STATE OF ALABAMA )
) SUBLEASE
COUNTY OF JEFFERSON )
THIS SUBLEASE is made and executed on the 9th day of September, 1996
and between XXXXXX TOWING COMPANY, INC., an Alabama corporation having its
principal office in the City of Tuscaloosa, Tuscaloosa County, Alabama, herein
referred to as "Xxxxxx"; and COVOL TECHNOLOGIES, INC., a Delaware corporation
having its principal office in the City of Lehi, Utah, herein referred to as
"Covol."
W I T N E S S E T H
WHEREAS, Xxxxxx is the Lessee under a certain Lease Agreement dated May
24, 1988, with AmSouth Bank N.A., Birmingham, Alabama, and Xxxx Xxxxxx Wood, as
Co-Trustees under the Will of Xxxxx X. Xxxx, Deceased, as Lessor (the "Owner"),
pertaining to the lease of 280 acres of land in Jefferson County, Alabama (the
"Xxxxxx Property"); and Xxxxxx has, pursuant to the provisions of Section XV of
that Lease exercised an Option to renew for an additional five year term (such
that term now extends to May 23, 1998); and, Xxxxxx desires to sublease to
Covol, and Covol desires to rent from Xxxxxx, a portion (consisting of
approximately 15.45 acres, more particularly described below) of said real
property for a term also extending to May 23, 1998;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto covenant and agree as follows:
SECTION I
Demise, Description, and Use of Premises.
(a) Xxxxxx hereby demises and leases to Covol and Covol leases from
Xxxxxx, to have and to hold through the term hereof for the sole purpose of
operating a facility which will heat coal fines, blend the fines with a bonding
agent and extrude the material making a high quality metallurgical coal product
and conducting activities related thereto, those certain premises and
appurtenances, situated in Jefferson County, Alabama, and more particularly
described and shown on the plat prepared by Xxxxx Associates and attached hereto
as Exhibit "A".
As used herein, the term "premises"' refers to the real property above
described and to any improvements located thereon from time to time during the
term hereof, but specifically excludes mineral, mining, timber, or oil and gas
rights.
SECTION II
Term.
The term of this Sublease shall commence on September 1, 1996, and
shall be for a period of approximately two years, expiring May 23, 1998. In
addition, the term hereof may be extended for two consecutive extension terms,
one for five years (through May 23, 2003) and the second for three additional
years (through May 23, 2006). In order to exercise such option, Covol shall so
notify Xxxxxx in writing not less than 210 days prior to the end of the then
existing term, whereupon the term hereof shall automatically be extended
accordingly. As used herein, the expression "term hereof" refers to such initial
term and to any extension hereof.
SECTION III
Rent and Wharfage
(a) Rental Payments. Covol shall pay to Xxxxxx, as rent for
the premises, the sum of One Dollar per year during the term of
this Sublease.
(b) Wharfage. Covol agrees to pay wharfage for all cargo, goods,
merchandise, or whatever, either bulk or package (the "Cargo"), which is moved
by Covol or its assignees or licensees through, across or onto any dock and
wharf facilities located on the premises, an amount equal to fifty cents ($.50)
per ton (2,000 pounds) of Cargo. Notwithstanding the foregoing, no such wharfage
shall be payable in the event Xxxxxx or any of its subsidiaries or affiliated
companies provides barging for such Cargo. In the event any Cargo is moved onto
or from the premises by truck or other method other than by barge, by Covol or
its assignees or licensees, Covol agrees to pay Xxxxxx a storage fee in an
amount equal to fifty ($.50) per ton (2,000 pounds) of such Cargo. Each such
payment of wharfage and storage shall be due on or before the 15th day of the
month for the immediately preceding month.
(c) Late Payments. Covol shall be obligated to pay a late fee equal to
two percent of the amount of any rental or wharfage installment which is not
paid within ten (10) days from its due date, which late fee shall be due and
paid with the late rental or wharfage and storage installment.
(d) Access to Records. Covol will furnish to Xxxxxx, by the 15th day of
each month, a report setting out the volume of all Cargo shipped to or from the
premises, including the number of barges or trucks loaded or unloaded and the
type and weight of Cargo, during the preceding month. At all reasonable times
and intervals, Xxxxxx may examine the books of account of Covol and any other
reports, records and materials of Covol pertaining to the determination of
wharfage and storage due hereunder; and upon written request by Xxxxxx, Covol
shall promptly furnish Xxxxxx copies of such records, reports and materials.
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SECTION IV
Warranties of Title and Quiet Possession.
Xxxxxx covenants that Xxxxxx is the tenant of AmSouth Bank N.A.,
Birmingham, Alabama, and Xxxx Xxxxxx Wood, as Co-Trustees under the Will of
Xxxxx X Xxxx, Deceased, as above recited; and has full right to make this
Sublease and that Covol shall have quiet and peaceable possession of the demised
premises during the term
hereof.
SECTION V
Compliance with Laws; Waste and Nuisance Prohibited.
During the term of this Sublease, Covol shall comply with all
applicable laws, regulations or governmental rules affecting the premises
demised hereunder, including, without limitation, all state or federal laws or
regulations respecting environmental protection or hazardous wastes or
substances. Covol also agrees to furnish from time to time, upon the request of
Xxxxxx or Owner, a certificate to the effect that Covol is at the time of such
request in compliance with all such laws, regulations or governmental rules.
Covol shall not commit, or suffer to be committed, any waste on the premises, or
any nuisance. Covol hereby covenants and agrees to indemnify and hold harmless
Xxxxxx and Owner for any loss or damage to either of them or their respective
interests in the premises as a result of any violation of the foregoing
covenants.
SECTION VI
Abandonment of Premises.
Covol shall not vacate or abandon the premises at any time during the
term hereof. Neither shall Covol cease to use the premises at any time as a
facility for receiving, storing, processing and loading coal product, except
that in the event of casualty or other loss Covol may cease to use the premises
for such purpose for such time as shall be reasonably required to repair the
facility.
SECTION VII
Construction; Ownership of Improvements.
(a) Construction of Improvements. Covol, at its own cost and expense,
may make such improvements to the premises, including erection of a coal loading
facility, processing facilities, buildings, docks, roads, and other facilities
that may be required in the operation of its business, and may dredge any
waterway serving the premises. Covol shall have the right at any time and from
time to time to grade, gravel and clear the premises, and to construct on all or
any part of the premises such buildings, structures and other improvements as
Covol shall determine will further Covol's construction and operation of its
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facility. All costs and expenses incurred in connection with any construction,
site preparation, grading or similar activities shall be borne solely by Covol.
(b) Use of Existing Equipment. Covol shall have the right, without any
payments in excess of the rent due hereunder, to use in conjunction with its use
of the premises such conveyors, motors and hoppers as are presently located on
the premises [and as are more fully described on the schedule attached hereto as
Exhibit "B"]. All such equipment is provided as is, where is and Covol hereby
assumes the risk of use of all such equipment and agrees to indemnify and hold
harmless Xxxxxx for any injury, loss or damage resulting from such use.
(c) Alterations and Additions. Covol shall have the right at any time,
at its own discretion and solely at its expense, to make additions to or
alterations of any of the buildings, structures or other improvements on the
premises.
(d) Ownership of Improvements. All buildings, structures and other
improvements and all machinery, equipment and trade fixtures (other than as
described below) now or hereafter constructed, installed or placed by Covol upon
the premises or any part thereof, shall become affixed to the premises and shall
become the property of Xxxxxx upon the termination of the Sublease.
Notwithstanding the foregoing, Covol shall be entitled prior to the termination
of this Sublease to remove machinery (other than the conveyors and other
equipment furnished by Xxxxxx under Paragraph (b) hereof), rolling stock and
office furniture and equipment.
SECTION VIII
Xxxxxx'x Right of Re-entry; Access Easements.
(a) Right of Re-entry. Covol shall permit Xxxxxx and the agents and
employees of Xxxxxx to enter into and upon the premises at all reasonable times
for the purpose of inspecting the, same, or for the purpose of posting notices
of nonresponsibility for alterations, additions, or repairs, without any rebate
of rent and without any liability to Covol for any loss of occupation or quiet
enjoyment of the premises thereby occasioned, and shall permit Xxxxxx or the
Owner and their respective agents and employees, at any time within the last
ninety (90) days prior to the expiration of this Sublease, or any extension
thereof, to place on the demised premises any usual or ordinary "To Lease" or
"For Sale" signs and exhibit the premises to prospective tenants or purchasers
at reasonable hours.
(b) Access Easements. Xxxxxx agrees to provide Covol an easement at
least thirty (30) feet wide, for ingress and egress to the Premises, such
easement to be located for the mutual convenience of Covol and Xxxxxx. In
addition, Xxxxxx hereby retains an easement over and across the premises for
general ingress and egress to and from the Xxxxxx Property or any part
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thereof. Such easement shall inure to the benefit of Xxxxxx and any successor,
assign or sublessee of Xxxxxx occupying any of the Xxxxxx Property.
SECTION IX
Subletting and Assignment.
The parties acknowledge the limited purposes for which the premises are
to be used, and therefore agree that, except as hereinafter set forth, Covol may
sublet the premises in whole or in part, or may assign or transfer this
Sublease, or any interest herein, only with Xxxxxx'x prior written consent,
which consent may be withheld in the event Xxxxxx determines that such
subletting, assignment or transfer would or could result in any additional
liability or economic loss to it, or for other reasons in the reasonable
discretion of Xxxxxx. No consent to any subletting, assignment or transfer shall
be deemed to be a consent to any subsequent subletting, assignment or transfer.
No sublease, assignment or transfer of any interest in this Sublease shall
release Covol from, or otherwise affect in any manner, any of Covol's
obligations hereunder and Covol hereby expressly agrees that it shall continue
to be liable for its obligations hereunder notwithstanding any sublease,
assignment or transfer as contemplated by this Section IX.
SECTION X
Taxes and Assessment.
(a) Taxes. Covol shall pay all ad valorem taxes assessed to or on any
buildings, improvements, futures, machinery or personal property located on the
premises. In the event any of such property is not assessed separately from
other portions of the Xxxxxx property, the parties shall endeavor to have such
property separately assessed or, failing such, to allocate any taxes payable
according to the relative values of the properties.
(b) Fees. All license fees of every kind and nature which may be
levied, assessed, charged or imposed or which may become a lien or charge on or
against the land hereby demised, or any part thereof, arising from or due to any
improvements placed on the premises by Covol or by and through Covol's
operations shall be paid by Covol.
SECTION XI
Utilities.
(a) Payment of Costs. Covol shall fully and promptly pay for all water,
gas, heat, light, power, telephone service, and other public utilities of every
kind, including connection fees and installation expenses, furnished to the
premises throughout the term hereof, and all other costs and expenses of every
kind whatsoever of or in connection with the use, operation, and
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maintenance of the premises and all activities conducted thereon, and Xxxxxx
shall have no responsibility of any kind for any thereof.
(b) Utility Easement; Access Easements. Covol shall be entitled and is
hereby authorized to enter into such easement agreements with utility companies
as may be required or needed in order to provide service to any improvements
located on the premises; provided, however, the precise ground location of such
easements shall be approved in advance by Xxxxxx, and Xxxxxx will cooperate in
planning for utility service to the site.
SECTION XII
Liens.
(a) Covol's Duty to Keep Premises Free of Liens. Covol shall keep all
of the premises and every part thereof and all buildings and other improvements
at any time located thereon free and clear of any and all mechanics',
materialmen's, and other liens for or arising out of or in connection with work
or labor done, services performed, or materials or appliances used or furnished
for or in connection with any operations of Covol, any alteration, improvement,
or repairs or additions which Covol may make or permit or cause to be made, or
any work or construction, by, for, or permitted by Covol on or about the
premises, or any obligations of any kind incurred by Covol. Covol shall at all
times promptly and fully pay and discharge any and all claims on which any such
lien may or could be based, and agrees to indemnify Xxxxxx and all of the
premises and all buildings and improvements thereon against all such liens and
claims of liens and suits or other proceedings pertaining thereto.
(b) Contesting Liens. If Covol desires to contest any such lien, it
shall notify Xxxxxx of its intention to do so within thirty (30) days after the
filing of such lien. In such case, and provided that Covol shall on demand
protect Xxxxxx by a good and sufficient surety bond against contest, Covol shall
be permitted to pursue such contest so long as neither Xxxxxx'x leasehold
interest nor Owner's fee interest shall be impaired or endangered. In the event
of any such contest, Covol shall protect and indemnify Xxxxxx and Owner against
all loss, expenses, and damage resulting therefrom.
SECTION XIII
Attorney's Fees.
If any action at law or in equity shall be brought to recover any rent
under this Sublease, or for or on account of any breach of, or to enforce or
interpret any of, the covenants, terms, or conditions of this Sublease, or for
the recovery of the possession of the premises, the prevailing party shall be
entitled to recover from the other party as part of the prevailing party's
costs, reasonable attorney's fees.
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SECTION XIV
Indemnity.
Covol assumes responsibility for the condition of the premises and
covenants for and agrees that (except as expressly provided below) neither
Xxxxxx nor Owner shall be liable for any injuries or damages to persons or
property caused by Covol or occurring on the premises during the use,
occupation, control or enjoyment of the premises by Covol, and Covol will save
and hold harmless Xxxxxx and Owner from and against any and all such liability,
loss, penalties, damages, expenses and judgments whatsoever on account of such
injuries or damages, including reasonable attorney's fees and court costs;
provided, that Xxxxxx shall be responsible for damages to persons or property
caused by Xxxxxx or by Waterway Forest Products, Inc., Cargo Handlers, Inc.,
other affiliates of Xxxxxx, or their agents, employees, contractors,
subcontractors, customers or invitees, including injuries occurring on the
premises. In addition, Covol shall be responsible for, and shall indemnify and
hold Xxxxxx harmless against any claims arising out, any and all injuries to
Covol's employees, contractors or while on or about any barge or other vessel
owned by Xxxxxx but within the custody and control of Covol or parties acting
under contract with or with permission of Covol. Without limiting the generality
of the foregoing, Covol agrees, upon the request of Xxxxxx or Owner, to defend
any claim against such party, or both of them, in any way related to any such
injuries or damages.
SECTION XV
Use of Run-Off Control Pond
The parties acknowledge that there is a run-off control pond located on
the premises. Covol shall cooperate with Xxxxxx in causing Covol to be named by
the Alabama Department of Environmental Management as the "operator" of such
pond and shall be solely responsible for control of such pond under the rules
and regulations applicable thereto. Covol shall be solely responsible for any
injury occurring in or on such pond and shall indemnify and hold harmless Xxxxxx
for any such injury, damage or failure to comply with applicable laws, rules and
regulations.
SECTION XVI
Redelivery of Premises.
Covol shall pay the rent, wharfage, storage and all other sums required
to be paid by Covol hereunder in the ~mounts, at the times, and in the manner
herein provided, and shall keep and perform all other terms and conditions
hereof on its part to be kept and performed, and, at the expiration of this
Sublease, shall peaceably and quietly quit and surrender to Xxxxxx the premises
in good order and condition subject to the other provisions of this Sublease.
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SECTION XVII
Remedies Cumulative.
All remedies hereinbefore and hereinafter conferred on Xxxxxx and Covol
shall be deemed cumulative and no one exclusive of the other, or of any other
remedy conferred by law.
SECTION XVIII
Insurance.
(a) Property Insurance. Covol shall at all times during the term of
this Lease, and at Covol's sole expense, keep all improvements which are a part
of the premises insured on an "all risk of loss" basis for their full
replacement value.
(b) Liability Insurance. Covol shall maintain in effect throughout the
term of this Sublease Commercial General Liability Insurance, including coverage
for their Maritime Operations, with a combined-single limit of $1,000,000 per
occurrence, $2,000,000 annual aggregate. Covol will also carry the appropriate
Wharfingers, Terminal Operators, and Stevedores Liability Coverage, to include
bodily injury liability, with a Combined-Single Limit of $1,000,000. Both of
these policies shall name Xxxxxx, Waterway Forest Products, Inc., and Cargo
Handlers, Inc. as additional insureds.
Automobile Liability Coverage, including Hired and Non-Owned
Coverage, shall be carried with Combined-Single Limit of
$1,000,000.
Umbrella Liability Coverage in the Mount of $2,000,000 shall
be carried with Xxxxxx, Waterways Forest products, Inc., and Cargo
Handlers, Inc. shown as additional insureds.
(c) Worker's Compensation Insurance. Covol will also carry
Worker's Compensation Coverage with a Longshoreman and Harbor
Worker's Endorsement, with waiver of subrogation in favor of
Xxxxxx, Waterways Forest Products, Inc. and Cargo Handlers, Inc.
(d) Insurance During Construction. In regard to any construction
operations to be performed on behalf of Covol on these premises, Covol shall
ensure that all contractors and subcontractors are adequately insured with
Commercial General and Automobile Liability Coverages, including coverages for
the Maritime Operations of such contractors and subcontractors for limits of
$1,000,000 per occurrence, $2,000,000 per Annual Aggregate, and an Umbrella
Policy in the Mount of $2,000,000. Such policies shall name Xxxxxx, Waterways
Forest Products, Inc., and Cargo Handlers, Inc., as additional insureds. Covol
shall also ensure that all such contractors and subcontractors shall carry
Worker's Compensation Coverages with the Longshoreman and Harbor Worker's
Endorsement and subrogation shall be waived against Xxxxxx, Waterways Forest
Products, Inc., and Cargo Handlers, Inc.
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Covol shall also execute a contract, in a form satisfactory to Xxxxxx,
with such subcontractors and contractors whereby Covol, Parker, Waterways Forest
Products, Inc., and Cargo Handlers, Inc. will be held harmless for any liability
arising out of the contractors or subcontractors operations in regard to
construction on these premises.
(e) Certificates. Upon execution of this Sublease and thereafter from
time to time upon the request of Xxxxxx, Covol shall furnish certificates of
insurance providing 30 days notice of cancellation, non-renewal or material
changes in any of the foregoing policies.
SECTION XIX
Default.
(a) Events of Default. Each of the following acts or
omissions of Covol or occurrences shall constitute an event of
default hereunder:
(i) Failure to pay rent, wharfage, storage or other
payments hereunder promptly when due, if any such
failure continues for a period of ten (10) days
following written notice to Covol of such failure;
(ii) Failure to perform or preserve any other
obligation, covenant or condition of this
Sublease by Covol and the continuation of such
failure for a period of thirty (30) days
following written notice to Covol of such
failure, unless Covol upon receipt of such
notice in good faith shall have promptly
commenced and thereafter shall continue
diligently to prosecute all action necessary to
cure each default.
(iii) Covol shall file a voluntary petition in
bankruptcy or shall be adjudicated as a bankrupt
or insolvent, or shall file any petition or
answer seeking or acquiescing in any
reorganization, arrangement, composition,
readjustment, liquidation, dissolution or
similar relief for itself under any present or
future federal or state law relating to
bankruptcy, insolvency or other relief for
debtors; or shall seek or consent to or
acquiesce in the appointment of any trustee,
receiver or liquidator of itself; or shall make
any assignment for the benefit of creditors or
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admit in writing its inability to pay its debts
generally as they become due.
(iv) The entry by court of competent jurisdiction of
an order, judgment or decree approving a
petition filed against Covol seeking any
reorganization, arrangement, composition,
readjustment, liquidation, dissolution or
similar relief under any present or future
federal or state law or regulation relating to
bankruptcy, insolvency or other relief for
debtors, which order, judgment or decree remains
unvacated and unstayed for an aggregate of sixty
(60) days (whether or not consecutive) from the
date of entry thereof; or the appointment of any
trustee, receiver or liquidator of Covol without
the consent or acquiescence of Covol, which
appointment shall remain unvacated and unstayed
for an aggregate of sixty (60) days (whether or
not consecutive).
(b) Remedies. Upon the occurrence of any event of default, Xxxxxx
shall have the option, in addition to any remedy or right given hereunder or by
law or equity, to do any one or more of the following
(i) Terminate this Sublease, in which event Covol
shall immediately surrender possession of the
premises to Xxxxxx together with all rights of
Covol with respect to the premises.
(ii) Re-enter and take possession of the premises
with or without having terminated this Sublease.
(iii) Alter locks and other security devices of Covol
at or on the premises;
(iv) File suit to collect any and all amounts
presently due and owing to Xxxxxx.
If Xxxxxx elects to repossess the premises without terminating the
Sublease, the rent required to be paid by Covol to Xxxxxx thereafter during the
remainder of the term hereof shall be due and payable each month as herein
provided, and Xxxxxx may bring action from time to time to collect such amounts
as have already accrued without waiting until expiration of the current term,
provided that any net sums received by Xxxxxx by reletting the premises during
said period shall be applied against the total indebtedness of Covol to Xxxxxx
hereunder, but in no event shall Covol be entitled to any excess of any rents
obtained by reletting over and above the rent herein reserved, although Covol
shall receive credit therefor against rents as they accrue.
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(c) Forbearance No Waiver. Any forbearance or failure of Xxxxxx to
enforce its rights under this Sublease shall not be deemed a waiver of such
rights and shall not constitute a waiver of its right to proceed against Covol
for any act of default then existing or thereafter occurring.
SECTION XX
Effect of Eminent Domain.
(a) Effect of Total Condemnation. In the event the entire premises
shall be appropriated or taken under the power of eminent domain by any public
or quasi-public authority, this Sublease shall terminate and expire as of the
date of such taking, and Xxxxxx and Covol shall thereupon be released from any
liability thereafter accruing hereunder, except for Covol's obligations to
indemnify and hold harmless Xxxxxx and Owner.
(b) Effect of Partial Condemnation. In the event a portion of the
premises shall be so appropriated or taken and the remainder of the premises
shall not be suitable for the use then being made of the premises by Covol, or
if the remainder of the premises is not one undivided parcel of property, Covol
shall have the right to terminate this Sublease as of the date of such taking or
giving to Xxxxxx written notice of such termination within ninety (90) days
after Xxxxxx has notified Covol in writing that a portion of the premises has
been so appropriated or taken. In the event of such partial taking and Covol
does not so terminate this Sublease, then this Sublease shall continue in full
force and effect as to the part not taken.
(c) Condemnation Award. In the event of the termination of this
Sublease by reason of the total or partial taking of the premises by eminent
domain, then in any such condemnation proceedings Xxxxxx and Covol shall be free
to make claim against the condemning or taking authority for the amount of any
damage done to them, respectively, as a result thereof.
SECTION XXI
Permits and Licenses.
Xxxxxx agrees to take such steps as shall be reasonably necessary to
assign to Covol the benefit of Xxxxxx'x existing permits with respect to use of
navigable waterways contiguous to the premises. Covol shall be responsible for
obtaining and maintaining all other necessary permits, licenses and approvals
required in connection with its use of the premises. Xxxxxx shall not be
responsible for obtaining any such other permits, licenses or approvals, but
shall execute such applications or other documents as Covol shall reasonably
request so long as Xxxxxx shall not incur any liability thereunder.
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SECTION XXII
Waste Disposal; Covenant to
Comply with Environmental Requirements.
(a) Covol shall promptly remove from the premises all waste products
produced in connection with its use of the premises and all spoil resulting from
any dredging and waterway improvement. Such waste products may be stored on the
premises, in a safe and sanitary manner, for a period not exceeding sixty (60)
days. The coals fines used by Tenant as feedstock for its coal processing plant
will not be considered a waste product and may be reasonably stockpiled for
operational purposes.
(b) Environmental Covenant and Indemnity. Without limiting the
generality of Paragraph (a) hereof, Covol agrees to comply in all respects with
all laws, rules and regulations pertaining to storage, use or disposal of
hazardous substances or wastes. In addition, Covol agrees to indemnify, defend
and hold harmless Xxxxxx, the Owner and their respective officers, directors,
employees, agents, assignees, sublessees and licensees from any liability which
may arise from or relate in any way, directly or indirectly, to the handling,
use, generation, processing, release, discharge, storage or disposal of any
hazardous or toxic substances, including, without limitation, petroleum products
or byproducts, any flammable explosives, radioactive materials, hazardous
materials, hazardous waste, asbestos, PCB's, phosphates, lead or other heavy
metals, chlorine, radon gas, "hazardous substance," "hazardous material," or
"hazardous waste," all as contemplated and governed by applicable federal, state
or local laws, rules and regulations pertaining to such matters.
(c) Notwithstanding other provisions herein, Tenant will not be
responsible or liable for contamination of the premises which occurred prior to
the execution of this Lease. Tenant will establish a baseline for such
contamination by taking ground water and other samples within 30 days of
execution of this Lease. The samples will then be analyzed and the reports
therefrom will establish the baseline for allocation of liability under this
Lease. Tenant will furnish a copy of such fundings to the Landlord and Landlord
may independently verify Tenant's findings.
SECTION XXIII
Miscellaneous Provisions.
(a) Time of the Essence. The parties agree that time shall be of
the essence as to the performance of each and every provision hereof.
(b) Notices. Any and all notices by Xxxxxx to Covol, or by Covol
to Xxxxxx, shall be in writing and shall be deemed to have been given when
personally delivered to the other party or when deposited in the U.S. mail,
registered or certified, return receipt requested, addressed to the respective
addresses below stated:
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To Xxxxxx at: Xxxxxx Towing Company, Inc.
Xxxx Xxxxxx Xxx 000000
Xxxxxxxxxx, Xxxxxxx 00000-0000
To Covol at: Covol Technologies, Inc.
0000 Xx. Xxxxxxxx Xxxx
Xxxx, XX 00000
Either party may at any time change the address by notice to the other
party in writing by registered or certified U.S. mail, return receipt requested.
Unless Xxxxxx shall have given notice of, and there shall be continuing, any
event of default as provided in Section XVIII hereof, rent shall be payable by
check sent by ordinary mail by Covol to Xxxxxx at the address set forth above or
any change thereof made pursuant to this Section.
(c) Successors and Assigns. All covenants, agreements, provisions,
conditions and undertakings in this Sublease contained, shall extend to and be
binding upon the heirs, executors, successors and assigns or Xxxxxx and Covol,
respectively, but nothing herein shall permit sublease or assignment by Covol
without compliance with Section IX hereof.
(d) Holdover. If Covol shall continue in possession of the premises
after the expiration of the term of this Sublease, or any extension thereof,
such tenancy shall be from month-to-month only and upon all the terms, covenants
and conditions hereof.
(e) Lease Agreement. Covol hereby acknowledges receipt of the Lease
Agreement pursuant to which Xxxxxx occupies the premises. Xxxxxx has obtained
consent to this Sublease, as required under the terms of such Lease Agreement.
Covol agrees not to take any actions which would cause the occurrence of a
default or event of default under such Lease Agreement.
IN WITNESS WHEREOF, the parties have executed this Sublease in
duplicate original counterparts as of the date first above written.
This 9th day of September, 1996.
WITNESS XXXXXX TOWING COMPANY, INC.
Xxxxxxx Xxxxx By: Xxxxxxx X. Xxxxxxx
COVOL TECHNOLOGIES, INC.
By: Xxxxxxx Xxxxxxx
00
XXXXX XX XXXXXXX ) XXXXXX TOWING COMPANY, INC.
JEFFERSON COUNTY ) 19 JULY 1994
A parcel of land lying and being in the east half of the Southwest
Quarter of Section 6, Township 17 South, Range 5 West, Jefferson County,
Alabama, containing 15.45 acres, more or less, and being more particularly
described as follows:
Commence at the northwest corner of said Section 6; thence southerly
along the west boundary of said Section 6 a distance of 3,035.09 feet; thence
with a deflection angle of 90 degrees 00 minutes 00 seconds to the left, run
easterly a distance of 2,023.16 feet to the point of beginning; thence with a
deflection angle of 21 degrees 08 minutes 28 seconds to the right, run
southeasterly a distance of 574.53 feet; thence with a deflection angle to the
right of 72 degrees 46 minutes 06 seconds, run southerly a distance of 1,202.65
feet to the right margin of the Locust Fork of the Black Warrior River; thence
with a deflection angle to the right of 97 degrees 00 minutes 16 seconds, run
westerly along the right margin of said river a distance of 529.49 feet; thence
with a deflection angle to the right of 81 degrees 58 minutes 47 seconds run
northerly a distance of 1,308.48 feet to the point of beginning.
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STATE OF ALABAMA ) Xxxxxx Towing Company, Inc.
JEFFERSON COUNTY ) Field Line Easement
29 December 1994
A parcel of land lying and being in the east half of the Southwest
Quarter of Section 6, Township 17 South, Range 5 West, Jefferson County,
Alabama, containing 3.31 acres, more or less, and being more particularly
described as follows:
Commence at the northwest corner of said Section 6; thence southerly
along the west boundary of said Section 6 a distance of 3,021.21 feet; thence
with a deflection angle of 90 degrees 00 minutes 00 seconds to the left, run
easterly a distance of 1,748.51 feet to the POINT OF BEGINNING; thence with a
deflection angle of 02 degrees 53 minutes 37 seconds to the right, continue
easterly a distance of 275.00 feet; thence with a deflection angle to the right
of 90 degrees 00 minutes 00 seconds, run southerly a distance of 525.00 feet;
thence with a deflection angle to the right of 90 degrees 00 minutes 00 seconds,
run westerly a distance of 275.00 feet; thence with a deflection angle to the
right of 90 degrees 00 minutes 00 seconds run northerly a distance of 525.00
feet to the POINT OF BEGINNING.
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