PROVIDED HEREIN.
(VII)
TO THE EXTENT THAT ANY LIABILITY THAT IS SUBJECT TO
INDEMNIFICATION UNDER THIS AGREEMENT IS COVERED BY INSURANCE, THE AMOUNT OF ANY
INDEMNITY PAYMENT SHALL BE NET OF THE NET PROCEEDS OF ANY INSURANCE POLICY PAID
TO THE INDEMNIFIED PARTY WITH RESPECT TO SUCH LIABILITY.
FOR PURPOSES OF THIS
SECTION, "NET PROCEEDS" SHALL MEAN THE INSURANCE PROCEEDS ACTUALLY RECEIVED,
FROM ANY INSURANCE SOURCE, LESS ANY EXPENSES OF RECOVERY, DEDUCTIBLES, AND/OR
CO-PAYMENTS.
IF ANY AMOUNTS ARE REIMBURSED UNDER
55
INSURANCE COVERAGE FROM ANY INSURANCE SOURCE SUBSEQUENT TO INDEMNIFICATION UNDER
THIS ARTICLE, THE INDEMNIFIED PARTY SHALL REIMBURSE THE INDEMNIFYING PARTY IN AN
AMOUNT EQUAL TO THE AMOUNTS SUBSEQUENTLY RECEIVED UNDER INSURANCE COVERAGE (NET
OF THE EXPENSES OF RECOVERY).
(VIII)
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NO BREACH OF ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT CONTAINED HEREIN WILL GIVE RISE
TO ANY RIGHT ON THE PART OF BUYER OR SELLER, AFTER THE CLOSING, TO RESCIND THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND ANY AND SUCH
RESCISSION RIGHTS ARE HEREBY WAIVED.
(IX)
IN ADDITION TO THE LIMITATIONS SET FORTH IN SECTION 11.17 AND
ELSEWHERE IN THIS AGREEMENT, IN NO EVENT SHALL AN INDEMNIFYING PARTY BE LIABLE
FOR PUNITIVE DAMAGES SUSTAINED OR CLAIMED BY AN INDEMNIFIED PARTY EXCEPT TO THE
EXTENT SUCH DAMAGES ARISE FROM A THIRD-PARTY CLAIM.
AN INDEMNIFIED PARTY SHALL
USE REASONABLE EFFORTS TO MITIGATE ANY DAMAGES.
DAMAGES SHALL BE DETERMINED
AFTER TAKING INTO ACCOUNT ANY INDEMNITY, CONTRIBUTION OR OTHER SIMILAR PAYMENT
RECEIVED BY THE INDEMNIFIED PARTY FROM ANY THIRD-PARTY WITH RESPECT THERETO.
7.3
BUYER TRUST ACCOUNT.
(A)
SELLER HAS READ A COPY OF BUYER'S REGISTRATION STATEMENT ON FORM
S-1 (SEC FILE NO. 333-130531), AS DECLARED EFFECTIVE BY THE SEC ON JUNE 1, 2006
(THE "BUYER PROSPECTUS").
SELLER UNDERSTANDS THAT BUYER IS A SPECIAL PURPOSE
COMPANY FORMED FOR THE SOLE PURPOSE OF CONSUMMATING A "BUSINESS COMBINATION" AND
THAT BUYER HAS ESTABLISHED A TRUST ACCOUNT AT JP MORGAN CHASE NY BANK (THE
"TRUST ACCOUNT"), MAINTAINED BY AMERICAN STOCK & TRANSFER COMPANY ACTING AS
TRUSTEE, INITIALLY IN THE AMOUNT OF $142,575,000 AND THEREAFTER INCREASED BY ANY
EARNED AND ACCRUED INTEREST THEREON AND DECREASED BY ANY APPLICABLE STATE OR
FEDERAL TAXES THEREON (COLLECTIVELY, THE "TRUST ASSETS").
SELLER ACKNOWLEDGES
THAT THE TRUST ASSETS ARE TO BE HELD FOR THE BENEFIT OF BUYER'S STOCKHOLDERS AND
EITHER DISTRIBUTED AS PART OF THE CONSUMMATION OF A BUSINESS COMBINATION BETWEEN
BUYER AND A BUSINESS ENTITY OR ENTITIES MEETING CERTAIN REQUIREMENTS OR RETURNED
TO BUYER'S STOCKHOLDERS.
AS OF MARCH 31, 2007 BUYER OWNED LIQUID ASSETS OF
APPROXIMATELY $1,075,000 OUTSIDE OF THE TRUST ACCOUNT WHICH IT INTENDS TO USE
FOR ITS WORKING CAPITAL AND OTHER CORPORATE PURPOSES (THE "NON-TRUST ASSETS").
(B)
AS CONSIDERATION FOR BUYER'S EXECUTION OF THIS AGREEMENT, SELLER,
ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND REPRESENTATIVES
(COLLECTIVELY THE "SELLER CLAIMANTS") HEREBY AGREES THAT NEITHER IT NOR ANY
SELLER CLAIMANT WILL NOW OR AT ANY TIME IN THE FUTURE HAVE ANY CLAIM TO, OR MAKE
ANY CLAIM AGAINST, THE TRUST ASSETS