exv10w64



 





Exhibit 10.64

MERS MIN: 8000101-0000006567-1




PROMISSORY NOTE




	 	 	 
	$26,250,000.00

	 	New York, New York
	 

	 	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 installment hereof, and no alteration, amendment or waiver of any
provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between
Lender or any other Person shall release, modify, amend, waive, extend, change, discharge,
terminate or affect the liability of Borrower, and any other Person who may become liable for the
payment of all or any part of the Debt, under this Note, the Loan Agreement or the other Loan
Documents. No notice to or demand on Borrower shall be deemed to be a waiver of the obligation of
Borrower or of the right of Lender to take further action without further notice or demand as
provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a
partnership, the agreements herein contained shall remain in force and be applicable,
notwithstanding any changes in the individuals or entities comprising the partnership, and the term
“Borrower,” as used herein, shall include any alternate or successor partnership, but any
predecessor partnership and their partners shall not thereby be released from any liability. If
Borrower is a corporation, the agreements contained herein shall remain in full force and be
applicable notwithstanding any changes in the shareholders comprising, or the officers and
directors relating to, the corporation, and the term “Borrower” as used herein, shall include any
alternative or successor corporation, but any predecessor corporation shall not be relieved of
liability hereunder. If any Borrower is a limited liability company, the agreements herein
contained shall remain in force and be applicable, notwithstanding any changes in the members
comprising the limited liability company, and the term “Borrower” as used herein,




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shall include any alternate or successor limited liability company, but any predecessor
limited liability company shall not thereby be released from any liability. (Nothing in the
foregoing sentence shall be construed as a consent to, or a waiver of, any prohibition or
restriction on transfers of interests in such partnership, corporation or limited liability company
which may be set forth in the Loan Agreement, the Mortgage or any other Loan Document.)




ARTICLE 7

TRANSFER




          Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender
may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan
Documents, or any part thereof, to the transferee who shall thereupon become vested with all the
rights herein or under applicable law given to Lender with respect thereto, and Lender shall
thereafter forever be relieved and fully discharged from any liability or responsibility in the
matter; but Lender shall retain all rights hereby given to it with respect to any liabilities and
the collateral not so transferred.




ARTICLE 8

EXCULPATION




          The provisions of Section 9.3 of the Loan Agreement are hereby incorporated by reference into
this Note to the same extent and with the same force as if fully set forth herein.




ARTICLE 9

GOVERNING LAW




          (A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY
LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THIS NOTE WERE DISBURSED FROM THE STATE OF NEW
YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE
FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM
TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW.




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          (B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING
TO THIS NOTE MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW
YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND
BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON
CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE
AND APPOINT:




National Registered Agents, Inc.,

320 North Meridian Street

Indianapolis, IN 46204




AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS
WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW
YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN
NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY
CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME
DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE
AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND
(III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE
IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.




ARTICLE 10

NOTICES




          All notices or other written communications hereunder shall be delivered in accordance with
Section 10.6 of the Loan Agreement.




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ARTICLE 11

JOINT AND SEVERAL




          If more than one Person has executed this Note as “Borrower”, the obligations of all such
Persons hereunder shall be joint and several.




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          IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above
written.




ACADIA MERRILLVILLE REALTY, L.P.,

an Indiana limited partnership




	 	 	 
	 

	 	By: Acadia Merrillville Realty, Inc., its
	 

	 	General Partner






	 	 	 
	 

	 	By:                                        

Name: Robert Masters

Title: Senior Vice President