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action or proceeding and shall be paid whether or not such action or proceeding is prosecuted to <br />final ;judgment. Any judgment or order entered in such action or proceeding shall contain a <br />specific provision providing for the recovery of attorneys' fees and costs, separate from the <br />judgment, incurred in enforcing such judgment. The prevailing Party shall be determined by the <br />trier of fact based upon an assessment of which Party's major arguments or positions taken in the <br />proceedings could fairly be said to have prevailed over the other Party's major arguments or <br />positions on major disputed issues. For the purposes of this Section, attorneys' fees shall <br />include, without limitation, fees incurred in the following: (1) post - judgment motions, (2) <br />contempt proceedings; (3) garnishment, levy and debtor and third party examinations, (4) <br />discovery; and (5) banldruptey litigation. <br />9. Miscellaneous. <br />9.1 No Modification& No addition to or modification of any term or <br />provision of this Agreement is effective unless in writing and signed by the Parties. <br />9,2 Construction of Agreement. The provisions of this Agreement shall not <br />be construed in favor of or against either Party, but shall be construed as if both Parties prepared <br />dris Agr ocraern. <br />93 headings. The Section headings of this Agreement are only for <br />convenience and shall not be deemed to limit the suliiect of such Sections or to be considered in <br />their construction. <br />9A Governing Law, The laves of the State of California shall govern this <br />Agreement <br />9.5 Time of the Essence. Time is of the essence of each and every provision <br />of this Agreement, <br />9,6 Further Assurances. Each of the Parties shall execute and deliver all <br />additional papers, documents and other assurances, and shall do all acts and 'things reasonably <br />necessary in connection with the performance of their obligations under this Agreement to carry <br />out the intent of this Agreement. <br />9.7 No Waiver. No waiver by a Party of a breach of any of the terms, <br />covenants, or conditions of this Agreement by the other shall be construed or held to be a waiver <br />of any succeeding or preceding Breach of the same or any other term, covenant or condition <br />contained 'herein. No waiver of any default by a Party shall be implied from any omission by the <br />other Party to take any action on account of such default if such default persists al• is repeated <br />and no express waiver shall affect a default other than as specified in such waiver. The consent <br />or approval by either Party to or of any act by the other requiring the first Party's consent or <br />approval shall not be deemed to waive or render unnecessary the consenting Party's consent or <br />approval to or of any subsequent similar acts by the other Patty. <br />9.8 Severability. If any portion of this Agreement is held by any coma of <br />contpetent jurisdiction to be .illegal; null, void or against public policy, the remaining portions of <br />this Agreement shall not be affected thereby and shall remain in force and effect to the fill extent <br />-16- <br />25C-26 <br />