exv10w19



 





Exhibit 10.19




REVOLVING NOTE




 



			
	$3,000,000
	 	Denver, Colorado

March 30, 2007






FOR VALUE RECEIVED, and at the times hereinafter specified, the undersigned (“Maker”) hereby
promises to pay to the order of BOCO INVESTMENTS, LLC, a Colorado limited liability company
(hereinafter referred to, together with each subsequent holder hereof, as “Holder”), at 103 West
Mountain Ave., Fort Collins, Colorado 80524, or at such other address as may be designated from
time to time hereafter by any Holder, the principal sum of THREE MILLION AND NO/100THS DOLLARS
($3,000,000.00), or so much thereof as shall have been advanced to or for the benefit of Maker,
together with interest on the principal balance outstanding from time to time, as hereinafter
provided, in lawful money of the United States of America.



The term of this Note shall commence as of the date hereof and, if not sooner paid, the entire
unpaid principal indebtedness, all accrued and unpaid interest, and all other sums payable in
connection with this note shall be due and payable on December 31, 2007 (the “Maturity Date”). In
no event shall the maturity date of this note be later than June 30, 2008.


 


 









 





During the period commencing on the date hereof and continuing until this note is paid in
full, (a) interest on the principal balance of this note shall accrue at 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, (ii) eleven percent (11%), or (iii) the highest effective interest rate accruing on
any outstanding Indebtedness for Borrowed Money of the Company at any time during the applicable
calendar quarter; and (b) interest payments shall be made every 90 days, beginning 90 days from the
date hereof. Interest shall be computed on the basis of a 360-day year, calculated for the actual
number of days elapsed.



Whenever any payment to be made hereunder is due on a day other than a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest. “Business Day” shall mean a day on
which Holder’s offices are open for business in Denver, Colorado.




Maker may prepay this Note in whole or in part.



All payments hereunder shall, at Holder’s option, be applied first to the payment of accrued
interest at the rate specified below, if any, second, to accrued interest first specified above,
and the balance applied in reduction of the principal amount. If any payment is not paid when due
hereunder, then the entire outstanding balance hereunder, including the interest component of the
delinquent payment, shall bear interest from the date such payment was due until such payment is
paid at a rate equal to 24.00% per annum (the “Default Rate”). In addition, upon the maturity date
hereof, by acceleration or otherwise, the entire balance of principal, interest, and other sums due
shall bear interest from such maturity date until paid at the Default Rate.



The payment of principal and interest on this Note is hereby subordinated to the Senior Debt,
which is defined as all indebtedness, obligations and other liabilities of the Company outstanding
as of the date hereof or incurred at any time hereafter to (i) Vectra Bank Colorado, national
association and (ii) United Western Bank, as the same may be amended, modified, restated or
extended from time to time, any other indebtness in replacement or subordination to Vectra Bank or
United Western Bank as may be approved by Holder in writing from time to time, and those certain
promissory notes and lines of credit executed by Maker and referenced in that certain Securities
Purchase Agreement dated as of September 28, 2006 (the “Purchase Agreement”) by and among
ACROSS AMERICA REAL ESTATE CORP., a Colorado corporation (the “Company”), BOCO INVESTMENTS,
LLC, a Colorado limited liability company, GDBA INVESTMENTS LLLP, a Colorado limited liability
limited partnership (“GDBA”), and JOSEPH C. ZIMLICH, and delivered to GDBA and Holder on September
28, 2006 . 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 of 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, has 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
(including early prepayments so long as no default under Senior Debt has occurred and is continuing
or would result therefrom. If a Senior Default (defined as 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) 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.



Any default in payment of any sum required hereunder or performance of any other covenant or
agreement herein contained shall constitute an “Event of Default” hereunder and under each document
securing this Note, and any Event of Default under any of such documents securing this Note shall
constitute an Event of Default hereunder. Any default in payment or other terms of any other
indebtedness owed by Maker to the Holder or a third party shall constitute an Event of Default
hereunder, and any default hereunder shall constitute a default under any other indebtedness to the
Holder. Upon the occurrence of any Event of Default, the entire balance of principal, accrued
interest, and other sums owing hereunder shall, at the option of Holder, become at once due and
payable without notice or demand.



Maker and all parties now or hereafter liable for the payment hereof, primarily or
secondarily, directly or indirectly, and whether as endorser, guarantor, surety, or otherwise,
hereby severally (a) waive presentment, demand, protest, notice of protest and/or dishonor, and all
other demands or notices of any sort whatever with respect to this Note, (b) waive any defenses
that might be available to a surety or accommodation maker, (c) consent to impairment or release of
collateral, extensions of time for payment, and acceptance of partial payments before, at, or after
maturity, (d) waive any right to require Holder to proceed against any security for this Note
before proceeding hereunder, (e) consent to the release of any other party liable hereunder,
without diminishing or in any way affecting their liability hereunder, and (f) agree to pay all
costs and expenses, including attorneys’ fees and expenses, which may be incurred in the collection
of this Note or any part thereof or in preserving, securing possession of, and realizing upon any
security for this Note.



The provisions of this Note and of all agreements between Maker and Holder are hereby
expressly limited so that in no contingency or event whatever shall the amount paid, or agreed to
be paid, to Holder for the use, forbearance, or detention of the money to be loaned hereunder
exceed the maximum amount permissible under



 


 









 






applicable law. If from any circumstance whatever, the performance or fulfillment of any
provision hereof or of any other agreement between Maker and Holder shall, at the time performance
or fulfillment of such provision is due, involve or purport to require any payment in excess of the
limits prescribed by law, then the obligation to be performed or fulfilled is hereby reduced to the
limit of such validity, and if from any circumstance whatever Holder should ever receive as
interest an amount which would exceed the highest lawful rate, the amount which would be excessive
interest shall be applied to the reduction of the principal balance owing hereunder (or, at
Holder’s option, be paid over to Maker) and shall not be counted as interest.



If any provision hereof or of any other document securing or related to the indebtedness
evidenced hereby is, for any reason and to any extent, invalid or unenforceable, then neither the
remainder of the document in which such provision is contained, nor the application of the
provision to other persons, entities, or circumstances, nor any other document referred to herein,
shall be affected thereby, but instead shall be enforceable to the maximum extent permitted by law.



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 Maker:




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



This Note and any provision hereof may only be amended by an instrument in writing signed
by the Maker 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.



This Note shall be binding upon the Maker 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.



Each provision of this note shall be and remain in full force and effect notwithstanding any
negotiation or transfer hereof to any other Holder or participant.



MAKER HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE ARISING IN CONNECTION WITH
THIS NOTE, OR IN ANY WAY RELATED TO THE NEGOTIATION, ADMINISTRATION, MODIFICATION, EXTENSION OR
COLLECTION OF THE INDEBTEDNESS EVIDENCED HEREBY. MAKER STATES THAT IT HAS CONFERRED SPECIFICALLY
WITH HOLDER WITH RESPECT TO THIS WAIVER, AND MAKER HAS AGREED TO THIS WAIVER AFTER CONSULTATION
WITH ITS COUNSEL AND WITH FULL UNDERSTANDING OF THE IMPLICATIONS HEREOF.


 


 









 





Regardless of the place of its execution, this note shall be construed and enforced in
accordance with the laws of the State of Colorado. 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.



IN WITNESS WHEREOF, Company has caused this Note to be signed in its name by its duly
authorized officer this 30th day of March, 2007.



	 	 	 	 	 
	 	ACROSS AMERICA REAL ESTATE CORP. 

 	 
	 	By:  	/s/
 	 
	 	 	Name:  	Ann L. Schmitt 	 
	 	 	Title:  	Chief Executive Officer