BY HAND OR BY COURIER AND RECEIPTED FOR BY
THE PERSON TO WHOM SAID NOTICE OR OTHER COMMUNICATION SHALL HAVE BEEN DIRECTED,
(B) IF MAILED BY CERTIFIED OR REGISTERED MAIL WITH POSTAGE PREPAID, ON THE FIFTH
BUSINESS DAY AFTER THE DATE ON WHICH IT IS SO MAILED OR (C) IF SENT BY FACSIMILE
TRANSMISSION AND FAX CONFIRMATION IS RECEIVED, ON THE NEXT BUSINESS DAY
FOLLOWING THE DATE ON WHICH SUCH FACSIMILE TRANSMISSION WAS SENT.
ADDRESSES FOR
NOTICE TO THE COMPANY AND THE INDEMNITEE AND INDEMNITEE'S SPOUSE ARE AS SHOWN ON
THE SIGNATURE PAGE OF THIS AGREEMENT, OR SUCH OTHER ADDRESS AS ANY PARTY SHALL
HAVE GIVEN BY WRITTEN NOTICE TO THE OTHER PARTY AS PROVIDED ABOVE.
SECTION 7.13
STATUTE OF LIMITATIONS.
THE COMPANY AGREES NOT TO ASSERT
THAT A CLAIM FOR INDEMNIFICATION IS BARRED BY THE STATUTE OF LIMITATIONS AS AN
AFFIRMATIVE DEFENSE OR OTHERWISE.
SECTION 7.14
SUBROGATION.
IN THE EVENT OF ANY PAYMENT UNDER THIS
AGREEMENT, THE COMPANY SHALL BE SUBROGATED TO THE EXTENT OF SUCH PAYMENT TO ALL
OF THE RIGHTS OF RECOVERY OF INDEMNITEE AND INDEMNITEE'S SPOUSE, WHO SHALL
EXECUTE ALL PAPERS REQUIRED AND TAKE ALL ACTIONS NECESSARY TO SECURE SUCH
RIGHTS, INCLUDING EXECUTION OF SUCH DOCUMENTS AS ARE NECESSARY TO ENABLE THE
COMPANY TO BRING SUIT TO ENFORCE SUCH RIGHTS.
THE COMPANY SHALL NOT BE LIABLE
UNDER THIS AGREEMENT TO MAKE ANY PAYMENT OF AMOUNTS OTHERWISE INDEMNIFIABLE
HEREUNDER (OR FOR WHICH ADVANCEMENT IS PROVIDED HEREUNDER) IF AND TO THE EXTENT
THAT INDEMNITEE OR INDEMNITEE'S SPOUSE HAS OTHERWISE ACTUALLY RECEIVED SUCH
PAYMENT UNDER ANY INSURANCE POLICY, CONTRACT, AGREEMENT OR OTHERWISE.
THE
COMPANY'S OBLIGATION TO INDEMNIFY OR ADVANCE EXPENSES HEREUNDER TO INDEMNITEE
WHO IS OR WAS SERVING AS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT (INCLUDING A
FIDUCIARY) OF ANOTHER PARTNERSHIP, JOINT VENTURE, TRUST OR OTHER ENTERPRISE AT
THE REQUEST OF THE COMPANY SHALL BE REDUCED BY ANY AMOUNT INDEMNITEE OR
INDEMNITEE'S SPOUSE HAS ACTUALLY RECEIVED AS INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES FROM SUCH PARTNERSHIP, JOINT VENTURE, TRUST OR OTHER ENTERPRISE.
SECTION 7.15
USE OF CERTAIN TERMS.
AS USED IN THIS AGREEMENT, THE
WORDS "HEREIN," "HEREOF," AND "HEREUNDER" AND OTHER WORDS OF SIMILAR IMPORT
REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR PARAGRAPH,
SUBPARAGRAPH, SECTION, OR OTHER SUBDIVISION.
WHENEVER THE CONTEXT MAY REQUIRE,
ANY PRONOUN USED IN THIS AGREEMENT SHALL INCLUDE THE
14
CORRESPONDING MASCULINE, FEMININE OR NEUTER FORMS, AND THE SINGULAR FORM OF
NOUNS, PRONOUNS AND VERBS SHALL INCLUDE THE PLURAL AND VICE VERSA.
SECTION 7.16
WAIVERS.
THE OBSERVANCE OF ANY TERM OF THIS AGREEMENT
MAY BE WAIVED (EITHER GENERALLY OR IN A PARTICULAR INSTANCE AND EITHER
RETROACTIVELY OR PROSPECTIVELY) ONLY BY A WRITING SIGNED BY THE PARTY AGAINST
WHICH SUCH WAIVER IS TO BE ASSERTED.
UNLESS OTHERWISE EXPRESSLY PROVIDED
HEREIN, NO DELAY ON THE PART OF THE PARTY HERETO IN EXERCISING ANY RIGHT, POWER
OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY WAIVER
ON THE PART OF ANY PARTY HERETO OF ANY RIGHT, POWER OR PRIVILEGE HEREUNDER
OPERATE