EXHIBIT 10.2
FORM OF REVOLVING CREDIT NOTE
$320,000 December 20, 2006
FOR VALUE RECEIVED, ONE VOICE TECHNOLOGIES INC., a Nevada corporation
("DEBTOR"), HEREBY PROMISES TO PAY to the order of ____________________
("PAYEE"), at the offices of Payee, ____________________, Fax:
____________________, or at such other place as Payee may from time to time
designate, the principal sum equal to the lesser of (a) THREE HUNDRED AND TWENTY
THOUSAND DOLLARS ($320,000.00) or (b) the aggregate unpaid principal amount of
all Advances made by Payee to Debtor, which amount shall be payable by Debtor in
lawful money of the United States of America and in immediately available funds
in accordance with the terms of the Loan Agreement (as defined below). Debtor
hereby further promises to pay interest (the "Interest") to the order of Payee
on the unpaid principal balance hereof at the rate of 8% per annum, payable
monthly on the first day of each month in arrears and in the manner and in
accordance with the provisions of the Loan Agreement, which provisions are
hereby incorporated herein by reference. The foregoing notwithstanding, Interest
shall be payable in restricted shares of Debtor's Common Stock valued at eighty
percent (80%) of the average of the three (3) lowest closing bid prices for the
Common Stock for the thirty (30) trading days prior to a payment date.
1. For the purposes hereof, "Loan Agreement" shall mean that certain Loan
Agreement, dated as of the date hereof, between Payee and Debtor, as the same
now exists or may hereafter be amended, restated, renewed, replaced,
substituted, supplemented, extended, or otherwise modified. All capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Loan Agreement.
2. This Note evidences the aggregate outstanding principal balance, from time to
time, of the Advances made by Payee to Debtor pursuant to the Loan Agreement. It
is contemplated that there may be times when no indebtedness is owing hereunder;
but notwithstanding any such occurrence, this Note shall remain valid and shall
be in full force and effect as to the Advances made subsequent to each such
occurrence.
3. This Note is secured by Collateral and is entitled to all of the benefits and
rights as set forth in the Loan Agreement and the Transaction Documents. At the
time any payment is due hereunder, Lender, at its option, may charge the amount
thereof to any account of Debtor maintained by Lender.
4. If any Event of Default shall occur, or if the Loan Agreement shall be
terminated, in addition to all rights and remedies of Payee under the Loan
Agreement and the Transaction Documents, applicable law or otherwise, all such
rights and remedies being cumulative, not exclusive and enforceable
alternatively, successively and concurrently, any or all of the Obligations,
including, without limitation, all amounts owing under this Note, may, as
provided in the Loan Agreement, be declared or shall forthwith become due and
payable, together with all interest accrued thereon and with interest accruing
thereafter at the then applicable interest rate under the Loan Agreement until
the indebtedness evidenced by this Note is paid in full, plus the costs and
expenses of collection hereof, including, but not limited to, reasonable
attorneys' fees and legal expenses.
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5. Debtor hereby (i) waives diligence, demand, presentment, protest and notice
of any kind, (ii) agrees that it will not be necessary to first institute suit
in order to enforce payment of this Note and (iii) consents to any one or more
extensions or postponements of time of payment, release, surrender or
substitution of collateral security, or forbearance or other indulgence, without
notice or consent. The pleading of any statute of limitations as a defense to
any demand against Debtor is expressly hereby waived by Debtor. Upon or after
maturity of this Note, or any Event of Default or termination of the Loan
Agreement, Payee shall have the right, subject to the terms of the Loan
Agreement, but not the obligation, to set off against this Note all money owed
by Payee to Debtor.
6. No resort to any Collateral for payment shall be required prior to the
enforcement hereof against Debtor and any guarantors or endorsers hereof. None
of the rights of Payee shall be waived or diminished by any failure or delay in
the exercise thereof.
7. If any provision of this Note conflicts with any provision of the Loan
Agreement, such provision of the Loan Agreement shall control. If any provision
of this Note shall be held invalid, illegal or unenforceable, the validity of
all other provisions hereof shall in no way be affected thereby.
8. This Note shall be binding upon the successors and assigns of Debtor and
shall inure to the benefit of Payee and its successors, endorsees and assigns.
Whenever used herein, the term "Debtor" shall be deemed to include the
undersigned and its respective successors and assigns and the terms "Payee"
shall be deemed to include its respective successors, endorsees and assigns.
9. This Note shall be governed by and construed in accordance with the laws of
the State of New York applied to contracts to be performed wholly within the
State of New York. Any judicial proceeding brought by or against Debtor with
respect to any of the Obligations, this Note or any Transaction Document may be
brought in any court of competent jurisdiction in the State of New York and, by
execution and delivery of this Note, Debtor accepts for itself and in connection
with its properties, generally and unconditionally, the non-exclusive
jurisdiction of such court, and irrevocably agrees to be bound by any final
judgment rendered thereby in connection with this Note. Debtor hereby waives
personal service of any and all process upon it and consents that all such
service of process may be made by registered mail (return receipt requested)
directed to Debtor, and service so made shall be deemed completed five (5) days
after the same shall have been so deposited in the mails of the United States of
America. Nothing herein shall affect the right to serve process in any manner
permitted by law or shall limit the right of Payee to bring proceedings against
Debtor in the courts of any other jurisdiction. Debtor waives any objection to
jurisdiction and venue of any action instituted hereunder and shall not assert
any defense based on lack of jurisdiction or venue or based upon forum non
conveniens. Any judicial proceeding by Debtor against Payee involving, directly
or indirectly, any matter or claim in any way arising out of, related to or
connected with this Note or any related agreement, shall be brought only in a
federal or state court located in The City of New York.
DEBTOR EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION ARISING UNDER THIS NOTE OR ANY TRANSACTION DOCUMENT, WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
DEBTOR CONSENTS THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT DEBTOR AND PAYEE MAY FILE AN ORIGINAL COUNTERPART
OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF DEBTOR TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
ONE VOICE TECHNOLOGIES INC.
By: /s/ Dean Weber
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Name: Dean Weber
Title: Chief Executive Officer
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