Exhibit 10.4


 


NON-REVOLVING LINE OF CREDIT

PROMISSORY NOTE


 


	$3,750,000.00	June 19, 2020
	Note #__________	Albuquerque, New Mexico




 


FOR VALUE RECEIVED,
the undersigned Lavender Fields, LLC, a New Mexico limited liability company (“Maker”), hereby promises to pay to the
order of BOKF, NA dba Bank of Albuquerque (“Lender”), at its office located at 100 Sun Avenue NE, Suite 500, Albuquerque,
New Mexico 87109, or at such other place as may be designated in writing by the holder of this Non-Revolving Line of Credit Promissory
Note (“Note”), the principal sum of Three Million Seven Hundred Fifty Thousand and No/100 Dollars ($3,750,000.00),
or so much thereof as shall be disbursed hereunder, together with interest thereon at the rates specified in this Note, payable
as set forth herein.


 


1.           
Definitions. As used in this Note, the following terms shall have the meanings indicated for each:


 


A.          
“Event of Default” shall have the meaning ascribed to such term in the Mortgage, including without limitation
a default in payment or performance under this Note.


 


B.          
“Interest Rate” shall mean from and following the closing date, the loan and the other obligations shall
bear interest at LIBOR (defined below) plus three hundred (300) basis points, as calculated in accordance with paragraph 5 below;
provided, however, in no event will the Interest Rate be lower than three and three quarters of one percent (3.75%). The
Interest Rate is not necessarily the lowest rate charged by Lender on its loans. If the Interest Rate becomes unavailable during
the term of the Loan, Lender may designate a comparable substitute index after notifying Maker. Notwithstanding any language herein
seemingly to the contrary: (a) Maker shall not be obligated to pay in excess of the maximum interest rate permitted by law for
any interest payment period; and (b) upon the occurrence of an Event of Default, at the option of the holder of this Note, interest
will accrue at the Default Rate of interest hereafter specified.


 


C.           “LIBOR”
shall mean a rate (expressed to the fifth decimal place) equal to (i) the rate of interest which is identified and normally
published by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for United
States dollars) for loans in United States dollars for thirty (30) day periods as of 11:00 a.m. (London time), on the first
of each month (or if such day is not a Business Day, the immediately preceding Business Day) plus (ii) the maximum reserve
requirement, if any, then imposed under Regulation D of the Board of Governors of the Federal Reserve System (or any
successor thereto) for “Eurocurrency Liabilities” (as defined therein); provided, however, that if LIBOR
determined as provided above shall be less than zero, LIBOR shall be deemed to be zero for the purposes of this Agreement.
Notwithstanding the foregoing, if at any time Lender determines (which determination shall be conclusive absent manifest
error) that (a) ICE Benchmark Administration no longer reports LIBOR, (b) LIBOR is no longer a widely recognized benchmark
rate for newly originated loans in the U.S. commercial or syndicated loan market, (c) the applicable supervisor or
administrator (if any) of any applicable interest rate specified herein or any governmental authority having or purporting to
have jurisdiction over Lender has made a public statement identifying a specific date after which LIBOR shall no longer be
used for determining interest rates for loans in the U.S. commercial or syndicated loan market, or (d) Lender determines in
good faith that the rate so reported no longer accurately reflects the rate available to Lender in the London Interbank
Market; or (e) if such index no longer exists (or accurately reflects the rate available to Lender in the London Interbank
Market), then Lender may establish a replacement interest rate, including any necessary adjustments to any applicable margin
(the “Replacement Rate”), in which case, the Replacement Rate shall replace LIBOR and such applicable interest
rate for all purposes under this Note and the other Loan Documents unless and until (A) an event described in clauses (i)
through (iv) occurs with respect to the Replacement Rate or (B) the Lender notifies the Maker that the Replacement Rate does
not adequately and fairly reflect the cost to the Lender of funding loans bearing interest at the Replacement Rate. In
connection with the establishment and application of the Replacement Rate, and notwithstanding anything to the contrary as
may be set forth in Section 12.3 of the Loan Agreement, this Note and the other Loan Documents shall be amended as may be
necessary or appropriate, in consultation with Maker (but in the sole opinion of the Lender), to effect the above provisions
and the implementation of the Replacement Rate and, without limitation of Maker’s covenant under Section 6.8 of the
Loan Agreement. Maker consents to any such necessary or appropriate amendments.


 






     


     


    

 


D.          
“Loan” shall mean the loan evidenced by this Note.


 


E.          
“Loan Agreement” shall mean the certain Development Loan Agreement dated the same date as this Note,
between Lender and Maker and pursuant to which this Note is executed.


 


F.           
“Maturity Date” shall mean June 19, 2024, or such earlier date on which the entire unpaid principal balance
of this Note shall be paid or required to be paid in full, whether by prepayment, acceleration or otherwise.


 


G.          
“Mortgage” shall mean the certain Mortgage, Security Agreement and Financing Statement, dated the same
date as this Note, executed by Maker for the benefit of Lender, and securing, among other things, payment of this Note, as supplemented,
modified and amended.


 


2.           
Draw Note. This Note evidences a loan that may be advanced in more than one advance during the term of this Note.
This Note does not evidence a revolving line of credit. Maker acknowledges and agrees that it does not have the right under this
Note to borrow, pay and re-borrow the loan proceeds. The loan evidenced by this Note shall be disbursed in accordance with the
provisions of the Loan Agreement.


 


3.            Payments.
Maker shall make monthly payments of interest only on the Nineteenth (19th) day of each month beginning on July
19, 2020, and continuing on the Nineteenth (19th) day of each month thereafter through and including May 19, 2024.
On the Maturity Date, Maker shall make one final payment of all accrued and unpaid principal and interest and any other
unpaid sums. Upon the occurrence of an Event of Default, at the option of the holder of this Note, interest shall accrue at
the Default Rate. IN NO EVENT SHALL THE SUM TOTAL OF ALL ADVANCES ON THE NOTE EXCEED THE FACE AMOUNT OF THE NOTE.


 






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In addition, Maker
shall make the following required principal payments (the “Curtailment Payments”) to Lender: (i) Six Hundred Fifty-Seven
Thousand Five Hundred and No/100 Dollars ($657,500.00), on or before March 19, 2022; (ii) Three Hundred Ninety-Four Thousand Five
Hundred and No/100 Dollars ($394,500.00) on or before June 19, 2022; (iii) Three Hundred Ninety-Four Thousand Five Hundred and
No/100 Dollars ($394,500.00) on or before September 19, 2022; (iv) Three Hundred Ninety-Four Thousand Five Hundred and No/100 Dollars
($394,500.00) on or before December 19, 2022; (v) Three Hundred Ninety-Four Thousand Five Hundred and No/100 Dollars ($394,500.00)
on or before March 19, 2023; (vi) Three Hundred Ninety-Four Thousand Five Hundred and No/100 Dollars ($394,500.00) on or before
June 19, 2023; (vii) Three Hundred Ninety-Four Thousand Five Hundred and No/100 Dollars ($394,500.00) on or before September 19,
2023; (viii) Three Hundred Ninety-Four Thousand Five Hundred and No/100 Dollars ($394,500.00) on or before December 19, 2023; and
(ix) Three Hundred Thirty-One Thousand and No/100 Dollars ($331,000.00) on or before March 19, 2024. Payments of the Release Price
(defined in the Loan Agreement) to Lender shall be credited towards the Curtailment Payments.


 


4.           
Loan Origination Fee. On the date this Note is signed, Maker will pay to Lender a loan origination fee of one-half
of one percent (1/2%) of the face amount of this Note.


 


5.           
Computation of Interest and Related Fees. Interest due under this Note shall be calculated on the unpaid principal
to the date of each installment paid, and each payment of principal and/or interest made hereunder shall be credited first to the
discharge of interest, and the balance shall be credited to the unpaid principal sum. All payments of interest shall be computed
on the per annum basis of a year consisting of three hundred sixty (360) days and for the actual number of days elapsed (including
the first day, but excluding the last if payment is received by the holder of this Note by 1:00 p.m. New Mexico time). In addition
to any other means of payment, Maker shall have the right to make payments by wire transfer or ACH directly to Lender. Within ten
(10) days after written request by Maker, Lender shall provide wiring and ACH instructions to Maker for all payments due pursuant
to the Loan.


 


6.            Default
Interest. Subject to the notice and cure provisions contained in the Mortgage, while any Event of Default exists in the
making of any of the payments herein provided to be made, or in the performance or observance of any of the terms, covenants
or conditions of the Loan Agreement, this Note, the Mortgage or of any instrument now or hereafter securing payment of the
indebtedness evidenced by this Note, at the option of the holder of this Note, in its sole discretion, the entire unpaid
principal balance hereof shall bear interest at the rate per annum equal to the applicable interest rate, adjusted as of the
date of any change therein, plus five percent (5%) per annum (the “Default Rate”). Notwithstanding the foregoing,
if Lender determines pursuant to paragraph 15.6 of the Mortgage, that the Loan evidenced by this Note is required to be
classified as high volatility commercial real estate, then the Interest Rate will be increased as provided in paragraph 15.6
of the Mortgage. During the existence of any such Event of Default, the holder of this Note may apply payments received on
any amounts due hereunder, or under the terms of any instrument now or hereafter evidencing or amounts due hereunder, or
under the terms of any instrument now or hereafter evidencing or securing such indebtedness, as the holder may determine, and
if the holder of this Note so elects, notice of election being expressly waived, the principal hereof remaining unpaid,
together with accrued interest, shall at once become due and payable. Any and all additional interest that has accrued at the
rate provided in this paragraph shall be due and payable at the time of, and as a condition precedent to, the curing of any
Event of Default.


 






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7.           
Late Fees. Subject to the notice and cure provisions contained in the Mortgage, to the extent any principal and interest
due under this Note is not paid within fifteen (15) calendar days of the due date therefore, and, to the extent that the following
described fee is deemed to constitute interest, subject to paragraph 9 of this Note, in addition to any interest or other fees
and charges due hereunder or under this Note, Maker shall pay a late fee equal to the lesser of: (a) five percent (5%) of the amount
of the payment that was to have been made; or (ii) $400.00. Maker agrees that the charges set forth herein are reasonable compensation
to Lender for the acceptance and handling of such late payments.


 


8.           
Currency. All sums called for, payable, or to be paid hereunder shall be paid in lawful money of the United States
of America, which, at the time of payment, is legal tender for the payment of public and private debts therein.


 


9.           
Pre-Payment. This Note may be prepaid in whole or in part without penalty upon not less than two (2) business days’
advance written notice to the holder of this Note.


 


10.         Interest
Savings Clause. All agreements between Maker and the holder of this Note are expressly limited so that in no event
whatsoever, whether by reason of disbursement of the proceeds hereof or otherwise, shall the amount of interest or loan
finance charge contracted for, charged or received by the holder of this Note exceed the highest lawful contractual rate of
interest or the maximum finance charge permissible under applicable federal or state law which a court of competent
jurisdiction, by final non-appealable order, determines to be applicable hereto. It is the intention of Maker and the holder
of this Note to conform strictly to applicable usury laws from time to time in force, and all agreements between Maker and
the holder of this Note, 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 the maturity hereof or otherwise, shall the amount
paid or agreed to be paid to the holder of this Note, or collected by the holder of this Note, for the use, forbearance or
detention of the money to be loaned hereunder or otherwise, or for the payment or performance of any covenant or obligation
contained herein or in the Mortgage or in any other document evidencing, securing or pertaining to the indebtedness evidenced
hereby, exceed the maximum amount permissible under applicable usury laws. If under any circumstances whatsoever fulfillment
of any provisions hereof or of the Mortgage or any other document evidencing, securing or pertaining to the indebtedness
evidenced hereby, at the time performance of such provision shall be due, shall involve transcending the limit of validity
prescribed or permitted by law, including judicial determination, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity; and if under any circumstances the holder of this Note hereby shall ever
receive an amount deemed interest by applicable law which would exceed the highest lawful rate, such amount that would be
excessive interest under applicable usury laws shall be applied to the reduction of the principal amount owing hereunder or
to other indebtedness secured by the Mortgage and not to the payment of interest, or if such excessive interest exceeds the
unpaid balance of principal and other indebtedness, the excess shall be deemed to have been a payment made by mistake and
shall be refunded to Maker or to any other person entitled thereto. All sums contracted for, charged or received by the
holder of this Note for the use, forbearance or detention of the indebtedness of Maker evidenced hereby, outstanding from
time to time shall, to the extent permitted by applicable law, be amortized, pro-rated, allocated and spread from the date of
disbursement of the proceeds of this Note until payment in full of such indebtedness so that the actual rate of interest on
account of such indebtedness is uniform through the term hereof. The terms and provisions of this paragraph shall control and
supersede every other provision of all agreements between the holder of this Note and Maker and any endorser or guarantor of
this Note.


 






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11.        
Governing Law. Payment of this Note is secured, without limitation, by the Mortgage, which covers real and personal
property located in Bernalillo County, New Mexico. THIS NOTE AND EACH OTHER LOAN DOCUMENT (AS DEFINED IN THE LOAN AGREEMENT),
AND ALL MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW MEXICO, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. MAKER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY
OF BERNALILLO, STATE OF NEW MEXICO, AND IRREVOCABLY AGREES THAT, SUBJECT TO LENDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER RELATED DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. MAKER EXPRESSLY
SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. 


 


12.         Remedies.
Subject to the notice and cure provisions contained in the Mortgage, upon the occurrence or existence of any Event of
Default, the holder hereof may, without further notice, declare the entire unpaid principal balance of this Note and all
unpaid, accrued interest on this Note and all other obligations of the Maker to the holder of this Note, whether direct or
indirect, absolute or contingent, now existing or hereafter arising, immediately due and payable, without further notice or
demand, and the Maker shall pay all such sums and other obligations. Further, upon the occurrence or existence of any such
Event of Default, the holder of this Note shall be entitled to exercise any or all remedies provided or referenced in this
Note, the Loan Agreement, the Mortgage or any other instrument or agreement evidencing, securing or relating to the
indebtedness evidenced by this Note and any other rights and remedies under state or federal law. Failure to exercise any
such rights and remedies upon any Event of Default shall not constitute a waiver of any rights in the event of any subsequent
Event of Default. If this Note is placed in the hands of an attorney for collection or if collected through the probate
court, bankruptcy court, or by any other legal or judicial proceedings, the Maker agrees and is obligated to pay, in addition
to the sums referred to above, the reasonable attorneys' fees of the holder of this Note, together with all court costs and
other reasonable expenses paid by such holder.


 


13.        
Waiver. The Maker, endorsers, sureties, guarantors and all other parties who may become liable for all or any part
of this Note severally waive demand, presentment, notice of dishonor, protest, notice of protest, notice of nonpayment, notice
of intent to accelerate, notice of acceleration of the maturity of this Note and consent to: (a) any and all extensions of time
for any term or terms regarding any payment due under this Note, including partial payments or renewals before or after maturity;
(b) changes in interest rates as provided in this Note; (c) any substitutions or release of collateral; and (d) the addition, substitution
or release of any party liable for payment of this Note.


 






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14.        
Miscellaneous. All notices provided for herein shall be given in accordance with the provisions of the Loan Agreement.


 


A.          
[Intentionally Omitted].


 


B.          
This Note is given to evidence an obligation incurred for business purposes and not for personal, single family residential
or agricultural purposes.


 


C.          
This Note may not be terminated orally, but only by a discharge in writing and signed by the party who is the owner and
holder of this Note at the time enforcement of any discharge is sought.


 


D.          
MAKER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THE RELATED DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. MAKER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT LENDER HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS, AND THAT LENDER WILL CONTINUE
TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. MAKER WARRANTS AND REPRESENTS THAT MAKER HAS HAD THE OPPORTUNITY OF REVIEWING
THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT MAKER KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.


 


[SIGNATURE ON NEXT PAGE]





 






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Signed and delivered
effective as of (but not necessarily on) the date set forth above.


 


	“MAKER”	LAVENDER FIELDS, LLC,




	 	a New Mexico limited liability company
	 	 
	 	By	/s/ Carey Plant
	 	 	Carey Plant, Vice President




 






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