SECURITY AGREEMENT
This Security Agreement (the "Agreement") dated as of February
20, 1998, is entered into by and between COVOL TECHNOLOGIES, INC., a Delaware
corporation ("Covol"), Alabama Synfuel #1 Ltd., a Delaware limited partnership
("Alabama Synfuel") (Covol and Alabama Synfuel are collectively referred to
herein as "Sellers" and "Secured Party"), and Birmingham Syn Fuel, LLC, an
Oregon limited liability company (the "Buyer" and "Debtor"), pursuant to that
certain Alabama Project Purchase Agreement dated as of March 20, 1997 by and
between the Secured Party and the Debtor (the "Purchase Agreement"). All
capitalized terms used in this Agreement and not otherwise defined herein shall
have the meanings set forth in the Purchase Agreement for all purposes of this
Agreement.
WITNESSETH
WHEREAS pursuant to Section 2.2 of the Purchase Agreement the
Buyer is required to deliver a promissory note (the "Promissory Note"), in an
aggregate principal amount of six million five hundred thousand dollars
($6,500,000) to the Sellers representing the purchase price for the Purchased
Assets; and
WHEREAS in order to secure the obligations of Buyer under the
Purchase Agreement Documents, this Agreement and the Promissory Note, the Buyer,
as Debtor, has agreed to grant a continuing first priority security interest in
the Collateral (as defined herein) to the Sellers, as Secured Party; and
WHEREAS, the execution, delivery and filing of this Agreement
is a condition precedent to the Sellers' obligation to consummate the
transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, to induce the Secured Party to enter into the
Purchase Agreement, and to consummate the transactions contemplated thereby, the
Debtor hereby agrees as follows:
Section 1. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (which meanings shall be
equally applicable to both the singular and plural forms of the terms defined);
"Account" shall have the meaning given to that term in the
Code.
"Account Debtor" means any Person who is obligated on an
Account.
"Business Day" means any day other than a Saturday, a Sunday,
a public or bank holiday under the laws of the State of Utah.
"Cash and Cash Equivalents" means the aggregate amount of (i)
cash on hand, (ii) Dollar demand deposits maintained in the United States with
any federally insured or state chartered financial institution, (iii) Dollar
time deposits maintained in the United States with, or certificates of deposit
issued by, any federally insured or state chartered financial institution, (iv)
direct obligation of, or unconditionally guaranteed by, the United States and
having a maturity of one year or less, and (v) readily marketable commercial
paper having a maturity of one year or less, issued by any corporation organized
and existing under the laws of the United States or any state thereof or the
District of Columbia.
"Code" means the Uniform Commercial Code as enacted in the
State of Utah.
"Collateral" means (a) all personal property assets of Debtor
used or useful in connection with the Alabama Project, whether now existing or
hereafter acquired or arising, and wherever located, tangible or intangible,
including:
(i) All Equipment used or usefu in
connection with the Alabama Project;
(ii) All Computer Hardware and Software
used or useful in connection with the Alabama Project;
(iii) All Accounts, contract rights, notes
receivable, chattel paper, instruments, Intangibles, Cash and
Cash Equivalents, stock and other equity securities, tax
refunds and tax refund claims, trademarks, service marks,
trade styles, trade names, licenses, franchises, copyrights,
patents and other intellectual property of Debtor used or
useful in connection with the Alabama Project, all depository
accounts or deposits by Debtor in connection with the Alabama
Project with any Person, documents, documents of title, and
other property rights of any kind used or useful in connection
with the Alabama Project, whether now or hereafter existing,
wherever located, together with all rights now or hereafter
existing in and to all security agreements, leases of personal
property, leases of real property, and other contracts
securing or otherwise relating to any such Accounts, contract
rights, notes receivable, chattel paper, instruments,
Intangibles, Cash and Cash Equivalents, stock and other equity
securities, tax refunds and tax refund claims, trademarks,
service marks, trade styles, trade names, licenses,
franchises, copyrights, patents and other intellectual
property of Debtor used or useful in connection with the
Alabama Project;
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(iv) All Proceeds and products of any and
all of the foregoing property and, to the extent not otherwise
included, all payments under insurance (whether or not secured
party is the loss payee thereof), and all claims, indemnities,
warranties or guarantees, payable by reason of loss or damage
to or otherwise with respect to any of the foregoing property,
and all property of any type described above that is acquired
with any cash proceeds of any of the foregoing property;
(v) All fixtures and other appurtenances
to the Alabama Project and the real property owned by the
Debtor.
(b) all leasehold interests of Debtor in the real property covered by
the Lease and all other real property assets (as described in Schedule 2 hereto)
of Debtor used or useful in connection with the Alabama Project, and all rents,
income, issues and profits thereof.
"Collateral Assignment of Lease" means the Collateral
Assignment of Lease, dated as of February 20, 1998, between Debtor, as assignor,
and Secured Party, as assignee.
"Computer Hardware and Software" means all of Debtor's right,
title and interest, now owned or hereafter acquired, in computer equipment and
hardware including all central processing units, terminals, disk drives, tape
drives, electronic memory units, printers, keyboards, screens, peripherals (and
other input/output devices), modems and other communication controllers, and any
and all model conversions, accessions, parts and appurtenances thereto,
substitutions therefor and replacements thereof, all intellectual property used
by Debtor, at any time, in the operation of such computer equipment and
hardware, including all software, all of Debtor's rights (to the extent
assignable) under any licenses, options, warranties, service contracts, program
services, test rights, maintenance rights, support rights, improvement rights,
and renewal rights related to Debtor's use, at any time, of such computer
equipment, hardware or software, and all leases pursuant to which Debtor leases
any computer equipment, hardware or software.
"Equipment" means all equipment (as defined in the Code) of
Debtor in all of its forms, wherever located, now or hereafter existing.
"GAAP" means generally accepted United States accounting
principles consistently applied as in effect from time to time.
"Intangibles" means (i) goodwill, organizational expenses,
research and development expenses, trademarks, trade names, copyrights, patents,
patent applications, licenses, franchises, and rights in any thereof, and other
similar intangibles, (ii) all unamortized debt discount and expense, (iii) all
reserves carried and not deducted from assets, (iv) treasury stock and capital
stock, obligations or other securities of, or capital contributions or
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investments in, any Related Person, (v) securities which are not readily
marketable, (vi) cash held in a sinking or other analogous fund established for
the purpose of redemption, retirement or prepayment of capital stock or debt,
(vii) any write-up in the book value of any asset resulting from a revaluation
thereof, and (viii) any items not included in clauses (i) through (vii) above
which are treated as intangibles in conformity with GAAP.
"Inventory" means all inventory (as defined in the Code) of
Debtor, including without limitation all personal property held for sale, lease
or demonstration, or to be furnished under contracts of sale or service, in all
forms, wherever located, now or hereafter existing, including (i) all inventory,
raw materials, work in process, finished goods, materials and supplies used or
to be consumed in Debtor's business, and all additions and accessions to such
property, (ii) goods in which Debtor has an interest in mass or a joint or other
interest or right of any kind, and (iii) goods which are returned to or
repossessed by Debtor and all accessions thereto and products thereof.
"Lien" means any mortgage, pledge, lien, claim, charge,
encumbrance, security interest, conditional sale or title retention agreement,
easement, use restriction, covenant or reservation against or with respect to
any of Debtor's property or interest in property.
"Person" means any natural person, corporation, limited
liability company, partnership, sole proprietorship, firm, association,
government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Proceeds" shall have the meaning given to that term in the
Code and shall include whatever is received upon the sale, exchange, collection
or other disposition of Collateral.
"Receiver" means any trustee, receiver, custodian, fiscal
agent, liquidator or similar officer.
"Related Person" means (i) any shareholder who owns or
controls more than five percent (5%) of the voting securities of Debtor, (ii)
any officer or director of Debtor, and (iii) any other Person that, directly or
indirectly, controls, is controlled by or is under common control with or is
related to, by blood or marriage, Debtor or any Person identified in clauses (i)
or (ii).
"Security Documents" means this Agreement, the Collateral
Assignment Lease, any financing statements and all other documents and
agreements given to secure the Obligations.
Section 2. Security Interest and Collateral. To secure the
full, prompt and complete payment and performance when due of all indebtedness
evidenced by that certain Promissory Note of even date herewith executed by the
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Debtor, and any extension thereof or amendment thereto (collectively, the
"Obligations"), the Debtor hereby irrevocably transfers, assigns, mortgages,
sets over and grants to the Secured Party for security purposes, a continuing
security interest (the "Security Interest") in and lien on all of the Debtor's
right, title and interest in, to the Collateral, regardless of where located.
Debtor further acknowledges and agrees that the Obligations are secured by
security interests in and liens upon all of the Collateral in accordance with
the provisions set forth herein and in the other Purchase Agreement Documents.
Secured Party acknowledges and agrees that in addition to any rights of the
Debtor under the Transaction Documents and applicable law, any amounts owing to
Debtor from either of the Sellers under any of the Transaction Documents may be
offset and applied toward the payment of the Obligations, whether or not the
Obligations, or any part thereof, shall be due and payable.
Section 3. Representations and Warranties of the Debtor. The
Debtor hereby represents and warrants to the Secured Party (which
representations and warranties shall survive for so long as any part of the
Obligations is outstanding) as follows:
(a) No Other Encumbrances; No Filings By Third Parties.
There is no security agreement or chattel mortgage, other than this Agreement,
in each case entered into by Debtor and covering the Collateral and no financing
statements naming the Debtor as debtor covering the Collateral have been filed
with the Secretary of State or corresponding agency for the state of Alabama.
The Debtor will not execute any financing statement or other public notice or
recording covering the Collateral (other than any financing statement or other
public notice or recording naming Secured Party as the secured party therein or
as otherwise permitted under this Agreement) so long as any of the Obligations
are outstanding.
(b) Corporate Authority. The Debtor has full right,
power and authority to assign and grant a continuing security interest in the
Collateral to the Secured Party. The making and performance of this Agreement
are within the corporate powers of the Debtor and have been duly authorized by
all necessary corporate action on the part of the Debtor. This Agreement
constitutes a legal, valid and binding obligation of the Debtor enforceable
against Debtor in accordance with its terms (subject, however, to the effects of
bankruptcy, insolvency, reorganization, moratorium, and similar laws from time
to time in effect relating to the rights and remedies of creditors as well as to
general principles of equity). The Debtor's chief executive office within the
meaning of the Code is located in Portland, Oregon. The Collateral is located in
Birmingham, Alabama.
(c) Security Interest. The grant of the security interest
in the Collateral pursuant to this Agreement creates a valid security interest
in the Collateral, enforceable against Debtor and securing payment of the
Obligations (subject, however, to the effects of bankruptcy, insolvency,
reorganization, moratorium, and similar laws from time to time in effect
relating to the rights and remedies of creditors as well as to general
principles of equity).
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Section 4. Covenants of the Debtor. The Debtor hereby agrees
as follows:
(a) Ownership and Possession of the Collateral.
(1) Title to and ownership of the Collateral
shall be and remain exclusively in Debtor and Debtor shall not transfer
the Collateral out of the State of Alabama without prior written notice
to Secured Party. Debtor agrees that Collateral not in the location
identified above shall nevertheless remain subject to Secured Party's
first priority security interest.
(2) Debtor agrees not to change the location of
its chief executive offices without prior written notice to Secured
Party. Upon request by Secured Party, Debtor shall confirm to Secured
Party the location of the Collateral.
(b) Change in Debtor's Name or Corporate Structure.
Debtor will not change its name, identity or corporate structure (including,
without limitation, any merger, consolidation or sale of substantially all of
its assets) without notifying Secured Party of such change in writing at least
thirty (30) days prior to the effective date of such change.
(c) Documents; Collateral in Possession of Third Parties.
If certificates of title or other documents evidencing ownership or possession
of the Collateral are issued or outstanding, upon the request of the Secured
Party, Debtor will cause the interest of Secured Party to be properly noted
thereon and will, forthwith upon receipt, deliver same to Secured Party. If any
Collateral is at any time in the possession or control of any warehouseman,
bailee, agent or independent contractor, upon the request of the Secured Party,
Debtor shall notify such person or entity of Secured Party's security interest
in such Collateral. Upon Secured Party's request, Debtor shall instruct any such
person or entity to hold all such Collateral for Secured Party's account subject
to Debtor's instructions, or, if an Event of Default has occurred hereunder,
shall have occurred and be continuing, subject to Secured Party's instructions.
(d) Maintenance of Existence. Debtor will maintain
Debtor's corporate existence and remain in good standing and qualified to do
business in all jurisdictions pursuant to the laws of which it is so required.
(e) Sale, Disposition or Encumbrance of Collateral.
Without Secured Party's prior written consent, Debtor will not sell, assign,
lend, rent, lease or otherwise dispose of or transfer Collateral to or in favor
of any person or entity other than Secured Party except in Debtor's ordinary
course of business.
(f) Maintenance. Debtor, at its own cost and expense,
shall service, repair, maintain, overhaul, replace, test or cause the same to be
done to each item of Equipment and Computer Hardware and Software used or useful
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in connection with the Alabama Project so as to keep such items in as good an
operating condition, repair and appearance as it was on the date of this
Agreement, ordinary wear and tear excepted.
(g) Event of Loss with Respect to the Alabama Project and
Collateral. Upon the occurrence of an event of loss with respect to the Alabama
Project or the Collateral, Debtor shall forthwith (and in any event within ten
(10) days after such occurrence) give Secured Party written notice of such event
of loss.
(h) Fees and Taxes. The Debtor shall pay when due all
fees, taxes, recording fees and other governmental charges levied against the
Alabama Project and the Collateral or incurred by the Secured Party in
connection with the recording of this Agreement or otherwise perfecting the
Security Interest.
Section 5. Application of Insurance Proceeds. All insurance
proceeds (other than proceeds from policies carried by Secured Party which shall
be paid directly to Secured Party or its assignees) received as the result of
the occurrence of an event of loss with respect to the Alabama Project or
Collateral will be applied at Debtor's option either (a) in reduction of
Debtor's Obligations under the Promissory Note and the Transaction Documents,
subject, however, to the Debtor's set off rights described in Section 2 hereof
and in the Promissory Note, or (b) to the replacement of Collateral or
rebuilding of the Alabama Project, with any remaining balance to be paid to
Debtor.
Section 6. Other Insurance. Nothing shall prohibit Secured
Party or any other Additional Insured from insuring the Alabama Project and the
Collateral at its own expense.
Section 7. Application of Payments from Governmental
Authorities for Requisition of Title. Any payments (other than insurance
proceeds) received at any time by Secured Party or Debtor from any governmental
authority or other entity with respect to condemnation, confiscation, theft or
seizure of, or requisition of title to or use of the Alabama Project or
Collateral, shall be applied either (a) in reduction of Debtor's obligations
under the Promissory Note, subject, however, to the Debtor's set off rights
described in Section 2 hereof and in the Promissory Note or (b) to the
replacement of Collateral or rebuilding of the Alabama Project, with any
remaining balance to Debtor.
Section 8. Inspection. The Secured Party may inspect the
Alabama Project or the Collateral and the Debtor's books and records (and make
copies thereof or extracts therefrom) concerning its financial condition at any
reasonable time and upon reasonable notice from time to time during regular
business hours, whether or not the Debtor is in default under the Agreement.
Section 9. Default. Each of the following occurrences shall
constitute an event of default under this Agreement (an "Event of Default"):
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(a) Debtor fails to pay any Obligations when due and
payable; and such failure continues for thirty (30) days after written notice
from the Secured Party to the Debtor thereof; provided, however, that such
failure to pay shall not constitute an Event of Default at any time that it
results from at any time the Secured Party (or any affiliate thereof) is in
default of its obligations under other Transaction Document, the withholding or
application in set off of any amount otherwise due and payable with respect to
the Obligations by the Debtor against amounts owed by the Secured Party (or any
affiliate thereof) under any other Transaction Document;
(b) Failure of the Debtor to perform any of its covenants
or agreements contained in this Agreement and such failure continues for thirty
(30) days after written notice from the Secured Party to the Debtor; provided,
however, that such failure to pay shall not constitute an Event of Default at
any time that it results from at any time the Secured Party (or any affiliate
thereof) is in default of its obligations under other Transaction Document, the
withholding or application in set off of any amount otherwise due and payable
with respect to the Obligations by the Debtor against amounts owed by the
Secured Party (or any affiliate thereof) under any other Transaction Document;
or
(c) Any representation or warranty by the Debtor set
forth in this Agreement shall prove false or misleading in any material respect.
The Debtor shall promptly notify the Secured Party in writing (i) upon becoming
aware of the occurrence of an Event of Default or event that with notice or
lapse of time or otherwise would become an Event of Default, and (ii) of any
occurrence of which it becomes aware which might have a material adverse effect
on its ability to perform its obligations under this Agreement, the Purchase
Agreement Documents or the Promissory Note.
Section 10. Remedies. Upon the occurrence of any Event of
Default and at any time thereafter, so long as the same shall be continuing, the
Secured Party may exercise any one or more of the following rights or remedies:
(a) exercise and enforce any and all rights and remedies available upon default
pursuant to the Purchase Agreement Documents; (b) exercise and enforce any and
all rights and remedies available upon default to a secured party under the
Uniform Commercial Code as in effect in the States of Utah and Alabama or any
other applicable jurisdiction, and the Secured Party is hereby granted the right
to enter upon any property of the Debtor, without a hearing or prior notice
thereof, for the purpose of taking possession of the Collateral; or (c) exercise
or enforce any and all other rights and remedies available to the Secured Party
by law or agreement against the Collateral, against the Debtor or against any
other Person or property. If notice to the Debtor of any intended disposition of
the Collateral or any other intended action is required by law in a particular
instance, such notice shall be deemed commercially reasonable if given (in the
manner specified in this Agreement) at least ten (10) calendar days prior to the
date of intended disposition or other action. The Secured Party may require the
Debtor to return (at the Debtor's expense) the Collateral to any point within
the United States designated by the Secured Party.
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Section 11. Cure Rights. If the Debtor at any time fails to
perform or observe any agreement contained herein, and if such failure shall
continue for a period of thirty (30) calendar days after the Secured Party gives
the Debtor written notice thereof, the Secured Party may, but shall not be
obligated to, without further notice or demand on the Debtor, and without
releasing the Debtor from any of the Obligations, perform or observe such
agreement on behalf and in the name, place and stead of the Debtor (or, at the
Secured Party's option, in the Secured Party's own name) and take any and all
other actions which the Secured Party may deem necessary to cure or correct such
failure, including the payment of taxes, the satisfaction of security interests,
Liens, attachments or encumbrances, the procurement and maintenance of
insurance, and the procurement of repairs or transportation, subject, however,
to the terms of the other Transaction Documents. The Secured Party shall have
the right to appear in and defend any action or proceeding purporting to affect
the security interest or the rights or powers of the Secured Party hereunder and
in the Purchase Agreement Documents. The Debtor shall indemnify and hold the
Secured Party harmless from and against, any and all losses, liabilities, claims
and causes of action arising from or in connection with the Secured Party's
actions in the stead of the Debtor and the Debtor shall thereupon pay the
Secured Party on demand the amount of all moneys expended and all reasonable
costs and expenses (including attorneys' fees) incurred by the Secured Party in
connection with or as a result of the Secured Party's performing or observing
such agreements or taking such action, together with interest thereon from the
date expended or incurred by the Secured Party at twelve percent (12%) per
annum.
Section 12. Secured Party's Costs and Expenses. In addition to
other amounts payable hereunder, the Debtor will (whether or not legal
proceedings are commenced) pay to the Secured Party, on demand, all reasonable
costs and expenses (including attorneys' fees and legal expenses) paid or
incurred by the Secured Party in connection with an Event of Default, including
any suit to collect the Obligations.
Section 13. Purchase Money Equipment Security Interest. Debtor
and Secured Party agree and stipulate that this is a "purchase money security
interest" as such term is used in the Code.
Section 14. Successors; Governing Law. This Agreement shall be
binding upon and inure to the benefit of the Debtor, the Secured Party and their
respective successors and permitted assigns. This Agreement shall be governed by
the substantive laws of the State of Utah, without giving effect to any choice
of law or conflict of law provisions or rules that would cause the application
of laws of any jurisdiction other than the State of Utah. Unless the context
otherwise requires, all terms used herein which are defined in Articles 1 and 9
of the Uniform Commercial Code, as in effect in the State of Utah, shall have
the meanings therein stated. If any provision or application of this Agreement
is held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which can be
given effect, and this Agreement shall be construed as if the unlawful or
unenforceable provision or application had never been contained herein or
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prescribed hereby. All representations and warranties contained in this
Agreement shall survive the execution, delivery and performance of this
Agreement and the creation and payment of the Obligations.
Section 15. Notices. All notices to the Secured Party and
the Debtor shall be given in accordance with the notice provisions set forth in
the Purchase Agreement.
Section 16. Further Assurances. The Debtor will defend the
security interest of the Secured Party against all Persons, other than the
Secured Party, at its own expense and from time to time shall execute and
deliver to the Secured Party, and file all such instruments and take all such
actions as the Secured Party may reasonably request in order to preserve and
protect such security interest, to effectuate the purpose of this Agreement and
the Purchase Agreement Documents or to carry out the terms hereof, including the
execution and filing of financing statements or continuation statements under
the Code. The Debtor hereby authorizes the Secured Party to file this Agreement
or any such financing statements or continuation statements under the Code with
respect to the Collateral with any appropriate governmental office in order to
preserve, protect, perfect or continue the perfection of any and all security
interests granted or created hereby.
Section 17. Miscellaneous. This Agreement can be waived,
modified, amended or terminated, and the security interest of the Secured Party
can be released, only explicitly in a writing signed by the Secured Party and
the Debtor. A waiver signed by the Secured Party shall be effective only in the
specific instance and for the specific purpose given. Mere delay or failure to
act shall not preclude the exercise or enforcement of any of the Secured Party's
rights or remedies. All rights and remedies of the Secured Party shall be
cumulative and may be exercised singularly or concurrently, at the Secured
Party's option, and the exercise or enforcement of any one such right or remedy
shall neither be a condition to nor bar the exercise or enforcement of any other
right or remedy. The Secured Party shall not be obligated to realize on the
Collateral at all or in any particular manner or order, or to apply any cash
proceeds therefrom in any particular order of application.
Section 18. Power of Attorney. The Debtor hereby irrevocably
appoints the Secured Party as its true and lawful attorney-in-fact upon the
occurrence of an Event of Default with full power, in the name of the Debtor or
otherwise, for the purpose of (i) taking any action that the Secured Party may
deem necessary or appropriate to preserve, protect, perfect and continue the
perfection of the Secured Party's security interest in the Collateral; and (ii)
enabling the Secured Party to sell, assign, transfer or dispose of the
Collateral, including, without limitation, executing and delivering all bills of
sale, assignments and other instruments as the Secured Party may consider
necessary or appropriate, with full power of substitution, upon an Event of
Default.
Section 19. Consent to Jurisdiction and Venue. Debtor and
Secured Party consent to personal jurisdiction, waive any objection as to
jurisdiction or venue and agree not to assert any defenses based on lack of
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jurisdiction or venue, in the County of Salt Lake, Utah. Service of process on
Debtor or Secured Party in any action arising out of or relating to this
Agreement shall be effective if mailed to such party at the address listed in
the Purchase Agreement.
Section 20. Mutual Waiver of Jury Trial. BECAUSE DISPUTES
ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES
UNDER THIS AGREEMENT.
Section 21. Pronouns and Certain Other Terms. All pronouns
(and any variation) will be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the Person may require. The words "and"
and "or" will include the conjunctive and disjunctive, as the context requires.
The word "include" and derivatives of that word are used in an illustrative
sense and not a limiting sense unless specifically indicated.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date set forth above.
COVOL TECHNOLOGIES, INC.
/s/ Brent M. Cook
By: Brent M. Cook
Attest: Title: President
/s/ C. Parkinson Lloyd
By: C. Parkinson Lloyd
Title: Attorney, Ballard Spahr Andrews & Ingersoll, LLP
ALABAMA SYNFUEL #1 LTD. by its
corporate general partner
----------------------------
/s/ Brent M. Cook
By: Brent M. Cook
Attest: Title: President - Covol Technologies
/s/ C. Parkinson Lloyd
By: C. Parkinson Llyod
Title: Attorney, Ballard Spahr Andrews & Ingersoll, LLP
BIRMINGHAM SYNFUEL, L.L.C.
/s/ Reynold Roeder
By: Reynold Roeder
Attest: Title: Vice President
/s/ Gary R. Barnum
By: Gary R. Barnum
Title: Stoel Rives
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STATE OF UTAH )
)ss:
COUNTY OF SALT LAKE )
I, the undersigned authority, a Notary Public in and for said County,
in said State, hereby certify that Reynold Roder, whose name as Vice President
of Birmingham Syn Fuel, LLC, an Oregon limited liability company, is signed to
the foregoing instrument, and who is known to me, acknowledged before me on this
day that, being informed of the contents of the instrument, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and official seal, this the 20th day of February,
1998.
/s/ Stacey A. Kamaya
Notary Public
STATE OF UTAH )
)ss:
COUNTY OF SALT LAKE )
I, the undersigned authority, a Notary Public in and for said County,
in said State, hereby certify that Brent M. Cook, whose name as President (of
Its General Partner) of Alabama Synfuel #1, Ltd., a Delaware limited
partnership, is signed to the foregoing instrument, and who is known to me,
acknowledged before me on this day that, being informed of the contents of the
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and official seal, this the 20th day of February,
1998.
/s/ Stacey A. Kamaya
Notary Public
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STATE OF UTAH )
)ss:
COUNTY OF SALT LAKE )
I, the undersigned authority, a Notary Public in and for said County,
in said State, hereby certify that Brent M. Cook, whose name as President of
Covol Technologies, Inc., a Delaware corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of the instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal, this the 20th day of February,
1998.
/s/ Stacey A. Kamaya
Notary Public
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