Unassociated Document


    EXHIBIT
10.35

    
 

    PROMISSORY NOTE


     

    
      	
              Date of
      Note: As of June
      26, 2008

            	
              Note
      Amount:
      $49,500,000.00

            


    

    


    THIS
PROMISSORY NOTE (this “Note”), is
made as of June 26, 2008, by AR PRIME HOLDINGS LLC, a Delaware limited liability
company, having an address at 333
Earle Ovington Boulevard, Suite 900, Uniondale, NY 11553 (“Maker”), in
favor of LIGHTSTONE VALUE PLUS REAL ESTATE INVESTMENT TRUST, INC., a Maryland
Corporation, having an address at 326 Third Street, Lakewood, NJ 08701 (together
with its successors and/or assigns, “Payee”).

     

    RECITALS:

     

    FOR VALUE
RECEIVED, Maker does hereby unconditionally covenant and promise to pay to
Payee, without any counterclaim, setoff or deduction whatsoever in immediately
available funds, to the address of Payee as set forth herein, in legal tender of
the United States, FORTY-NINE MILLION FIVE HUNDRED THOUSAND and 00/100 Dollars
($49,500,000.00), which principal amount shall be paid as set forth in this
Note. 

     

    1. DEFINITIONS

     

    Defined
terms in this Note shall include in the singular number the plural and in the
plural number the singular. Additionally, for the purposes hereof, the following
definitions shall have the following meanings:

     

    1.1. “Additional
Loan” shall
mean the additional loan that is required to be made by Payee to Maker on the
Closing Date pursuant to the Contribution Agreement.

     

    1.2. “Bankruptcy
Event” shall
mean, with respect to any Person, any of the following events shall occur with
respect to such Person: 

     

    (i) there
shall be commenced by such Person any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of its
assets, or such Person shall make a general assignment for the benefit of its
creditors; or 

    


    (ii) there
shall be commenced against such Person by another Person any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed for a period of sixty (60) days; or 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (iii)
 there
shall be commenced against it any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief; or 

    


    (iv)
 any
garnishment, levy, writ or warrant of attachment or similar process shall be
issued and served, which garnishment, levy, writ or warrant of attachment or
similar process relates to its property and has not been vacated, discharged or
stayed within 20 days from the issuance and service thereof; or 

    


    (v)
 it shall
take any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), (iii) or (iv)
above; or

     

    (vi)
 it shall
admit in writing its inability to pay its debts as they become due.


    


    1.3. “Business
Day” shall
mean any day other than a Saturday, Sunday or any other day on which commercial
banks in New York, New York are authorized or required by law to close.


     

    1.4. “Closing
Date” shall
mean the date, if any, on which LVP Preferred Units are issued to Maker by LVP
pursuant to the Contribution Agreement.

     

    1.5. “Contribution
Agreement” shall
mean the Contribution and Conveyance Agreement dated the date hereof between
Maker, Payee and LVP.

     

    1.6. “Corresponding Interest
Period” shall
mean, with respect to any Payment Date, the most recent Interest Period that
ended prior to such Payment Date.

     

    1.7. “Default” shall
mean the occurrence or existence of any event that, but for the giving of notice
or the passage of time or both, would constitute an Event of
Default.

     

    1.8. “Default
Rate” shall
mean the Interest Rate plus 2% per annum. 

     

    1.9. “Event of
Default” shall
have the meaning ascribed thereto in Section 4.1 hereof. 

     

    1.10. “Guarantor” shall
mean Arbor Realty SR, Inc., a Maryland corporation. 

     

    1.11. “Guaranty” shall
mean the Guaranty dated the date hereof, made by Guarantor for the benefit of
Payee.

     

    1.12. “Interest
Period” shall
mean each six-month period prior to the Maturity Date beginning on January 1 and
ending on the following June 30 or beginning on July 1 and ending on the
following December 31, provided that the first Interest Period shall commence on
the date of this Note and end on June 30, 2008.

     

    1.13. “Interest Prepayment
Amount” shall
mean an amount equal to the excess, if any, of (x) the principal amount of the
Additional Loan over (y) the amount of interest that would have accrued on a
principal amount of $5,500,000 at the rate of 8% per annum for the period
commencing on the date hereof and ending on the date that the Additional Loan is
advanced, calculated using the same convention described in Section 2.1(A) of
this Note that is used for calculating interest on this Note. 

     

    
      
        
        

      

      
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    1.14. “Interest
Rate” shall
mean the lesser of (a) four percent (4%) per annum and (b) the maximum rate of
interest, if any, which may be collected from Maker under applicable
law.

     

    1.15. “Loan” shall
mean that certain loan in the amount of $49,500,000.00 made by Payee to Maker on
the date hereof. 

     

    1.16. “Loan
Amount” shall
mean the outstanding principal balance of this Note. 

     

    1.17. “Loan
Documents” shall
mean this Note and the Pledge Agreement. 

     

    1.18. “LVP” shall
mean Lightstone Value Plus REIT, L.P., a Delaware limited
partnership.

     

    1.19. “LVP Preferred
Units” shall
mean the Series A Preferred Units of LVP that are actually issued to Maker
pursuant to the Contribution Agreement on account of the “Initial Preferred
Amount” (as defined in the Contribution Agreement).

     

    1.20. “Maturity
Date” shall
mean July 1, 2016. 

     

    1.21. “Maximum
Amount” shall
have the meaning ascribed thereto in Section 5.4(A) hereof.

     

    1.22. “Modification” shall
have the meaning ascribed thereto in Section 5.2 hereof.

     

    1.23. “Note” shall
have the meaning ascribed thereto in the preamble. 

     

    1.24. “Obligations” shall
mean all of the obligations, liabilities and indebtedness of every kind, nature
and description owing by Maker to Payee under this Note and the other Loan
Documents, including, without limitation, payment of the Loan
Amount.

     

    1.25. “Payee” shall
have the meaning ascribed thereto in the preamble. 

     

    1.26. “Payment” shall
have the meaning ascribed thereto in Section 2.2(A) hereof.

     

    1.27. “Payment
Date” shall
mean the first (1st)
Business Day of each February and August.. 

     

    1.28. “Person” shall
mean an individual, corporation, partnership, joint venture, trust,
unincorporated organization, governmental agency or authority, or any other
entity of whatever nature.

     

    1.29. “Pledge
Agreement” shall
mean that certain Pledge Agreement, of even date herewith, made by Maker in
favor of Payee.

     

    1.30. “POAC” shall
mean Prime Outlets Acquisition Company LLC, a Delaware limited liability
company. 

     

    
      
        
        

      

      
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    1.31. “POAC
Interest” shall
mean Maker’s membership interest in POAC that is pledged to Payee pursuant to
the Pledge Agreement.

     

    2. PAYMENTS AND LOAN
TERMS

     

    2.1. Payments.

     

    A. The
principal amount outstanding hereunder shall bear and accrue interest at the
Interest Rate. Except as otherwise provided herein, on each Payment Date Maker
shall pay, in arrears, all interest that accrued during the Corresponding
Interest Period with respect to that Payment Date on the unpaid principal amount
hereof; provided,
however, that
(i) all
interest that accrues prior to the Closing Date shall be
deferred and shall not be payable until the earlier of the Maturity Date or the
prepayment of this Note in full, except as provided in the next sentence of this
Section 2.1(A), (ii) in the event that the LVP Preferred Units are not issued to
Maker pursuant to the Contribution Agreement on or prior to June 26, 2009, then
all interest that accrues on this Note shall be deferred and shall not be
payable until the earlier of the Maturity Date or the prepayment of this Note in
full, and (iii) the amount of interest that Maker shall be required to pay on
any Payment Date shall in no event exceed the lesser of (x) the amount of
interest accrued on this Note during the Corresponding Interest Period with
respect to that Payment Date or (y) the excess, if any, of (A) the aggregate
amount of distributions, if any, actually received by Maker in immediately
available funds from LVP on account of the LVP Preferred Units during the six
month period ending on such Payment Date and beginning after the prior Payment
Date over (B) $220,000, and any excess accrued interest shall be deferred until
the earlier of the Maturity Date or the prepayment of this Note in full.
Upon the
making of the Additional Loan to Maker by Payee on the Closing Date, Maker
hereby authorizes and directs Payee to advance a portion of the proceeds of the
Additional Loan equal to the Interest Prepayment Amount by Payee applying such
amount to pay a portion of the interest that accrued on this Note prior to the
Closing Date in an amount equal to the Interest Prepayment Amount, and the
balance of interest on this Note that accrued prior to the Closing Date shall be
deferred until the Maturity Date. Interest shall be calculated daily and shall
be computed on the actual number of days elapsed over a month of 30 days and a
year of 360 days.
Commencing August 1, 2009, any accrued and unpaid interest hereon as of June 30
of any year shall compound annually on August 1 of that year. All calculations
by Payee of the Interest Rate and the interest payments due under this Note
shall be conclusive absent manifest error. Whenever any payment to be made under
this Note is stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of the payment of
interest.

     

    B. On the
Maturity Date, Maker shall pay (i) the outstanding principal indebtedness
evidenced hereby, (ii) all accrued and unpaid interest, and (iii) and all other
amounts due and payable hereunder.

     

    C. Maker
agrees to make each Payment under this Note directly to Payee on the date when
due at the address of Payee as set forth in the Introductory Paragraph hereto or
at such other location as Payee may designate to Maker in writing. 

     

    
      
        
        

      

      
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    D. Payments
in Federal funds immediately available in the place designated for payment which
are received by Payee prior to 5:00 p.m. (Eastern Standard Time) at said place
of payment shall be credited prior to close of business, while other Payments
may, at the
option of Payee, not be credited until immediately available to Payee in federal
funds in the place designated for payment prior to 5:00 p.m. (Eastern Standard
Time) on a day on which Payee is open for business.

     

    2.2. Application of
Payments.

     

    A. Except as
provided in Section 2.4(A) below, each and every payment (a “Payment”) made
by Maker to Payee in accordance with the terms of this Note and all other
proceeds received by Payee with respect to the Obligations shall be applied as
follows:

     

    (i)  first, to
all interest due on the principal sum and other sums payable hereunder,
calculated at the Default Rate;

     

    (ii) second,
to all interest (other than Default Rate interest) that shall be due and payable
with respect to the Loan Amount pursuant to the terms hereof as of the date the
Payment is received;

     

    (iii) third, to
any remaining Obligations (other than payment of the Loan Amount);
and

     

    (iv) fourth,
to the Loan Amount until the Loan Amount has been repaid.

     

    B. To the
extent that Maker makes a Payment or Payee receives any Payment or proceeds for
Maker’s benefit to be applied to the satisfaction of an obligation hereunder,
which Payment or proceeds are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
debtor in possession, receiver, custodian or any other party under any
bankruptcy law, common law or equitable cause, then Payee shall provide notice
of same to Maker and, to such extent, the obligations of Maker hereunder
intended to be satisfied shall be revived and continue as if such Payment or
proceeds had not been received by Payee.

     

    2.3. Voluntary
Prepayments. Maker
may prepay the Loan Amount in whole or in part at any time, in accordance with
the following provisions: (i) Maker shall pay to Payee all interest which has
accrued and has not been paid on the Loan Amount through and including the date
on which the prepayment is being made, and (ii) this Note may be prepaid in part
only if no Event of Default shall have occurred and be continuing.

     

    2.4. Mandatory
Prepayments.


     

        A. If the
LVP Preferred Units have been issued to Maker pursuant to the Contribution
Agreement and subsequently LVP redeems all of the outstanding LVP Preferred
Units for cash, then (i) immediately upon Maker’s receipt of the redemption
proceeds in immediately available funds, Maker shall be required to prepay the
Loan Amount together with all accrued interest thereon to the extent of the
amount of redemption proceeds received by Maker, or (ii) if such redemption
proceeds are received by Payee pursuant to the Pledge Agreement, then Payee
shall immediately apply such redemption proceeds to prepay the Loan Amount
together with all accrued interest thereon to the extent of the amount of
redemption proceeds received. 

     

    
      
        
        

      

      
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    B. In the
event that after the date hereof and prior to the Closing Date Maker receives
any distributions from POAC on account of the POAC Interest, then within one (1)
Business Day following Maker’s receipt of such distribution proceeds in
immediately available funds, Maker shall be required to prepay the Loan Amount
in part in an amount equal to the distribution proceeds so received, and
notwithstanding anything herein to the contrary, all of such distribution
proceeds shall be applied as follows:

     

    (i)  first, to
the Loan Amount until the Loan Amount has been repaid; 

     

    (ii) second,
to all interest due on the principal sum and other sums payable hereunder,
calculated at the Default Rate;

     

    (iii) third, to
all interest (other than Default Rate interest) that shall be due and payable
with respect to the Loan Amount pursuant to the terms hereof as of the date the
Payment is received; and

     

    (iv) fourth,
to any remaining Obligations. 

     

    2.5. NO PERSONAL LIABILITY OF
MEMBERS, MANAGERS, OFFICERS AND AFFILIATES. EXCEPT FOR THE LIABILITY OF THE
GUARANTOR PURSUANT TO THE GUARANTY, NO PAST, PRESENT OR FUTURE MEMBER, MANAGER,
OFFICER, EMPLOYEE, ORGANIZER, AGENT OR AFFILIATE OF MAKER SHALL HAVE ANY
LIABILITY FOR ANY OBLIGATIONS OF MAKER UNDER THIS NOTE OR ANY OTHER LOAN
DOCUMENT, OR FOR ANY CLAIM BASED ON, IN RESPECT OF, OR BY REASON OF, SUCH
OBLIGATIONS OR THEIR CREATION. PAYEE AND ANY SUBSEQUENT HOLDER OF THIS NOTE, BY
ACCEPTING THIS NOTE, WAIVES AND RELEASES ALL SUCH LIABILITY WHATSOEVER, WHETHER
SUCH LIABILITY ARISES OUT OF AN ACTUAL OR ALLEGED FRAUDULENT TRANSFER,
FRAUDULENT CONVEYANCE, PIERCING THE VEIL, ALTER EGO OR OTHER CLAIM, BASIS OR
THEORY. THE WAIVER AND RELEASE ARE PART OF THE CONSIDERATION FOR ISSUANCE OF
THIS NOTE.

     

    2.6. Financial
Statements.  

     

    A. Maker
will keep and maintain or will cause to be kept and maintained on a fiscal year
basis, in accordance with generally accepted accounting principles (or such
other accounting basis reasonably acceptable to Payee) consistently applied,
proper and accurate books, records and accounts reflecting all of the financial
affairs of Maker. 

     

    B. As long
as the Loan remains unpaid in whole or in part, Maker covenants to furnish to
Payee, if requested by Payee in writing: 

     

    (i) as soon
as available, but in any event within ninety (90) days after the end of each
fiscal year, a copy of the balance sheet of Maker as at the end of such fiscal
year and the related statements of income, cash flows and retained earnings of
Maker for such year, setting forth in each case in comparative form the figures
for the previous fiscal year; and

     

    
      
        
        

      

      
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    (ii) as soon
as available and in any event within forty-five (45) days after the end of each
fiscal quarter of Maker, a company-prepared balance sheet of Maker as at the end
of such period and related statements of income, cash flows and retained
earnings for Maker for such quarterly period and for the portion of the fiscal
year ending with such period, setting forth in comparative form the figures for
the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year.

     

    3. PLEDGE

     

    The
obligations evidenced by this Note are secured by the Pledge Agreement.


     

    4. DEFAULTS

     

    4.1. Events of
Default. The
term “Event of
Default” as used
herein shall mean the occurrence or happening, at any time and from time to
time, of any one or more of the following:

     

    A. The
failure of Maker to pay the final payment of principal and interest on the
Maturity Date.

     

    B. The
failure of Maker to pay (i) any installment of interest that is due hereunder on
any Payment Date, and such failure is not cured within ten (10) Business Days
after written notice of default by Payee to Maker. 

     

    C. The
failure of the Maker to make any mandatory prepayment of the Loan pursuant to
Section 2.4 hereof within one (1) Business Day of the date on which such
prepayment amount becomes due and payable.

     

    D. An Event
of Default, as defined in the Pledge Agreement.

     

    E. If Maker
shall be in default under any of the other terms, covenants or conditions of
this Note, other than as set forth in (A) through (C) above, for ten (10) days
after notice from Payee in the case of any default that can be cured by the
payment of a sum of money, or for thirty (30) days after notice from Payee in
the case of any other default; which notice shall specify in reasonable detail
the provision of this Note claimed to be defaulted and the nature of the
default; provided,
however, that if
the cure of any such default (other than a default that can be cured by the
payment of a sum of money) cannot reasonably be effected within such 30 day
period and Maker shall have promptly and diligently commenced to cure such
default within such 30 day period, then the period to cure shall be deemed
extended for up to an additional 30 days from Payee’s default notice so long as
Maker diligently and continuously proceeds to cure such default to Payee’s
satisfaction.

     

    F. A
Bankruptcy Event occurs with respect to Maker.

     

    
      
        
        

      

      
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    G. The
termination of the Contribution Agreement pursuant to its terms under
circumstances that result in Maker being obligated to pay liquidated damages to
LVP pursuant to the Contribution Agreement.

     

    4.2. Remedies. Upon
the occurrence and during the continuance of an Event of Default, then: (i)
interest on the outstanding principal balance of this Note shall, commencing on
the date of the occurrence of such Event of Default and without notice to Maker,
accrue at the Default Rate until full payment thereof; (ii) Payee may exercise
the remedies under the Pledge Agreement; and (iii) Payee may, in addition to any
other rights or remedies available to it hereunder, under the other Loan
Documents, at law or in equity, take such action, without notice or demand, as
it reasonably deems advisable to protect and enforce its rights against Maker,
including, but not limited to, the following actions, each of which may be
pursued singly, concurrently or otherwise, at such time and in such order as
Payee may determine, in its sole discretion, without impairing or otherwise
affecting any other rights and remedies of Payee hereunder, at law or in
equity:

     

    A. declare
all or any portion of the unpaid Obligations to be immediately due and payable;
or

     

    B. institute
an action, suit or proceeding in equity for the specific performance of any
covenant, condition or agreement contained herein; or

     

    C. recover
judgment on this Note (including, without limitation obtaining summary judgment
under Section 3213 of the New York
Civil Practice Law and Procedure Rules);
or

     

    D. pursue
any or all such other rights or remedies as Payee may have under applicable law
or in equity; provided,
however, that
the provisions of this Section shall not be construed to extend or modify any of
the notice requirements or grace periods expressly provided for hereunder (if
any). 

     

    5. MISCELLANEOUS

     

    5.1. Further
Assurances. Maker
shall execute and acknowledge (or cause to be executed and acknowledged) and
deliver to Payee all reasonable documents, and take all actions, reasonably
required by Payee from time to time to confirm the rights created or now
or
hereafter intended to be created under this Note, to protect and further the
validity, priority and enforceability of this Note, provided,
however, that no
such further actions, assurances and confirmations shall increase Maker’s
obligations under this Note.

     

    5.2. Modification; Waiver in
Writing. No
modification, amendment, extension, discharge, termination or waiver (a
“Modification”) of any
provision of this Note, nor consent to any departure by Maker therefrom, shall
in any event be effective unless the same shall be in a writing signed by the
party against whom enforcement is sought, and then such waiver or consent shall
be effective only in the specific instance, and for the purpose, for which
given. Except as otherwise expressly provided herein, no notice to, or demand
on, Maker shall entitle Maker to any other or future notice or demand in the
same, similar or other circumstances. Payee does not hereby agree to, nor does
Payee hereby commit itself to, enter into any Modification.

     

    
      
        
        

      

      
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    5.3. Costs of
Collection. Maker
agrees to pay all reasonable costs and expenses of collection incurred by Payee,
in addition to principal, interest and late or delinquency charges (including,
without limitation, reasonable attorneys’ fees and disbursements) and including
all reasonable costs and expenses incurred in connection with the pursuit by
Payee of any of its rights or remedies referred to in Section 4 hereof or the
protection of or realization of collateral or in connection with any of Payee’s
collection efforts, whether or not suit on this Note, or any foreclosure
proceeding is filed, and all such reasonable costs and expenses shall be payable
on demand, together with interest at the Default Rate thereon, and also shall be
secured by the Pledge Agreement and all other collateral at any time held by
Payee as security for Maker’s obligations to Payee.

     

    5.4. Maximum
Amount.

     

    A. It is the
intention of Maker and Payee to conform strictly to the usury and similar laws
relating to interest from time to time in force, and all agreements between
Maker and Payee, whether now existing or hereafter arising and whether oral or
written, are hereby expressly limited so that in no contingency or event
whatsoever, whether by acceleration of maturity hereof or otherwise, shall the
amount paid or agreed to be paid in the aggregate to Payee as interest hereunder
or in any other security agreement given to secure the Obligations, or in any
other document evidencing, securing or pertaining to the Obligations, exceed the
maximum amount permissible under applicable usury or such other laws (the
“Maximum
Amount”). If
under any circumstances whatsoever fulfillment of any provision hereof, at the
time performance of such provision shall be due, shall involve transcending the
Maximum Amount, then, ipso
facto, the
obligation to be fulfilled shall be reduced to the Maximum Amount. For the
purposes of calculating the actual amount of interest paid and/or payable
hereunder, in respect of laws pertaining
to usury or such other laws, all sums paid or agreed to be paid to Payee for the
use, forbearance or detention of the Obligations outstanding from time to time
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread from the date of disbursement of the proceeds of this Note
until payment in full of all of the Obligations, so that the actual rate of
interest on account of the Obligations is uniform through the term hereof. The
terms and provisions of this Section 5.4 shall control and supersede every other
provision of all agreements between Maker and Payee.

     

    B. If under
any circumstances Payee shall ever receive an amount that would exceed the
Maximum Amount, such amount shall be deemed a payment in reduction of the Loan
Amount owing hereunder and any other obligation of Maker in favor of Payee, and
shall be so applied in accordance with Section 2.2 hereof, or if such excessive
interest exceeds the Loan Amount and any other obligation of Maker in favor of
Payee, the excess shall be deemed to have been a payment made by mistake and
shall be refunded to Maker.

     

    5.5. Waivers; WAIVER OF RIGHT TO
TRIAL BY JURY, ETC. Maker
hereby expressly and unconditionally waives presentment, demand, protest, notice
of protest or notice of any kind, including, without limitation, any notice of
intention to accelerate and notice of acceleration, except as expressly provided
here-in. IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY PAYEE ON
THIS NOTE, MAKER HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES ANY AND EVERY RIGHT
IT MAY HAVE TO A TRIAL BY JURY.

     

    
      
        
        

      

      
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    5.6. Governing
Law. This
Note shall be governed and construed in accordance with the laws of the State of
New York and the applicable laws of the United States of America. In any action
brought under or arising out of this Note or the other Loan Documents, Maker
hereby consents to the jurisdiction of any competent state or federal court
within the County of Nassau, State of New York, and hereby irrevocably consents
to service of process on Maker in any such action or proceeding by the mailing
of copies thereof to Maker by registered or certified mail, postage prepaid, to
Maker at its address for notices specified in Section 5.10. Nothing in this Note
will affect the right of Payee to serve process on Maker in any other manner
permitted by law.

     

    5.7. Headings. The
Section headings in this Note are included herein for convenience of reference
only and shall not constitute a part of this Note for any other
purpose.

     

    5.8. Assignment. Payee
shall not transfer, sell, assign or grant any participation in this Note, or any
of the other Loan Documents, or the obligations hereunder, to any Person other
than an affiliate of Payee that is directly or indirectly controlled by Payee,
unless Payee obtains the prior written consent of Maker to any such transaction,
which consent may be withheld in Maker’s sole and absolute discretion. All
references to “Payee” hereunder shall be deemed to
include the permitted assigns of Payee. In the event that the result of such
permitted transfer, sale, assignment or participation is that Maker shall be
obligated to make the payments required hereunder to an entity other than Payee,
then Payee
shall provide at least five (5) Business Days prior written notice to Maker of
such transfer, sale, assignment or participation. 

     

    5.9. Severability. Wherever
possible, each provision of this Note shall be interpreted in such manner
as
to be
effective and valid under applicable law, but if any provision of this Note
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Note.

     

    5.10. Notices. All
notices shall be deemed to have been properly given if hand delivered or if
mailed by United States registered or certified mail, with return receipt
requested, postage prepaid, or by United States Express Mail or other comparable
overnight courier service to the parties at the addresses set forth below (or at
such other addresses as shall be given in writing by any party to the others). A
notice shall be deemed to have been given: in the case of hand delivery, at the
time of delivery; in the case of registered or certified mail, when delivered or
two Business Days after mailing; or in the case of overnight courier service, on
the Business Day after the same was sent. A party receiving a notice which does
not comply with the technical requirements for notice under this section may
elect to waive any deficiencies and treat the notice as having been properly
given. 

     

    
      	
              If
      to Maker:

            	 	
              AR
      PRIME HOLDINGS LLC 

              333
      Earle Ovington Boulevard, Suite 900

              Uniondale,
      NY 11553

              Attention:
      Guy R. Milone, Jr.

            
	 	 	 
	
              With
      a copy to:

            	 	
              Cooley
      Godward Kronish LLP 

              1114
      Avenue of the Americas

              New
      York, New York 10036

              Attention:
      Thomas D. O’Connor, Esq.

            


    

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    
      	
              If
      to Payee:

            	 	
              LIGHTSTONE
      VALUE PLUS REAL ESTATE INVESTMENT, TRUST INC.

              326
      Third Street

              Lakewood,
      NJ 08701

              Attention:
      Joseph E. Teichman

            
	 	 	 
	
              With
      a copy to:

               

               

               

            	 	
              Herrick,
      Feinstein LLP

              2
      Park Avenue

              New
      York, New York 10016

              Attention:
      Sheldon Chanales, Esq.

            


    

    


    [SIGNATURE
PAGE FOLLOWS]

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, this Note has been duly executed by Maker the day and year
first written above.

     

    
      	 	 	 
	 	
              AR
      PRIME HOLDINGS, LLC

              By: 
      Arbor Realty Member LLC, its
      Managing Member

              
                By:
      Arbor Realty SR Inc., its sole member  

              

            
	 
 	 
 	 
 
	
            	
            	
              By:

            
	 	
              
                
      Name: 

            
	 	
              Title:

            


    

    


    
      
        
        

      

      
        12