1
EXHIBIT 2.7
ASSIGNMENT OF CONTRACTS
THIS ASSIGNMENT OF CONTRACTS (this "Assignment") is made and entered
into as of November 12, 1997, by and between (i) XXXXXXXXX ENTERPRISES, INC., a
Kentucky corporation ("Assignor"), and (ii) AEI HOLDING COMPANY, INC., a
Delaware corporation ("Assignee").
RECITALS
A. Pursuant to the Exchange Agreement, dated October 20, 1997, between
Assignor and Assignee (the "Exchange Agreement"), Assignor agreed to transfer,
assign and convey to Assignee, and Assignee agreed to acquire, all right, title
and interest of Assignor in and to the contracts listed and described on Annex A
(the "Contracts") attached hereto and incorporated herein by reference.
B. Assignor desires to transfer, assign and convey to Assignee all of
Assignor's right, title and interest in and to said Contracts and Assignee
desires to acquire and accept the same.
NOW, THEREFORE, for and in consideration of the performance and
observance of the terms and conditions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Assignment. Assignor hereby transfers, assigns, sets over and
conveys to Assignee, its successors and assigns, and Assignee hereby accepts,
all of Assignor's right, title and interest in and to the Contracts, including,
without limitation, all accounts receivable, deposits and refunds related
thereto.
2. Miscellaneous.
(a) This Assignment shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Kentucky, without regard to its
conflict of laws principles. Each party agrees that any action brought in
connection with this Assignment 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.
(b) This Assignment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
(c) 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 Assignment and their respective successors and assigns.
(d) The failure of either Assignee or Assignor to insist in
any particular instance upon strict performance of any term or provision of this
Assignment shall not be construed as a waiver or relinquishment as to the
performance of any such term or provision in the future.
(e) This Assignment is given pursuant to the Exchange
Agreement, and is subject to the terms and conditions thereof. If any conflict
exists between this Assignment and the Exchange Agreement, the Exchange
Agreement shall control.
1
2
(f) If any provision of this Assignment 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 Assignment is in any way
unenforceable, such provision shall be reduced to whatever extent is necessary
to make such provision enforceable.
(g) All prior negotiations and agreements by and among the
parties hereto with respect to the subject matter hereof are superseded by this
Assignment and the Exchange Agreement, and there are no representations,
warranties, understandings or agreements with respect to the subject matter
hereof other than those expressly set forth in this Assignment and the Exchange
Agreement. No extension, change, modification, addition or termination of this
Assignment shall be enforceable unless in writing and signed by the party
against whom enforcement is sought.
(h) The headings preceding the text of the sections of this
Assignment are inserted solely for convenience of reference and shall not
constitute a part of this Assignment or affect its meaning, construction or
effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Assignment as of the date first above written.
XXXXXXXXX ENTERPRISES, INC.,
a Kentucky corporation
By: /s/ Xxx Xxxxx
----------------------------
Name: Xxx Xxxxx
----------------------------
Title: Chief Financial Officer
----------------------------
AEI HOLDING COMPANY, INC.
a Delaware corporation
By: /s/ Xxx Xxxxx
----------------------------
Name: Xxx Xxxxx
----------------------------
Title: President
----------------------------
2
3
ANNEX A
All contracts of Assignor except for the following:
ORIGINAL
CONTRACT TERMINATION
PARTIES DATE DATE NOTES
-----------------------------------------------------------------------------------------------------------------------------------
A. CONSULTING AGREEMENTS
AEI/Franklin Research & Development 12/17/96 12/17/97 Can be extended by mutual consent
AEI/Xxxxxxx X. Xxxxxx 02/15/96
B. CONTRACT MINING AGREEMENTS
Mining Technologies/Xxxxx Xxxxx Co., Inc. 02/01/97 When reserves are mined out.
Mining Technologies/Martiki Coal Company 05/24/97 Three years or when reserves
are mined out.
C. TECHNOLOGY AGREEMENTS
AEI/ARI/Pittston 01/14/97
Bowie/Amax Coal 10/24/95
AEI/Bluegrass Coal 12/13/96
MTI/Joy Technologies 06/16/92*
D. ASSET LEASES
All asset leases relating to the equipment listed on Schedule 2.1(a)(1) of
the Exchange Agreement.
E. MISCELLANEOUS AGREEMENTS
Mining Technologies/AEP 09/18/95 Annually extended Service @ Coalton Recycling Center
Mining Technologies/AEP 09/28/95 Annually extended Service @Coalton Compost Center
Mining Technologies/Orkin Pest Control 08/15/96 Annually extended Service @ RT 60 West Coalton
Mining Technologies, Inc./Airgas/Virginia
Welding Supply 01/12/94 Annually extended Cylinder Rentals
All other contracts or agreements that were to be transferred pursuant to
that certain Asset Purchase Agreement, dated October 16, 1997, among
Mining Technologies Limited, Mining Technologies, Inc. and Xxxxxxxxx
Enterprises, Inc.
F. OTHER
All rights of Seller arising from or related to the contracts listed on
this Annex A, including, without limitation, all accounts receivable,
deposits and refunds relating thereto.
* This agreement was terminated in June of 1995.
