HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR
ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR
ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF LENDER RELATING TO THE
ADMINISTRATION OF THE LOAN EVIDENCED BY THIS NOTE OR ENFORCEMENT OF THE LOAN
DOCUMENTS EVIDENCING AND/OR SECURING THE LOAN, AND AGREE THAT NEITHER PARTY WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED.
EXCEPT AS PROHIBITED BY LAW, BORROWER HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES.
BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDER TO ACCEPT THIS NOTE AND MAKE
THE LOAN.
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Section 22. Choice of Law.
BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT.
BORROWER HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT FORUM.
Section 23. Counterparts.
This Note may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed an
original and all of which taken together shall constitute but one agreement.
Section 24. Exculpation.
The exculpation provisions set forth in Section 3.17
of the Mortgage are herein incorporated in this Note by reference all with the
same force and effect as if fully set forth herein.
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IN WITNESS WHEREOF, Borrower and Lender have duly executed this Note as of the
date first above written.
BORROWER:
ALBEE DEVELOPMENT LLC, a Delaware
limited liability company
By
/s/ Robert Masters
Robert Masters
Senior Vice President
Address of Borrower:
c/o Acadia Realty Trust
1311 Mamaroneck Avenue, Suite 260
White Plains, New York 10605
BANK OF AMERICA, N.A.,
By
/s/ Gregory Egli
Gregory Egli
Senior Vice President
Location of Premises:
70-90 Albee Square a/k/a 405-469 Albee Square
a/k/a 1-7 DeKalb Avenue a/k/a 126-140 Willoughby
Street, Brooklyn, New York
This is to certify that this Amended and Restated Note was executed by Borrower
in my presence on the date hereof by the party whose signature appears above on
behalf of Borrower in the capacity indicated.
/s/ Debra Leibler-Jones
Notary