Exhibit 10.30
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”). THE SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE OR OTHERWISE TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT,
OR AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE CUSTOMARY FOR
OPINIONS OF COUNSEL IN COMPARABLE TRANSACTIONS THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT.
SENIOR SUBORDINATED NOTE
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| Denver, Colorado |
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| June 4, 2008 |
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$1,000,000 |
FOR VALUE
RECEIVED, ACROSS AMERICA REAL ESTATE CORP., a Colorado corporation
(the “ Company ”), hereby promises to pay to the
order of BOCO INVESTMENTS, LLC, a Colorado limited liability
company or registered assigns (the “ Holder ”)
the sum of One Million Dollars ($1,000,000) (the “
Principal ”), or so much thereof as shall have been
advanced to or for the benefit of Company, together with interest
on the principal balance outstanding from time to time, at the
close of business on September 2, 2008 (the “
Maturity Date ”), on the terms and conditions set
forth herein.
Each
capitalized term used herein, and not otherwise defined, shall have
the meaning ascribed thereto in the Securities Purchase Agreement
dated September 28, 2006 and any amendments thereto
(collectively, the “ Purchase Agreement
”).
All payments
due under this Senior Subordinated Note (the “ Note
”) shall be made in lawful money of the United States of
America.
1.
Interest; Payments
(a) Interest Rate . Subject to Section 1(b) and 1(c), this
Note shall bear interest on the unpaid Principal balance hereof at
the rate (the “ Interest Rate ”) per annum of
six percent (6%).
(b)
Default Interest . If an Event of Default has occurred and
is continuing, interest shall accrue on the unpaid Principal
balance of this Note at a rate (the “ Default Interest
Rate ”) equal to the higher of (i) the Interest Rate
plus 800 basis points, or (ii) twenty-four percent (24%) per
annum.
(c)
Applicable Law . Notwithstanding any provision of this Note,
the Purchase Agreement or any other agreement to the contrary, the
Company shall not be required to pay, and the Holder shall not be
permitted to receive, any compensation that constitutes interest
under Applicable Law in excess of the maximum amount of interest
permitted by Applicable Law.
(d)
Interest . Interest shall commence accruing on the date
hereof, shall be computed on the basis of a 365-day year and the
actual number of days elapsed and shall be due at the end of the
term of this Note or upon the partial or complete payoff of this
Note, whichever is earlier. The applicable Interest Rate for each
calendar quarter shall be determined as provided in Section 1(a) at
the end of the term of this Note or upon the partial or complete
payoff of this Note, whichever is earlier.
(e)
Payments . During the term of this Note, any and all
proceeds from the sale of the Company’s land or properties,
net of costs of sale and required payments on Senior Debt will
applied to the repayment of this Note in accordance with the terms
hereof. All payments shall be made at such address as the Holder
shall hereafter give to the Company by written notice made in
accordance with the provisions of this Note. Whenever any amount
expressed to be due by the terms of this Note is due on any day
which is not a Business Day, the same shall instead be due on the
next succeeding day which is a Business Day and, in the case of any
interest payment date which is not the date on which this Note is
paid in full, the extension of the due date thereof shall not be
taken into account for purposes of determining the amount of
interest due on such date. The Principal amount of this Note,
together with any unpaid interest thereon, shall be due and payable
on the Maturity Date.
(f)
Prepayment . The unpaid Principal balance of this Note,
together with all accrued and unpaid interest, may at the
Company’s option be prepaid in whole or in part, at any time
or from time to time. Any prepayments hereunder shall be applied
first, to all interest accrued but unpaid at such prepayment date
and second, to outstanding Principal amounts.
(g)
Advances of Principal . Prior to any advances of Principal
under this Note, the Company shall submit a summary, in a form that
is acceptable to the Holder, describing the reason for the advance
on this Note as well as the underlying economics if the advance is
for the purposes of a new real estate project. The Holder reserves
the right to approve each advance of Principal under this Note;
provided, however, that such approval shall not be unreasonably
withheld.
2. Subordination. The payment of principal and interest
on this Note is hereby subordinated to the Senior Debt and Holder
will not ask, demand, sue for, take or receive from the Company, by
setoff or in any other manner, the whole or any part any amount
payable with respect to this Note (whether such amounts represent
principal or interest, or obligations which are due or not due,
direct or indirect, absolute or contingent), including, without
limitation, the taking of any negotiable instruments evidencing
such debt, nor any security for any of the Note, unless and until
all Senior Debt, whether now existing or hereafter arising, shall
have been fully and indefeasibly paid in full in cash and satisfied
and all financing arrangements between the Company and all holders
of the Senior Debt have been terminated; provided ,
however , that Holder may receive from the Company scheduled
payments of principal and interest with respect to this Note on an
unaccelerated basis so long as no Senior Default has occurred and
is continuing or would result therefrom. If a Senior Default has
occurred and is continuing or would result from any scheduled
payment of principal or interest by the Company with respect to
this Note, then, until the Senior Default which has occurred or
which would result from such payment has been cured, no payment of
principal or interest shall be deemed due or otherwise payable
under this Note.
3. Events of Default . Each of the following events
shall be deemed an “ Event of Default ”:
(a) The
Company fails to pay the Principal hereof or interest thereon when
due on this Note, whether at maturity, upon acceleration or
otherwise and where such failure continues for a period of five
(5) days after receipt of written notice from the Holder to
the Company and GDBA Investments, LLLP (“GDBA”) of such
failure;
(b) Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy
law or any law or the relief of debtors shall
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