Exhibit 10.4


 


PROMISSORY NOTE


(Portfolio A)


 


	
  $124,833.51

  	
  February 13,
  2009

  



 


FOR VALUE RECEIVED, the undersigned, CLST Asset III, LLC, a Delaware
limited liability company (the “Borrower”),
hereby promises to pay to the order of Timothy S. Durham (the “Lender”) the principal sum of ONE HUNDRED TWENTY-FOUR
THOUSAND EIGHT HUNDRED THIRTY-THREE DOLLARS AND FIFTY-ONE CENTS ($124,833.51)
together with interest as provided herein (the “Loan”).


 


The Borrower shall repay the Loan in eleven (11) quarterly installments,
which shall consist of (i) equal principal payments of $11,348.50 each,
plus (ii) all interest accrued through such payment date  (together, the “Term Loan Payment”).  Beginning on April 1, 2009, each Term
Loan Payment shall be payable on the first day of each January, April, July and
October.  The Borrower’s final Term Loan
Payment, due on August 13, 2011, shall include all outstanding principal
and accrued and unpaid interest under the Loan.


 


The Borrower may prepay this note in whole at
any time or in part from time to time. 
Any such prepayment shall be applied first to accrued interest, then to
principal hereunder in inverse order of maturity.


 


All payments
by the Borrower shall be made to the Lender at 111 Monument Circle Suite 3680
Indianapolis, IN  46204 and shall be
payable in lawful currency of the United States in immediately available funds.


 


Principal of this note outstanding from time to time shall bear
interest at a rate per annum which shall from day to day equal the Floating
Rate, each change in the rate charged hereunder to become effective without
notice to the Borrower on the effective date of each change in the Floating
Rate or the Maximum Lawful Rate, as applicable; provided that interest charged
hereunder shall be limited to the Maximum Lawful Rate. Interest on this note
shall be calculated on the basis of actual days elapsed and computed as if each
year consisted of 365 days, subject to the limitations of the Maximum Lawful
Rate.  If at any time or from time to
time the rate of interest applicable to this note is limited to the Maximum
Lawful Rate, then any subsequent reduction in the Floating Rate shall not
reduce the rate of interest payable below the Maximum Lawful Rate until the
total amount of interest accrued from and after the date of this note equals
the amount of interest which would have accrued thereon if the Floating Rate
had at all times been in effect.


 


If any principal of or interest on this note is not paid in accordance
with the provisions contained herein, such overdue principal and, to the extent
permitted by applicable law, overdue interest shall bear interest from the due
date, payable on demand, until paid at a rate per annum equal to the sum of
five percent (5.0%) plus the LIBOR
Rate from time to time in effect, subject to the limitations of the Maximum
Lawful Rate.


 


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As used herein, (a) the term “Maximum
Lawful Rate” means the maximum non-usurious interest rate, if any
(or, if the context so requires, an amount calculated at such rate), that at
any time or from time to time may be contracted for, taken, reserved, charged,
or received by the Lender under applicable laws of the State of Texas or the
United States of America, whichever authorizes the greater rate, as such laws
are presently in effect or, to the extent allowed by applicable law, as such
laws may hereafter be in effect and which allow a higher maximum non-usurious
interest rate than such laws now allow. 
To the extent the laws of the State of Texas are applicable for the
purpose of determining the Maximum Lawful Rate, such term shall mean the weekly
ceiling from time to time in effect as referred to and defined in Chapter 303
of the Finance Code of Texas, as amended, and in any case after taking into
account, to the extent required by applicable law, any and all relevant
payments, charges and calculations, (b) the term “Floating
Rate” means for any day a per annum interest rate equal to the sum
of four percent (4.0%) plus the LIBOR
Rate from time to time in effect, but in no event exceeding the Maximum Lawful
Rate, and (c) “LIBOR Rate” means a fluctuating rate of interest which
shall initially be equal to the three month London interbank offered rate as of
the date of this note as published in the “Money Rates” section of The Wall Street Journal, which rate shall be adjusted as of
the first day of each January, April, July and October hereafter to
be such rate as determined from such source as of each such adjustment date (or
if such rate from such source is not available for any adjustment date, such
rate from such source as of the last business day prior to the applicable
adjustment date).


 


Regardless of any provision contained herein, the Lender shall never be
entitled to receive, collect or apply, as interest on this note, any amount in
excess of the Maximum Lawful Rate, and in the event the Lender ever receives,
collects or applies as interest any such excess, such amount which would be
deemed excessive interest shall be deemed a partial prepayment of principal on
this note and treated hereunder as such; and if this note is paid in full, any
remaining excess shall promptly be paid to the Borrower. In determining whether
or not the interest paid or payable under any specific contingency exceeds the
Maximum Lawful Rate, the Borrower and the Lender shall, to the extent permitted
under applicable law, (a) characterize any nonprincipal payment as an
expense, fee or premium rather than as interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate
and spread the total amount of the interest throughout the entire contemplated
term of this note, so that the interest rate is the Maximum Lawful Rate
throughout the entire term of this note; provided that if the unpaid principal
balance hereof is paid and performed in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence thereof exceeds the Maximum Lawful Rate, the Lender shall refund to
the Borrower the amount of such excess and, in such event, the Lender shall not
be subject to any penalties provided by any laws for contracting for, charging,
taking, reserving or receiving interest in excess of the Maximum Lawful Rate.


 


This note has been negotiated, is being executed
and delivered, and will be performed in whole or in part, in the State of
Texas.  This note, the entire
relationship of 


 


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the parties hereto, and any litigation
between the parties (whether grounded in contract, tort, statute, law or
equity) shall be governed by, construed in accordance with, and interpreted and
enforced pursuant to the laws of the State of Texas without giving effect to
its choice of law principles.


 


The Borrower hereby irrevocably submits to
the non-exclusive jurisdiction of any United States federal or Texas state
court sitting in Dallas, Dallas County, Texas in any action or proceeding
arising out of or relating to this note or any other agreement or document
executed in connection herewith, and the Borrower hereby irrevocably agrees
that all claims in respect of such action or proceeding may be heard and
determined in any such court, and the Borrower hereby
specifically consents to the jurisdiction of the State District Courts of
Dallas County, Texas and the United States District Court for the Northern
District of Texas, Dallas Division.


 


 [Signature page follows]


 


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IN WITNESS WHEREOF, the undersigned has caused this note to be executed
by its duly authorized representative as of the date first written above.


 


	
   

  	
  CLST ASSET
  III, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ROBERT
  A. KAISER

  
	
   

  	
   

  	
  Robert
  Kaiser

  
	
   

  	
   

  	
  Manager

  



 


Portfolio A
Promissory Note (Tim Durham)