UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. )
Under the Securities Exchange Act of 1934
Tempus Applied Solutions Holdings, Inc.
(Name of Issuer)
Common Stock, Par Value $0.0001
(Title of Class of Securities)
88024L 100
(CUSIP Number)
Benjamin Scott Terry
Tempus Applied Solutions Holdings, Inc.
133 Waller Mill Road
Williamsburg, VA 23185
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
March 15, 2016
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP
No. 88024L 100
| 1. | Name of Reporting Person:
Benjamin Scott Terry | ||||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions) | ||||
| (a) | ☐ | ||||
| (b) | ☐ | ||||
| 3. | SEC Use Only | ||||
| 4. | Source of Funds (See Instructions) | ||||
| 5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
| ||||
| 6. | Citizenship or Place of Organization | ||||
| Number
of Shares Beneficially Owned by Each Reporting Person With |
7. | Sole Voting Power
2,032,944 | |||
| 8. | Shared Voting Power
0 | ||||
| 9. | Sole Dispositive Power | ||||
| 10. | Shared Dispositive Power
0 | ||||
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person | ||||
| 12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ☐
| ||||
| 13. | Percent of Class Represented by Amount in Row (11)
| ||||
| 14. | Type of Reporting Person (See Instructions) | ||||
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The following constitutes the Schedule 13D filed by the undersigned (the “Schedule 13D”).
Item 1. Security and Issuer.
This Schedule 13D relates to shares of common stock, $0.0001 par value (the “Common Stock”) of Tempus Applied Solutions Holdings, Inc., a Delaware corporation (the “Issuer”), whose principal executive offices are located at 133 Waller Mill Road, Williamsburg, VA 23185.
Item 2. Identity and Background.
This Schedule 13D is filed by Benjamin Scott Terry (the “Reporting Person” or “Mr. Terry”), a citizen of the United States. Mr. Terry is the Chief Executive Officer and a Director of the Issuer. The address of the principal business and principal office of the Reporting Person is c/o Tempus Applied Solutions Holdings, Inc., 133 Waller Mill Road, Williamsburg, VA 23185.
During the last five years, the Reporting Person has not been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
On July 31, 2015, pursuant to the Agreement and Plan of Merger, dated as of January 5, 2015, as amended (the “Merger Agreement”), by and among the Issuer; Chart Acquisition Corp. (“Chart”); Tempus Applied Solutions, LLC (“Tempus”); the holders of Tempus’ membership interests named in the Merger Agreement, including Mr. Terry (the “Members”); Benjamin Scott Terry and John G. Gulbin III, together, in their capacity under the Merger Agreement as the representative of the Members for the purposes set forth therein; and the other parties thereto, each of Chart and Tempus became wholly owned subsidiaries of the Issuer.
Pursuant to the Merger Agreement, the Members received an aggregate of 3,642,084 shares of Common Stock (the “Merger Shares”) in exchange for all of the issued and outstanding membership interests of Tempus. Mr. Terry received 1,790,813 of such Merger Shares in exchange for his issued and outstanding membership interests of Tempus. Pursuant to the earn-out provisions of the Merger Agreement, the Members have the right to receive up to an additional 6,300,000 shares of Common Stock upon the achievement of certain financial milestones.
On March 11, 2016, the Issuer entered into a Stock Purchase Agreement (the “Purchase Agreement”) with Mr. Terry, under which Mr. Terry sold all of the voting units of Tempus Jets, Inc., a Delaware corporation, to the Issuer in exchange for the issuance by the Issuer of 242,131 shares of Common Stock to Mr. Terry. On March 15, 2016, the parties consummated the transaction contemplated by the Purchase Agreement and Mr. Terry was issued such shares.
The foregoing descriptions of the Merger Agreement and the Purchase Agreement are not complete and are qualified in their entirety by reference to the full text of such agreements, which are referenced as Exhibits 99.1- 99.4 hereto and are incorporated herein by reference.
Item 4. Purpose of Transaction.
The Reporting Person acquired the Common Stock based on the Reporting Person’s belief that such an investment represented an attractive investment opportunity. The Reporting Person may purchase additional securities if the Reporting Person deems that such a transaction represents an attractive investment opportunity, or may dispose of such securities to meet his investment objectives.
Mr. Terry is the Chief Executive Officer and a director of the Issuer. Except as he may from time-to-time have in his capacity as an officer and director of the Issuer, or as otherwise set forth herein, Mr. Terry does not have any current plans or proposals which relate to, or could result in, any of the matters referred to in paragraphs (a) through (j), inclusive, of the instructions to Item 4 of Schedule 13D. The Reporting Person reserves the right to increase or decrease his respective position in the Issuer through, among other things, the purchase or sale of securities of the Issuer on the open market or in private transactions or otherwise. The Reporting Person reserves the right to change his intention with respect to any and all matters referred to in this Item 4.
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Item 5. Interest in Securities of the Issuer.
(a)-(b) The responses to Items 7 - 13 of the cover pages of this Schedule 13D are incorporated herein by reference.
(c) Except as described in Item 3 and 4 of this Statement, there have been no transactions effected with respect to the Common Stock held by the Reporting Person within the past 60 days of the date hereof by the Reporting Person.
(d) The Reporting Person has the sole right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock owned by him.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
On July 31, 2015, as contemplated by the Merger Agreement, the Issuer, the Members and certain other parties entered into a Registration Rights Agreement in substantially the form contemplated by the Merger Agreement (the “Tempus Registration Rights Agreement”). Under the Tempus Registration Rights Agreement, the Members have certain customary demand and piggy-back registration rights relating to the Merger Shares, subject to certain underwriter cutbacks and Issuer blackout periods. Additionally, each of the Members agreed to a lock-up of their Merger Shares for a period of 1 year following July 31, 2015, subject to an earlier release (i) if the price of the Common Stock equals or exceeds $12.00 per share for any 20 trading days in any 30-trading day period commencing at least 150 days after July 31, 2015 or (ii) in the event of a liquidation, merger, stock exchange or similar transaction involving the Issuer. The Tempus Registration Rights Agreement contains certain exceptions to the lock-up of Common Stock, including that the Members are permitted during the lock-up period to (i) transfer the shares to certain family members and affiliated entities that agree to be bound by the lock-up, (ii) after the 6-month anniversary of July 31, 2015, pledge the shares to secure borrowings to pay for taxes incurred in connection with receiving the Merger Shares, (iii) pledge the shares to secure borrowings to pay for indemnification obligations under the Merger Agreement, (iv) transfer the shares back to the Issuer in accordance with the Merger Agreement in connection with the merger consideration adjustment and indemnification claims and (v) transfer up to each Member’s pro rata portion of an aggregate of 750,000 shares. Additionally, the Members agreed to a holdback of 180 days in connection with any public offering and, if requested by the Issuer, the Members will agree to any holdbacks that are required by the managing underwriters in any public offering.
The foregoing description of the Tempus Registration Rights Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, which is referenced as Exhibit 99.5 hereto and is incorporated herein by reference.
On December 29, 2015, the Chief Financial Officer of the Issuer, R. Lee Priest Jr., issued a certain interest-bearing promissory note in the amount of $250,000 (the “Note”) to the Reporting Person. On the same date, the Reporting Person and Mr. Priest entered into a Commercial Security Agreement (the “Security Agreement”), wherein the Reporting Person granted to Mr. Priest a security interest in 350,000 shares of Common Stock.
The foregoing descriptions of the Note and the Security Agreement are not complete and are qualified in their entirety by reference to the full text of such agreements, which are referenced as Exhibits 99.7 and 99.8 hereto and are incorporated herein by reference.
Other than as described above and herein, there are no contracts, arrangements, understandings or relationships among the Reporting Person, or between the Reporting Person and any other person, with respect to the securities of the Issuer.
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Item 7. Material to Be Filed as Exhibits.
| Exhibit No. | Description | |
| 99.1 | Agreement and Plan of Merger, dated January 5, 2015, by and among Tempus Applied Solutions, LLC, the Members of Tempus Applied Solutions, LLC, the Members’ Representative, Chart Acquisition Corp., Tempus Applied Solutions Holdings, Inc., Chart Merger Sub Inc., TAS Merger Sub LLC, the Chart Representative and the Warrant Offerors (incorporated by reference to Exhibit 2.1 to the Issuer’s Registration Statement on Form S-4 (File No. 333-201424)) | |
| 99.2 | First Amendment to Agreement and Plan of Merger, dated March 20, 2015, by and among Tempus Applied Solutions, LLC, the Members of Tempus Applied Solutions, LLC, the Members’ Representative, Chart Acquisition Corp., Tempus Applied Solutions Holdings, Inc., Chart Merger Sub Inc., TAS Merger Sub LLC, the Chart Representative and the Warrant Offerors (incorporated by reference to Exhibit 2.2 to the Issuer’s Registration Statement on Form S-4 (File No. 333-201424)) | |
| 99.3 | Second Amendment to Agreement and Plan of Merger, dated June 10, 2015, by and among Tempus Applied Solutions, LLC, the Members of Tempus Applied Solutions, LLC, the Members’ Representative, Chart Acquisition Corp., Tempus Applied Solutions Holdings, Inc., Chart Merger Sub Inc., TAS Merger Sub LLC, Chart Financing Sub Inc., TAS Financing Sub Inc., the Chart Representative and the Warrant Offerors (incorporated by reference to Exhibit 2.3 to the Issuer’s Registration Statement on Form S-4 (File No. 333-201424)) | |
| 99.4 | Third Amendment to Agreement and Plan of Merger, dated as of July 15, 2015, by and among Tempus Applied Solutions, LLC, the Members of Tempus Applied Solutions, LLC, the Members’ Representative, Chart Acquisition Corp., Tempus Applied Solutions Holdings, Inc., Chart Merger Sub Inc., TAS Merger Sub LLC, Chart Financing Sub Inc., TAS Financing Sub Inc., the Chart Representative and the Warrant Offerors (incorporated by reference to Exhibit 2.4 to the Issuer’s Registration Statement on Form S-4 (File No. 333-201424)) | |
| 99.5 | Registration Rights Agreement dated as of July 31, 2015 by and among Tempus Applied Solutions Holdings, Inc. and the Initial Investors named therein (incorporated by reference to Exhibit 10.2 to the Issuer’s Current Report on Form 8-K filed on August 6, 2015) | |
| 99.6 | Securities Purchase Agreement, by and between Tempus Applied Solutions Holdings, Inc. and Benjamin Scott Terry, dated March 11, 2016 (incorporated by reference to Exhibit 10.1 to the Issuer’s Current Report on Form 8-K filed on March 17, 2016) | |
| 99.7* | Commercial Security Agreement by and between Benjamin Scott Terry and R. Lee Priest Jr., dated December 29, 2015 | |
| 99.8* | Promissory Note, by and between Benjamin Scott Terry and R. Lee Priest Jr., dated December 29, 2015 |
* Filed herewith
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
DATE: March 25, 2016 |
|
| /s/ Benjamin Scott Terry | |
| Name: Benjamin Scott Terry |
Attention:
Intentional misstatements or omissions of fact constitute Federal criminal violations
(See 18 U.S.C. 1001)
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Exhibit 99.7
COMMERCIAL SECURITY AGREEMENT
|
GRANTOR: BENJAMIN SCOTT TERRY 333 SCOTLAND STREET WILLIAMSBURG, VA 23185 |
LENDER: ROBERT LEE PRIEST JR. 4285 BEAMERS RIDGE WILLIAMSBURG, VA 23188 |
THIS COMMERCIAL SECURITY AGREEMENT dated December 29, 2015, is made and executed between BENJAMIN SCOTT TERRY (“Grantor'”) and ROBER LEE PRIEST JR.("Lender'').
| 1. | GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender a security interest in the Collateral to secure the Indebtedness and agrees that Lender shall have the rights stated in this Agreement with respect to the Collateral, in addition to all other rights which Lender may have by law. |
| 2. | COLLATERAL DESCRIPTION. The word “Collateral” as used in this Agreement means three hundred and five thousand (350,000) shares of common stock of Tempus Applied Solutions Holdings, Inc. (OTCQB: TMPS), represented and warranted by B. Scott Terry to be owned by him and held in a brokerage account over which he exercises control at Morgan Stanley (“Original Property”). |
| 3. | GRANTOR'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL with respect to the Collateral, Grantor represents and promises to Lender that |
| a. | Perfection of Security Interest. Grantor agrees to take whatever actions are requested by Lender to perfect and continue Lender's security interest in the Collateral. Upon request of Lender, Grantor will deliver to Lender any and all of the documents evidencing or constituting the Collateral, and Grantor will note Lender's interest upon any and all chattel paper and instruments if not delivered to Lender for possession by Lender. |
| b. | Notices to Lender. Grantor will promptly notify Lender in writing at Lender's address shown above (or such other addresses as Lender may designate from time to time) prior to any (1) change in Grantor's name; (2) change in the authorized signer(s); (3) change in Grantor's principal address; or (4) change in any other aspect of Grantor that directly or indirectly relates to any agreements between Grantor and Lender. |
| c. | No Violation. The execution and delivery of this Agreement will not violate any law or agreement governing Grantor or to which Grantor is a party. |
| d. | Enforceability of Collateral. To the extent the Collateral consists of accounts, chattel paper, or general intangibles, as defined by the Uniform Commercial Code, the Collateral is enforceable in accordance with its terms, is genuine, and fully complies with all applicable laws and regulations concerning form, content, and manner of preparation and execution, and all persons appearing to be obligated on the Collateral have authority and capacity to contract and are in fact obligated as they appear to be on the Collateral. There shall be no setoffs or counterclaims against any of the Collateral, and no agreement shall have been made under which any deductions or discounts may be claimed concerning the Collateral except those disclosed to Lender in writing. |
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| e. | RESERVED |
| f. | Transactions Involving Collateral. Grantor shall not sell, offer to sell, or otherwise transfer or dispose of the Collateral. Grantor shall not pledge, mortgage, encumber or otherwise permit the Collateral to be subject to any lien, security interest, encumbrance, or charge, other than the security interest provided for in this Agreement, without the prior written consent of Lender. This includes security interests even if junior in right to the security interests granted under this Agreement. Unless waived by Lender, all proceeds from any disposition of the Collateral (for whatever reason) shall be held in trust for Lender and shall not be commingled with any other funds; provided however, this requirement shall not constitute consent by Lender to any sale or other disposition. Upon receipt, Grantor shall immediately deliver any such proceeds to Lender. |
| g. | Title. Grantor represents and warrants to Lender that Grantor holds good and marketable title to the Collateral, free and clear of all liens and encumbrances except for the lien of this Agreement. No financing statement covering any of the Collateral is on file in any public office other than those which reflect the security interest created by this Agreement or to which Lender has specifically consented. Grantor shall defend Lender's rights in the Collateral against the claims and demands of all other persons. |
| h. | RESERVED |
| i. | Inspection of Collateral. Lender and Lender's designated representatives and agents shall have the right at all reasonable times to examine and inspect the Collateral wherever located. |
| j. | Taxes, Assessments and Liens. Grantor will pay when due all taxes, assessments and liens upon the Collateral, its use or operation, upon this Agreement, upon any promissory note or notes evidencing the Indebtedness, or upon any of the other Related Documents. Grantor may withhold any such payment or may elect to contest any lien if Grantor is in good faith conducting an appropriate proceeding to contest the obligation to pay and so long as Lender's interest in the Collateral is not jeopardized in Lender's sole opinion. If the Collateral is subjected to a lien which is not discharged within fifteen (15) days, Grantor shall deposit with Lender cash, a sufficient corporate surety bond or other security satisfactory to Lender in an amount adequate to provide for the discharge of the lien plus any interest, costs, reasonable attorneys fees or other charges that could accrue as a result of foreclosure or sale of the Collateral. In any contest Grantor shall defend itself and Lender and shall satisfy any final adverse judgment before enforcement against the Collateral. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Grantor further agrees to furnish Lender with evidence that such taxes, assessments, and governmental and other charges have been paid in full and in a timely manner. Grantor may withhold any such payment or may elect to contest any lien if Grantor is in good faith conducting an appropriate proceeding to contest the obligation to pay and so long as Lender's interest in the Collateral is not jeopardized. |
| k. | Compliance with Governmental Requirements. Grantor shall comply promptly with all laws, ordinances, rules and regulations of all governmental authorities, now or hereafter in effect applicable to the ownership, production, disposition, or use of the Collateral including all laws or regulations relating to the undue erosion of highly-erodible land or relating to the conversion of wetlands for the production of an agricultural product or commodity. Grantor may contest in good faith any such law ordinance or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Lender's interest in the Collateral, in Lender's opinion, is not jeopardized. |
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| l. | RESERVED |
| m. | Financing Statements. Grantor authorizes Lender to file a UCC financing statement, or alternatively, a copy of this Agreement to perfect Lender's security interest. At Lender's request, Grantor additionally agrees to sign all other documents that are necessary to perfect, protect, and continue Lender's security interest in the Property. Grantor will pay all filing fees, title transfer fees and other fees and costs involved unless prohibited by law or unless Lender is required by law to pay such fees and costs. Grantor irrevocably appoints Lender to execute documents necessary to transfer title if there is a default. Lender may file a copy of this Agreement as a financing statement. If Grantor changes Grantor’s name or address, or the name or address of any person granting a security interest under this Agreement changes, Grantor will promptly notify the Lender of such change. |
| 4. | GRANTOR'S RIGHT TO POSSESSION. Until default, Grantor may have possession of the tangible personal property and beneficial use of all the Collateral and may use it in any lawful manner not inconsistent with this Agreement or the Related Documents, provided that Grantor's right to possession and beneficial use shall not apply to any Collateral where possession of the Collateral by Lender is required by law to perfect Lender's security interest in such Collateral. In the event of default, Grantor foregoes and rights of approval or consent to transfer the Collateral to the Lender. If Lender at any time has possession of any Collateral, whether before or after an Event of Default, Lender shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if Lender takes such action for that purpose as Grantor shall request or as Lender, in Lender's sole discretion, shall deem appropriate under the circumstances, but failure to honor any request by Grantor shall not of itself be deemed to be a failure to exercise reasonable care. Lender shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties, nor to protect, preserve or maintain any security Interest given to secure the Indebtedness. |
| 5. | LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender’s interest in the Collateral or if Grantor fails to comply with any provision of this Agreement or any Related Documents, including but not limited to Grantor's failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Agreement or any Related Documents, Lender on Grantor's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Collateral and paying all costs for insuring, maintaining and preserving the Collateral. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note: or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. The Agreement also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default. |
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| 6. | DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: |
| a. | Payment Default. Grantor fails to make any payment when due under the Indebtedness. |
| b. | Other Defaults. Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Grantor. |
| c. | Default in Favor of Third Parties. Any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of any Grantor's property or ability to perform their respective obligations under this Agreement or any of the Related Documents. |
| d. | False Statements. Any warranty, representation or statement made or furnished to Lender by Grantor or on Grantor's behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. |
| e. | Defective Collateralization. This Agreement or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. |
| f. | Insolvency. The dissolution of Grantor (regardless of whether election to continue is made), any member withdraws from the limited liability company, or any other termination of Grantor's existence as a going business or the death of any member, the insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor. |
| g. | Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any collateral securing the Indebtedness. This includes a garnishment of any of Grantor's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply If there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. |
| h. | Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. |
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| 7. | RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Agreement, at any time thereafter, Lender shall have all the rights of a secured party under the Virginia Uniform Commercial Code. In addition and without limitation, Lender may exercise any one or more of the following rights and remedies: |
| a. | Accelerate Indebtedness. Lender may declare the entire Indebtedness, including any prepayment penalty which Grantor would be required to pay, immediately due and payable, without notice of any kind to Grantor. |
| b. | Assemble Collateral. Lender may require Grantor to deliver to Lender all or any portion of the Collateral and any and all certificates of title and other documents relating to the Collateral, if the Collateral is not already in Lender’s possession. Lender may require Grantor to assemble the Collateral and make it available to Lender at a place to be designated by Lender. Lender also shall have full power to enter upon the property of Grantor to take possession of and remove the Collateral. If the Collateral contains other goods not covered by this Agreement at the time of repossession, Grantor agrees Lender may take such other goods, provided that Lender makes reasonable efforts to return them to Grantor after repossession. |
| c. | Sell the Collateral. Lender shall have full power to sell, lease, transfer, or otherwise deal with the Collateral or proceeds thereof in Lender's own name or that of Grantor. Lender may sell the Collateral at public auction or private sale. Unless the Collateral threatens to decline speedily in value or is of a type customarily sold on a recognized market, Lender will give Grantor, and other persons as required by law, reasonable notice of the time and place of any public sale, or the time after which any private sale or any other disposition of the Collateral is to be made. However, no notice need be provided to any person who, after Event of Default occurs, enters into and authenticates an agreement waiving that person's right to notification of sale. The requirements of reasonable notice shall be met if such notice is given at least ten (10) days before the time of the sale or disposition. All expenses relating to the disposition of the Collateral, including without limitation the expenses of retaking, holding, insuring, preparing for sale and selling the Collateral, shall become a part of the Indebtedness secured by this Agreement and shall be payable on demand, with interest at the Note rate from date of expenditure until repaid. |
| d. | Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Collateral, with the power to protect and preserve the Collateral, to operate the Collateral preceding foreclosure or sale, and to collect the Rents from the Collateral and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Collateral exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. |
| e. | Collect Revenues, Apply Accounts. Lender, either itself or through a receiver, may collect the payments, rents, income, and revenues from the Collateral. Lender may at any time in Lender's discretion transfer any Collateral into Lender's own name or that of Lender’s nominee and receive the payments, rents, income, and revenues therefrom and hold the same as security for the Indebtedness or apply It to payment of the Indebtedness in such order of preference as Lender may determine. Insofar as the Collateral consists of accounts, general intangibles, insurance policies, instruments, chattel paper, choses in action, or similar property, Lender may demand, collect, receipt for, settle, compromise, adjust, sue for, foreclose, or realize on the Collateral as Lender may determine, whether or not Indebtedness or Collateral is then due. For these purposes, Lender may, on behalf of and in the name of Grantor, receive, open and dispose of mail addressed to Grantor; change any address to which mail and payments are to be sent; and endorse notes, checks, drafts, money orders, documents of title, instruments and items pertaining to payment, shipment, or storage of any Collateral. To facilitate collection, Lender may notify account debtors and obligors on any Collateral to make payments directly to Lender. |
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| f. | Obtain Deficiency. If Lender chooses to sell any or all of the Collateral, Lender may obtain a judgment against Grantor for any deficiency remaining on the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this Agreement. Grantor shall be liable for a deficiency even if the transaction described in this subsection is a sale of accounts or chattel paper. |
| g. | Other Rights and Remedies. Lender shall have all the rights and remedies of a secured creditor under the provisions of the Uniform Commercial Code, as may be amended from time to time. In addition, Lender shall have and may exercise any or all other rights and remedies it may have available at law, in equity, or otherwise. |
| h. | Election of Remedies. Except as may be prohibited by applicable law, all of Lender's rights and remedies, whether evidenced by this Agreement, the Related Documents, or by any other writing, shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Agreement, after Grantor's failure to perform, shall not affect Lender's right to declare a default and exercise its remedies. |
| 8. | SECURITY INTEREST ABSOLUTE. The Grantor hereby waives demand, notice, protest, notice of acceptance of this Agreement, notice of loans made, credit extended, Collateral received or delivered or other action taken in reliance hereon and all other demands and notices of any description. All rights of the Lender and liens and security interests hereunder, and all Secured Obligations of the Grantor hereunder, shall be absolute and unconditional irrespective of: |
| a. | any illegality or lack of validity or enforceability of this Agreement or any related agreement or instrument; | |
| b. | any change in the time, place or manner of payment of, or in any other term of, the Indebtedness, or any rescission, waiver, amendment or other modification of the Promissory Note, this Agreement or any other agreement, including any increase in the Indebtedness resulting from any extension of additional credit or otherwise; | |
| c. | any taking, exchange, substitution, release, impairment or non-perfection of any Collateral or any other collateral, or any taking, release, impairment, amendment, waiver or other modification of any guaranty, for all or any of the Indebtedness or Collateral; | |
| d. | any manner of sale, disposition or application of proceeds of any Collateral or any other collateral or other assets to all or part of the Secured Obligations; | |
| e. | any default, failure or delay, willful or otherwise, in the performance of this this Agreement or the Promissory Note; | |
| f. | any defense, set-off or counterclaim (other than a defense of payment or performance) that may at any time be available to, or be asserted by, the Grantor against the Lender; or |
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| g. | any other circumstance (including, without limitation, any statute of limitations) or manner of administering the Promissory Note or any existence of or reliance on any representation by the Lender that might vary the risk of the Grantor or otherwise operate as a defense available to, or a legal or equitable discharge of, the Grantor or any other grantor, guarantor or surety. |
| 9. | MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: |
| a. | Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. |
| b. | Attorneys' Fees; Expenses. Grantor agrees that if Lender hires an attorney to help enforce this Agreement, Grantor will pay Lender's reasonable attorneys’ fees and all of Lender's other collection expenses, whether or not there is a lawsuit and including without limitation additional legal expenses for bankruptcy proceedings. |
| c. | Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement. |
| d. | Governing Law. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Virginia without regard to its conflicts of law provisions. This Agreement has been accepted by Lender in the Commonwealth of Virginia. |
| e. | Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the applicable courts for the City of Williamsburg, Commonwealth of Virginia. |
| f. | Joint and Several Liability. All obligations of Grantor under this Agreement shall be joint and several, and all references to Grantor shall mean each and every Grantor. This means that each Grantor signing below is responsible for all obligations in this Agreement. Where any one or more of the parties is a corporation, partnership, limited liability company or similar entity, it is not necessary for Lender to inquire into the powers of any of the officers, directors, partners, members, or other agents acting or purporting to act on the entity's behalf, and any obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Agreement. |
| g. | Notices. Any notice required to be given under this Agreement shall be given in writing, and shall be effective when actually delivered, if hand delivered, when deposited with a nationally recognized overnight courier, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Agreement, or, if by electronic mail, upon transmission. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. |
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| h. | Power of Attorney. Grantor hereby appoints Lender as Grantor's irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect, amend, or to continue the security interest granted in this Agreement or to demand termination of filings of other secured parties. Lender may at any time, and without further authorization from Grantor, file a carbon, photographic or other reproduction of any financing statement or of this Agreement for use as a financing statement. Grantor will reimburse Lender for all expenses for the perfection and the continuation of the perfection of Lender's security interest in the Collateral. |
| i. | Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any person or circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other person or circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement. |
| j. | Successors and Assigns. Subject to any limitations stated in this Agreement on transfer of Grantor's interest, this Agreement shall be binding upon and inure to the benefit of the parties, their heirs, personal representatives, successors and assigns. If ownership of the Collateral becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Agreement and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Agreement or liability under the Indebtedness. |
| k. | Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor in this Agreement shall survive the execution and delivery of this Agreement, shall be continuing in nature, and shall remain in full force and effect until such time as Grantor's Indebtedness shall be paid in full. |
| l. | Time is of the Essence. Time is of the essence in the performance of this Agreement. |
| m. | Waive Jury. All parties to this Agreement hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by any party against any other party. |
| 10. | DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code: |
| a. | Agreement. The word “Agreement” means this Commercial Security Agreement, as this Commercial Security Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Commercial Security Agreement from time to time. |
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| b. | Borrower. The word “Borrower” means BENJAMIN SCOTT TERRY and includes all co-signers and co-makers signing the Note and all their successors and assigns. |
| c. | Collateral. The word “Collateral” means all of Grantor's right, title and interest in and to all the Collateral as described in the Collateral Description section of this Agreement. |
| d. | Default. The word “Default” means the Default set forth in this Agreement in the section titled “Default.” |
| e. | Event of Default. The words “Event of Default” mean any of the events of default set forth in this Agreement in the default section of this Agreement. |
| f. | Grantor. The word “Grantor” means BENJAMIN SCOTT TERRY. |
| g. | Guarantor. The word “Guarantor” means any guarantor, surety, or accommodation party of any or all of the Indebtedness. |
| h. | Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note. |
| i. | Indebtedness. The word “Indebtedness” means the Indebtedness evidenced by the Note or Related Documents, including all principal and interest together with all other indebtedness and costs and expenses for which Grantor is responsible under this Agreement or under any of the Related Documents. |
| j. | Lender. The word “Lender” means Robert Lee Priest Jr. |
| k. | Note. The word “Note” means the Note executed by BENJAMIN SCOTT TERRY in the principal amount of $250,000.00 dated December 29, 2015, together with all modifications of and renewals, replacements, and substitutions for the note or credit agreement. |
| l. | Property. The word “Property” means all of Grantor's right, title and interest in and to all the Property as described in the “Collateral Description” section of this Agreement. |
| m. | Related Documents. The words “Related Documents” mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. |
- SIGNATURE PAGE FOLLOWS -
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GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED DECEMBER 29, 2015.
THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
| GRANTOR: | |
| BENJAMIN SCOTT TERRY | |
| /s/ Benjamin Scott Terry | |
| LENDER: | |
| ROBERT LEE PRIEST JR. | |
| /s/ Robert Lee Priest Jr. |
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Exhibit 99.8
NOTE
| $250,000.00 | December 29, 2015 |
FOR VALUE RECEIVED, the undersigned (the “Borrower”), promises to pay to the order of ROBERT LEE PRIEST, JR., a Virginia resident whose primary resident is at 4285 Beamers Ridge, Williamsburg, VA 23188 (the “Lender”), at such place as Lender may direct from time to time in writing, the principal sum of TWO HUNDRED AND FIFTY THOUSAND AND 00/100 DOLLARS ($250,000.00), or so much thereof as shall have been disbursed from time to time and remains unpaid, together with interest thereon at the rate or rates per annum designated herein computed on the basis of a 366-366-day year for the actual number of days in each interest period.
1. Interest Rate: This Note shall bear interest from the date hereof at a rate per annum equal of seven and one-half percent (7.5%).
2. Repayment Terms: The Note shall be paid in full by March 31, 2016, with all principal and interest payments due at that time.
3. Application of Payments: All payments on this Note shall be applied, first to accrued interest, then to fees, then to principal due, and then to late charges. Any remaining funds shall be applied to the further reduction of principal. Notwithstanding the foregoing, upon the occurrence of a default hereunder, payments shall be applied as determined by Lender in its sole discretion.
4. Prepayment: Except as may be otherwise herein specifically provided, the Borrower shall have the privilege to prepay the principal and any accrued but unpaid interest in full or in part at anytime without premium. Any prepayment shall be applied in the manner provided herein, except that any amount thereof applied to reduction of outstanding principal shall be applied to installments of principal in inverse order of maturities.
5. Late Charge: Time is of the essence of this Note. There is no Late Charge for this Note.
6. Events of Default; Acceleration: The following shall constitute defaults or events of default hereunder (“Events of Default”):
(a) Failure by the Borrower to keep, perform or observe any agreement, covenant, or condition contained herein; or (b) Failure by the Borrower to pay any installment required to be paid by this Note when due; or (c) A default by one or more of any guarantors under any agreement, covenant or condition contained in any guaranty agreement executed by the guarantors in connection with the loan evidenced by this Note. After a five (5) day notice to cure any default, the remaining unpaid principal of this Note and all accrued and unpaid interest thereon shall immediately become due and payable, at the option of the holder hereof, upon the occurrence of an Event of Default. The Lender shall be entitled to recover all expenses, including reasonable attorneys’ fees and expenses of legal counsel, incurred by the Lender in any way arising from or relating to the enforcement or attempted enforcement of this Note and any related guaranty, or other document and the collection or attempted collection, whether by litigation or otherwise, of this Note.
7. Governing Law; Changes: This Note may not be changed orally and shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to principles of conflict of laws.
8. Jurisdiction; Venue: The Borrower (a) submits to personal jurisdiction in the Commonwealth of Virginia, the courts thereof and the United States District Courts sitting therein, for the enforcement of this Note, (b) waives any and all personal rights under the law of any jurisdiction to object on any basis (including, without limitation, inconvenience of forum) to jurisdiction or venue within the Commonwealth of Virginia for the purpose of litigation to enforce this Note, and (c) agrees that service of process may be made upon the Borrower in any manner prescribed by applicable federal rules of civil procedure or by applicable local rules or laws of civil procedure for the giving of notice to the Borrower. Nothing herein contained, however, shall prevent the Lender from bringing any action or exercising any rights against any security and against the Borrower personally, and against any assets of the Borrower, within any other state or jurisdiction.
9. Payments Not to Violate Law: Nothing herein contained nor any transaction related thereto shall be construed or so operate as to require the Borrower to pay interest at a rate greater than it is now lawful in such case to contract for under applicable law, or to make any payment or to do any act contrary to applicable law, and the Lender shall reimburse the Borrower for any interest paid in excess of the highest rate allowed by applicable law or any other payment which may inadvertently be required by the Lender to be paid contrary to applicable law; and if any clauses or provisions herein contained operate or would prospectively operate to invalidate this Note or the Security Instrument, in whole or in part, then such clauses and provisions only shall be held for naught, as though not herein contained, and the remainder of this Note and the Security Instrument shall remain operative and in full force and effect.
10. Miscellaneous: Except as otherwise provided herein, the Borrower and all endorsers, sureties, and guarantors, if any, hereby waive presentment for payment, demand, protest, notice of nonpayment or dishonor and of protest, and any and all other notices and demands whatsoever, and agree to remain bound under this Note until the principal and interest are paid in full, notwithstanding any extensions of time for payment which may be granted even though the period or periods of extension be indefinite and notwithstanding any inaction by, or failure to assert any legal rights available to the holder of this Note. Borrower acknowledges that Lender may reproduce (by electronic means or otherwise) any of the documents evidencing and/or securing this Note and thereafter may destroy the original documents. Borrower does hereby agree that any document so reproduced shall be the binding obligation of Borrower enforceable and admissible in evidence against it to the same extent as if the original documents had not been destroyed.
The Borrower and all endorsers, sureties, and guarantors, if any, hereby waive all exemptions, whether homestead or otherwise, as to the obligations evidenced by this Note. The Borrower and each other party waive any rights to require the Lender to proceed against any other party or person or any collateral before proceeding against the undersigned or any of them, or any other party, and agree that without notice to any party and without affecting any party’s liability, the Lender, at any time or times may grant extensions of the time for payment or other indulgences to any party or permit the renewal or modification of this Note, or permit the substitution, exchange or release of any collateral for this Note and may add or release any party primarily or secondarily liable. This Note is secured by a Security Agreement of equal date. The Borrower agrees that the Lender may apply all monies made available to it from any part of the proceeds of the disposition of any collateral or by exercise of the right of setoff either to the obligations under this Note or to any other obligations of any party to the Lender, as the Lender may elect from time to time. All endorsers, sureties and guarantors also waive any rights afforded by sections 49-25 and 49-26 of the Code of Virginia, as amended.
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IN WITNESS WHEREOF, this Note has been executed under seal the day and year first above written.
| Benjamin Scott Terry | ||
| By: | /s/ Benjamin Scott Terry | |
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