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09/04/2009 12: 10 209-9562 CBSJ • PAGE 13 �r(a 12. Miscellaneous. (a) Binding Effect. This Forbearance Agreement shall be binding on and inure to the benefit of the successors and assigns of the Parties. (b) Time of the Esse ce. Time is expressly declared to be of the essence of this Forbearance Agreement. (c) Liti atio�g n Ex,ense.In the event of any legal action or proceeding of any kind maintained by any Party to this Forbearance Agreement to enforce, defend or interpret any provision of this Forbearance Agreement including any arbitration,or any proceeding in bankruptcy court,the prevailing party in such action or proceeding shall recover from the.other Parties to such. action all reasonable costs and expenses(including,without limitation, court costs and reasonable attorneys' .fees)which such prevailing party may incur in such action or proceeding. The"prevailing party"shall be the Party who is entitled to recover costs of suit,whether or not any suit proceeds to final judgment. (d) Waiver. The waiver of any breach of this Forbearance Agreement by either Party hereto shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or another provision of this Forbearance Agreement. (e) Amendment. The terms, covenants, and conditions of this Forbearance Agreement may not be altered, changed or modified except by a writing signed by all Parties hereto. (f) Survival of Agreement and its Provisions-The provisions of this Forbearance Agreement, and the representations and warranties contained herein shall survive the execution of this Forbearance Agreement and shall continue in full force and effect for the entire term of this Forbearance Agreement and until all indebtedness hereunder is repaid in full. (g) Entire Agreement. This Forbearance Agreement, together with all Exhibits, attachments,and/or all documentation incorporated or referred to herein, constitute the entire agreement between LENDER and each of GUARANTORS with respect to the subject matter of this Forbearance Agreement, and no party has made or been auth u i,zed to make any promises,representations, covenants or agreements not contained herein that pertain in any way to the subject matter of this Forbearance Agreement.This Forbearance Agreement supersedes all prior negotiations, discussions,contracts, agreements or understandings among the parties hereto, and no evidence of any prior or contemporaneous parole agreement or understanding shall be admissible to vary its terms. Page 12 of 23