aarexchange8kex102_1172008.htm


     

    
      

      

    

     

    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

     

    
       

      
        	 $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.

    


    
      	
              1)

            	
              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”).

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
              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%.

            


    

     

    
      	
              b)

            	
              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.

            


    

     

    
      	
              2)

            	
              Conversion;
      Repayment if Not Converted.

            


    

     

    
      	
              a)

            	
              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.

            


    

     

    
      	
              b)

            	
              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.

            


    

     

    
      	
              c)

            	
              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.

            


    

     

    
      	
              d)

            	
              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.

            


    

     

    
      	
              3)

            	
              Representations
      and Warranties of the Company.  The Company represents
      and warrants to the Holder as of the date hereof as
    follows:

            


    

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    
      	
              a)

            	
              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”).

            


    

     

    
      	
              b)

            	
              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 Note has been duly executed and
      delivered by the Company and (assuming due authorization, execution and
      delivery by the Holder) constitutes valid and legally binding obligation
      of the Company, enforceable in accordance with their terms, except (i) as
      limited by applicable bankruptcy, insolvency, reorganization, moratorium
      and other laws of general application affecting enforcement of creditors’
      rights generally and (ii) as limited by laws relating to the availability
      of specific performance, injunctive relief or other equitable
      remedies..

            


    

     

    
      	
              4)

            	
              Representations
      and Warranties of the Holder. The Holder hereby
      acknowledges, represents, warrants and agrees as
  follows:

            


    

     

    
      	
              a)

            	
              Neither
      the Note nor the issuance of the Common Stock upon conversion of the Note
      have been nor will be registered under the Securities Act of 1933, as
      amended (the “Securities Act”), or any state securities
      laws.  The Note has not been nor will be registered under the
      Securities Act, or any state securities laws.  The Holder
      understands that the offering and sale of the Note is intended to be
      exempt from registration under the Securities Act, by virtue of Section
      4(2) and/or Section 4(6) of the Securities Act and/or the provisions of
      Regulation D (“Regulation D”) promulgated
  thereunder;

            


    

     

    
      	
              b)

            	
              The
      Holder is acquiring the Note solely for its own account for investment and
      not with a view to resale or distribution and has no present intention of
      transferring the Note to any other person or
  entity;

            


    

     

    
      	
              c)

            	
              The
      Holder is an “accredited investor” as that term is defined in Rule 501 of
      Regulation D under the Securities
Act;

            


    

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    
      	
              d)

            	
              The
      Holder is a sophisticated investor and has such knowledge and experience
      in financial, tax and business matters, including, without limitation,
      experience in investments by actual participation, so as to enable it to
      utilize the information made available to it in connection with the
      offering of the Note, to evaluate the merits and risks of an investment in
      the Note and to make an informed investment decision with respect
      thereto;

            


    

     

    
      	
              e)

            	
              The
      execution, delivery and performance of this Note by the Holder has been
      duly authorized and the Note is a valid and legally binding agreement of
      the Holder;

            


    

     

    
      	
              f)

            	
              The
      Holder has received all documents requested by the Holder regarding the
      Company and has reviewed them and believes it is well-informed about the
      Company;

            


    

     

    
      	
              g)

            	
              The
      Holder acknowledges that neither the Securities and Exchange Commission
      (the “SEC”) nor any state securities commission has approved the Notes or
      any of the Conversion Stock or passed upon or endorsed the merits of the
      offering;

            


    

     

    
      	
              h)

            	
              The
      Holder is aware that an investment in the Note involves a number of very
      significant risks;

            


    

     

    
      	
              i)

            	
              The
      Holder must bear the economic risk of the investment indefinitely because
      the Note may be sold, hypothecated or otherwise disposed of unless
      subsequently registered under the Securities Act and applicable state
      securities laws or an exemption from registration is
      available.  A Legend shall be placed on the Note and Conversion
      Stock to the effect that they have not been registered under the
      Securities Act or applicable state securities laws and of the resulting
      limitations on transfer and that appropriate notations thereof will be
      made in the Company’s books and stock transfer
  records;

            


    

     

    
      	
              j)

            	
              The
      Holder has taken no action which would give rise to any claim by any
      person for brokerage commission, finders’ fees or the like relating to
      this Note or the transactions contemplated
  hereby;

            


    

     

    
      	
              k)

            	
              The
      Holder has full right, power and authority to enter into and perform its
      obligations under this Note.  The execution and delivery of this
      Note the Holder and the consummation of the transactions contemplated
      herein have been duly authorized and approved by all requisite corporate
      action, and this Note is a valid and binding obligation of the Holder;
      and

            


    

     

    
      	
              l)

            	
              The
      Holder’s representations and warranties contained in this Section 4 are
      accurate and may be relied upon by the Company in determining the
      availability of an exemption from registration under federal and state
      securities laws in connection with the offering of the Note and Conversion
      Stock.

            


    

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    
      	
              5)

            	
              Default.

            


    

     

    In the
case of one or more of the following events (each such event, a “Default”):
(i) the Company fails to pay when due any payment of principal or interest
hereof and such failure continues for a period of fifteen (15) business days;
(ii) the Company becomes insolvent or generally fails to pay, or admits in
writing its inability to pay, its debts as they become due; (iii) the Company
applies for a trustee, receiver or other custodian for it or a substantial part
of its property; (iv) a trustee, receiver or other custodian is appointed for
the Company or for a substantial part of its property; (v) any bankruptcy,
reorganization, debt arrangement, or other case or proceeding, is commenced in
respect of the Company, or (vi) the Company is in default under the terms of any
agreement under which any indebtedness in an aggregate amount of $200,000 is
created; then, upon the occurrence of any such Default, the Holder may, without
notice, declare the unpaid principal and interest on this Note, and all other
obligations of the Company to the Holder, at once due and payable, whereupon
such principal, interest and other obligations shall become at once due and
payable.  Failure to exercise this option shall not constitute a
waiver of the right to exercise the same at any other time.  The
principal of this Note and any part thereof, and accrued interest, if any, shall
bear interest at the rate of twelve percent (18%) per annum after such Default
until paid.

     

    
      	
              6)

            	
              Waiver
      of Certain Rights.

            


    

     

    Subject to any applicable notice
periods, all parties to this Note, including the maker and any sureties,
endorsers, or guarantors, hereby waive protest, presentment, notice of dishonor,
and notice of acceleration of maturity and agree to continue to remain bound for
the payment of principal, interest and all other sums due under this Note
notwithstanding any change or changes by way of release, surrender, exchange,
modification or substitution of any security for this Note or by way of any
extension or extensions of time for the payment of principal and interest; and
all such parties waive all and every kind of notice of such change or changes
and agree that the same may be without notice or consent of any of
them.

     

    
      	
              7)

            	
              Enforcement.

            


    

     

    Upon any
Default the Holder may employ an attorney to enforce the Holder’s rights and
remedies and the maker, principal, surety, guarantor and endorsers of this Note
hereby agree to pay to the Holder attorneys’ fees, plus all other expenses
incurred by the Holder in exercising any of the Holder’s rights and remedies
upon default.  The rights and remedies of the Holder as provided in
this Note shall be cumulative and may be pursued singly, successively, or
together against any other funds, property or security held by the Holder for
payment or security, in the sole discretion of the Holder.  The
failure to exercise any such right or remedy shall not be a waiver or release of
such rights or remedies or the right to exercise any of them at another
time.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    
      	
              8)

            	
              Miscellaneous.

            


    

     

    
      	
              a)

            	
              Successors and
      Assigns.  This Note, and the obligations and rights of
      the Company hereunder, shall be binding upon and inure to the benefit of
      the Company, the Holder, and their respective heirs, personal
      representatives, successors and permitted assigns, except that the Holder
      may not assign or transfer any of its rights or obligations under this
      Note, by negotiation or otherwise, without the prior written consent of
      the Company, which shall not be unreasonably conditioned, withheld or
      delayed.

            


    

     

    
      	
              b)

            	
              Amendment.  Changes
      in or amendments or additions to this Note may only be made, or compliance
      with any term, covenant, agreement, condition or provision set forth
      herein may only be omitted or waived (either generally or in a particular
      instance and either retroactively or prospectively), upon written consent
      of the Company and the Holder.

            


    

     

    
      	
              c)

            	
              Payments.  All
      payments shall be made in such currency of the United States of America as
      at the time of payment shall be legal tender therein for the payment of
      public and private debts.

            


    

     

    
      	
              d)

            	
              Notices.  All
      notices, requests, consents and demands shall be made in writing and shall
      be mailed postage prepaid, or delivered by reliable overnight courier
      service, or delivered by hand, to the Company or to the Holder at their
      respective addresses set forth below or to such other address as may be
      furnished in writing to the other party hereto and shall be effective upon
      receipt:

            


    

     

    If to the
Company:

    


    WestMountain
Prime, LLC

    103 West
Mountain Ave

    Fort
Collins, Colorado  80524

    


    If to the
Holder, to such address as the original purchaser of this Note shall have
provided to the Company in writing prior to the closing as may be amended
thereafter by written notice by such Holder to the Company delivered as
aforesaid; or, in any case, at such other address or addresses as shall have
been furnished in writing by such party to the other party.  All such
notices, requests, consents and other communications shall be deemed to have
been received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of mailing, on the fifth (5th)
business day following the date of such mailing and (c) in the case of
overnight courier, on the second (2nd)
business day.

     

    
      	
              e)

            	
              Governing
      Law.  This Note shall be construed and enforced in
      accordance with, and the rights of the parties shall be governed by, the
      laws of the State of Colorado, without regard to the conflicts of laws
      provisions thereof.

            


    

     

    
      	
              f)

            	
              Entire
      Agreement.  This Note constitutes the full and entire
      understanding and agreement between the parties with regard to the
      subjects hereof and thereof.

            


    

     

    
      	
              g)

            	
              Headings.  The
      headings used in this Note are used for convenience only and are not to be
      considered in construing or interpreting this
  Note.

            


    

    


    IN
WITNESS WHEREOF, the Company and the Holder have caused this Note to be executed
as of the day and year first above written.

    


     

     

    
      
        	 	ACROSS AMERICA REAL ESTATE EXCHANGE,
      INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Brian L. Klemsz	 
	 	Name 	Brian L. Klemsz	 
	 	Title	President	 
	 	 	 	 


      

    

     

    
      
        	 	WESTMOUNTAIN PRIME, LLC	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ 	 
	 	Name 	 	 
	 	Title