HEREIN. ACCORDINGLY, ANY RULE OF LAW OR ANY LEGAL
DECISION THAT WOULD REQUIRE INTERPRETATION OF ANY AMBIGUITIES IN THIS AGREEMENT
AGAINST ANY PARTY THAT DRAFTED IT IS OF NO APPLICATION AND IS HEREBY EXPRESSLY
WAIVED.
91
(H)
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE
CONTRARY, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES
HERETO COVENANT AND AGREE THAT NO AMOUNT SHALL BE (OR IS INTENDED TO BE)
INCLUDED, IN WHOLE OR IN PART (EITHER AS AN INCREASE OR A REDUCTION), MORE THAN
ONCE IN THE CALCULATION OF ANY CALCULATED AMOUNT PURSUANT TO THIS AGREEMENT IF
THE EFFECT OF SUCH ADDITIONAL INCLUSION (EITHER AS AN INCREASE OR A REDUCTION)
WOULD BE TO CAUSE SUCH AMOUNT TO BE OVER- OR UNDER-COUNTED FOR PURPOSES OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE PARTIES HERETO FURTHER COVENANT
AND AGREE THAT IF ANY PROVISION OF THIS AGREEMENT REQUIRES AN AMOUNT OR
CALCULATION TO BE "DETERMINED IN ACCORDANCE WITH THIS AGREEMENT AND THE
ACCOUNTING PRINCIPLES" (OR WORDS OF SIMILAR IMPORT), THEN TO THE EXTENT THAT THE
TERMS OF ANY PROVISION OF THIS AGREEMENT CONFLICT WITH, OR ARE INCONSISTENT
WITH, THE ACCOUNTING PRINCIPLES IN CONNECTION WITH SUCH DETERMINATION, THE TERMS
OF THIS AGREEMENT (OTHER THAN SCHEDULES 1.4(D)(1) AND 1.4(D)(2) HERETO, WHICH
ARE ATTACHED HERETO BY WAY OF EXAMPLE ONLY) SHALL CONTROL.
[Remainder of Page Intentionally Left Blank - Signature Pages Follow]
92
IN WITNESS WHEREOF, this Agreement is executed by the parties hereto as of the
date set forth above.
PROGRESS FUELS CORPORATION
By:
/s/ Mark. F. Mulhern
Name: Mark F. Mulhern
Title: President
COMPANY
WINCHESTER ENERGY COMPANY, LTD.
By:
WGC Holdco, LLC, its general partner
By:
/s/ Robert M. Deacy
Name: Robert M. Deacy
Title: President
WGC HOLDCO, LLC
By:
/s/ Robert M. Deacy
Name: Robert M. Deacy
Title: President
S-1
BUYER:
WINCHESTER ACQUISITION, LLC
By:
/s/ Douglas H. Miller
Name: Douglas H. Miller
Title: Chairman and Chief Executive Officer
S-2