TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL
PRIOR AND CONTEMPORANEOUS AGREEMENTS, REPRESENTATIONS, WARRANTIES, AND
UNDERSTANDINGS OF THE PARTIES, WHETHER ORAL, WRITTEN, OR IMPLIED, AS TO THE
SUBJECT MATTER HEREOF.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NO
SUPPLEMENT, MODIFICATION, OR AMENDMENT OF THIS AGREEMENT SHALL BE BINDING UNLESS
EXECUTED IN WRITING BY ALL PARTIES.
NO WAIVER OF ANY OF THE PROVISIONS OF THIS
AGREEMENT SHALL BE DEEMED OR CONSTITUTE A WAIVER OF ANY OTHER PROVISION, WHETHER
OR NOT SIMILAR, NOR SHALL ANY WAIVER CONSTITUTE A CONTINUING WAIVER.
NO WAIVER
SHALL BE BINDING UNLESS EXECUTED IN WRITING BY THE PARTY MAKING THE WAIVER.
14.
NO THIRD-PARTY BENEFICIARIES.
NOTHING CONTAINED IN THIS AGREEMENT
IS INTENDED TO CONFER ANY RIGHTS OR REMEDIES UNDER OR BY REASON OF THIS
AGREEMENT ON ANY PERSON OR
6
entity other than the Parties hereto, nor is anything in this Agreement intended
to relieve or discharge the obligation or liability of any third party to any
Party to this Agreement, nor shall any provision give any third party any right
of subrogation or action over or against any Party to this Agreement.
15.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON, AND
SHALL INURE TO THE BENEFIT OF, EACH PARTY HERETO AND THEIR RESPECTIVE LEGAL
REPRESENTATIVES, SUCCESSORS, AND ASSIGNS.
16.
FURTHER DOCUMENTS.
EACH PARTY HERETO AGREES TO EXECUTE ANY AND
ALL DOCUMENTS, AND TO DO AND PERFORM ANY AND ALL ACTS AND THINGS, REASONABLY
NECESSARY OR PROPER TO EFFECTUATE OR FURTHER EVIDENCE THE TERMS AND PROVISIONS
OF THIS AGREEMENT AND AGREES TO NEGOTIATE IN GOOD FAITH THE DEFINITIVE DOCUMENTS
RELATING TO THIS AGREEMENT AND THE PLAN, PROVIDED THAT THIS SHALL NOT REQUIRE
SUPPORTING NOTEHOLDERS TO INCUR ANY COSTS, FEES OR EXPENSES UNLESS PAID (OR
REIMBURSED) BY THE COMPANY.
17.
REPRESENTATIONS AND WARRANTIES:
(A)
REPRESENTATIONS AND WARRANTIES OF THE SUPPORTING NOTEHOLDERS.
EACH SUPPORTING NOTEHOLDER HERETO SEVERALLY AND NOT JOINTLY, AS TO ITSELF ONLY,
REPRESENTS AND WARRANTS TO EACH OF THE PARTIES HERETO THAT, AS OF THE DATE OF
THIS AGREEMENT, IT IS THE LEGAL OR BENEFICIAL HOLDER OF, OR THE INVESTMENT
MANAGER WITH DISCRETIONARY AUTHORITY WITH RESPECT TO, THE PRINCIPAL AMOUNT OF
SENIOR NOTES SET FORTH BELOW ITS NAME ON THE SIGNATURE PAGE HERETO.
(B)
REPRESENTATIONS AND WARRANTIES OF CURATIVE.
EACH OF THE CURATIVE
ENTITIES REPRESENTS AND WARRANTS TO EACH OF THE SUPPORTING NOTEHOLDERS THAT THE
FOLLOWING STATEMENTS ARE TRUE, CORRECT, AND COMPLETE AS OF THE DATE HEREOF:
(I)
CURATIVE HAS DUE AUTHORITY TO ENTER INTO, TO PERFORM ITS
OBLIGATIONS UNDER, AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY, THIS
AGREEMENT; AND
(II)
THERE ARE NO ACTIONS, SUITS, CLAIMS, PROCEEDINGS OR, TO ITS
KNOWLEDGE, INVESTIGATIONS PENDING OR, TO ITS KNOWLEDGE, THREATENED AGAINST ANY
OF THE CURATIVE ENTITIES OR ANY OF ITS CURRENT OR FORMER DIRECTORS OR OFFICERS
THAT WOULD GIVE RISE TO A CLAIM FOR INDEMNIFICATION AGAINST ANY OF THE CURATIVE
ENTITIES BY ANY OF SUCH DIRECTORS OR OFFICERS UNDER APPLICABLE LAW OR THE
CERTIFICATE OF INCORPORATION AND/OR BY-LAWS OF ANY OF THE CURATIVE ENTITIES,
EXCEPT AS SET