Exhibit 10.2


 


NON-REVOLVING LINE OF CREDIT

PROMISSORY NOTE


 


	$7,375,000.00	June 24, 2021
	Note #__________	
    Albuquerque, New Mexico 



 


FOR VALUE RECEIVED, the undersigned
Wymont 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 Seven Million Three Hundred Seventy-Five Thousand and No/100 Dollars ($7,375,000.00), 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.          
“Business Day” shall mean any day excluding Saturday, Sunday and any other day on which banking institutions
in Albuquerque, New Mexico are authorized by law or other governmental actions to close, and, if such day relates to: (i) any interest
rate settings as to a LIBOR loan; (ii) any fundings, disbursements, settlements and payments in respect of any such LIBOR loan; or (iii)
any other dealings pursuant to this Note in respect of any such LIBOR loan, such day shall be a day on which dealings in deposits in Dollars
are conducted by and between banks in the London interbank eurodollar market.


 


B.          
“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.


 


C.          
“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.


 


D.          
“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).


 






     

     


    

 


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


 


F.           
“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.


 


G.          
“Maturity Date” shall mean June 24, 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.


 


H.          
“Mortgage” shall mean the Mortgage, Security Agreement and Financing Statement dated the same date as this Note,
made by Maker in favor of Lender securing, among other things, the indebtedness evidenced by this Note.


 






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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 twenty-fourth (24th) day of each month beginning
on July 24, 2021, and continuing on the twenty-fourth (24th) day of each month thereafter through and including May 24, 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.


 


4.           
Loan Origination Fee. On the date this Note is signed, Maker will pay to Lender a loan origination fee of Thirty-Six Thousand
Eight Hundred Seventy-Five and No/100 Dollars ($36,875.00).


 


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 Albuquerque, 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.


 






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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.


 


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”	Wymont LLC,
	 	a New Mexico limited liability company
	 	 	 
	 	 	 
	 	By	/s/ Carey A. Plant
	 	 	Carey A. Plant, Vice President



 


 


 






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