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
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October 16,
2008
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Across America
Financial Services, 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)
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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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b)
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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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a)
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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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b)
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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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c)
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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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d)
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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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a)
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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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b)
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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 N
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