Exhibit 10.7
ASSIGNMENT OF CONTRACTS
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THIS ASSIGNMENT OF CONTRACTS (this "Assignment") is made and entered into
as of January 2, 1998, by and between (i) ▇▇▇▇▇▇▇▇▇ ENTERPRISES, INC., a
Kentucky corporation ("Assignor"), and (ii) MINING TECHNOLOGIES, INC., a
Kentucky corporation ("Assignee").
RECITALS
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A. Pursuant to the Asset Purchase Agreement, dated December 18, 1997,
between ▇▇▇▇▇▇▇▇▇ Enterprises, Inc. and Mining Technologies, Inc. (the "Asset
Purchase 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
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"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 parties hereto agree as follows:
1. Capitalized Terms. Capitalized terms used and not otherwise defined
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herein shall have the meanings given to such terms in the Asset Purchase
Agreement.
2. Assignment. Assignor hereby transfers, assigns, sets over and conveys
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to Assignee, its successors and assigns, and Assignee hereby accepts, all of
Assignor's right, title and interest in and to the Contracts.
3. Miscellaneous.
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(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 rules. 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 Asset Purchase Agreement,
and is subject to the terms and conditions thereof. If any conflict exists
between this Assignment and the Asset Purchase Agreement, the Asset Purchase
Agreement shall control.
(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 Asset Purchase 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 Assignment and the Asset Purchase Agreement (and the Other Agreements). 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.
▇▇▇▇▇▇▇▇▇ ENTERPRISES, INC.,
a Kentucky corporation
By: /s/▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: CFO
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MINING TECHNOLOGIES, INC.
a Kentucky corporation
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
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ANNEX A
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Original
Parties Contract Termination
Date Date Notes
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A. Consulting Agreements
AEI/Franklin Research & Development
AEI/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 12/17/96 12/17/97 Can be extended by mutual consent
02/15/96 See note on previous schedule.
B. Contract Mining Agreements
Mining Technologies/▇▇▇▇▇ ▇▇▇▇▇ Co., Inc.
Mining Technologies/Martiki coal Company 02/01/97 When reserves are mined
05/24/97 out.
Three years or when
reserves are mined out.
C. Technology Agreements
AEI/ARI/Pittston
Bowie/Amax Coal
AEI/Bluegrass Coal 01/14/97
MTI/Joy Technologies 10/24/95
12/13/96
06/16/92*
D. Miscellaneous Agreements
Mining Technologies/AEP
Mining Technologies/AEP 09/18/95 Annually extended Service @ Coalton Recycling
Mining Technologies/Orkin Pest Control 09/28/95 Annually extended Center
Mining Technologies, Inc./Airgas/Virginia Welding 08/15/96 Annually extended Service@ Coalton Compost Center
Supply 01/12/94 Annually extended Service @ RT 60 West Coalton
▇▇▇▇▇▇▇▇▇ Enterprises/AEI Holding Company 10/20/97 Cylinder Rentals
All other contracts relating to he Acquired Assets MSU&L Agreement
E. Asset Leases
All asset leases relating to the equipment listed on
Schedule 2.1(a)(1)
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* This Agreement was terminated in June of 1995
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