falcon10ksbex104_11408.htm


     

    
      

      

    

    
 

    
      Exhibit
        10.4

      


                                       PROMISSORY
        NOTE

       

      
        	
                $1,136,074.40

              	
                September
                  30, 2007

              
	 	 


      

      


       

      FOR
        VALUE
        RECEIVED, the undersigned, Falcon Ridge Development, Inc., a Nevada Corporation
        having its principal place of business at 5111 Ridge Development, Albuquerque,
        New Mexico 87111 (“Borrower”), promises to pay to the order of Karen Y. Duran.
        And/or Fred M. Montano, having an address at 12512 Modesto Blvd. NE,
        Albuquerque, NM 87122 (“Lender”), the principal sum of One
        Million One Hundred Thirty Thousand Dollars and Forty Cents  ($1,136,074.40) (the
“Principal
        Amount”) advanced by Lender to Borrower prior to and on the date hereof pursuant
        to the Loan Agreement (as defined below), together with interest on the unpaid
        Principal Amount thereof computed from the date hereof, at the rates provided
        herein until completely paid, unless accelerated sooner (the “Maturity Date”);
provided, however,
        that from
        and after (i) the Maturity Date, whether upon stated maturity, acceleration
        or
        otherwise, or (ii) the date on which the interest rate hereunder is increased
        to
        the Default Rate (as hereinafter defined) as provided herein, such additional
        interest shall be computed at the Default Rate.

       

      Defined
        terms used herein but not defined herein shall have the meaning ascribed
        to them
        in the Loan Agreement entered into as of the date hereof by and between Borrower
        and Lender (the “Loan Agreement”).

       

      Unless
        the Borrower is otherwise notified by the Lender in writing, all payments
        due
        hereunder and otherwise under the Loan Agreement shall be made to Karen Y.
        Duran
        or as directed by her.

       

      Principal
        and interest hereunder shall be payable as follows:

       

      
        	
                 

              	
                (a)

              	
                Principal
                  payments equal to One
                  Million One Hundred Thirty Thousand Dollars and Forty Cents($1,136,074.40)

              


      

       

      
        	
                 

              	
                (b)

              	
                On
                  the first day of each month begininnig when the funds were advanced
                  through maturity a principal payment in the amount of Twenty-Thousand
                  Dollars ($20,000.00) plus accured interest on any outstanding
                  principal. Interest to accrue at the Prime Rate (as described herein)
                  plus
                  three percent (3; 

              


      

       

      
        	
                 

              	
                (c)

              	
                All
                  principal, interest and other sums due hereunder, shall be due
                  and payable
                  on the Maturity Date. Each payment of principal of an Advance shall
                  be
                  accompanied by unpaid interest accrued on such principal to the
                  date of
                  payment. 

              


      

       

      
        	
                 

              	
                (d)

              	
                This
                  Note describe the sum of of certain loans and advances which have
                  been
                  prviously made to the company by the lender and any accrued but
                  not paid
                  interest shall be added to note at maturity and to determine final
                  payment
                  including interest on those amounts.


              


      

       


      
        
           

        

        
           

          
            

          

        

        
           

        

      


      As
        used
        herein, the term “Prime
        Rate” shall mean the annual rate of interest announced from time to time
        in the Wall Street Journal as the “prime rate.” If the Wall Street Journal
        ceases to be published or ceases to publish the Prime Rate, then the Prime
        Rate
        will be rate announced from time to time as the "Prime Rate" by a bank
        identified by Lender in its sole discretion.  Other than any scheduled
        payments for interest, each payment shall be credited first to the payment
        of
        interest accrued at the applicable interest rate under this Note, second,
        if the
        Mortgage has been liquidated through deed-in-lieu of foreclosure, foreclosure
        sale, trustee’s sale or other realization as provided by applicable law
        governing the real property subject to the Mortgage, to the balance remaining
        under this Note, and with respect to partial payments, to the payment of
        the
        principal payment then due, third to related escrow deposits required under
        the
        Mortgage and fourth to the payment of any other amounts owing by the Borrower
        in
        respect of the Loan Agreement.

       

      The
        interest on this Note shall be calculated on the basis of a 30-day month
        and a
        360-day year.  Except as otherwise provided in the Loan Documents, if
        the due date of any payment to be made hereunder would otherwise fall on
        a day
        that is not a Business Day, such due date shall be extended to the next
        succeeding Business Day and interest shall be payable for any principal so
        extended for the period of such extension.

       

      As
        used
        herein, the term “Loan Documents” shall mean this Note, the Loan Agreement, and
        the Mortgage, and all other documents evidencing or securing this Note
        (including all additional mortgages and guarantees) or executed or delivered
        in
        connection therewith.

       

      As
        used
        herein, the term “Default Rate” shall mean a rate per annum equal to 25%, but in
        no event shall the Default Rate be in excess of the Maximum Rate (as hereinafter
        defined).

       

      If
        any
        payment of interest is not paid on or before the due date for such payment
        (after giving effect to any grace or notice period), a late charge equal
        to the
        lesser of ten percent (10%) of such overdue payment or the maximum amount
        permitted by applicable law shall automatically become due to the holder
        of this
        Note, subject, however, to the limitation that late charges may be assessed
        only
        once on each overdue payment. Said late charges do not constitute interest
        and
        shall constitute compensation to the holder of this Note for collection and
        Lender’s administration costs incurred hereunder.  In addition, if any
        payment of principal or interest is not paid when due (after giving effect
        to
        any grace or notice period provided in the Loan Documents), the holder of
        this
        Note shall have the right, upon written notice to Borrower, to increase the
        rate
        of interest per annum on the entire amount due and payable under this Note
        and
        any other Loan Documents to the Default Rate and, upon said notice such rate
        increase shall be effective retroactively as of the date from which the interest
        component of such overdue payment began to accrue and shall remain in force
        and
        effect for so long as such default shall continue.  This paragraph
        shall not be construed as an agreement or privilege to extend the due date
        of
        any payment, nor as a waiver of any other right or remedy accruing to the
        holder
        of this Note by reason of any default.

       

      It
        is
        understood and agreed that, except as may be provided in the Loan Agreement,
        Borrower shall not be entitled to a refund of the interest, any fees, points,
        charges and the like paid by Borrower to Lender in connection with the Advance,
        or for fees and expenses incurred by Lender in making the Advance, all of
        which
        payments shall be retained by Lender from and after the date each such payment
        is made hereunder.

       

      Borrower
        and each surety, endorser and guarantor hereof hereby waive all demands for
        payment, presentations for payment, notices of intention to accelerate maturity,
        notices of acceleration of maturity, demand for payment, protest, notice
        of
        protest and notice of dishonor, to the extent permitted by law, except for
        those
        notices expressly provided for herein.  Borrower further waives trial
        by jury.  No extension of time for payment of this Note or any
        installment hereof, no alteration, amendment or waiver of any provision of
        this
        Note and no release or substitution of any collateral securing Borrower’s
        obligations hereunder shall release, modify, amend, waive, extend, change,
        discharge, terminate or affect the liability of Borrower under this Note.

       


      
        
           

        

        
           

          
            

          

        

        
           

        

      


      


       

      Any
        forbearance by the holder of this Note in exercising any right or remedy
        hereunder or under any other agreement or instrument in connection with this
        facilty or otherwise afforded by applicable law shall not be a waiver or
        preclude the exercise of any right or remedy by the holder of this
        Note.  The acceptance by the holder of this Note of payment of any sum
        payable hereunder after the due date of such payment shall not be a waiver
        of
        the right of the holder of this Note to require prompt payment when due of
        all
        other sums payable hereunder or to declare a default for failure to make
        prompt
        payment.

       

      If
        this
        Note is placed in the hands of an attorney for collection, Borrower shall
        pay
        all costs incurred and reasonable attorneys’ fees for legal services in the
        collection effort whether or not suit be brought.

       

      At
        the
        election of the holder of this Note, all payments due hereunder may be
        accelerated, and this Note shall become immediately due and payable without
        notice or demand, upon the occurrence of an Event of Default under any Loan
        Document, which default is not cured within any grace period expressly provided
        therefor in such Loan Document; provided, however,
        that in the
        case of the occurrence of an Event of Default referred to in Sections 10(k),
        (l)
        or (m) of the Loan Agreement, all payments due hereunder shall be automatically
        accelerated and this Note shall become immediately due and payable without
        notice or demand and without any further action on the part of
        Lender.  In addition to the rights and remedies provided herein, the
        holder of this Note may exercise any other right or remedy in any other
        document, instrument or agreement evidencing, securing or otherwise relating
        to
        the indebtedness evidenced hereby in accordance with the terms thereof, or
        under
        applicable law, all of which rights and remedies shall be cumulative.

       

      If
        Borrower makes a Transfer (as defined in the Loan Agreement) of the Mortgage
        Property, all payments due hereunder may be accelerated.

       

      If
        this
        Note is transferred in any manner, the right, option or other provisions
        herein
        shall apply with equal effect in favor of any subsequent holder hereof.

       

      Notwithstanding
        anything to the contrary contained herein, under no circumstances shall the
        aggregate amount paid or agreed to be paid hereunder exceed the highest lawful
        rate permitted under applicable usury law (the “Maximum Rate”) and the payment
        obligations of Borrower under this Note are hereby limited
        accordingly.  If under any circumstances, whether by reason of
        advancement or acceleration of the maturity of the unpaid principal balance
        hereof or otherwise, the aggregate amounts paid on this Note shall include
        amounts which by law are deemed interest and which would exceed the Maximum
        Rate, Borrower stipulates that payment and collection of such excess amounts
        shall have been and will be deemed to have been the result of a mistake on
        the
        part of both Borrower and the holder of this Note, and the party receiving
        such
        excess payments shall promptly credit such excess (to the extent only of
        such
        payments in excess of the Maximum Rate) against the unpaid principal balance
        hereof and any portion of such excess payments not capable of being so credited
        shall be refunded to Borrower.

       

      This
        Note
        is referred to in, and secured by the Second Mortgage executed on the date
        hereof in connection with this Note and the Loan Agreement, and is entitled
        to
        the benefits and security thereof and any other documents or agreements given
        to
        Lender by Borrower, the Guarantor, or others as security for Advances made
        under
        the Facility.    Borrower hereby agrees to indemnify, defend
        and hold harmless Lender from and against any and all claims, loss, cost,
        damage
        or expense (including, without limitation, reasonable attorneys’ fees) which may
        be incurred by Lender as provided in the Loan Agreement.

       

      All
        payments of principal and interest hereunder are payable in lawful money
        of the
        United States of America.

       


      
        
           

        

        
           

          
            

          

        

        
           

        

      


      


       

      Borrower
        is hereby prohibited from exercising against Lender any right or remedy which
        it
        might otherwise be entitled to exercise against any one or more (but less
        than
        all) of the parties constituting Lender, including without limitation any
        right
        of setoff or any defense.

       

      This
        Note
        shall be binding on the parties hereto and their respective heirs, legal
        representatives, executors, successors and assigns.

       

      This
        Note
        shall be construed without any regard to any presumption or rule requiring
        construction against the party causing such instrument or any portion thereof
        to
        be drafted.

       

      This
        Note
        shall be governed by and construed in accordance with the laws of the State
        of
        New Mexico without regard to choice of law considerations.  Borrower
        hereby irrevocably consents to the jurisdiction of the courts of the State
        of
        New Mexico and of any federal court located in such State in connection with
        any
        action or proceeding arising out of or relating to this Note or the other
        Loan
        Documents.

       

      This
        Note
        may not be changed or terminated orally.

       

      A
        determination that any portion of this Note is unenforceable or invalid shall
        not affect the enforceability or validity of any other provision, and any
        determination that the application of any provision of this Note to any person
        or circumstance is illegal or unenforceable shall not affect the enforceability
        or validity of such provision to the extent legally permissible and otherwise
        as
        it may apply to other persons or circumstances.

       

      JURY
        TRIAL WAIVER.  BORROWER AGREES THAT ANY SUIT, ACTION OR PROCEEDING,
        WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY BORROWER OR THE HOLDER OF THIS
        NOTE ON
        OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF
        THE
        PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND
        NOT
        BY A JURY.  BORROWER AND LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY AND
        INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION
        OR
        PROCEEDING.  FURTHER, BORROWER WAIVES ANY RIGHT IT MAY HAVE TO CLAIM
        OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY,
        PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
        DAMAGES.  BORROWER ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH IS A
        SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT LENDER WOULD NOT EXTEND
        CREDIT TO BORROWER IF THE WAIVERS SET FORTH IN THIS PARAGRAPH WERE NOT A
        PART OF
        THIS NOTE.

       

       

      Falcon
        Ridge Development, Inc.:

      
 

      President/CEO                                                                                          
        Date

      Falcon
        Ridge Development, Inc.

       

      Lender:

       

      
____________________________________        _____________

      Karen
        Y.
        Duran                                                                                      
Date

       

      
        
____________________________________        _____________

      

      Fred
        M.
        Montano                                                                                      
Date