Exhibit 10.1


 


DEVELOPMENT LOAN AGREEMENT


 


This Development Loan Agreement
(“Agreement”) is made and entered into effective as of June 24, 2021 (the “Effective Date”), among BOKF, NA dba
Bank of Albuquerque (the “Lender”); and Wymont LLC, a New Mexico limited liability company (the “Borrower”), with
reference to the following:


 


(a)       Borrower
has requested that Lender lend to Borrower up to Seven Million Three Hundred Seventy-Five Thousand and No/100 Dollars ($7,375,000.00),
to partially finance Borrower’s acquisition and development of the La Mirada Shopping Center on the real property more particularly
described on Exhibit A attached hereto and made a part hereof (the “Mortgaged Property”).


 


(b)       Subject
to the terms, provisions, covenants and agreements hereinafter set forth, Lender has agreed to make the requested extension of credit.


 


NOW, THEREFORE, in consideration
of the mutual covenants contained herein and the loan to be made hereunder, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Lender and Borrower hereby covenant and agree as follows:


 


1.               
LENDING AGREEMENT: Subject to the terms, provisions, covenants and agreements set forth in this Agreement, Lender agrees
to lend to Borrower, and the Borrower agrees to borrow from Lender, up to the principal sum of Seven Million Three Hundred Seventy-Five
Thousand and No/100 Dollars ($7,375,000.00), to be used by Borrower for the purposes of: (a) acquiring the Mortgaged Property; (b) paying
contractors, mechanics, materialmen, and suppliers pursuant to the terms of contracts for services in fact performed and materials purchased
for and either incorporated into the development of the Mortgaged Property or suitably stored on the Mortgaged Property for later incorporation
(such development work and the Mortgaged Property are hereinafter collectively referred to as the “Development”); (c) reimbursing
Lender for reasonable expenses incurred by Lender pursuant to this Agreement; and (d) paying other reasonable costs that are incidental
or related to the cost of completing or financing the Development to the extent included in the Development Budget (defined below).


 


2.               
BORROWER’S NOTE: The loan shall be evidenced by a Non-Revolving Line of Credit Promissory Note (the “Note”)
in the principal amount of Seven Million Three Hundred Seventy-Five Thousand and No/100 Dollars ($7,375,000.00), which Note shall bear
interest at the rate specified in the Note.


 


3.               
COLLATERAL SECURITY: The performance of all covenants and agreements contained in this Agreement and in the other documents
executed or delivered as a part of this transaction and the payment of the Note shall be secured as follows:


 


3.1.               
Security Documents Covering Mortgaged Property: Borrower will grant to Lender a first-lien mortgage covering all of the
Mortgaged Property and a security interest in all personal property relating to such Mortgaged Property and owned by Borrower, which mortgage
lien and security interest are evidenced by a Mortgage, Security Agreement and Financing Statement dated the same day as this Agreement
made by Borrower in favor of Lender (the “Mortgage”).


 






     


     


    

 


3.2.               
Hazardous Substances Indemnification Agreement: Borrower and Guarantor shall sign and deliver to Lender a Hazardous Substances
Indemnification Agreement in the form required by Lender (the “HSIA”).


 


3.3.               
Guaranty: AMREP Southwest Inc., a New Mexico corporation (the “Guarantor”), shall sign and deliver to Lender
a Guaranty Agreement in the form required by Lender (the “Guaranty”).


 


3.4.               
Assignment of Leases and Rents: Borrower shall sign and deliver to Lender an Assignment of Leases and Rents in the form
required by Lender assigning all income from the Mortgaged Property to Lender (the “Assignment”).


 


3.5.               
Collateral Assignment of Construction Contracts: The Borrower shall assign to Lender and grant a security interest to Lender
in all contracts with contractors, architects and engineers (the “Collateral Assignment of Construction Contracts”).


 


3.6.               
Collateral Assignment of Purchase Agreement. The Borrower shall assign to Lender and grant a security interest to Lender
in all purchase agreements related to the Mortgaged Property (the “Collateral Assignment of Purchase Agreement”).


 


3.7.               
Additional Documents: Borrower shall also sign and deliver such Closing Certificates, Lien Affidavits, Closing Statements
and other documents that Lender may reasonably request (collectively, the “Additional Documents”). Further, any and all collateral
documents executed by Borrower in favor of Lender as security for any indebtedness of Borrower to Lender shall also expressly secure Borrower’s
obligations hereunder and under the Note and all documents that secure payment of the Note.


 


4.               
CONDITIONS OF LENDING: The obligation of Lender to perform this Agreement and to make an initial or any future advance or
extension of credit hereunder is subject to the performance and existence of the following conditions precedent:


 


4.1.               
No Events of Default: There shall not have occurred and be continuing any Event of Default, and the representations and
warranties set forth in the Loan Documents shall be true and accurate in all material respects.


 


4.2.               
Loan Documents: This Agreement, the Note, the Mortgage, the Assignment, the Collateral Assignment of Construction Contracts,
the Collateral Assignment of Purchase Agreements, the Guaranty, the HSIA, and the Additional Documents (collectively, the “Loan
Documents”) shall be duly authorized, executed and delivered to Lender.


 


4.3.               
Recording of Security Documents: The Mortgage and a Uniform Commercial Code Financing Statement naming Borrower as debtor
and Lender as secured party shall be recorded in the appropriate county or state offices.


 


4.4.               
Title Evidence: Borrower shall provide to Lender a loan policy of title insurance with pending disbursements clause, issued
by a title insurance company acceptable to Lender (the “Title Company”), evidencing that Borrower has good and indefeasible
fee simple title to the Mortgaged Property and that the Mortgage constitutes a valid first mortgage lien on the Mortgaged Property, subject
only to those matters waived by Lender. The title policy shall not include an exception based upon mechanics’ and materialmen’s
liens. The premiums for the title policy shall be paid by Borrower.


 






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4.5.               
Appraisal: Borrower shall pay for an independent appraisal evaluation of the Mortgaged Property by an appraiser selected
and approved by Lender, which appraisal must comply with the standards set forth by the Comptroller of the Currency of National Banks.


 


4.6.               
Survey or Plat: Borrower shall deliver to Lender and the Title Company a survey or plat of the Mortgaged Property in a form
which is acceptable to Lender and the Title Company and will enable the issuer of the required loan policy of title insurance to delete
all survey exceptions.


 


4.7.               
Insurance: Borrower shall obtain and maintain the insurance required to be maintained by the Mortgage.


 


4.8.               
Zoning and Use: If requested by Lender, Borrower shall furnish Lender satisfactory evidence that the Mortgaged Property
is presently zoned for its intended use and that the Mortgaged Property is in full compliance with all municipal ordinances, codes, rules
or regulations.


 


4.9.               
Permits: Borrower shall obtain and deliver to Lender copies of all permits required to commence, and thereafter to continue,
work on the Development or any part thereof, including, without limitation, permits issued by the City of Albuquerque, New Mexico (the
 “City”).


 


4.10.               
Cost Breakdown and Budget: The Borrower shall submit, for approval by Lender, complete plans for the Development and a detailed
cost breakdown and budget of the work entailed in the Development showing the total costs involved (both direct and indirect) (collectively,
the “Development Budget”), which approval shall not be unreasonably withheld or delayed. Following approval by Lender, the
Development Budget shall not be changed in any material respect without the prior written consent of Lender.


 


4.11.               
Existence and Authority: If requested by Lender, Borrower shall provide to Lender true and correct copies of the documents
that created and evidence Borrower and all amendments thereto including: (i) filed Articles of Organization and Certificate of Organization
from the New Mexico Secretary of State (“NMSOS”); (ii) a Certificate of Good Standing issued by the NMSOS; (iii) authorization
from Borrower to enter into this agreement, and any other Loan Documents required by Lender in connection with this Agreement; and (iii)
the operating agreement of Borrower and all amendments thereto.


 


4.12.               
Cash Equity. In addition to any other equity or loan to value requirements Borrower shall have provided evidence reasonably
satisfactory to Lender that Borrower has invested cash equity in the Development, as determined by Lender, of not less than fifteen percent
(15%) of the “as completed” appraised value of the Development as of the date of the initial advance under the Note. Borrower’s
equity in the Mortgaged Property, including without limitation its investment in the offsite infrastructure supporting the Mortgaged Property,
shall be included in any calculation of the cash equity required by this Section 4.12.


 



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4.13.               
Loan Origination Fee: At the time the Note is signed, Borrower shall remit to Lender a fully earned, non-refundable loan
origination fee of $36,875.00.


 


5.               
REPRESENTATIONS AND WARRANTIES: In addition to all other representations and warranties of Borrower to Lender, Borrower
represents and warrants that:


 


5.1.               
Existence; Compliance with Law: Borrower (i) is duly organized or formed, as applicable, validly existing and (if relevant)
in good standing under the laws of the jurisdiction of its organization or formation, as the case may be, (ii) has the limited liability
company power and authority and the legal right, to own and operate its property and assets, to lease the property and assets it leases
and causes to be operated as lessee, and to conduct the business in which it is currently engaged under the governmental requirements
of each jurisdiction in which it owns, leases and/or operates its property or assets, (iii) is duly qualified as a foreign limited liability
company, and (if relevant) in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or
assets or the conduct of its business requires such qualification, (iv) is in material compliance with its applicable organizational documents,
and (v) is in compliance with all governmental requirements, except to the extent that the failure to comply therewith could not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on Borrower.


 


5.2.               
Entity Power; Authorization; Enforceable Obligations: Borrower has the power and authority, and the legal right, to make,
deliver and perform the Loan Documents and to borrow hereunder, and has taken all necessary limited liability company or other action
to authorize the execution, delivery and performance of the Loan Documents and to authorize the borrowings on the terms and conditions
of this Agreement and the other Loan Documents. No consent or authorization of, filing with, notice to or other act by or in respect of,
any governmental authority or any other person is required in connection with the borrowings hereunder or the execution, delivery, performance,
validity or enforceability of this Agreement or any of the other Loan Documents, except consents, authorizations, filings and notices
which have been obtained or made and are in full force and effect. Each Loan Document has been duly executed and delivered on behalf of
Borrower. This Agreement constitutes, and each other Loan Document upon execution shall constitute, a legal, valid and binding obligation
of Borrower, enforceable against Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).


 






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5.3.               
No Legal Bar: The execution, delivery and performance of this Agreement, the other Loan Documents, the borrowings hereunder
and the use of the proceeds thereof shall not violate any governmental requirement or any contractual or other obligation of Borrower
and shall not result in, or require, the creation or imposition of any lien on any of Borrower’s assets, properties or revenues
pursuant to any governmental requirement or any such contractual or other obligation (other than the liens created by the Loan Documents).
No governmental requirement or contractual or other obligation applicable to Borrower or Borrower’s properties or assets could reasonably
be expected to have a material adverse effect on Borrower. No performance of a contractual or other obligation by Borrower, either unconditionally
or upon the happening of an event, would result in the creation of a lien (other than a permitted lien) on the property, assets or revenues
of Borrower.


 


5.4.               
No Conflicting Agreements: There is no provision of any existing agreement, mortgage, indenture, instrument, document or
contract binding on Borrower or affecting any property or asset of Borrower, which would conflict with or in any way prevent the execution,
delivery or carrying out of the terms of this Agreement and the other Loan Documents.


 


5.5.               
Ownership of Properties; Liens: Borrower has good and indefeasible title to the Mortgaged Property, and the Mortgaged Property
is not subject to any deed of trust, mortgage, pledge, security interest, encumbrance, lien or charge of any kind, excluding only: (a)
deposits to secure payment of worker’s compensation (if any), unemployment insurance and other similar benefits; (b) liens for property
taxes not yet due; (c) statutory liens, against which there are established reserves in accordance with generally accepted accounting
principles, and which arise in the ordinary course of business and secure obligations of Borrower which are not yet due and not in default;
(d) encumbrances in favor of Lender and (e) matters reflected in the loan policy of title insurance.


 


5.6.               
Financial Condition: The financial statements, information and materials of Borrower heretofore delivered to Lender fairly
and accurately present in all material respects Borrower’s consolidated financial condition (including its assets and liabilities)
as of the date or dates thereof (subject, in the case of the interim financial statements, to normal year-end adjustments and the absence
of notes), and there have been no material adverse changes in Borrower's financial condition or operations since the date or dates thereof.
Borrower does not currently have material guarantee obligations, contingent liabilities and liabilities for taxes, or any long-term leases
or unusual forward or long-term commitments, which are not reflected in the most recent financial statements, information and materials
referred to in this section.


 


5.7.               
Licenses, Permits, Etc.: Borrower possesses or will possess prior to the commencement of construction and construction of
each subsequent phase of the Development, all licenses, permits, consents, approvals, franchises and intellectual property (or otherwise
possesses the right to use such intellectual property without violation of the rights of any other person) which are necessary for the
completion of the Development, except for those licenses, permits, consents, approvals, franchises and intellectual property the failure
of which to possess could not reasonably be expected to have a material adverse effect on Borrower. Borrower is not in violation in any
material respect of the terms under which it possesses any such licenses, permits, consents, approvals, franchises and intellectual property
or the right to use such licenses, permits, consents, approvals, franchises and intellectual property.


 






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5.8.               
Contractual Default: Borrower is not in default under or with respect to any of their respective contractual obligations
in any respect that could reasonably be expected to have a material adverse effect on Borrower.


 


5.9.               
No Change: Since January 1, 2021, there has been no development or event that has had or could reasonably be expected to
have a material adverse effect on the Mortgaged Property or Borrower.


 


5.10.               
Litigation: There is no litigation, investigation or proceeding of or before any arbitrator, mediator or any governmental
authority or, to Borrower’s knowledge, threatened by or against Borrower or against any of any Borrower’s assets, properties
or revenues: (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby, or (b) that could reasonably
be expected to have a material adverse effect on the Mortgaged Property or Borrower.


 


5.11.               
Employee Retirement Income Security Act of 1994 (ERISA): Other than as disclosed in the filings of AMREP Corporation made
to the Securities and Exchange Commission, (a) Borrower has not incurred any “accumulated funding deficiency” within the meaning
of Section 302(a)(2) of ERISA as amended from time to time with respect to any employee pension or other benefit plan or trust maintained
by or related to Borrower, and Borrower has not incurred any material liability to the Pension Benefit Guaranty Corporation (PBGC) as
established pursuant to Section 4002 of ERISA in connection with any such plan, and (b) no reportable event described in Sections 4042(a)
or 4043(b) of ERISA with respect to any such plan has occurred.


 


5.12.               
Insurance: All policies of insurance of any kind or nature of any Borrower, including policies of fire, theft, product liability,
public liability, property damage, other casualty, employee fidelity, workers’ compensation and employee health and welfare insurance,
if and as applicable, are in full force and effect as of the date of this Agreement and are of a nature and provide such coverage as is
customarily carried by businesses of the size and character of Borrower. Borrower has not been refused insurance for any material coverage
for which it has applied or has had any policy of insurance terminated (other than at Borrower’s request).


 


5.13.               
Taxes: Borrower has timely filed or requested appropriate extensions (or caused to be timely filed or extended) all federal,
state and other tax returns, reports and statements (collectively, “Tax Returns”) that are required to be filed by Borrower
with the appropriate governmental authorities in all jurisdictions in which such Tax Returns are required to be filed; all such Tax Returns
are true and correct in all material respects; Borrower has timely paid, prior to the date on which any fine, penalty, interest, late
charge or loss may be added thereto for non-payment thereof, all taxes shown to be due and payable on said Tax Returns or on any assessments
made against Borrower or any of Borrower’s properties or assets, and all other taxes, fees or other charges imposed on Borrower
or any of Borrower’s properties or assets by or otherwise due and payable to any governmental authority (other than any for which
the amount or validity of which are currently being contested in good faith by appropriate proceedings); and no tax lien has been filed
against the property or assets of Borrower and, to Borrower’s knowledge, no claim is being asserted, with respect to any such tax,
fee or other charge. No Tax Return is under audit or examination by any governmental authority and no notice of such an audit or examination
or any assertion of any claim for taxes has been given or made by any governmental authority. Proper and accurate amounts have been withheld
by Borrower (if and to the extent any such withholdings are so required) for all periods in full and complete compliance with the tax,
social security, health care and unemployment withholding provisions of applicable governmental requirements, and such withholdings (if
any) have been timely paid to the respective governmental authorities. Borrower (i) does not intend to treat the Loan or any other transaction
contemplated hereby as being a “reportable transaction” (within the meaning of Treasury Regulation 1.6011-4), and (ii) is
not aware of any facts or events that would result in such treatment. Due to Borrower’s date of organization, Borrower has not yet
filed any Tax Returns.


 






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5.14.               
Margin Regulations: No part of the proceeds of the Loan shall be used for buying or “carrying” any “margin
stock” within the respective meanings of each of the quoted terms under Regulation U (as defined within the applicable governmental
requirements promulgated by the applicable governmental authorities from time to time) as now and from time to time hereafter in effect
or for any purpose that violates the provisions of any governmental authority. If requested by Lender, Borrower shall furnish to Lender
a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation
U.


 


5.15.               
Investment Company Act: Borrower is not an “investment company”, or a company “controlled” by an
 “investment company”, within the meaning of the Investment Company Act of 1940, as amended. Borrower is not subject to regulation
under any governmental requirement which limits its ability to incur Indebtedness, other than Regulation X (as defined within the applicable
governmental requirements promulgated by the applicable governmental authorities from time to time).


 


5.16.               
Patriot Act: Borrower and its affiliates are in compliance, in all material respects, with the Patriot Act. No part of the
proceeds of the Loan shall be used, directly or indirectly, for any payments to any (i) governmental authority’s officials or employees,
(ii) political party, (ii) official of any political party, (iv) candidate for political office, or (v) anyone other person acting in
an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.


 


5.17.               
OFAC: None of Borrower or any affiliate of any Borrower: (a) is a sanctioned person; (b) owns assets in sanctioned
entities; or (c) derives any of its operating income from investments in, or transactions with sanctioned persons or sanctioned entities.
None of the proceeds of any Loan shall be used or have been used to fund any operations in, finance any investments or activities in,
or make any payments to, a sanctioned person or a sanctioned entity.


 






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5.18.               
No Default: No Event of Default has occurred and is continuing.


 


5.19.               
Adverse Circumstances: To Borrower’s knowledge, neither the business nor any property or asset of any Borrower is
presently affected by any fire, explosion, accident, strike, lockout, or other dispute, embargo, act of God, act of public enemy or terrorism,
or similar event or circumstance, nor has any other event or circumstance relating to any Borrower's business, affairs, properties or
assets occurred, any of which could have a material adverse effect on Borrower.


 


5.20.               
Accuracy of Information: To Borrower's knowledge, all factual information provided to Lender in connection with the Loan
evidenced by the Note is and shall be true, accurate and complete in all material respects on the date as of which such information was
delivered to Lender and was not and shall not be incomplete by the omission of any material fact necessary to make such information not
misleading, provided that, with respect to projected financial information, prospect information, geological and geophysical data and
engineering projections, Borrower only represents that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.


 


5.21.               
Environmental: To Borrower’s knowledge, the conduct of Borrower's business operations and the condition of Borrower's
properties or assets owned, operated or managed by Borrower does not violate any Environmental Law (as defined in the HSIA between Borrower
and Lender of even date herewith). Borrower has not received notice of, nor, to Borrower’s knowledge are there presently existing,
any judicial, administrative, arbitral or other proceeding (including any notice of violation or alleged violation) under or relating
to any Environmental Law or any environmental permit to which any Borrower is, or to Borrower’s knowledge, shall be, named as a
party that is pending or, to any Borrower’s knowledge, threatened. Borrower has not received any written request for information,
or been notified that any Borrower is a potentially responsible party under or relating to any Environmental Law. Borrower has not entered
into or agreed to any consent decree, order, or settlement or other agreement or undertaking, and Borrower is not subject to any judgment,
decree, or order or other agreement, in any judicial, administrative, arbitral or other forum for dispute resolution, relating to compliance
with or liability under any Environmental Law. Borrower has not assumed or retained, by contract, operation of law or otherwise, any liabilities
of any kind, fixed or contingent, known or unknown, under any Environmental Law. Borrower has made available to Lender copies of all significant
reports, correspondence and other documents, if any, in its possession, custody or control regarding compliance by Borrower with, or potential
liability of Borrower under, Environmental Laws or environmental permits.


 


5.22.               
Compliance with Laws: To Borrower’s knowledge, Borrower is presently in compliance in all material respects with all
applicable governmental requirements to which Borrower, or any of Borrower's assets or properties, is subject, except where the failure
to so comply could not reasonably be expected to have a material adverse effect on Borrower.


 


5.23.               
Solvency; Compliance with Financial Covenants: Borrower is, and after giving effect to the incurrence of all Indebtedness
and obligations being incurred in connection herewith shall be and shall continue to be, solvent.


 






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5.24.               
Availability of Utility Service: All utility services necessary for the maintenance and use of the Mortgaged Property are
or will be available to the Mortgaged Property, including water supply, storm and sanitary sewer facilities, electric and gas utilities
and cable television lines.


 


5.25.               
No Commencement of Work: Prior to recordation of the Mortgage, no work of any kind incident to the Development (other than
design and engineering work) shall have commenced, no equipment or material shall have been delivered to or stored upon the Mortgaged
Property for any purpose whatsoever, and no contracts (or memorandum or affidavit thereof) for the supplying of labor or materials for
the Development nor affidavit of commencement of construction shall have been recorded in the real property records of the county in which
the Mortgaged Property is located.


 


5.26.               
Continuation of Representations and Warranties; Borrower’s Knowledge: All representations and warranties made under
this Agreement shall be deemed to be made at and as of the closing date and each funding date. Whenever used in this Agreement, the phrase
 “to Borrower’s knowledge” means to the actual knowledge of Borrower’s President as of the Effective Date, without
independent inquiry and without review of any files.


 


6.               
BORROWER’S AFFIRMATIVE COVENANTS: Until payment in full of the Note and performance of all obligations owing to Lender
under this Agreement and the instruments executed pursuant hereto, unless the Lender shall otherwise consent in writing, Borrower agrees
to perform or cause to be performed the following:


 


6.1.               
Performance of Obligations: Borrower will promptly and punctually perform all of the obligations hereunder, and under all
other instruments executed or delivered pursuant thereto and under the terms of any other contract or agreement entered into by the Borrower
in connection with the Development.


 


6.2.               
Financial Information: Borrower will maintain adequate and accurate books and records of account. Lender shall have the
right to examine and copy such books and records, including all books and records relating to the Development, to discuss the affairs,
finances and accounts of Borrower and to be informed as to the same from time to time as Lender might reasonably request. Borrower will
provide Lender with: (a) quarterly unaudited and without footnotes financial statements within sixty (60) days of each quarter end, beginning
with the quarter ending October 31, 2021; and (b) annual unaudited and without footnotes financial statements within one hundred twenty
(120) days of fiscal year end. All financial information provided to Lender will be in form and content acceptable to Lender in its sole
discretion.


 


6.3.               
Notification of Liens: Other than items identified in the title policy required hereunder, Borrower will notify Lender of
the existence or asserted existence of any mortgages, pledge, lien, charge or encumbrance on the Mortgaged Property, personal or real,
tangible or intangible, forthwith upon Borrower’s obtaining knowledge thereof, excluding only: (a) encumbrances in favor of Lender;
(b) deposits to secure payment of worker’s compensation, unemployment insurance and similar benefits; (c) statutory liens arising
in the ordinary course of Borrower’s business which secure current obligations of Borrower which are not in default.


 






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6.4.               
Payment of Taxes: All taxes, assessments and governmental charges or levies imposed on the Borrower or on Borrower’s
assets, income or profits, will be paid prior to delinquency. Notwithstanding the foregoing, the Borrower shall not be required to pay
any tax, assessment, charge or levy which is being contested in good faith by proper proceedings; provided, however, at any time after
a tax lien, of any type, is filed or notice thereof is received, upon request of Lender, Borrower shall deposit with Lender the amount
so contested and unpaid together with all interest that may or might be assessed or be a charge on the Mortgaged Property or any part
thereof.


 


6.5.               
Lender’s Access: Upon one (1) business day’s written notice, Borrower will, during normal business hours and
as often as Lender may reasonably request but not exceeding once per month during the term of this Agreement so long as Borrower is not
in default hereunder, permit any of Lender’s officers or any authorized representatives of Lender to visit and inspect the Development,
to enter upon the Mortgaged Property, to inspect the Development progress thereof and all materials to be used in the Development, and
to examine the current plans and specifications.


 


6.6.               
Compliance with Laws: Borrower will comply with all statutes, laws, rules and regulations in all material respects to which
the Borrower is subject or by which its properties are bound or affected, including, without limitation, (a) ERISA; (b) those pertaining
or relating to environmental standards and controls; (c) those pertaining to occupational health and safety standards (d) those pertaining
to equal employment and credit practices and civil rights, and (e) those pertaining to the ownership, operation and use of the Development.


 


6.7.               
Maintenance: Borrower will maintain its existence, remain in good standing in each jurisdiction in which it is required
to be qualified or licensed, maintain all franchises, permits, intellectual properties and licenses necessary or useful in the operation
of its business heretofore operated and as to be operated as contemplated hereby, and Borrower will maintain or cause to be maintained
its properties in good and workable condition, repair, and appearance, and protect the same from deterioration, other than normal wear
and tear, at all times.


 


6.8.               
Further Assurances: Borrower will, from time to time, promptly cure any defects or omissions in the execution and delivery
of, or the compliance with the Loan Documents, or the conditions described herein, including the execution and delivery of additional
documents reasonably requested by Lender.


 


6.9.               
Events with Respect to ERISA: As soon as possible and in any event within thirty (30) days after Borrower knows or has reason
to know that any reportable event described in Sections 4042(a) or 4043(b) of ERISA with respect to any employee pension or other benefit
plan or trust maintained by or related to Borrower has occurred, or that PBGC has instituted or will institute proceedings under ERISA
to terminate any such plan, Borrower will deliver to Lender (a) a certificate of an officer of Borrower setting forth details as to such
event and the action which Borrower proposes to take with respect thereto, and (b) a copy of any notice delivered by PBGC evidencing its
intent to institute such proceedings. For all purposes of this covenant, Borrower shall be deemed to have all knowledge or knowledge of
all facts attributable to the plan administrator of such plan under ERISA. Borrower will furnish to Lender (or cause such plan administrator
to furnish to Lender) the annual report for each plan covered by ERISA maintained by or related to Borrower as filed with the Secretary
of Labor not later than ten (10) days after the receipt of a request from Lender in writing for such report.


 






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6.10.               
Other Notifications: Borrower will notify Lender as soon as practicable, but in any event within five (5) business days
after Borrower knows or has reason to know that any of the following has occurred: (a) an Event of Default; (b) any material adverse change
in the nature of or property comprising the Mortgaged Property; and (c) any change in the accounting practices and procedures of Borrower,
including a change in the financial conditions, business or operations of Borrower.


 


6.11.               
Compliance with Organizational Documents: Borrower shall timely perform all of its responsibilities and obligations under
the Borrower’s Articles of Organization, Operating Agreement and any other documents now or hereafter evidencing Borrower.


 


6.12.               
Completion of Development: Borrower shall complete the work of the Development on or before June 24, 2024.


 


6.13.               
Regulatory Compliance: Borrower shall at all times cause the Development to remain in full compliance with all required
equity thresholds and capital retention obligations set forth in Part 217 of Chapter II of title 12 of the Code of Federal Regulations
(HVCRE regulations) such that the Development would not, in the determination of Lender need to be classified as High Volatility Commercial
Real Estate.


 


6.14.               
Continuity of Construction: Borrower shall prosecute with diligence and continuity the construction of the work and improvements
and will not suspend or cease construction for a period longer than thirty (30) days. Borrower’s obligation under this provision
shall be subject to exception due to events of Force Majeure Delay. "Force Majeure Delay" shall mean a delay in progress of
construction due to weather, act of God, unavailability or shortage of labor or materials, national emergency, fire or other casualty,
natural disaster, war, delays or actions of governmental authorities or utilities, riots, acts of violence, labor strike, injunctions
in connection with litigation, or other cause which is not within the reasonable control of Borrower. Force Majeure Delay does not include
the failure to order and obtain materials in a timely fashion for the continuous development of the Development and does not include financial
difficulties of the Borrower.


 


7.               
BORROWER’S NEGATIVE COVENANTS: Until payment in full of the Loan and unless Lender shall otherwise consent in writing,
Borrower will not perform or permit to be performed any of the following acts:


 


7.1.               
Creation or Existence of Liens: Borrower shall not create, assume or suffer to exist any mortgage, pledge, lien, charge
or encumbrance on the Mortgaged Property without the prior approval of Lender, excluding only: (a) encumbrances in favor of the Lender;
(b) deposits to secure payment of workmen’s compensation, unemployment insurance and similar benefits; (c) statutory liens, against
which there are established reserves in accordance with generally accepted accounting principles, and which arise in the ordinary course
of Borrower’s business and secure current obligations of Borrower which are not in default; (d) liens for property taxes not yet
due; and (e) such matters reflected in the mortgagee policy of title insurance and in the Mortgage. Lender understands and approves Borrower
recording on the Mortgaged Property: (i) one or more Final Plats (as defined below) of the Mortgaged Property which may contain grants
of easements, dedications of right-of-way and other encumbrances necessary to create the subdivided parcels; (ii) declarations of covenants,
conditions and restrictions applicable to the Mortgaged Property which may include the creation of a homeowner’s association and
architectural review provisions; and (iii) private improvement covenants creating monthly levies on the residential lots for the reimbursement
of certain infrastructure costs and expenses.


 






    	 	11	 



     


    

 


7.2.               
Transfer of Mortgaged Property: Borrower shall not sell, transfer or convey all or any portion of the Mortgaged Property
except as permitted by this Agreement; and the Borrower shall not transfer, whether voluntarily or involuntarily, sell or assign more
than 50% of the ownership interest of Borrower without the prior consent of Lender. If Borrower transfers, whether voluntarily or involuntarily,
sells or assigns any of the ownership interest of Borrower, Borrower will give written notice to Lender of the percentage of ownership
interest transferred, sold or assigned and the parties to whom the ownership interest was transferred, sold or assigned within ten (10)
days of the effective date of the transfer, sale or assignment.


 


7.3.               
Use of Loan Proceeds: Borrower shall not use or permit any related person, association or entity to use any funds advanced
to Borrower under this Agreement to (a) defray living expenses, (b) anticipate profit, or (c) defray any other items not directly connected
with the costs of the Development and payable to unrelated third parties.


 


7.4.               
Modification of Organizational Documents: Borrower shall not participate in, suffer or permit the material amendment, modification,
restatement, cancellation or termination of any document now or hereafter evidencing Borrower, including, without limitation, the Borrower’s
Articles of Organization or Operating Agreement, without the prior consent of Lender, which consent will not be unreasonably withheld.


 


7.5.               
Limitation on Distributions: Except as otherwise provided herein, and if no Default or Event of Default has occurred and
is continuing, Borrower may make distributions of cash or property to its partners or otherwise make distributions on the account of equity
interests in the Borrower, provided, however, that no such distribution would (a) cause Borrower to be in default of any covenant contained
herein or in the Loan Documents, or (b) cause Borrower’s net equity investment in the Development, as determined by Lender, to be
less than fifteen percent (15%).


 






    	 	12	 



     


    




 


8.               
ADMINISTRATION OF LOAN: NOTWITHSTANDING ANY LANGUAGE IN THIS AGREEMENT SEEMINGLY TO THE CONTRARY, BORROWER SHALL NOT BE
ENTITLED TO ANY DISBURSEMENT OF LOAN PROCEEDS HEREUNDER UNLESS AND UNTIL BORROWER HAS SATISFIED ALL OF THE CONDITIONS OF LENDING SET FORTH
THIS AGREEMENT. LENDER SHALL MAKE DISBURSEMENTS UNDER THE LOAN IN THE FOLLOWING MANNER:


 


8.1.               
Purpose: The principal sum to be disbursed under the Note shall be used for the purposes outlined in Paragraph 1, including,
paying development costs as shown in the Development Budget (the “Development Costs”).


 


8.2.               
Compliance with Development Budget: Notwithstanding any language in this Agreement seemingly to the contrary, all disbursements
under this Agreement and the Note shall be made in accordance with the Development Budget. Deviations from the Development Budget must
be approved in advance in writing by Lender, which approval shall not be unreasonably withheld. The Development Budget will be monitored
monthly on a category-by-category basis. If Development Costs in an individual category exceed the amount budgeted therefore (plus ten
percent (10%) thereof as contained in the contingency line item) in the Development Budget, then Borrower shall pay from sources other
than the Loan the entire excess, unless a budgetary savings in the same or greater amount is realized in a different category as reasonably
determined by Lender.


 


8.3.               
Request for Funds: Borrower shall deliver to Lender a request for funds (a “Request for Funds”) stating the
amount of disbursement requested under the Note. The Request for Funds shall be made on the AIA form G702 Application and Certificate
for Payment, and as applicable, an AIA form G703 Continuation Sheet and shall be delivered to Lender at least five (5) business days before
the requested date of disbursement, properly completed and signed by Borrower’s contractor and reviewed by Tierra West LLC (the
 “Engineer/Inspector”). At the option of Lender, all Requests for Funds shall be supported by copies of bills or statements
for all expenses for which a disbursement is requested. Borrower agrees that Lender may disburse automatically from the Loan an amount
sufficient to pay each payment of interest required by the Note, on its due date or any date thereafter as Lender may choose, provided
that such payment of interest has not been theretofore paid by Borrower.


 


8.4.               
Information: The Request for Funds shall be accompanied by:


 


8.4.1.               
a Development Budget spreadsheet detailing the requested disbursement and remaining balance to fund;


 


8.4.2.               
if Lender requires, a list of Hard Costs, broken down by subcontractor, to be paid from the requested disbursement and copies of
all invoices for each Hard Cost item in excess of Five Thousand and No/100 Dollars ($5,000). “Hard Costs” are all of the costs
for the visible improvements, including without limitation grading, excavation, concrete, sidewalks, roads, utilities, and landscaping;


 


8.4.3.               
a list of Soft Costs to be paid from the requested disbursement and copies of the invoices for each Soft Cost item in excess of
Five Thousand and No/100 Dollars ($5,000). “Soft Costs” are all costs that are not Hard Costs;


 






    	 	13	 



     


    

 


8.4.4.               
copies of all current and pending change orders (AIA Form G701 or equivalent);


 


8.4.5.               
copies of executed conditional lien waivers from the general contractor for the current disbursement. In cases where the general
contractor is owned/controlled by the Borrower, conditional lien waivers for the current disbursement are required for each major subcontractor;


 


8.4.6.               
copies of executed unconditional lien waivers from the general contractor for previous disbursements. In cases where the general
contractor is owned/controlled by the Borrower, unconditional lien waivers for previous disbursements are required for each major subcontractor;


 


8.4.7.               
if requested by Lender, a report by the Engineer/Inspector which shall specify the estimated percentage of completion of the Development,
together with detailed comments on the specific work performed since the date of the last report rendered to Lender;


 


8.4.8.               
an endorsement to the title insurance policy, extending the effective date of the policy to the date of the endorsement, showing
no liens of record or additional encumbrances not acceptable to the Lender, and increasing the effective amount of the coverage to the
total amount outstanding under the Note;


 


8.4.9.               
unless provided with a previous Request for Funds, a copy of the permit applicable to the work covered by the Request for Funds
issued by the City or other governmental authority; and


 


8.4.10.               
such other information as Lender may reasonably request.


 


8.5.               
Lender’s Inspection: Lender shall engage the Engineer/Inspector, at Borrower’s sole cost and expense, to review
each Request for Funds and make an examination of the Development for the benefit of Lender prior to Lender making any advance. Regardless
of inspections by the Engineer/Inspector or Lender’s representatives, Lender shall have no responsibility, obligation or liability
to Borrower or any other individual or entity based on, arising from or relating to any such inspections, and Borrower shall at all times
have exclusive control over work on the Development and sole responsibility for compliance with all governmental, quasi-governmental and
private laws, ordinances, rules, regulations, codes, covenants, restrictions, easements and other matters which control, burden, apply
to or otherwise affect the Mortgaged Property and/or the Development.


 


8.6.               
Disbursements: The Lender shall, on the date the requested advance is to be made or as soon thereafter as all conditions
precedent to such advance have been satisfactorily met in all material respects, deposit into an account at Lender designated by Borrower
such advance. Advances under the Note may, at the option of the Lender, be recorded on the Note and/or by deposits to the foregoing account,
and such records shall be conclusive evidence of all advances made under the Note. Notwithstanding the foregoing disbursement procedure,
upon the occurrence of an Event of Default (defined below), the Lender may, at its discretion, until such Event of Default is cured or
for so long as required by the title company issuing the loan title insurance required hereunder, make disbursements to itself for all
sums payable by Borrower to Lender, make disbursements to the appropriate taxing authority to pay all unpaid taxes, make payments directly
to insurers for all premiums due on insurance policies required hereunder, and make all other disbursements to a title company escrow
account, and such title company will draw checks on such account for payment of the items approved by Lender. Any expense incurred because
of the disbursement through a controlled title company escrow account shall be paid by Borrower.


 






    	 	14	 



     


    

 


8.7.               
Development Budget Overrun: In the event the Lender determines, at any time, that the total cost of completing the Development
free of liens and encumbrances, other than those in favor of the Lender contemplated hereby will, in the reasonable judgment of the Lender,
exceed the available and undisbursed balance of the loan described herein, the Lender may cease making advances and/or require further
security for the payment of the indebtedness evidenced by the Note by requiring the Borrower to post additional collateral satisfactory
to Lender, and/or by requiring Borrower to make cash deposits with Lender to be held in an account with Lender sufficient in amount to
cover such estimated excess cost of completing the Development. For the purpose of this paragraph, the cost of completion shall be deemed
to include, without limitation the following: costs of labor and materials, site and off-site improvements, amounts paid to contractors,
landscaping, professional fees, taxes on the Mortgaged Property, premiums for bonds, if any, survey costs, appraisal fees, recording costs,
interest on the Note, all amounts reimbursable to the Lender for reasonable expenses incurred hereunder, and the costs of all items necessary
to the proper completion of the Development.


 


8.8.               
Termination of Advances: At the option of the Lender, monthly advances shall not be made unless: (a) the Loan Documents
are in full force and effect; and (b) an Event of Default does not exist and would not exist but for the giving of notice or the passage
of time under the terms of the Loan Documents.


 


9.               
[RESERVED]


 


10.               
DEFAULT: The Events of Default listed in the Mortgage are incorporated in this Agreement by reference and made a part of
this Agreement and shall constitute “Events of Default” hereunder and under each of the other Loan Documents executed pursuant
to this Agreement. In addition, the failure by Guarantor to provide the financial statements required by the Guaranty within thirty (30)
days from the date of written notice from Lender or the failure by Guarantor to maintain the net worth required by the Guaranty shall
each be an “Event of Default” under this Agreement and under each of the other Loan Documents.


 


11.               
REMEDIES: Upon the occurrence of an Event of Default and continuation thereof and the failure by Borrower to cure such Event
of Default after such notice of the Event of Default and such opportunity to cure the Event of Default as may be required by the Mortgage,
Lender may, at its option:


 


11.1.               
Acceleration of the Note: Declare the Note to be immediately due and payable whereupon the Note shall become forthwith due
and payable without presentment, demand, protest or further notice of any kind, and the Lender shall be entitled to proceed simultaneously
or selectively and successively to enforce its rights under the Note, this Agreement and any of the Loan Documents executed pursuant to
the terms hereof, or any note or all of them. Nothing contained herein shall limit Lender’s rights and remedies available under
applicable laws.


 






    	 	15	 



     


    

 


11.2.               
Selective Enforcement: In the event the Lender shall elect to selectively and successively enforce its rights under any
of the Loan Documents, such action shall not be deemed a waiver or discharge of any other lien, encumbrance or security instrument securing
payment of the Note until such time as the Lender shall have been paid in full all sums advanced under the Note. The foreclosure of any
lien provided pursuant to this Agreement without the simultaneous foreclosure of all such liens shall not merge the liens granted which
are not foreclosed with any interest which the Lender might obtain as a result of such elective and successive foreclosure.


 


12.               
GENERAL PROVISIONS: Lender and Borrower further agree as follows:


 


12.1.               
Expenses: Borrower agrees to pay all reasonable fees, expenses and charges in respect to the Loan contemplated by this Agreement,
including, without limiting the generality thereof, the following: reasonable fees and expenses of counsel employed by Lender in connection
with drafting and negotiating documents and closing of the Loan up to $4,000, plus New Mexico Gross Receipts Tax, and all reasonable fees
and expenses of counsel employed by Lender in regard to any litigation arising out of or relating to this transaction in which Lender
is the prevailing party; title insurance premiums and all expenses incidental to title insurance and title evidence; recording and filing
fees; reasonable fees and expenses of any appraiser who appraises the Mortgaged Property for Lender limited, in the absence of an Event
of Default, to not more than twice during the term of the Loan; reasonable fees and expenses of the environmental engineering firm which
provides the required environmental assessment report to Lender at the closing of the Loan up to a maximum of two thousand dollars ($2,000.00)
and any environmental assessment report required by federal law; reasonable fees and expenses of the Engineer/Inspector in connection
with the construction phase of the Development; and other reasonable fees and expenses involved in the closing of this loan and the reasonable
fees and expenses payable by Lender which are incidental to the enforcement or defense of this Agreement or any of the other Loan Documents.


 


12.2.               
Notices: Any notices or other communications required or permitted hereunder shall be sufficiently given if delivered personally
via a national overnight delivery service or sent by registered or certified mail, postage prepaid, return receipt requested and addressed
as listed below or to such other address as the party concerned may substitute by written notice to the other. All notices shall be deemed
received: (i) on the date of delivery if personally delivered; (ii) on the day following timely deposit with an overnight delivery service;
or (iii) within three (3) days (excluding Saturdays, Sundays and holidays recognized by national banking associations) after being mailed:


 






    	 	16	 



     


    

 


 


	To Borrower:	Wymont LLC
	 	333 Rio Rancho Drive, Suite 202
	 	Rio Rancho, New Mexico 87124
	 	Attention: Vice President
	 	 
	To Lender:	BOKF, NA dba Bank of Albuquerque
	 	100 Sun Avenue NE, Suite 500
	 	Albuquerque, New Mexico 87109
	 	Attention: Jordan Herrington, Sr. Vice President


  


12.3.               
Amendment and Waiver: This Agreement may not be amended or modified in any way, except by an instrument in writing executed
by both parties hereto; provided, however, Lender may, in writing: (a) extend the time for performance of any of the obligations of Borrower;
(b) waive any Event of Default by Borrower; and (c) waive the satisfaction of any condition that is precedent to the performance of Lender’s
obligations under this Agreement. In the event of Lender’s waiver of an Event of Default, such specific Event of Default shall be
deemed to have been cured and not continuing, but no such waiver shall extend to any subsequent or other Event of Default or impair any
consequence of such subsequent or other Event of Default.


 


12.4.               
Non-Waiver; Cumulative Remedies: No failure on the part of Lender to exercise and no delay in exercising any right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise by Lender of any right hereunder preclude any other or further
right of exercise thereof. The remedies herein provided are cumulative and not alternative.


 


12.5.               
Assignment: Neither this Agreement, nor the loan proceeds hereunder, shall be assignable by Borrower without the prior written
consent of Lender.


 


12.6.               
Applicable Law: THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT, 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. BORROWER AND LENDER HEREBY CONSENT TO THE JURISDICTION
OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF BERNALILLO, STATE OF NEW MEXICO, AND IRREVOCABLY AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. BORROWER AND LENDER
EXPRESSLY SUBMIT AND CONSENT TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. 


 


12.7.               
Descriptive Headings: The descriptive headings of the paragraphs of this Agreement are for convenience only and shall not
be used in the construction of the terms hereof.


 






    	 	17	 



     


    

 


12.8.               
Terms: As used in this Agreement the singular shall be deemed to include the plural and the plural shall be deemed to include
the singular.


 


12.9.               
Integrated Agreement: THIS AGREEMENT AND OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO
AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.


 


12.10.               
Time of Essence: Time is of the essence of this Agreement.


 


12.11.               
Binding Effect: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors, legal representatives and assigns. The obligations of Borrower under this Agreement are joint and several.


 


12.12.               
Third Party Beneficiary: Nothing in this Agreement, express or implied, is intended to confer upon any person other than
the parties hereto and their respective successors and assigns, any rights or remedies under or by reason of this Agreement.


 


12.13.               
Right to Defend: Lender shall have the right, but not the obligation, at Borrower’s expense, to commence, to appear
in or to defend any action or proceeding (initiated by a third party against Borrower) purporting to affect the rights or duties of the
parties hereunder and in connection therewith pay out of the funds of the Loan all necessary expenses, including reasonable fees of counsel,
if Borrower fails to so commence, appear in or defend any such action or proceeding with counsel satisfactory to Lender.


 


12.14.               
Indemnification: Borrower agrees to indemnify, defend and hold Lender harmless from and against any loss, cost or expense
(including interest, penalties, reasonable attorneys’ fees and amounts paid in settlement) caused by Borrower’s negligence,
breach or wrongful actions arising out of or based upon the Loan Documents or the Loan, except and to the extent caused by Lender’s
negligence, breach, wrongful actions, gross negligence or willful misconduct.


 


12.15.               
Waiver of Jury Trial. EACH OF BORROWER AND LENDER HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY AND AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH OF BORROWER AND LENDER ACKNOWLEDGE THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS, AND THAT EACH SHALL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF BORROWER AND LENDER
WARRANT AND REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.


 






    	 	18	 



     


    

 


12.16.               
Joint and Several Obligations. If Borrower consists of more than one party, all representations, warranties, covenants,
agreements and undertakings of such parties under this Agreement shall be deemed joint and several. Whenever the context requires, the
representations, warranties, liabilities, covenants, agreements and undertakings contained in this Agreement shall be deemed to have been
individually given by each of the parties constituting Borrower.


 


13.       
PARTIAL RELEASES. Borrower intends to replat the Mortgaged Property as generally shown on Exhibit B attached to this
Agreement (the “Plan”). The number of lots and configuration of the Development on the preliminary plat will not significantly
differ from the Plan. Prior to submission of the preliminary plat to the City, Borrower will submit the preliminary plat to Lender for
review and approval (the “Lender Approved Preliminary Plat”), which approval will not be unreasonably withheld. Lender will
have five (5) Business Days (defined below) from receipt of the preliminary to approve or reject the preliminary plat. If Lender rejects
the preliminary plat it will provide a detailed response to Borrower within the five (5) business day period describing the reasons for
rejection. Lender will have five (5) business days from receipt to approve or reject any resubmitted preliminary plat. The Borrower shall
then submit the Lender Approved Preliminary Plat to the City for approval. Borrower will not materially change the Lender Approved Preliminary
Plat without the prior written approval of Lender. Following approval of the plat by the City, the plat will become the final plat (the
 “Final Plat”). Borrower shall record the Final Plat in the real property records of Bernalillo County, New Mexico. From time
to time, after the recording of the Final Plat until the Maturity Date (defined in the Note), upon request of Borrower, Lender shall release
one or more lots from the lien of the Mortgage and from the UCC Financing Statement as provided in this Agreement. A request for release
(a “Request”) must identify the lot or lots to be released identified by the lot number on the recorded Final Plat (each a
 “Lot”) and be made to Lender not less than five (5) Business Days prior to the requested release date. A “Business Day”
is any day in which the Lender is open for business. The release price (the “Release Price”) for each commercial Lot is: 100%
of the net sales proceeds as defined herein. As used in this Agreement “100% of Net Sale Proceeds” means the purchase price
for the Lot less reasonable and customary costs of the sale (for example, commissions, title insurance premiums, legal fees) as documented
by the settlement statement for the transaction approved by Lender. The Release Price for any residential Lot shall be $4,000,000.00 divided
by the total number of residential lots on the Final Plat and multiplied by the number of lots being released.


 


The Release Price must be delivered to the Lender
in immediately available funds on the day of closing. Notwithstanding anything to the contrary contained in this Agreement or in any of
the Loan Documents, Lender shall not be required or obligated to release any Lot if an Event of Default Exists or would exist but for
the giving of notice or the lapse of time. Unless an Event of Default exists beyond applicable cure periods, the Release Price shall be
applied to the outstanding principal balance of the Note.


 






    	 	19	 



     


    

 


To the extent the Final Plat contains land to
be dedicated, granted or conveyed to a homeowner’s association, public entity or quasi-public entity, Lender shall execute a release
with regard to such land without payment of a Release Price. Any such release must be requested at least five (5) Business Days prior
to the requested release date.


 


14.               
REAPPRAISAL. If, as determined in Lender’s reasonable discretion, there has been a material deterioration in the value
of the Mortgaged Property, Lender shall be entitled, at the expense of Borrower, not more frequently than once every twelve (12) months,
to obtain a re-appraisal of the Mortgaged Property. If such re-appraisal confirms a material deterioration in the value of the Mortgaged
Property compared with the value shown in the previous appraisal on file with Lender, which deterioration causes Borrower to be in violation
of any covenants contained in the Loan Documents, Lender may, at Lender’s option, require Borrower to make an additional payment
of principal sufficient to bring Borrower into compliance with such covenants.


 


15.               
WAIVER OF SET-OFF. Lender hereby waives all rights of set-off Lender has under New Mexico law or the Loan Documents against
any and all deposits held by Lender in the name of Borrower. Lender does not waive any other rights or remedies of Lender under New Mexico
law or the Loan Documents.


 


 


[SIGNATURES ON NEXT PAGE]


 




    	 	20	 



     


    


 


IN WITNESS WHEREOF, the parties
have caused this instrument to be duly executed effective as of (but not necessarily on) the day and year first above written.


 


	“BORROWER”:	Wymont LLC,
	 	a New Mexico limited liability company
	 	 	 
	 	 	 
	 	By	/s/ Carey A. Plant
	 	 	Carey A. Plant, Vice President
	 	 	 
	 	 	 
	“LENDER”:	BOKF, NA dba BANK OF ALBUQUERQUE
	 	 	 
	 	 	 
	 	By	/s/ Jordan Herrington
	 	 	Jordan Herrington, Senior Vice President


 





 



    	 	21	 



     


    




 


EXHIBIT A

Legal Description


 


Lot numbered One-A-One (1-A-1) of La Mirada Subdivision,
as the same is shown and designated on the plat entitled “Plat for Lots 1-A-1 and 5-A-1. La Mirada Subdivision, Being Comprised
of Lots 1-A and 5-A, La Mirada Subdivision, City of Albuquerque, Bernalillo County, New Mexico,” filed in the office of the County
Clerk of Bernalillo County, New Mexico, on December 23, 2019, in Plat Book 2019C, Page 137.


 


 



     

     


    





 


 


EXHIBIT B

Plan