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EXHIBIT 2.3
ASSUMPTION AGREEMENT
This Assumption Agreement (this "Agreement"), dated as of November 12,
1997, is between XXXXXXXXX ENTERPRISES, INC., a Kentucky corporation ("Seller"),
0000 Xxxxx Xxx Xxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, and AEI HOLDING COMPANY, INC.,
a Delaware corporation ("Purchaser"), 0000 Xxxxx Xxx Xxx Xxxx, Xxxxxxx, Xxxxxxxx
00000.
RECITALS
A. Pursuant to the Exchange Agreement, dated October 20, 1997, between
Xxxxxxxxx Enterprises, Inc. and AEI Holding Company, Inc. (the "Exchange
Agreement") and the other agreements and instruments referred to therein,
Purchaser is acquiring the Transferred Assets from Seller, subject to the terms
and provisions described therein.
B. The sale, transfer, conveyance, assignment and delivery of such
Transferred Assets to Purchaser includes the assumption by Purchaser of all of
the Assumed Liabilities.
C. Purchaser and Seller now desire to evidence and effectuate the
assumption by Purchaser of the Assumed Liabilities.
NOW, THEREFORE, in consideration of the mutual covenants set forth in
the Exchange Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Purchaser and Seller hereby
covenant and agree as follows:
1. Incorporation by Reference; Capitalized Terms. The terms of the
Exchange Agreement, including all Schedules, Exhibits and Annexes thereto, are
incorporated herein by reference, and capitalized terms not otherwise defined in
this Agreement shall have the meanings given to such terms in the Exchange
Agreement.
2. Assumption. Purchaser hereby undertakes on the terms and subject to
the conditions set forth in the Exchange Agreement to assume, pay, perform and
discharge when due the Assumed Liabilities.
3. Counterparts. This Agreement may be executed in one or more
counterparts (including by means of telecopied signature pages) and all such
counterparts taken together shall constitute one and the same Agreement.
4. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky, without regard to its
conflicts of law rules. Each party agrees that any action brought in connection
with this Agreement against another shall be filed and heard in Fayette County,
Kentucky, and each party hereby submits to the jurisdiction of the Circuit Court
of Fayette County, Kentucky, and the U.S. District Court for the Eastern
District of Kentucky, Lexington Division.
5. Severability. If any provision of this Agreement or its application
will be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of all other applications of that provision, and of all other
provisions and applications hereof, will not in any way be affected or impaired.
If any court shall determine that any provision of this Agreement is in any way
unenforceable, such provision shall be reduced to whatever extent is necessary
to make such provision enforceable.
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6. Entire Agreement. All prior negotiations and agreements by and among
the parties hereto with respect to the subject matter hereof are superseded by
this Agreement and the Exchange Agreement (and the Other Agreements), and there
are no representations, warranties, understandings or agreements with respect to
the subject matter hereof other than those expressly set forth in this Agreement
and the Exchange Agreement (and the Other Agreements). No extension, change,
modification, addition or termination of this Agreement shall be enforceable
unless in writing and signed by the party against whom enforcement is sought.
7. No Waiver. The failure of any party to insist in any particular
instance upon strict performance of any term or provision of this Agreement
shall not be construed as a waiver or relinquishment as to the performance of
any such term or provision in the future.
8. Benefit and Binding Effect. The terms hereof shall bind and inure to
the benefit of, and be enforceable by, the parties executing (or deemed to have
consented to) this Agreement and their respective successors and assigns.
9. Headings. Section headings are not to be considered part of this
Agreement, are solely for convenience of reference, and shall not affect the
meaning or interpretation of this Agreement or any provision in it.
10. Exchange Agreement. This Agreement is given pursuant to the
Exchange Agreement and is subject to the terms and conditions thereof. Should
any conflict exist between this Agreement and the Exchange Agreement, the
Exchange Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
SELLER: XXXXXXXXX ENTERPRISES, INC.,
a Kentucky corporation
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Chief Financial Officer
PURCHASER: AEI HOLDING COMPANY, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: President
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