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of Trust. The rights and remedies of Agency under this Note shall be cumulative and not <br />alternative. <br />2.3 DEFAULT RATE. Upon the occurrence of an Event of Default, interest shall <br />automatically be increased without notice to the rate often percent (] 0%) per annum (the <br />"Default Rate"); provided however, if any payment due hereunder is not paid when due, the <br />Default Rate shall apply commencing upon the due date for such payment. When Borrower <br />is no longer in default, the Default Rate shall no longer apply, and the interest rate shall once <br />again be the rate specified in the first paragraph of this Note. Notwithstanding the foregoing <br />provisions, if the interest rate charged exceeds the maximum legal rate of interest, the rate <br />shall be the maximum rate permitted by law. The imposition or acceptance of the Default <br />Rate shall in no event constitute a waiver of a default under this Note or prevent Agency from <br />exercising any of its other rights or remedies. <br />MISCELLANEOUS <br />3.l WAIVERS; BORROWER'S WAIVERS. No waiver by Agency of any right <br />or remedy under this Note shall be effective unless in a writing signed by Agency. Neither <br />the failure nor any delay in exercising any right, power or privilege under this Note will <br />operate as a waiver of such right, power or privilege, and no single or partial exercise of any <br />such right, power or privilege by Agency will preclude any other or further exercise of such <br />right, power or privilege or the exercise of any other right, power or privilege. No waiver that <br />may be given by Agency will be applicable except in the specific instance for which it is <br />given. No notice to or demand on Borrower will be deemed to be a waiver of any obligation <br />of Borrower or of the right of Agency to take further action ~~ithout notice or demand as <br />provided in this Note. <br />To the maximum extent permitted by applicable law Borrower hereby waives <br />presentment, demand, protest, notices of dishonor and of protest and al] defenses and pleas on <br />the grounds of any extension or extensions of the time of payment or of any due date under <br />this Note, in whole or in part, whether before or after maturity and with or without notice. <br />3.2 NOTICES. Any notice required or permitted to be given hereunder shall be <br />given in accordance with Section 12.3 of the OPA. <br />3.3 SEVERABILITY. If any provision in this Note is held invalid or <br />unenforceable by any court of competent jurisdiction, the other provisions of this Note will <br />remain in full force and effect. Any provision of this Note held invalid or unenforceable only <br />in part or degree will remain in full force and effect to the extent not held invalid or <br />unenforceable. <br />3.4 GOVERNING LAW; VENUE. This Note shall be governed by the laws of <br />the State of California without regard to principles of conflicts of laws. Any legal action filed <br />in connection with this Note shall be filed in the Superior Court of Alameda County, <br />California, or in the Federal District Court for the Northern District of California. <br />3.5 PARTIES IN INTEREST. This Note shall bind Borrower and its successors <br />and assigns and shall accrue to the benefit of Agency and its successors and assigns. <br />3.6 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this <br />Note are provided for convenience only and will not affect its construction or interpretation. <br />956227-4 ~ <br />