SENIOR SECURED CONVERTIBLE PROMISSORY NOTEConvertible Promissory Note |
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Across America Real Estate Exchange, Inc | WestMountain Prime, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Search Convertible Promissory Note by:
Exhibit 10.2
THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS SET FORTH HEREIN. NEITHER THIS NOTE NOR THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT .
SENIOR SECURED CONVERTIBLE PROMISSORY NOTE
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$132,000 |
October 16, 2008 |
Across America Real Estate Exchange, Inc., a Colorado corporation (the “Company”), promises to pay to WestMountain Prime, LLC, a Colorado limited liability company or permitted assigns (collectively, the “Holder”), the principal sum of One Hundred and Thirty Two Thousand United States Dollars ($132,000.00) when due, whether upon maturity, acceleration, redemption or otherwise and to pay interest on the unpaid principal balance hereof upon maturity, or earlier upon conversion, acceleration or redemption pursuant to the terms hereof, at the Applicable Rate.
All agreements herein made are expressly limited so that in no event whatsoever, whether by reason of advancement of proceeds hereof, acceleration of maturity of the unpaid balance hereof or otherwise, shall the amount paid or agreed to be paid to the Holder for the use of the money advanced or to be advanced hereunder exceed the maximum rate permitted by law (the “Maximum Rate”). If, for any circumstances whatsoever, the fulfillment of any provision of this Note or any other agreement or instrument now or hereafter evidencing, securing or in any way relating to the debt evidenced hereby shall involve the payment of interest in excess of the Maximum Rate, then, ipso facto , the obligation to pay interest hereunder shall be reduced to the Maximum Rate; and if for any circumstance whatsoever, the Holder shall ever receive interest, the amount of which would exceed the amount collectible at the Maximum Rate, such amount as would be excessive interest shall be applied to the reduction of the principal balance remaining unpaid hereunder and not to the payment of interest. This provision shall control every other provision in any and all other agreements and instruments existing or hereafter arising between the Company and the Holder with respect to the debt evidenced hereby.
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Interest; Payments. Unless it has been previously converted pursuant to Section 2(a), the entire unpaid balance of this Note and all accrued and unpaid interest thereon shall be paid in accordance with Section 2(b) on October 16, 2009 (the “Due Date”). |
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a) |
This Note shall accrue from the date hereof (the “Issue Date”) at the Applicable Rate (calculated on the basis of a 360-day year consisting of twelve 30 day months). For purposes of this Note, the Applicable Rate shall mean 12%, except in the event that the Company fails to convert any portion of the principal and pay the interest due in which case the Applicable Rate shall thereafter be 18%. |
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If the Due Date would fall on a day that is not a Business Day (as defined below), the payment due on the Due Date will be made on the next succeeding Business Day with the same force and effect as if made on the Due Date. “Business Day” means any day which is not a Saturday or Sunday and is not a day on which banking institutions are generally authorized or obligated to close in the city of Fort Collins, Colorado. |
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Conversion; Repayment if Not Converted. |
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Optional Conversion . At any time prior to the Due Date, all outstanding principal under this Note may, at the sole option of the Holder, be converted into common shares of the Company’s Stock equal to the outstanding principal amount of this Note divided by .22 (the “Conversion Stock”). The Holder shall effect such conversion by delivering to the Company a Notice of Conversion specifying therein its election to convert the entire principal amount of this Note and the date on which such conversion shall be effected (the "Conversion Date"). The Company shall not issue fractional units but shall pay in cash the dollar equivalent of any fractional units computed in accordance with this Section 2. In addition, the Company shall pay the Holder in cash all accrued and unpaid interest due hereunder on the Conversion Date. |
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Repayment if Note Not Converted . In the event that the Holder does not convert all amounts of outstanding principal prior to the Due Date, then on the Due Date, all amounts of outstanding principal and accrued interest shall be due to the Holder in cash, subject to Section 1(a) and Section 5. |
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Issuance of Conversion Stock . No later than five (5) Business Days after receipt of the Conversion Notice, the Company shall deliver, or cause to be delivered, to the Holder a certificate or certificates representing the Conversion Stock. |
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Reservation of Common Stock. The Company shall at all times reserve and keep available out of its authorized and unissued common stock, solely for the purpose of providing for the exercise of the conversion rights provided for under this Section 2, such number of common shares as shall be sufficient for issuance upon conversion of this Note in full. The Company covenants that all Conversion Stock shall be validly issued, fully paid, nonassessable, and free of preemptive rights. |
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Representations and Warranties of the Company . The Company represents and warrants to the Holder as of the date hereof as follows: |
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Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Colorado and has all requisite corporate power and authority to own and operate its assets and properties and to carry on its business. The Company is duly qualified to transact business and is in good standing in each jurisdiction wherein the properties owned or leased or the business transacted by the Company makes such qualification to do business as a foreign corporation necessary, except where the failure to so qualify could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, business or properties of the Company (a “Material Adverse Effect”). |
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Power and Authority. All corporate action on the part of the Company and its officers, directors and shareholders necessary for the authorization, execution and delivery of this Note, the performance of all obligations of the Company hereunder and the authorization, issuance and delivery this Note being sold hereunder have been taken. This |
