Filed by Bowne Pure Compliance



 





Exhibit 10.26


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


	 	 	 
	
Denver, Colorado
October 25, 2007 

	 	

$3,000,000





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 Three Million Dollars ($3,000,000)
(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
January 23, 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 equal to the
greatest of:


(i) the ninety day average for U.S. Treasury Notes with a
10-year maturity as determined on the last Business Day of each calendar
quarter, using the constant maturity calculation, plus 650 basis points;
or


(ii) eleven percent (11%).





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(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.





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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 be instituted by or against the Company or any
subsidiary of the Company, unless such proceeding shall be stayed within thirty
(30) days;


(c) The
Company or any subsidiary of the Company shall make an assignment for the
benefit of creditors, or apply for or consent to the appointment of a receiver
or trustee for it or for a substantial part of its property or business, or
such a receiver or trustee shall otherwise be appointed;


(d) Any
representation or warranty of the Company made herein or in any agreement,
statement or certificate given in writing pursuant hereto or in connection
herewith (including, without limitation, the Purchase Agreement and the
Registration Rights Agreement), shall be false or misleading in any material
respect when made and the breach of which has (or with the passage of time will
have) a material adverse effect on the rights of the Holder with respect to
this Note, or the Purchase Agreement;


(e) Any
material failure by the Company to perform or observe any of its covenants
contained in the Purchase Agreement where such failure continues for a period
in excess of five (5) days after written notice from the Holder or actual
knowledge of the Company of such failure;





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(f) If a final
judgment, writ or similar process is entered or filed against the Company or
any subsidiary of the Company or any of its property or other assets in an
amount in excess of $50,000, which is not, within twenty (20) days after
the entry thereof, discharged or the execution thereof stayed pending appeal,
or within twenty (20) days after the expiration of such stay, such
judgment is not discharged;


(g) Any
default with respect to any other Indebtedness for Borrowed Money or
liabilities of the Company or any of its subsidiaries in any amount in excess
of (i) $50,000 individually or in the aggregate with respect to Indebtedness
for Borrowed Money, (ii) $50,000 individually with respect to liabilities and
(iii) $100,000 in the aggregate with respect to liabilities and Indebtedness
for Borrowed Money, provided, that such event shall only constitute an
“Event of Default” where the effect of such default is to permit
the holder thereof to accelerate the maturity of such Indebtedness for Borrowed
Money or liabilities, as the case may be, but only if (x) the holder
elects to exercise such a right to accelerate the maturity of such Indebtedness
for Borrowed Money or liabilities, as the case may be, and (y) where such
default continues for a period of fifteen (15) days after written notice
from the Holder or actual knowledge of the Company of such a default, and
provided, further, that a default with respect to liabilities
shall not constitute an “Event of Default” where the Company in
good faith objects to the amount or obligation to pay the applicable liability
and makes appropriate reserves for such liability, if necessary, in accordance
with GAAP.


(h) Any
liquidation, dissolution or winding up of the Company and its subsidiaries or
its business;


(i) If the
Company reports a net loss, beginning January 1, 2008, as determined in
accordance with U.S. generally accepted accounting principles, in excess of (i)
$1,000,000 for any calendar quarter after the date hereof, or (ii) $2,500,000
for any three consecutive calendar quarters after the date hereof;


(k) Any event,
circumstance or conditions exists which could reasonably be expected to result
in a Material Adverse Effect on the Company and its Subsidiaries,
provided that the Holder shall provide thirty (30) days written
notice to the Company if it intends to declare an Event of Default under this
paragraph 3(k) and provide the Company with an opportunity to present evidence
satisfactory to the Holder in its sole discretion that such event, circumstance
or condition has been remedied; or


(l) The
Company shall fail to maintain the listing of the Common Stock on at least one
of the OTCBB or any equivalent replacement exchange, the Nasdaq Global Select
Market, the Nasdaq Global Market, the Nasdaq Capital Market, the New York Stock
Exchange or the American Stock Exchange





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4. Consequences of Event of Default


(a) If there
shall occur, after the fulfillment of any applicable notice and cure provisions
(if any), any Event of Default specified in sections (b) or (c) of
Section 3 hereof, the unpaid Principal balance of this Note and all
accrued interest thereon shall be immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are expressly
waived.


(b) If there
shall occur, after the fulfillment of any applicable notice and cure provisions
(if any), any Event of Default other than those listed in Section 4(a) above,
the Holder may, at its option, by written notice to the Company, declare the
entire Principal balance of this Note and all accrued interest thereon due and
payable, and the same shall thereupon become immediately due and payable
without presentment, demand, protest or (except as required hereby) notice of
any kind, all of which are expressly waived.


(c) If an
Event of Default shall occur, the Company shall pay the Holder hereof all costs
of collection, including reasonable attorneys’ fees.


5. Definitions


“Applicable Law” means that law in effect
from time to time and applicable to this Note which lawfully permits the
contracting, charging, taking, reserving and/or collection of the highest
permissible lawful, non-usurious rate of interest or amount of interest on or
in connection with this Note.


“Business
Day” means any day other than a Saturday, Sunday or a day on which
commercial banks in the city of Denver, Colorado are authorized or required by
law or executive order to remain closed.


“Senior
Debt” means all indebtedness, obligations and other liabilities of
the Company defined pursuant to that certain Amendment to Senior Subordinated
Note dated October 25, 2007, as amended.


“Senior
Default” means any “Default,” “Event of
Default” or any condition or event that (with or without notice, lapse of
time, or both) would permit Holders of Senior Debt to accelerate the maturity
of such Senior Debt if that condition or event were not cured or removed within
any applicable grace or cure period set forth therein.


6. Miscellaneous


(a) No failure
or delay on the part of the Holder in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privileges. All rights
and remedies existing hereunder are cumulative to, and not exclusive of, any
rights or remedies otherwise available.





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(b) Any notice
herein required or permitted to be given shall be in writing and may be
personally served or delivered by courier or sent by United States mail and
shall be deemed to have been given upon receipt if personally served (which
shall include telephone line facsimile transmission) or sent by courier or
three (3) days after being deposited in the United States mail, certified,
with postage pre-paid and properly addressed, if sent by mail. For the purposes
hereof, the addresses of the parties for receipt of notice hereunder are:


If to the
Company:


Across America Real Estate Corp.

700 17th Street, Suite 1200 

Denver, Colorado 80202


Attention: Chief Executive Officer 

Telephone: (303) 893-1003


Facsimile: (303) 893-1005


With a copy to:


David Wagner &
Associates, P.C. 

8400 East Prentice Ave. 

Penthouse Suite


Greenwood Village, Colorado 80111 

Attention: David J. Wagner, Esq.


Telephone: (303) 793-0304 

Facsimile: (303) 409-7650


If to the
Holder:


BOCO Investments,
LLC 

103 West Mountain Ave. 

Fort Collins, Colorado 80524


Facsimile: (970) 482-6139 

Attention: Chief Executive Officer


With a copy to:


Davis Graham &
Stubbs LLP 

1550 17th Street, Suite 500 

Denver, CO
80202 

Attention: Ronald R. Levine II and Brian J. Boonstra 

Telephone:
(303) 892-9400 

Facsimile: (303) 892-7400





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If to GDBA:


GDBA Investments,
LLLP 

1440 Blake Street, Suite 310 

Denver, Colorado 80202


Facsimile: (720) 932-9397 

Attention: Peter Shepard


With a copy to:


Davis &
Ceriani, P.C. 

1350 17th Street, Suite 400 

Denver,
Colorado 80202 

Attention: Patrick J. Kanouff 

Telephone:
(303) 534-9000 

Facsimile: (303) 534-4618


(c) This Note
and any provision hereof may only be amended by an instrument in writing signed
by the Company and the Holder. The term “Note” and all reference
thereto, as used throughout this instrument, shall mean this instrument as
originally executed, or if later amended or supplemented, then as so amended or
supplemented.


(d) This Note
shall be binding upon the Company and its successors and assigns, and shall
inure to be the benefit of the Holder and its successors and assigns.
Notwithstanding anything in this Note to the contrary, this Note may be pledged
as collateral in connection with a bona fide margin account or other lending
arrangement.


(e) This Note
shall be enforced, governed by and construed in accordance with the laws of the
State of Colorado applicable to agreements made and to be performed entirely
within such state, without regard to the principles of conflict of laws. The
parties hereto hereby submit to the exclusive jurisdiction of federal or state
courts located in Denver, Colorado with respect to any dispute arising under
this Note. Both parties irrevocably waive the defense of an inconvenient forum
to the maintenance of such suit or proceeding. Both parties further agree that
service of process upon a party mailed to the notice address set forth in this
Note by registered first class mail shall be deemed in every respect effective
service of process upon the party in any such suit or proceeding. Nothing
herein shall affect either party’s right to serve process in any other
manner permitted by law. Both parties agree that a final non-appealable
judgment in any such suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on such judgment or in any other lawful manner.





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IN WITNESS WHEREOF,
Company has caused this Note to be signed in its name by its duly authorized
officer this 25th day of October, 2007


ACROSS AMERICA
REAL ESTATE CORP.


By:
/s/                                                      

Name:
Ann L. Schmitt

Title: Chief Executive Officer







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