Exhibit 10.1
PROMISSORY
NOTE
February 29, 2012 $355,644.53
FOR VALUE RECEIVED, Domark International Inc., a Nevada corporation (the
"Company"), promises to pay to the order of Infinite Funding, Inc., or its
permitted assigns, transferees and successors as provided herein (the "Holder"),
or as the Holder may direct, at such location as the Holder may designate, Three
Hundred Fifty-Five Thousand Six Hundred Forty-Four Dollars and Fifty-Three Cents
($355,644.53) plus simple interest on such principal amount from the date of
this Promissory Note (the "Note") at an annual interest rate equal to three
percent (3%).
Interest will be computed on the basis of a year of 365 days for the actual
number of days elapsed from the date of this Note. The number of days used to
compute the interest will include the first day but exclude the last day during
which any principal is outstanding.
ARTICLE I.
THE NOTE & PERSONAL GUARANTEE
Section 1.01 This Note is issued the Company on February 29, 2012 (the
"Issuance Date"). On February 29, 2012 the Company and Holder mutually agreed to
replace and extinguish four outstanding promissory notes together with the
personal guarantee of the Company's CEO (attached hereto as Exhibits B, C, D &
F) with an aggregate principal balance of $350,000.00 along with $5,644.53 in
accrued interest, resulting in the issuance of the Note.
Section 1.02 As partial security for the due performance and payment of
Company's obligation under this Note, the Company's CEO has executed a personal
guarantee (attached hereto as Exhibit A) for the repayment of up to $250,000 to
Holder upon an Event of Default pursuant to Article III hereunder. All payments
on this promissory note when received by the holder of this Note shall be first
applied to reduce the amount of the personal guarantee of the CEO.
ARTICLE II.
PRINCIPAL AND INTEREST PAYMENTS.
Section 2.01 The entire principal amount of this Note together with accrued
and unpaid interest thereon will be due and payable on October 15, 2012 (the
"Repayment Date").
Section 2.02 The principal and interest on this Note will be payable in the
lawful currency of the United States of America by wire transfer of immediately
available funds and without set-off or counterclaim, free and clear of and
without deduction for any present or future taxes, restrictions or conditions of
any nature.
Section 2.03 All payments under this Note prior to demand or acceleration
will be applied first, to any and all costs, expenses or charges then owed by
the Company to the Holder, second, to accrued and unpaid interest, and third, to
the unpaid principal balance. All payments so received after demand or
acceleration will be applied in such manner as the Holder may determine in its
sole and absolute discretion.
Section 2.04 Whenever any payment on this Note is stated to be due on a day
which is not a business day, the payment will be made on the next succeeding
business day and the extension of time will be included in the computation of
the payment of interest of this Note.
Section 2.05 Overdue principal and interest will bear interest at a rate
equal to the greater of (i) eighteen (18%) or (ii) the highest rate permitted by
applicable law. Overdue principal and interest will be payable on demand.
Section 2.06 This Note may be prepaid at any time.
ARTICLE III.
DEFAULT;
ACCELERATION
The occurrence of any one or more of the following events with respect to
the Company constitutes an event of default hereunder ("Event of Default"):
Section 3.01 The Company fails to pay: (a) the principal of this Note or
the accrued interest thereon when due; or (b) the principal or the accrued
interest on any other obligation of the Company to the Holder when due.
Section 3.02 The Company breaches, in any materially respect, any covenant,
representation or warranty in this Note or the term of any other existing
instrument or agreement between the Company and the Holder.
Section 3.03 The Company (a) voluntarily becomes subject to any proceeding
under the Bankruptcy Code or any similar remedy under state statutory or common
law, or (b) admits in writing its inability to pay debts generally as they
become due.
Section 3.04 Within 60 days after the commencement of proceedings against
the Company seeking any bankruptcy, insolvency, liquidation, dissolution or
similar relief under any present or future statute, law or regulation (a) such
action has not been dismissed or all orders or proceedings thereunder affecting
the operations or the business of the Company stayed, or (b) the stay of any
such order or proceedings has been set aside, or, within 60 days after the
appointment without the consent or acquiescence of the Company of any trustee,
receiver or liquidator of the Company or of all or any substantial part of the
properties of the Company, the appointment has not been vacated.
Section 3.05 Any judgment is obtained against the Company by a person other
than Holder, any of its affiliates, or any person acting in concert with them,
if: (a) the judgment amount is in excess of $250,000.
Section 3.06 The Company defaults under any instrument or agreement between
the Company and any third party evidencing indebtedness of the Company in excess
of $500,000.
Upon the occurrence of an Event of Default under this Note, the entire
unpaid principal balance of this Note, together with all accrued interest
thereon, shall become immediately due and payable regardless of any prior
forbearance and without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Company. The Holder may
exercise any and all rights and remedies available to the Holder under
applicable law, including, without limitation, the right to collect from the
Company all amounts due under this Note.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 The Company waives diligence, presentment, protest, demand and
notice of protest, demand, dishonor and nonpayment of this Note, and expressly
agrees that this Note, and any payment under it, may be extended by the Holder;
from time to time without in any way affecting the liability of the Company.
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Section 4.02 Any term of this Note may be amended or waived only with the
written consent of the Company and the Holder; provided however, that, in no
event shall the principal amount of this Note be amended without the written
consent of the Holder of this Note. By acceptance hereof, the Holder
acknowledges that in the event consent is obtained pursuant to the foregoing
sentence, any term of this Note (other than the principal amount thereof) may be
amended or waived with or without the consent of the Holder. Any amendment or
waiver effected in accordance with this Section 4.02 shall be binding upon the
Company, the Holder and each transferee of this Note.
Section 4.03 All rights and obligations of the Company and the Holder shall
be binding upon and benefit the successors, assigns, heirs and administrators of
the patties. As used in this Note, the Company includes any corporation,
partnership, Limited Liability Company or other entity that succeeds to or
assumes the obligations of the Company under this Note. "Holder" means any
person who is at the time the registered holder of this Note.
Section 4.04 The Company agrees to reimburse the Holder for all attorneys'
fees and expenses incurred by the Holder m connection with the collection and
enforcement of this Note.
Section 4.05 The rights and remedies of the Holder under this Note and as
may otherwise be available at law or in equity are cumulative and concurrent and
at the sole discretion of the Holder may be pursued singly, successively or
together and exercised as often as the Holder desires.
Section 4.06 This Note will be governed in accordance with the laws of the
State of Texas.
Section 4.07 Any notice required or permitted hereunder shall be given in
writing and shall be conclusively deemed effectively given upon personal
delivery or delivery by courier, or five days after deposit in the United States
mail, by registered or certified mail, postage prepaid.
Section 4.08 Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Note and, in the
case of loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of mutilation, upon surrender and
cancellation of this Note, the Company, at its expense, will make and deliver a
new Note, of like tenor, in lieu of the lost, stolen, destroyed or mutilated
Note.
Section 4.09 If one or more provisions of this Note are held unenforceable
under applicable law, the unenforceable provision will be excluded from this
Note and the balance of this Note will be interpreted as if such provision were
so excluded and will be enforceable in accordance with its terms. The parties to
this Note agree to replace any void or unenforceable provision of this Note with
a valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provision.
IN WITNESS WHEREOF, the Company has executed this Note by its duly
authorized officer as of the date and year first written above.
Domark International, Inc.
By: /s/ R. Thomas Kidd
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R. Thomas Kidd
Chairman & CEO
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