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first paragraph of this Note. Notwithstanding the foregoing provisions, if the interest rate <br />charged exceeds the maximum legal rate of interest, the rate shall be the maximum rate <br />permitted by law. The imposition or acceptance of the Default Rate shall in no event <br />constitute a waiver of a default under this Note or prevent Agency from exercising any <br />of its other rights or remedies. <br />3. MISCELLANEOUS. <br />3.1 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. <br />Neither the failure nor any delay in exercising any right, power or privilege under this <br />Note will operate as a waiver of such right, power or privilege, and no single or partial <br />exercise of any such right, power or privilege by Agency will preclude any other or <br />further exercise of such right, power or privilege or the exercise of any other right, power <br />or privilege. No waiver that may be given by Agency will be applicable except in the <br />specific instance for which it is given. No notice to or demand on Borrower will be <br />deemed to be a waiver of any obligation of Borrower or of the right of Agency to take <br />further action without notice or demand as 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 all defenses and <br />pleas on the grounds of any extension or extensions of the time of payment or of any <br />due date under this Note, in whole or in part, whether before or after maturity and with <br />or without notice. <br />3.2 NOTICES. Any notice required or permitted to be given hereunder shall <br />be given in accordance with Section 11.3 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 <br />will remain in full force and effect. Any provision of this Note held invalid or <br />unenforceable only in part or degree will remain in full force and effect to the extent not <br />held invalid or 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 <br />filed 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 <br />successors and assigns and shall accrue to the benefit of Agency and its successors <br />and assigns. <br />3.6 SECTION HEADINGS CONSTRUCTION; AMENDMENTS. The <br />headings of Sections in this Note are provided for convenience only and will not affect <br />its construction or interpretation. There shall be no amendment to or modification of this <br />Note except by written instrument executed by Borrower and Agency. <br />7180323-6 7 <br />