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EXHIBIT 2.8
ASSIGNMENT OF CONTRACTS
THIS ASSIGNMENT OF CONTRACTS (this "Assignment") is made and entered
into as of November 12, 1997, by and between (i) AEI HOLDING COMPANY, INC., a
Delaware corporation ("Assignor"), and (ii) XXXXXXXXX MINING, INC., a Kentucky
corporation ("Assignee").
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RECITAL
A. 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) 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.
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(f) All prior negotiations and agreements by and among the
parties hereto with respect to the subject matter hereof are superseded by this
Assignment, 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. 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.
(g) 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.
AEI HOLDING COMPANY, INC.
a Delaware corporation
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: President
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XXXXXXXXX MINING, INC.,
a Kentucky corporation
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: Treasurer
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ANNEX A
All contracts transferred to Assignor pursuant to the Assignment of
Contracts, dated November 12, 1997, between Assignor and Xxxxxxxxx Enterprises,
Inc., other than (i) the employment agreement between Xxx Xxxxx and Xxxxxxxxx
Enterprises, Inc., dated as of September 22, 1997, (ii) the employment agreement
between Xxxxx Xxxxxx and Xxxxxxxxx Enterprises, Inc., dated as of November 1,
1997, (iii) the Aircraft Lease Agreement dated as of July 9, 1996, between
Provident Commercial Group, Inc. and Xxxxxxxxx Enterprises, Inc. and all
amendments thereto, and (iv) the Finance Lease dated April 7, 1995, between PNC
Leasing Corp., Kentucky and Bowie Resources, Limited ("Bowie"), and assigned
from Bowie to Xxxxxxxxx Enterprises, Inc.
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