Exhibit 10.64
MERS MIN: 8000101-0000006567-1
PROMISSORY NOTE
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$26,250,000.00
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New York, New York |
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July 2, 2007 |
FOR
VALUE RECEIVED , ACADIA MERRILLVILLE REALTY, L.P. , an
Indiana limited partnership, as maker, having its principal place
of business c/o Acadia Realty Trust, 1311 Mamaroneck Avenue,
Suite 260, White Plains, New York 10605 (“
Borrower ”), hereby unconditionally promises to pay to
the order of BEAR STEARNS COMMERCIAL MORTGAGE, INC. , a New
York corporation, as lender, having an address at 383 Madison
Avenue, New York, New York 10179 (“Lender”), or at such
other place as the holder hereof may from time to time designate in
writing, the principal sum of Twenty-Six Million Two Hundred Fifty
Thousand and No/100 Dollars ($26,250,000.00), in lawful money of
the United States of America with interest thereon to be computed
from the date of this Note at the Applicable Interest Rate, and to
be paid in accordance with the terms of this Note and that certain
Loan Agreement, dated the date hereof, between Borrower and Lender
(as the same may hereafter be amended, restated, replaced,
supplemented, renewed, extended or otherwise modified from time to
time, the “ Loan Agreement ”). All capitalized
terms not defined herein shall have the respective meanings set
forth in the Loan Agreement.
ARTICLE 1
PAYMENT TERMS
Borrower
agrees to pay the principal sum of this Note and interest on the
unpaid principal sum of this Note from time to time outstanding at
the rates and at the times specified in Article 2 of the Loan
Agreement and the outstanding balance of the principal sum of this
Note and all accrued and unpaid interest thereon shall be due and
payable on the Maturity Date.
ARTICLE 2
DEFAULT AND ACCELERATION
Subject
to Section 8.1 of the Loan Agreement, the Debt shall without
notice become immediately due and payable at the option of Lender
if any payment required in this Note is not paid on or prior to the
date when due, subject to any applicable grace period, or if not
paid on the Maturity Date or on the happening of any other Event of
Default.
ARTICLE 3
LOAN DOCUMENTS
This
Note is secured by the Mortgage and the other Loan Documents. All
of the terms, covenants and conditions contained in the Loan
Agreement, the Mortgage and the other Loan Documents are hereby
made part of this Note to the same extent and with the same force
as if they were fully set forth herein. In the event of a conflict
or inconsistency between the terms of this Note and the Loan
Agreement, the terms and provisions of the Loan Agreement shall
govern.
ARTICLE 4
SAVINGS CLAUSE
Notwithstanding
anything to the contrary, (a) all agreements and
communications between Borrower and Lender are hereby and shall
automatically be limited so that, after taking into account all
amounts deemed interest, the interest contracted for, charged or
received by Lender shall never exceed the maximum lawful rate or
amount, (b) in calculating whether any interest exceeds the
lawful maximum, all such interest shall be amortized, prorated,
allocated and spread over the full amount and term of all principal
indebtedness of Borrower to Lender and (c) if through any
contingency or event Lender receives or is deemed to receive
interest in excess of the lawful maximum, any such excess shall be
deemed to have been applied toward payment of the principal of any
and all then outstanding indebtedness of Borrower to Lender.
ARTICLE 5
NO ORAL CHANGE
This
Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on
the part of Borrower or Lender, but only by an agreement in writing
signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is
sought.
ARTICLE 6
WAIVERS
Borrower
and all others who may become liable for the payment of all or any
part of the Debt do hereby severally waive presentment and demand
for payment, notice of dishonor, notice of intention to accelerate,
notice of acceleration, protest and notice of protest and
non-payment and all other notices of any kind. No release of any
security for the Debt or extension of time for payment of this Note
or any installmen
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