Exhibit 10.95


 


SECURED PROMISSORY NOTE

LOAN NO. 755096


 


	
  $11,531,000.00

  	
  June 8, 2006

  



 


1.         FOR VALUE RECEIVED, INLAND AMERICAN CUMBERLAND, L.L.C., a
Delaware limited liability company, as “Borrower” (“Borrower” to be
construed as “Borrowers” if the context so requires), hereby promises to pay to
the order of PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation (as “Lender”),
the principal sum of Eleven Million Five Hundred Thirty One Thousand and No/100
Dollars ($11,531,000.00) (the “Loan Amount”) or so much thereof as shall
from time to time have been advanced, together with interest on the unpaid
balance of said sum from June 8, 2006 (the “Closing Date”), at the rate
of five and 17/100 percent (5.17%) per annum.


 


A payment of
interest from the Closing Date to and including June 30, 2006 shall be paid on
the Closing Date calculated by multiplying the actual number of days elapsed in
the period for which interest is being calculated by a daily rate based on the
foregoing annual interest rate and a 360-day year. Thereafter, interest shall
be computed on the unpaid balance on the basis of a 360-day year composed of
twelve 30-day months. Beginning on August 1, 2006, interest shall be due and
payable in arrears in monthly installments of Forty Nine Thousand Six Hundred
Seventy Nine and 39/100 Dollars ($49,679.39), with an installment in a like
amount due and payable on the same day of each month thereafter, except that
all remaining principal and interest to and including the date of payment and
other Indebtedness shall be due and payable on July 1, 2013 (“Maturity Date”)
or such earlier date resulting from the acceleration of the Indebtedness by
Lender. All principal and interest shall be paid in lawful money of the United
States of America by automated clearing house transfer through such bank or
financial institution as shall be approved in writing by Lender, shall be made
to an account designated by Lender, and shall be initiated by Lender or shall
be made in such other manner as Lender may direct from time to time. Any other
monthly deposits or payments Borrower is required to make to Lender under the
terms of the Loan Documents shall be made by the same payment method and on the
same date as the installments of interest due under this Note.


 


2.         No privilege is reserved by Borrower to prepay any principal
of this Note prior to the Maturity Date, except in strict accordance with the
provisions of the Loan Agreement.


 


3.         Borrower agrees that if Lender accelerates the whole or any
part of the principal sum evidenced hereby after the occurrence of an Event of
Default, or applies any proceeds pursuant to the provisions of the Loan
Documents, Borrower waives any right to prepay said principal sum in whole or
in part without premium and agrees to pay, as yield maintenance protection and
not as a penalty, the Make Whole Premium.


 


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Notwithstanding the
above, in the event any proceeds from a casualty or Taking of the Premises are
applied to reduce the principal balance hereof, such reduction shall be made
without a Make Whole Premium, provided no Event of Default then exists under
the Loan Documents.


 


4.         If any payment of principal, interest, Make Whole Premium,
or other Indebtedness is not made when due, damages will be incurred by Lender,
including additional expense in handling overdue payments, the amount of which
is difficult and impractical to ascertain. Borrower therefore agrees to pay,
upon demand, the sum of four cents ($.04) for each one dollar ($1.00) of each
said payment which becomes overdue (“Late Charge”) as a reasonable
estimate of the amount of said damages, subject, however, to the limitations
contained in paragraph 6 hereof.


 


Notwithstanding anything
hereinabove to the contrary, the Late Charge assessed on any amount due on the
Maturity Date but not then paid, whether or not by acceleration, shall not be
four cents for each one dollar as described above, but shall instead be a sum
equal to the interest which would have accrued on the principal balance then
outstanding from the date the payment is made to the end of the month in which
the Maturity Date occurs. Such Late Charge shall be in addition to interest
otherwise accruing under this Note.


 


5.         If any Event of Default has occurred and is continuing under
the Loan Documents, the entire principal balance of the Loan, interest then
accrued, and Make Whole Premium, and all other Indebtedness whether or not
otherwise then due, shall at the option of Lender, become immediately due and
payable without demand or notice, and whether or not Lender has exercised said
option, interest shall accrue on the entire principal balance, interest then
accrued, Make Whole Premium and any other Indebtedness then due, at a rate
equal to the Default Rate until fully paid.


 


6.         Notwithstanding anything herein or in any of the other Loan
Documents to the contrary, no provision contained herein or therein which
purports to obligate Borrower to pay any amount of interest or any fees, costs
or expenses which are in excess of the maximum permitted by applicable law,
shall be effective to the extent it calls for the payment of any interest or
other amount in excess of such maximum. All agreements between Borrower and
Lender, whether now existing or hereafter arising and whether written or oral,
are hereby limited so that in no contingency, whether by reason of demand for
payment or acceleration of the maturity hereof or otherwise, shall the interest
contracted for, charged or received by Lender exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to Lender in excess of the maximum lawful
amount, the interest payable to Lender shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance Lender shall ever
receive anything of value deemed interest by applicable law in excess of the
maximum lawful amount, an amount equal to any excessive interest shall, at the
option of Lender, be refunded to Borrower or be applied to the reduction of the
principal hereof, without a Make Whole Premium and not to the payment of
interest or, if such excessive interest exceeds the unpaid balance of principal
hereof such excess shall be refunded to Borrower. This paragraph shall control
all agreements between Borrower and Lender.


 


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7.         Borrower and any endorsers or guarantors waive presentment,
protest and demand, notice of protest, demand and dishonor and nonpayment, and
agree the Maturity Date of this Note or any installment may be extended without
affecting any liability hereunder, and further promise to pay all reasonable
costs and expenses, including but not limited to, reasonable attorney’s fees
incurred by Lender in connection with any default or in any proceeding to
interpret and/or enforce any provision of the Loan Documents. No release of
Borrower from liability hereunder shall release any other maker, endorser or
guarantor hereof.


 


8.         This Note is secured by the Loan Documents creating among
other things legal and valid encumbrances on and an assignment of all of
Borrower’s interest in any Leases of the Premises located in the county of
Providence, state of Rhode Island. Capitalized terms used herein and not
otherwise defined shall have those meanings given to them in the Loan
Documents. In no event shall such documents be construed inconsistently with
the terms of this Note, and in the event of any discrepancy between any such
documents and this Note, the terms hereof shall govern. The proceeds of this
Note are to be used for business, commercial, investment or other similar
purposes, and no portion thereof will be used for any personal, family or
household use. This Note shall be governed by and construed in accordance with
the laws of the State where the Premises is located, without regard to its
conflict of law principles.


 


9.         Notwithstanding any provision to the contrary in this Note
or the Loan Documents and except as otherwise provided for below, the liability
of Borrower under the Loan Documents shall be limited to the interest of
Borrower in the Premises and the Rents. In the event of foreclosure of the
liens or interests evidenced by the Loan Documents, no judgment for any
deficiency upon the Indebtedness evidenced by the Loan Documents shall be sought
or obtained by Lender against Borrower. Nothing herein shall in any manner
limit or impair (i) the lien or enforcement of the Loan Documents pursuant to
the terms thereof or (ii) the obligations of any indemnitor or guarantor, if
any.


 


Notwithstanding
any provision hereinabove to the contrary, Borrower shall be personally liable
to Lender for:


 


(a)                    any loss or
damage to Lender arising from (i) the sale or forfeiture of the Premises
resulting from Borrower’s failure to pay any of the taxes, assessments or
charges specified in the Loan Documents or (ii) Borrower’s failure to insure
the Premises in compliance with the provisions of the Loan Documents;


 


(b)                   any event or
circumstance for which Borrower indemnifies Lender under the Environmental
Indemnity;


 


(c)                    nonpayment of
taxes, assessments, insurance premiums and utilities for the Premises and any
penalty or late charge associated with nonpayment thereof;


 


(d)                   material
failure to manage, operate, and maintain the Premises in a commercially
reasonable manner for similar property types in the surrounding geographic area;


 


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(e)                    any sums
expended by Lender in fulfilling the obligations of Borrower as lessor under
any Lease of the Premises prior to a sale of the Premises pursuant to
foreclosure or power of sale, a bona fide sale (permitted by the terms of
paragraph 2(f) of the Mortgage (it being agreed that “Mortgage” as used herein
shall be construed to mean “mortgage” or “deed of trust” or “trust deed” as the
context so requires) or consented to in writing by Lender) to an unrelated
third party or upon conveyance to Lender of the Premises by a deed acceptable
to Lender in form and content (each of which shall be referred to as a “Sale”
for purposes of this paragraph) or expended by Lender after a Sale of the
Premises for obligations of Borrower which arose prior to a Sale of the
Premises;


 


Borrower’s personal
liability for items specified in (c), (d) and (e) above shall be limited to the
amount of rents, issues, proceeds and profits from the Premises (“Rents and
Profits”) received by Borrower for the twelve (12) months preceding an Event of
Default and thereafter; but less any such Rents and Profits applied to (A)
payment of principal, interest and other charges when due under the Loan
Documents, or (B) payment of expenses for the operation, maintenance, taxes,
assessments, utility charges and insurance of the Premises including sufficient
reserves for the same or replacements or renewals thereof (“Operation Expense(s)”)
provided that (x) Borrower has furnished Lender with evidence reasonably
satisfactory to Lender of the Operation Expenses and payment thereof, and (y)
any payments to parties related to Borrower shall be considered an Operation
Expense only to the extent that the amount expended for the Operation Expense
does not exceed the then current market rate for such Operation Expense.


 


(f)                      any rents or
other income regardless of type or source of payment or other considerations in
lieu thereof (including, but not limited to, common area maintenance charges,
lease termination payments, refunds of any type, prepayment of rents,
settlements of litigation, or settlements of past due rents) from the Premises
which Borrower has received or will receive after an Event of Default under the
Loan Documents which are not applied to (A) payment of principal, interest and
other charges when due under the Loan Documents or (B) payment of Operation
Expenses provided that (x) Borrower has furnished Lender with evidence reasonably
satisfactory to Lender of the Operation Expenses and payment thereof, and (y)
any payments to parties related to Borrower shall be considered an Operation
Expense only to the extent that the amount expended for the Operation Expense
does not exceed the then current market rate for such Operation Expense;


 


(g)                   any security
deposits of tenants not otherwise applied in accordance with the terms of the
Lease(s), together with any interest on such security deposits required by law
or the leases, not turned over to Lender upon conveyance of the Premises to
Lender pursuant to foreclosure or power of sale or by a deed acceptable to
Lender in form and content;


 


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(h)                   misapplication
or misappropriation of tax reserve accounts, tenant improvement reserve
accounts, security deposits, prepaid rents or other similar sums paid to or
held by Borrower or any other entity or person in connection with the operation
of the Premises;


 


(i)                       any
insurance or condemnation proceeds or other similar funds or payments applied
by Borrower in a manner other than as expressly provided in the Loan Documents;
and


 


(j)                       any loss or
damage to Lender arising from any fraud or willful misrepresentation by or on
behalf of Borrower, Interest Owner or any guarantor regarding the Premises, the
making or delivery of any of the Loan Documents or in any materials or
information provided by or on behalf of Borrower, Interest Owner or guarantor,
if any, in connection with the Loan.


 


Notwithstanding anything
contained in paragraphs 9(a)(i) and 9(c) hereinabove as it relates solely to
taxes, assessments and insurance premiums, to the extent Lender is impounding
for taxes, assessments and insurance premiums in accordance with the Loan
Documents and Borrower has fully complied with all terms and conditions of the
Loan Documents relating to impounding for the same, then Borrower shall not be
personally liable for Lender’s failure to apply any of said impound amounts
held by Lender in accordance with the Loan Documents.


 


Notwithstanding anything
to the contrary in the Loan Documents, the limitation on liability contained in
the first paragraph of this paragraph 9 SHALL BECOME NULL AND VOID and shall be
of no further force and effect in the event:


 


(x)                      of any breach
or violation of paragraph 2(f) (due on sale or encumbrance) of the Mortgage,
other than (i) the filing of a nonmaterial mechanic’s lien affecting the
Premises or a mechanic’s lien affecting the Premises for which Borrower has
complied with the provisions of paragraph 1(e) of the Mortgage, or (ii) the
granting of any utility or other nonmaterial easement or servitude burdening
the Premises, or (iii) any transfer or encumbrance of a nonmaterial economic
interest in the Premises not otherwise set forth in (i) or (ii); or


 


(y)                    of any filing
by Borrower of a petition in bankruptcy or insolvency or a petition or answer
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the Bankruptcy laws of the United
States or under any other applicable federal, state or other statute or law.


 


10.                    If more than
one, all obligations and agreements of Borrower are joint and several.


 


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11.       This Note may not be changed or
terminated orally, but only by an agreement in writing and signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought. All of the rights, privileges and obligations hereunder shall inure to
the benefit of the heirs, successors and assigns of Lender and shall bind the
heirs and permitted successors and assigns of Borrower.


 


12.       If any provision of this Note shall, for
any reason, be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof, but this Note
shall be construed as if such invalid or unenforceable provision had never been
contained herein.


 


13.       This Note may be executed in
counterparts, each of which shall be deemed an original; and such counterparts
when taken together shall constitute but one agreement.


 


IN WITNESS
WHEREOF, Borrower has caused this Note to be duly executed and delivered as of
the date first set forth above.


 


REMAINDER
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(Signatures on next page)


 


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SIGNATURE
PAGE OF BORROWER TO

SECURED PROMISSORY NOTE


 


	
   

  	
   

  	
  INLAND
  AMERICAN CUMBERLAND, L.L.C.,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  Inland
  American Ceruzzi Cumberland Member,

  L.L.C., a Delaware limited liability company, Sole

  Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  Inland
  American Cumberland Member II,

  L.L.C., a Delaware limited liability

  company, Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By: 

  	
  Inland
  American Real Estate Trust,

  Inc., a Maryland corporation, Sole

  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   /s/ Valerie Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   Valerie Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   Assistant Secretary

  	
   

  
										



 


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