Exhibit 10.5


PROMISSORY NOTE


(Portfolio B)


 


	
  $165,047.61

  	
   

  	
  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 Fair Finance Company, and Ohio corporation (the “Lender”) the principal sum of ONE HUNDRED SIXTY-FIVE
THOUSAND FORTY SEVEN DOLLARS AND SIXTY-ONE CENTS ($165,047.61) together with
interest as provided herein (the “Loan”).


 


The Borrower
shall repay the Loan in twenty-one (21) quarterly installments, which shall
consist of (i) equal principal payments of $7,859.41 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 February 13, 2014, 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 its principal office in Akron, Ohio 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 B Promissory Note (Fair Finance)