and shall be considered prima facie
evidence of the facts and documents referred to therein.
5.9.
Counterparts. To facilitate execution, this Agreement may be executed
in as many counterparts as may be convenient or required. It shall not be
necessary that the signature
Page 55 of 59
NYCDMS/447815.10
of, or on behalf of, each party, or that the signature of all persons required
to bind any party, appear on each counterpart. All counterparts shall
collectively constitute a single instrument. It shall not be necessary in making
proof of this Agreement to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the parties
hereto. Any signature page to any counterpart may be detached from such
counterpart without impairing the legal effect of the signatures thereon and may
thereafter be attached to another counterpart identical thereto except having
attached to it additional signature pages.
5.10.
Rights and Remedies. The exercise by Edgemere of any right or remedy
hereunder or under any other instrument, or at law, in equity, by statute (or
regulation) or otherwise, shall not preclude the statute (or regulation) or
otherwise, shall not preclude the concurrent or subsequent exercise of any other
right or remedy.
5.11.
Entirety. THIS AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT OF
PHOENIX AND EDGEMERE WITH RESPECT TO PHOENIX'S AGREEMENT TO FUND THE OBLIGATIONS
AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF.
NO COURSE OF DEALING BETWEEN PHOENIX AND EDGEMERE, NO COURSE OF PERFORMANCE, NO
TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS AGREEMENT. THERE
ARE NO ORAL AGREEMENTS BETWEEN PHOENIX AND EDGEMERE RELATING TO THE SUBJECT
MATTER HEREOF.
5.12.
Governing Law; Submission to Jurisdiction.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK AND
ITS VALIDITY, CONSTRUCTION AND EFFECT SHALL BE GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS WHOLLY PERFORMED
Page 56 of 59
NYCDMS/447815.10
THEREIN. THE VENUE FOR ANY AMOUNT, SUIT OR PROCEEDING ARISING FROM OR BASED UPON
THIS AGREEMENT SHALL BE THE APPROPRIATE STATE AND FEDERAL COURTS LOCATED IN THE
COUNTY OF NEW YORK IN THE STATE OF NEW YORK. ACCORDINGLY, PHOENIX AGREES THAT
ANY ACTION, SUIT OR PROCEEDING ARISING FROM OR BASED ON THIS AGREEMENT SHALL BE
COMMENCED IN AND DETERMINED BY THOSE APPROPRIATE STATE AND FEDERAL COURTS
LOCATED IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK AND WAIVES ANY
OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY
PROCEEDINGS BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT SUCH PROCEEDINGS
HAVE BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO
OBJECT WITH RESPECT TO SUCH PROCEEDINGS THAT SUCH COURT DOES NOT HAVE ANY
JURISDICTION OVER IT.