Exhibit 2.2
PROMISSORY NOTE
DUE ON DEMAND
FOR VALUE RECEIVED, Resolve Staffing, Inc., a Nevada corporation,
promises to pay to the order of ELS, Inc., a Ohio corporation, with its
principal office location at 3235 Omni Drive, Cincinnati, Ohio 45245 (the
"Holder"), at the address of the Holder or at such other place or to such other
party or parties as the Holder may from time to time designate in writing, the
principal sum of $1,213,000 together with interest thereon at the annual
interest rate of ten percent (10%), due and payable upon demand of the Holder
hereof.
Interest on any indebtedness due hereunder beyond any applicable grace
period, including principal after maturity, shall be payable on demand at a rate
equal to the interest rate plus three percent (3.0%) [the "Post-Default Rate"].
All notices and other communications hereunder shall be given in
writing to the parties hereto at the following addresses:
To Holder: ELS, Inc.
Attention: Ron Heineman, CEO
3235 Omni Drive
Cincinnati, Ohio 45245
To Maker: Resolve Staffing, Inc.
105 N. Falkenburg
Suite B
Tampa, FL 33619
Copy to: Gregory Bartko, Esq.
3475 Lenox Road
Suite 400
Atlanta, Georgia 30326
All such notices, requests demands and communications made in
connection with the terms and provisions hereof shall be transmitted via: (a)
registered and certified United States mail postage prepaid: (b) recognized
overnight courier (i.e. Federal Express); or (c) delivered in person, and shall
be deemed to have been given or made, three (3) days from deposit with the mail;
one (1) day from deposit with overnight courier; and on date of delivery or
refusal of acceptance if by hand delivery, each as the case may be. Any party
may change its above address by written notice given in the manner herein before
provided.
In the event of any default hereunder, there shall be added to any
unpaid balance due, the costs and expenses of collection, including reasonable
attorneys' fees equal to fifteen percent (15%) of the indebtedness owed
hereunder.
The indebtedness evidenced hereby may be prepaid in whole or in part,
however, any amounts prepaid may not be re-borrowed.
The entire unpaid balance of this Note, together with any interest due
thereon, shall become immediately due and payable at the option of the Holder
upon happening of any of the following events of default ("Event of Default"):
(a) failure to make any payment required to be paid hereunder within
three (3) days after such payment is past due; or
(b) in the event that there exists any other default in the performance
of any term, condition, warranty or covenant herein contained and/or contained
in the Agreement, or any other instrument executed by and between the Maker and
Holder, and such other default is not cured within ten (10) days after written
notice thereof from Holder to Maker (or, if such other default is such that it
cannot be cured within a ten (10) day period, reasonable action has not been
commenced within said ten (10) day period to cure the same and thereafter
continued diligently until such other default is cured); or
The liability of the undersigned shall be absolute and unconditional,
without regard to the liability of any other party. Every maker, co-maker,
endorser or guarantor of this Note waives presentment, demand, notice of
dishonor, notice of protest, and any other defense legal or equitable, except
payment, which might otherwise be available, and expressly consents to and
waives notice of (a) any extension or postponement of the time for payment or
any other indulgence and to the addition or release (whether by operation of law
or otherwise) of any other party or person primarily or secondarily liable
hereunder; and (b) any and all impairment, release, substitution or exchange by
the Holder of any property securing this obligation. In the event of any default
hereunder, the Holder may, at its option, set off against the payment of this
Note any sums due from the Holder to any such maker, co-maker, endorser or
guarantor hereof, and may hold, as additional security for the payment of this
Note any property, real or personal, of any such maker, co-maker, endorser or
guarantor in the possession of the Holder.
In the event of any default in the payment of the principal of or
interest on this Note, the Maker shall pay all reasonable costs and expenses of
collection, including, without limitation, reasonable attorney's fees (in an
amount equal to 15% of the indebtedness owed hereunder) whether incurred out of
court or in litigation, including appeals and bankruptcy proceedings.
No delay or omission on the part of the Holder in exercising any right
hereunder or under the rental agreement between the Holder and Maker shall
operate as a waiver thereof, or preclude the exercise thereof at any time during
the continuance of any Event of Default or upon a subsequent Event of Default.
Nothing herein, nor any transaction related hereto, shall be construed
or operate so as to require the Maker to pay interest at a greater rate than
shall be lawful. Should any interest or other charges paid by Maker in
connection with the loan evidenced by this Note result in the computation or
earning of interest which is not legally permitted under the laws of the State
of Florida for transactions of this kind, then any and all such excess shall be,
and the same is, hereby waived by the Holder, and any and all such excess shall
be automatically credited against and applied in reduction of the balance due
under this Note and any portion which exceeds the balance due under this Note
shall be paid by the Holder to the Maker.
This Note may be extended or modified by agreement of the Holder for
whatever consideration, without notice to any person and without prejudice to
the liability of the Maker hereof.
This Note inures to the benefit of the named Holder and her successors
and assigns and shall be binding upon each of the undersigned, and their heirs,
successors and assigns. If more than one person is liable hereon, the
liabilities of each of the undersigned and any guarantor are joint and several.
No person obligated on account of this Note may seek contribution from any other
person also obligated unless and until all liabilities, obligations and
indebtedness to the Holder of the person from whom contribution is sought has
been satisfied in full.
This Note shall be governed by and construed in accordance with the
laws of the State of Florida. In the event that any provision or clause of this
Note or the associated loan documents conflicts with applicable law, such
conflict shall not affect other provisions of this Note or the associated
documents that can be given effect without the conflicting provision, and to
this end the provisions of this Note and the Loan Documents are declared
severable.
MAKER AS ADDITIONAL CONSIDERATION FOR THE ADVANCEMENT OF CREDIT
HEREUNDER, IRREVOCABLY WAIVES ANY RIGHTS IT HAS TO THE AUTOMATIC STAY UNDER THE
UNITED STATES BANKRUPTCY CODE (the "Code"). IN THE EVENT MAKER ELECTS TO FILE
FOR ANY FORM OF RELIEF UNDER THE CODE, IT MAY NOT AVAIL ITSELF OF THE AUTOMATIC
STAY AS IT PERTAINS TO PREVENTING OR OPPOSING HOLDER FROM ENFORCING IT"S RIGHTS
UNDER THIS NOTE UPON THE OCCURRENCE OF A DEFAULT BEYOND ANY APPLICABLE CURE AND
GRACE PERIOD. FURTHER, IN THE EVENT MAKER ELECTS TO FILE FOR BANKRUPTCY RELIEF
IT HEREBY COVENANTS AND AGREES TO EXECUTE SUCH DOCUMENTS AND PLEADINGS TO
STIPULATE AND/OR PERMIT A LIFTING OF THE STAY, SO AS TO PERMIT HOLDER THE
OPPORTUNITY TO IMMEDIATELY ENFORCE HER RIGHTS UNDER THIS NOTE AND MITIGATE HER
DAMAGES.
BY EXECUTION HEREOF AND ACCEPTANCE HEREOF, MAKER AND HOLDER AGREE THAT
NEITHER MAKER NOR HOLDER, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL
REPRESENTATIVE (ALL OF WHOM ARE COLLECTIVELY REFERRED TO AS THE "PARTIES") SHALL
SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS OBLIGATION OR ANY OTHER
LOAN DOCUMENT, ANY RELATED AGREEMENT OR INSTRUMENT, ANY OTHER COLLATERAL FOR THE
INDEBTEDNESS OR THE DEALINGS OR RELATIONSHIP BY OR AMONG THE PARTIES, OR ANY OF
THEM. NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A
JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES WITH HOLDER, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
HOLDER HAS IN NO WAY AGREED WITH OR REPRESENTED TO MAKER THAT ANY PROVISIONS OF
THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
NOTWITHSTANDING ANYTHING IN THIS NOTE, the indebtedness evidenced by
this Note to the contrary, nothing herein contained nor any transaction related
hereto shall be construed, or shall so operate, either presently or
prospectively, to: (a) require Maker to pay interest at a rate in excess of the
highest rate permitted by law, but shall require payment of interest only to the
extent of such lawful rate; or (b) require Maker to make any payment or do any
act contrary to law. If any one or more clauses or provisions contained in this
Note shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Note, and the remainder of this Note shall remain
operative and in full force and effect, and shall be construed as if such
provision had never been contained herein.
EXECUTED under seal on the day and year first above noted.
"MAKER"
/s/ Ronald E. Heineman
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Ronald E. Heineman, Chief Executive Officer