Exhibit 10.4
PROMISSORY NOTE
$100,000.00 Dated as of: December 9, 2011
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is
acknowledged by the parties hereto, DOMARK INTERNATIONAL, INC., a Nevada
corporation with a principle place of business located at 1809 East Broadway,
Suite 125, Oviedo, Florida 32765 ("Maker"), promises to pay to the order of
INFINITE FUNDING, INC., a Wyoming Corporation with a principal place of business
located at 5005 Hidalgo Street, Suite 619, Houston, Texas 77056 ("Payee"), the
principal sum of ONE HUNDRED THOUSAND and 00/100 Dollars ($100,000.00) on April
15, 2012, together with interest at 3% per annum.
Proceeds of this loan shall be disbursed to Maker's corporate bank account as
follows:
$100,000 ON DECEMBER 9, 2011
Disbursement will be made by wire transfer to Maker at:
Domark International, Inc.
Bank of America
Oviedo, Florida
Routing number
Account number
Upon an "Event of Default" (as hereinafter defined), interest shall accrue upon
the total sum outstanding, from time to time, at the rate equal to eighteen
(18%) per annum (the "Default Rate"). Default interest shall be calculated on
the basis of a three hundred sixty-five (365) day year for the actual number of
days in which any indebtedness under this Promissory Note ("Indebtedness")
remains outstanding. Maker unconditionally acknowledges and agrees that the
aforementioned Default Rate is reasonable in all respects and agrees to never
challenge or dispute same in any way.
All Indebtedness shall be paid to Payee at:
Infinite Funding Inc.
5005 Hidalgo Street Suite 619
Houston Texas 77056
This Promissory Note shall be a continuing absolute and unconditional obligation
and shall not be subject to any set-off, reduction, recoupment or counterclaim.
Maker waives presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of this Promissory Note. No failure by Payee or a legal holder to
exercise and no delay in exercising any right by Payee or a legal holder under
this Promissory Note shall operate as a waiver of such right nor shall any
single or partial exercise of any right by Payee or a legal holder under this
Promissory Note operate so as to impair or limit Payee's or a legal holder's
ability to insist on the full exercise of that right in the future.
Maker unconditionally agrees to pay to Payee or a legal holder of THIS
Promissory Note all reasonable costs and expenses including, without limitation,
court costs, attorneys' fees and expenses, of, or incidental to, the initiation
of any of Payee's or a legal holder's rights or remedies pursuant to the
provisions of this Promissory Note, at law or in equity, and the collection of
any of the Indebtedness evidenced under this Promissory Note.
The granting, without notice, of any extension of time for the payment of any of
the Indebtedness evidenced tinder this Promissory Note shall in no way release
or discharge the liability of Maker.
If any of the following occurs ("Event of Default"):
I. Maker fails to pay any of the Indebtedness when due;
II. Maker sells or transfers substantially all of its assets;
III. Maker makes an assignment for the benefit of creditors, or petitions or
applies for the appointment of a trustee, liquidator, or receiver;
IV. Maker or any third party commences any legal proceeding relating to Maker
under any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution, liquidation or similar law or any jurisdiction, now
or hereafter in effect;
V. Maker shall be adjudicated bankrupt or insolvent;
VI. Maker otherwise liquidates or dissolves, or Maker consolidates or merges
and is not the surviving corporation, or the existence of Maker is
terminated for any reason whatsoever;
VII. Maker defaults or breaches any provision of any written agreement in effect
between Payee and Maker while any Indebtedness under this Promissory Note
is outstanding;
VIII. Maker suspends its usual operation of its business; or
IX. if any event occurs which results in the acceleration of the maturity of
indebtedness of Maker to any person under any loan or security agreement,
indenture, note or other undertaking, then, and without demand or further
notice thereof to Maker or any other person or entity, all then-existing
Indebtedness shall be declared immediately due and payable.
Whenever in this Promissory Note there is a reference made to either Payee or
Maker, such reference shall be deemed to include a reference to the successors
and assigns of said party. The provisions of this Promissory Note shall be
binding upon, and shall inure to the benefit of said successors and assigns.
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Any demands or notices given under this Promissory Note shall be in writing and
shall be deemed duly given upon personal delivery, receipt and delivery by
Federal Express or another overnight carrier, or three (3) days after mailing,
if mailed by registered or certified mail, return receipt requested, postage
prepaid, to the parties at the addresses set forth below or at such other
addresses as shall be specified by a party in like manner:
Payee:
Infinite Funding Inc.
5005 Hidalgo Street Suite 619
Houston Texas 77056
Maker:
DOMARK INTERNATIONAL, INC.
1809 East Broadway, Suite 125
Oviedo, FL 32765
Attention: R. Thomas Kidd, CEO
Guarantor:
R. Thomas Kidd
432 Valley Stream Drive
Geneva, Florida 32732
This Promissory Note is executed by Maker and the Guarantor and delivered to
Payee in the State of Florida, and shall be governed as to validity,
enforcement, interpretation, construction, effect and in all other respects by
the laws and decisions of the State of Florida as applied to agreements entered
into and to be fully performed within the State of Florida (without regard for
conflicts of laws). If any provision contained in this Promissory Note is held
to be invalid or unenforceable by a court or competent jurisdiction, such
provision will be severed from this Promissory Note and such invalidity or
unenforceability will not affect any other provision of this Promissory Note,
the balance of which will remain in and have its intended full force and effect;
provided, however, if such invalid or unenforceable provision may be modified so
as to be valid and enforceable as a matter of law, such provision shall be
deemed to have been modified so as to be valid and enforceable to the maximum
extent permitted by law. Maker, Guarantor and Payee have had the opportunity to
have counsel of their own choosing review this Promissory Note and, as such,
this Promissory Note shall be deemed to have been prepared by both parties and
shall not be construed against one party as the creator.
MAKER AND GUARANTOR AGREE THAT ALL ACTIONS OR PROCEEDINGS RELATING DIRECTLY OR
INDIRECTLY TO THIS PROMISSORY NOTE MAY, AT PAYEE'S OPTION, BE LITIGATED IN A
STATE OR FEDERAL COURT LOCATED WITHIN ORANGE COUNTY, FLORIDA. MAKER HEREBY
EXPRESSLY CONSENTS TO THE JURISDICTION OF ANY SUCH STATE OR FEDERAL COURT AND
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WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF SUCH JUDICIAL
ACTION. MAKER WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS THAT ALL SERVICE
OF PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO MAKER AT THE ADDRESS STATED IN THIS PROMISSORY NOTE AND SERVICE SO
MADE SHALL BE DEEMED TO BE COMPLETE THREE (3) DAYS AFTER THE SAME SHALL BE
POSTED AS AFORESAID.
MAKER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION,
CAUSE OF ACTION OR COUNTERCLAIM ARISING UNDER OR IN ANY WAY RELATED TO THIS
PROMISSORY NOTE, AND UNDER ANY THEORY OF LAW OR EQUITY, WHETHER NOW EXISTING OR
HEREAFTER ARISING.
This Promissory Note has been executed and delivered by Maker and Guarantor to
Payee on December 9, 2011, by Maker's duly authorized corporate officer,
pursuant to resolutions duly adopted by Maker's Board of Directors if and to the
extent such authorization is required by applicable law, Maker's Articles of
Incorporation, by-laws or otherwise.
A signature by facsimile shall constitute a valid and binding signature.
DOMARK INTERNATIONAL
By: /s/ R. Thomas Kidd
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Name: R. Thomas Kidd
Title: Chairman
GUARANTOR
By: /s/ R. Thomas Kidd
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R. Thomas Kidd