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shall be reduced to the limit of such validity, and if from any such circumstance Issuer shall ever <br /> receive as interest or otherwise an amount which would exceed the highest lawful rate, such <br /> amount which would be excessive interest shall be applied to the reduction of the principal <br /> indebtedness of Maker to Issuer, and not to the payment of interest, or if such excessive interest <br /> exceeds the unpaid balance of principal hereof, such excess shall be refunded to Maker. All <br /> sums paid or agreed to be paid by Maker for the use, forbearance or detention of the <br /> indebtedness of Maker to Issuer hereunder shall, to the extent permitted by applicable law, be <br /> amortized, prorated, allocated and spread throughout the full term of such indebtedness until <br /> payment in full in such manner that there will be no violation of applicable laws pertaining to the <br /> Maximum Rate or amount of interest which may be contracted for, charged or received with <br /> respect to such indebtedness. Maker shall not institute any action or file any defense based upon <br /> the charging or collecting of usurious interest hereunder unless (i) Maker shall give Issuer <br /> written notice of an intent to do so and (ii) Issuer shall fail to comply with the terms hereof by <br /> making necessary adjustments as required by this section, and notify Maker of such compliance <br /> within fifteen (15) days after receipt by Issuer of such written notice from Maker. The <br /> provisions of this section shall be given precedence over any other provision contained herein or <br /> in any other agreement between the parties hereto that is in conflict with the provisions of this <br /> section. <br /> 18. Payment on Bonds. Any and all payments of interest or principal hereunder shall <br /> be deemed a payment on the Bonds (as such term is defined in the Construction Loan <br /> Agreement). <br /> 19. Waiver of Trial by Jury. Maker hereby agrees that any suit, action or proceeding, <br /> whether a claim or counterclaim, brought or instituted by any party on or with respect to this <br /> Note or any other document executed in connection herewith or which in any way relates, <br /> directly or indirectly to the Construction Loan Agreement or any event, transaction or occurrence <br /> arising out of or in any way connected with this Note or the dealings of the parties with respect <br /> thereto, shall be tried only by a court and not by a jury. MAKER, AND ISSUER BY <br /> ACCEPTANCE OF THIS NOTE, HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL <br /> BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. Maker acknowledges that <br /> Maker may have a right to a trial by jury in any such suit, action or proceeding and that Maker <br /> hereby is knowingly, intentionally and voluntarily waiving any such right. Maker further <br /> acknowledges and agrees that this section is material to this Note and that adequate consideration <br /> has been given by Issuer and received by Maker in exchange for the waiver made by Maker <br /> pursuant to this section. <br /> 20. Waiver of Special Damages. Maker waives, to the extent waivable, any right <br /> Maker may have to claim or recover from Issuer any special, exemplary, punitive or <br /> consequential damages in any legal action or proceeding related in any way to this Note or any <br /> of the Loan Documents. <br /> 21. Notices. Any written notice required or permitted to be given to Issuer, MBI, Co- <br /> Maker or Borrower hereunder shall be deemed effective when given in the manner as provided <br /> for in the Co-Borrower Agreement of even date herewith for the sending of notices to Issuer, <br /> MBI, Co-maker and Borrower. <br /> 11 <br />