Exhibit 10.21
DEMAND NOTE
New York, New York
October 14, 2002
$840.75
ON DEMAND, for value received, Fusion Telecommunications
International, Inc., a Delaware corporation ("Fusion"), whose principal place of
business is 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, promises
to pay Xxxxxx X. Xxxxxx, a resident of the State of New York ("Lender"), the sum
of EIGHT HUNDRED FORTY AND 75/100 DOLLARS ($840.75) in lawful money of the
United States of America or such lesser sum as may be demanded hereunder. This
Demand Note is being executed and delivered outside the State of Florida.
Fusion shall pay interest on the amount due under this Demand
Note and on overdue interest payments hereunder at a rate equal to the lesser of
(a) 4.75% per annum and (b) the maximum rate permissible under applicable usury
or similar laws limiting interest rates, said interest to be payable quarterly,
beginning December 31, 2002. This payment rate shall be computed on the basis of
the actual number of days elapsed over a year of 360 days.
If the indebtedness represented by this Demand Note, or any
part thereof, is collected at law or in equity or in bankruptcy, receivership or
other court proceedings, or this Demand Note is placed in the hands of attorneys
for collection, Fusion agrees to pay, in addition to the principal and interest
(if any) due under this Demand Note, reasonable attorneys' and collection fees.
The undersigned waives demand, presentment for payment, notice
of nonpayment, protest, notice of dishonor and protest, notice of intention to
accelerate, notice of acceleration, and all other notices, filing of suit and
diligence in collecting this Demand Note and agrees to any substitution,
exchange or release of any such security or the release of any party liable
hereon and further agrees that it will not be necessary for any holder hereof,
in order to enforce payment of this Demand Note by it, to first institute suit
or exhaust its remedies against Fusion, and consents to any extension or
postponement of time of payment of this Demand Note or any other indulgence with
respect hereto, without notice thereof.
The undersigned hereby irrevocably submits to the jurisdiction
of the United States District Court for the Southern District of New York and
any court in the State of New York located in the City of New York and the
County of New York, and any appellate court from any thereof, in any action,
suit or proceeding brought against it in connection with this Demand Note or for
the recognition or enforcement of any judgment. The undersigned hereto agrees
that a final judgment in any such action, suit or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. To the extent permitted by applicable law, the
undersigned hereby waives and agrees not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
such courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that the
Demand Note may not be litigated in or by such courts.
To the extent permitted by applicable law, the undersigned
agrees that it shall not seek and hereby waives the right to seek any review of
the judgment of any such court by any court of any other nation or jurisdiction
which may be called upon to grant an enforcement of such judgment.
The undersigned hereby irrevocably agrees that the summons and
complaint or any other process in connection with this Demand Note may be served
by mailing to the address set forth below or by hand delivery to a person of
suitable age and discretion at the address set forth below. Such service will be
complete on the date such process is so mailed or delivered, and the undersigned
will have thirty days from such completion of service in which to respond in the
manner provided by law. The undersigned may also be served in any other manner
permitted by law, in which event the undersigned's time to respond shall be the
time provided by law.
The amounts hereunder shall not be subject in any way
whatsoever to offset, setoff, counterclaim or other deduction of any kind
whatsoever.
THE UNDERSIGNED HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING
DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS DEMAND NOTE. THE
UNDERSIGNED HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY XXXXXX THAT XXXXXX HAS BEEN INDUCED TO
ACCEPT THIS DEMAND NOTE BY, AMONG OTHER THINGS, THIS WAIVER.
This Demand Note shall be governed by, and for all purposes
construed in accordance with, the laws of the State of New York (except for its
conflict of laws rules).
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
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Name: Xxxxxxx Xxxxx
Title: Chief Operating Officer
