Exhibit 10.26
DEMAND NOTE
New York, New York $500,000.00
December 4, 2000
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 to Xxxxxx X. Xxxxxx, a resident of the State of Florida, ("Lender") the
sum of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) 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.
All or any part of this Demand Note shall be immediately due
and payable ten (10) days after written demand therefore by the holder to the
undersigned. If a demand is made for less than the full amount of this Demand
Note, the amount payable under this Demand Note shall, effective the date
payment is made, be reduced by the amount so paid. 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) 12% 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, 2000. 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 courts of the State of Florida located in Miami-Dade County, Florida, and
any appellate court 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
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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 due hereunder shall not be subject in way
whatsoever to offset, setoff, counterclaim or other deduction of any kind
whatsoever.
THE UNDERSIGNED XXXXXX XXXXXX, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING
DIRECTLY AND 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.
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This Demand Note shall be governed by, and for all purposes
construed in accordance with, the laws of the State of Florida, (except for its
conflict of laws rules).
FUSION TELECOMMUNICATION INTERNATIONAL, INC.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
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