ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("this Agreement") is made and entered
into this 16th day of November, 1998, by and between XXXXXX RESOURCES, INC., a
Kentucky corporation, and a subsidiary of AEI RESOURCES, INC., a Delaware
corporation ("Assignor"), and AEI COAL SALES COMPANY, INC., a Kentucky
corporation ("Assignee").
WHEREAS Assignor entered into a Coal Supply Agreement dated December 31, 1997,
with Kentucky Utilities Company (the "Agreement") for the sale of coal from
various mines in Kentucky.
WHEREAS Assignor wishes to assign and Assignee wishes to accept all of
Assignor's rights and obligations under the Agreement.
NOW THEREFORE, for and in consideration of the mutual promises and terms and
conditions contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree to the following:
1. Transfer and Assignment. Assignor hereby transfers, conveys, assigns, sets
over and delivers to Assignee, and Assignee hereby accepts the transfer,
conveyance, assignment, set over and delivery of all of Assignor's present
and future right title and interest in and to the Agreement.
2. Assumption. Assignee hereby assumes and agrees to be bound by all of the
terms of and shall undertake all of Assignor's liabilities and obligations
of any kind related to the Agreement from and after the date of this
Agreement and all references to Assignor in the Agreement shall be deemed
to be references to the Assignee.
3. Notice to Third Parties; Consent of Third Parties. Assignor and Assignee
shall give notice to any necessary third party of the assignment and
transfer of the Agreement. The parties hereto agree to cooperate with one
another and execute such further documents and instruments, if any, and
take such other actions as may be necessary to give effect to this
Agreement. To the extent that the transfer to or assumption by Assignee of
the Agreement is deemed to require the consent of a third party, this
Agreement shall not constitute a transfer or assumption of same if such
transfer or assumption would constitute a breach, violation or termination
thereof or affect adversely Assignor's ability to convey such interest to
Assignee without impairment until such time as an appropriate consent of
such third party is obtained.
4. No Third Party Beneficiaries. Nothing in this Agreement shall confer any
rights upon any person or entity other than the parties hereto and each
such party's respective successors and assigns.
5. Successors and Assigns. The terms of this Agreement shall be binding upon,
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
6. Amendments and Waivers. No amendment, modification or discharge of this
Agreement and no waiver hereunder shall be valid or binding unless it is
set forth in writing and duly
executed by the party against whom enforcement of the amendment
modification, waiver or discharge is sought. Any such waiver shall
constitute a waiver only with respect to the specific matter described in
such writing and shall in no way impair the rights of the party granting
such waiver in any other respect to at any other time.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky.
8. Entire Agreement. This Agreement constitutes the entire agreement of the
parties and supersedes all prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject
matter hereof.
9. Headings. The headings contained in this Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their authorized representatives as of the date first written above.
XXXXXX RESOURCES, INC. AEI COAL SALES COMPANY, INC.
/s/ Xxxx Xxxxx /s/ Xxxx Xxxxxxx
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By: Xxxx Xxxxx By: Xxxx Xxxxxxx
Its: Sec. Its: President
Consent acknowledged:
KENTUCKY UTILITIES COMPANY
/s/ Xxxxx X. Xxxxx
------------------------------------
By: Xxxxx X. Xxxxx
Its: Executive Vice President, Power Production
