), AS INCURRED, UNDER THE SECURITIES ACT, THE EXCHANGE
ACT, OR ANY OTHER FEDERAL OR STATE STATUTORY LAW OR REGULATION INSOFAR AS SUCH
LOSSES ARISE OUT OF OR ARE BASED UPON (I) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF ANY MATERIAL FACT CONTAINED IN THE REGISTRATION STATEMENT,
INCLUDING THE PROSPECTUS, FINANCIAL STATEMENTS AND SCHEDULES, AND ALL OTHER
DOCUMENTS FILED AS A PART THEREOF, AS AMENDED AT THE TIME OF EFFECTIVENESS OF
THE REGISTRATION STATEMENT, INCLUDING ANY INFORMATION DEEMED TO BE A PART
THEREOF AS OF THE TIME OF EFFECTIVENESS PURSUANT TO PARAGRAPH (B) OF RULE 430A,
OR PURSUANT TO RULE 434 OF THE RULES AND REGULATIONS, OR THE PROSPECTUS, IN THE
FORM FIRST FILED WITH THE COMMISSION PURSUANT TO RULE 424(B) OF THE REGULATIONS,
OR FILED AS PART OF THE REGISTRATION STATEMENT AT THE TIME OF EFFECTIVENESS IF
NO RULE 424(B) FILING IS REQUIRED (THE "PROSPECTUS"), OR ANY AMENDMENT OR
SUPPLEMENT THERETO, (II) THE OMISSION OR ALLEGED OMISSION TO STATE IN ANY OF
THEM A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE
STATEMENTS IN ANY OF THEM, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING, (III) ANY INACCURACY IN THE REPRESENTATIONS AND WARRANTIES
OF THE COMPANY CONTAINED IN THIS AGREEMENT, OR ANY FAILURE OF THE COMPANY TO
PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, OR (IV) ANY VIOLATION OR ALLEGED
VIOLATION BY THE COMPANY OF THE SECURITIES ACT,