OR
9 OF THIS AGREEMENT BY CONSULTANT.
RESORT TO SUCH EQUITABLE RELIEF, HOWEVER,
SHALL NOT BE CONSTRUED TO BE A WAIVER OF ANY OTHER RIGHTS OR REMEDIES THAT MTR
MAY HAVE FOR DAMAGES OR OTHERWISE.
THE VARIOUS RIGHTS AND REMEDIES OF MTR UNDER
THIS AGREEMENT OR OTHERWISE SHALL BE CONSTRUED TO BE CUMULATIVE, AND NO ONE OF
THEM SHALL BE EXCLUSIVE OF ANY OTHER RIGHT OR REMEDY ALLOWED BY LAW.
12.
LITIGATION.
THE PARTIES IRREVOCABLY AND UNCONDITIONALLY (I) AGREE
THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY ACTION COMMENCED BY MTR FOR PRELIMINARY AND
PERMANENT INJUNCTIVE RELIEF OR OTHER EQUITABLE RELIEF, SHALL BE BROUGHT IN THE
STATE OF WEST VIRGINIA; (II) CONSENT TO THE JURISDICTION OF ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING; (III) WAIVE ANY
6
OBJECTION THAT CONSULTANT MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING IN ANY SUCH COURT; (IV) AGREE THAT EITHER PARTY SHALL BE
ENTITLED TO AN AWARD OF ITS REASONABLE EXPENSES, INCLUDING ATTORNEYS' FEES AND
COSTS, ON ANY SUCCESSFUL CLAIM OR DEFENSE BROUGHT PURSUANT TO THIS AGREEMENT;
AND (V) AGREE THAT IF A COURT FINDS THAT CONSULTANT HAS VIOLATED THE PROVISIONS
OF PARAGRAPHS 8 AND/OR 9, CONSULTANT HEREBY CONSENTS TO THE ENTRY OF AN ORDER
ENJOINING SUCH VIOLATION FOR AN ADDITIONAL PERIOD OF TIME EQUAL TO THE PERIOD OF
SUCH VIOLATION BY CONSULTANT FROM THE DATE OF SUCH ORDER.
CONSULTANT ALSO
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE SERVICE OF ANY PROCESS,
PLEADINGS, NOTICES OR OTHER PAPERS UPON HIM AT THE ADDRESS SPECIFIED IN SCHEDULE
A BY REGISTERED MAIL AND TO THE ENTRY OF AN INJUNCTIVE DECREE WITHOUT THE NEED
ON THE PART OF MTR TO POST A BOND OR PROVIDE OTHER SECURITY OR PROVE DAMAGES OR
IRREPARABLE INJURY.
13.
MISCELLANEOUS.
A.
THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS AND SETS FORTH THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF (CONSULTING AGREEMENT) AND CANNOT BE CHANGED, MODIFIED, EXTENDED OR
TERMINATED EXCEPT UPON WRITTEN AMENDMENT EXECUTED BY BOTH PARTIES.
NO WAIVER OF
ANY OF THE PROVISIONS OF THIS AGREEMENT SHALL BE DEEMED OR SHALL CONSTITUTE A
WAIVER OF ANY OTHER PROVISIONS HEREOF (WHETHER OR NOT SIMILAR), NOR SHALL SUCH
WAIVER CONSTITUTE A CONTINUING WAIVER, UNLESS OTHERWISE EXPRESSLY THEREIN
PROVIDED.
B.
THIS AGREEMENT IS PERSONAL IN ITS NATURE, AND CONSULTANT SHALL
NOT, WITHOUT THE WRITTEN CONSENT OF MTR, SIGN OR TRANSFER THIS AGREEMENT, OR ANY
OF THE RIGHTS OR OBLIGATIONS HEREUNDER, TO ANY OTHER PERSON OR ENTITY.
MTR MAY
ASSIGN ALL RIGHTS AND LIABILITIES UNDER THIS AGREEMENT, WITHOUT THE CONSENT OF
CONSULTANT, TO A SUBSIDIARY, AN
7
AFFILIATE OR A SUCCESSOR OF ALL OR A SUBSTANTIAL PART OF ITS BUSINESS AND
ASSETS.
SUBJECT TO THE FOREGOING, THIS AGREEMENT WILL INURE TO THE BENEFIT OF
AND BE BINDING UPON EACH OF THE ASSIGNS AND SUCCESSORS OF THE RESPECTIVE
PARTIES.
C.
IF ANY TERM OR PROVISION OF THIS AGREEMENT OR THE APPLICATION
THEREOF TO