Payment of Expenses from Purchase Agreement
Payment of Expenses. The Company and the Guarantors will pay all costs, expenses and fees incident to the performance of the obligations of the Company and the Guarantors under this Agreement, including, without limiting the generality of the foregoing, the following: (a) accounting fees of the Company and the Guarantors; (b) the fees and disbursements of counsel for the Company and the Guarantors; (c) the cost of preparing, printing and delivering to, or as requested by, the Initial Purchasers copies of the Disclosure Package, Offering Memorandum, this Agreement, the Indenture, the Registration Rights Agreement and any other documents that may be required in connection with the offering, purchase, sale, issuance or delivery of the Debentures (and the Guarantees thereof); (d) the qualification of the Debentures under securities laws in accordance with the provisions of Section 3(a) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection therewith and in connection with the preparation of the Blue Sky Survey, any supplement thereto and any Legal Investment Survey (subject to the limitations set forth in the Engagement Letter between the Initial Purchasers and the Company, dated April 9, 2006); (e) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Debentures (and the Guarantees thereof); (f) any fees payable in connection with the initial and continued designation of the Debentures as PORTALSM securities under the PORTALSM Market pursuant to NASD Rule 5322; and (g) the listing fee of the Nasdaq National Market relating to the Conversion Shares. Any transfer taxes imposed on the sale of the Debentures to the Initial Purchasers will be paid by the Company and the Guarantors. The Company and the Guarantors, however, shall not be required to pay for any of the Initial Purchasers expenses (other than those related to clause (d) above) except that, if this Agreement shall not be consummated because this Agreement is terminated by the Initial Purchasers pursuant to Section 10 hereof, or by reason of any failure, refusal or inability on the part of the Company or the Guarantors to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof, unless such failure to satisfy said condition or to comply with said terms be due to the default or omission of the Initial Purchasers, then the Company and the Guarantors shall reimburse the Initial Purchasers for reasonable out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred in connection with investigating, marketing and proposing to market the Debentures or in contemplation of performing their obligations hereunder; but the Company and the Guarantors shall not in any event be liable to the Initial Purchasers for damages on account of loss of anticipated profits from the sale by the Initial Purchasers of the Debentures.