REGISTRATION AND PRE-EMPTIVE RIGHTS AGREEMENT
AGREEMENT, dated as of November 14, 1996, by and between NextHealth,
Inc., a Delaware corporation (the "Corporation"), and AP NH LLC, a Delaware
limited liability company ("Apollo").
PRELIMINARY STATEMENT
Apollo and the Corporation have entered into a Preferred Stock and
Warrant Purchase Agreement dated as of the date hereof (the "Stock Purchase
Agreement") pursuant to which the Corporation issued to Apollo (i) convertible
preferred stock (the "Preferred Stock") convertible under stated conditions
into a number of shares of the Corporation's Common Stock, par value $0.01 per
share (the "Common Stock") and (ii) a stock purchase warrant (the "Warrant")
evidencing Apollo's right to purchase a number of shares of Common Stock, (such
shares of Common Stock, together with any additional shares of Common Stock
issued or issuable to Apollo under a stock purchase warrant dated October 15,
1996, the anti-dilution provisions of the Warrant, Article 3 hereof or the
terms of the Preferred Stock, being referred to hereinafter as the "Shares").
In consideration of Apollo's execution and delivery of the Loan
Agreement and the premises and mutual covenants and agreements hereinafter
contained, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, capitalized
terms used herein and not defined elsewhere herein shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, or any similar
Federal statute, and the rules and regulations of the Commission issued under
the Act, as they each may, from time to time, be in effect.
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Act.
"Common Stock" means the shares of common stock, $0.01 par value, of
the Corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
issued under the Exchange Act, as they each may, from time to time, be in
effect.
"Holder" shall mean Apollo, any original registered holder of
Registrable Securities, and any registered transferee of a Holder.
"Stock Purchase Agreement" shall mean the Preferred Stock and Warrant
Purchase Agreement dated as of the date hereof between Apollo and the
Corporation.
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"New Securities" means any capital stock of the Corporation whether now
authorized or not, and rights, options or warrants to purchase capital stock,
and securities of any type whatsoever which are, or may become, convertible
into capital stock; provided, however, that the term "New Securities" does not
include (i) the Shares or any additional shares of Common Stock issuable upon
conversion of the Shares; (ii) the issued shares of capital stock and the other
securities exchangeable for or convertible into shares of capital stock of the
Corporation described in Section 2.1 hereof; (iii) securities issued for the
acquisition of another corporation by the Corporation by merger, purchase of
substantially all the assets of such corporation or other reorganization
resulting in the ownership by the Corporation of not less than 51% of the
voting power of such corporation; (vi) shares of Common Stock (or options to
purchase Common Stock) issued or issuable to employees or consultants of the
Corporation pursuant to the Corporation's existing stock option plans; (v)
securities issued as a result of any stock split, stock dividend or
reclassification of Common Stock, distributable on a pro rata basis to all
holders of Common Stock; or (vii) securities issued to third parties in payment
for services rendered or goods provided to the Corporation.
"Preferred Stock" means, collectively, the Series A Preferred Stock and
the Series B Preferred Stock.
"Registrable Securities" means (i) the Shares, and (ii) any other
shares of Common Stock of the Corporation issued in respect of the Shares
(because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events).
"Series A Preferred Stock" means the shares of series A preferred
stock, $0.01 par value, of the Corporation.
"Series B Preferred Stock" means the shares of series B preferred
stock, $0.01 par value, of the Corporation.
ARTICLE 2.
CAPITALIZATION
Section 2.1 Capitalization. The Corporation represents and warrants to
Apollo that, on the date hereof, the authorized capitalization and the issued
and outstanding shares of capital stock and securities of the Corporation are
as set forth on Schedule I hereto.
ARTICLE 3.
PRE-EMPTIVE RIGHTS
Section 3.1 Pre-Emptive Right.
(a) In the event of future issuances of New Securities by the
Corporation, the Corporation hereby grants to Apollo a right to purchase
additional shares of capital stock sufficient (the "Sufficient Number") to
maintain Apollo's percentage ownership interest in the Corporation, at a price
equal to the offering price of such additional shares of capital stock.
Apollo's percentage ownership interest, for purposes of this Section 3.1(a),
shall equal a fraction, the numerator of which is the number of
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shares of Common Stock then held by Apollo or issuable upon conversion or
exercise of any Shares, convertible securities, options, rights or warrants
then held by Apollo, and the denominator of which is the total number of shares
of Common Stock then outstanding plus the number of shares of Common Stock
issuable upon conversion or exercise of then outstanding Preferred Stock,
convertible securities, options, rights or warrants. The rights granted to
Apollo pursuant to this Article 3 shall expire on December 31, 2006.
(b) In the event the Corporation intends to issue New Securities, it
shall give Apollo written notice of such intention, describing the type of New
Securities to be issued, the price thereof and the general terms upon which the
Corporation proposes to effect such issuance. Apollo shall have 20 days from
the date of any such notice to agree to purchase up to the Sufficient Number of
shares of additional New Securities for the price and upon the general terms
and conditions specified in the Corporation's notice by giving written notice
to the Corporation stating the quantity of such New Securities to be so
purchased. Apollo shall have a right of overallotment such that if any other
person or entity entitled to pre-emptive rights fails to exercise his or its
right to purchase his or its total number of shares of additional New
Securities to which he or it is entitled, Apollo may purchase the portion not
purchased by such other person or entity on a pro rata basis (based upon the
relative percentage ownership interests of Apollo and those other investors
exercising their overallotment right), by giving written notice to the
Corporation within five days from the date that the Corporation provides
written notice to the other investors of the amount of New Securities with
respect to which such nonpurchasing investor has failed to exercise its or his
right hereunder.
ARTICLE 4.
REGISTRATION RIGHTS
4.1 Optional Registrations. If at any time or times after the
date hereof, the Corporation shall determine to register any of its Common
Stock or securities convertible into or exchangeable or exercisable for Common
Stock under the Securities Act (whether in connection with a public offering of
securities by the Corporation (a "primary offering"), a public offering thereof
by shareholders (a "secondary offering"), or both, but not in connection with a
registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 or any other similar rule of the Commission under
the Securities Act is applicable), it agrees to do the following:
(a) The Corporation shall promptly give written notice of
registration under this Section 4.1 to the holders of Registrable Securities
then outstanding (the "Holders"), and will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities for which
the Holders may request registration in a writing delivered to the Corporation
within fifteen (15) days after such notice given by the Corporation; provided,
however, that in the case of the registration of Common Stock by the
Corporation in connection with an underwritten public offering, the Corporation
shall not be required to register Registrable Securities of the Holders in
excess of the amount, if any, of Common Stock which the principal underwriter
of an underwritten offering shall reasonably and in good faith agree in writing
to include in such offering.
(b) If any Registrable Securities are not to be registered
pursuant to this Section 4.1 because the number of Registrable Securities for
which registration has been requested by the Holders pursuant to paragraph (a)
above exceeds the amount of Common Stock which the principal
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underwriter of an underwritten offering shall reasonably and in good faith
agree in writing to include in such offering, the Holders who have requested
participation shall be entitled to participate in such registration and
offering proportionately in accordance with the number of shares of Common
Stock owned or obtainable by them upon exercise of rights (including conversion
rights) with respect to other securities (including Preferred Stock) owned by
them.
(c) If the Corporation includes in a registration under this
Section 4.1 any securities to be offered by it, all expenses of the
registration and offering and the reasonable fees and expenses of not more than
one independent counsel for the Holders shall be borne by the Corporation,
except that the Holders shall bear underwriting commissions attributable to
their Registrable Securities being registered and transfer taxes on shares
being sold by such Holders. If the registration under this Section 4.1 is
exclusively a secondary offering, as defined in this Section 4.1, the Holders
shall bear their proportionate share of the expenses of the registration and
offering (provided all shareholders registering shares thereunder bear their
proportionate share of expenses), except expenses which the Corporation would
have incurred whether or not registration was attempted, including, without
limitation, the expense of preparing normal audited or unaudited financial
statements or summaries consistent with this Agreement or applicable Commission
filings.
(d) Without in any way limiting the types of registrations to
which this Section 4.1 shall apply, in the event that the Corporation shall
effect a "shelf registration", under Rule 415 promulgated under the Securities
Act, or any other similar rule or regulation ("Rule 415"), the Corporation
shall take all necessary action, including, without limitation, the filing of
post-effective amendments, to permit the Holders to include their shares in
such registration in accordance with all of the terms of this Section 4.1.
4.2 Required Registrations. If on any two (2) occasions at least
one year apart, after September 30, 1997, one or more of the Holders of an
aggregate of 10% or more of the Registrable Securities then outstanding and
held by all Holders, shall notify the Corporation in writing that he or they
intend to offer or cause to be offered for public sale all or any portion of
their Registrable Securities having an offering price of not less than
$2,000,000, the Corporation will notify all of the Holders who would be
entitled to notice of a proposed registration under Section 4.1 of its receipt
of such notification from such Holder or Holders. Upon the written request of
any such Holder delivered to the Corporation within fifteen (15) days after
receipt from the Corporation of such notification, the Corporation will either
(i) elect to make a primary offering in which case the rights of the Holders
shall be as set forth in Section 4.1, except that the Corporation shall not be
permitted to limit the number of shares which may be registered by any Holder,
or (ii) use its best efforts to cause such of the Registrable Securities as may
be requested by any Holders (including the Holders giving the initial notice of
intent to register hereunder) to be registered under the Securities Act in
accordance with the terms of this Section 4.2. All expenses of such
registrations and offerings and the reasonable fees and expenses of not more
than one independent counsel for the Holders shall be borne by the Corporation,
except that the Holders shall bear underwriting commissions attributable to
their Registrable Securities being registered, transfer taxes on shares being
sold by such Holders and the expense of any special audit of the Corporation's
financial statements if the notice requesting registration does not reasonably
permit the use of existing or contemplated audited statements. The Corporation
shall not be required to cause a registration statement requested pursuant to
this Section 4.2 to become effective prior to sixty (60) days following the
effective date of a registration statement initiated by the Corporation, if the
request for registration has been received by the Corporation subsequent to the
giving of written notice by the Corporation, made in good faith, to the
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Holders of Registrable Securities to the effect that the Corporation is
commencing to prepare a Corporation-initiated registration statement (other
than a registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 or any other similar rule of the Commission under
the Securities Act is applicable); provided, however, that the Corporation
shall use its best efforts to achieve such effectiveness promptly following
such sixty (60) day period if the request pursuant to this Section 4.2 has been
made prior to the expiration of such sixty (60) day period. The Corporation may
postpone the filing of any registration statement required hereunder for a
reasonable period of time, not to exceed thirty (30) days, if the Corporation
has been advised by legal counsel that such filing would require the disclosure
of a material transaction or other factor and the Corporation determines
reasonably and in good faith that such disclosure would have a material adverse
effect on the Corporation.
4.3 Selection of Underwriter. In the case of any registration
effectuated pursuant to Section 4.1, the Corporation shall have the right to
designate the managing underwriter subject to the approval of a majority of the
Holders who have requested registration, and each Holder whose shares are
registered for sale through such underwriter shall enter into an underwriting
agreement in form and on terms customary for such transactions.
4.4 Stand Off Agreement. Each Holder of Registrable Securities,
if requested by the Corporation and an underwriter of Common Stock or other
securities of the Corporation, shall agree not to sell or otherwise transfer or
dispose of any Registrable Securities or other securities of the Corporation
held by such Holder for a specified period of time (not to exceed 180 days)
following the effective date of a Registration Statement, provided all persons
holding not less than the number of shares of Common Stock held by such Holder
(including shares of Common Stock issuable upon the conversion of Shares, or
other convertible securities, or upon the exercise of options, warrants or
rights) enter into similar agreements. Such agreements shall be in writing in a
form satisfactory to the Corporation and such underwriter. The Corporation may
impose stop-transfer instructions with respect to the Registrable Securities or
other securities subject to the foregoing restriction until the end of the
standoff period.
4.5 Further Obligations of the Corporation. Whenever under the
preceding sections of this Article 4 the Corporation is required to register
Common Stock, it agrees that it shall also do the following:
(a) Use its best efforts diligently to prepare for filing with
the Commission a registration statement and such amendments and supplements to
said registration statement and the prospectus used in connection therewith as
may be necessary to keep said registration statement effective and to comply
with the provisions of the Securities Act with respect to the sale of
securities covered by said registration statement for the period necessary to
complete the proposed public offering (but not in excess of 180 days);
(b) Furnish to each selling Holder such copies of each
preliminary and final prospectus and such other documents as such Holder may
reasonably request to facilitate the public offering of his or its Common
Stock;
(c) In the case of Section 4.1, enter into an underwriting
agreement with provisions reasonably required by the proposed underwriter for
the selling Holders, if any; and
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(d) Use its best efforts to register or qualify the Common Stock
covered by said registration statement under the securities or "blue-sky" laws
of such jurisdictions as any selling Holder may reasonably request, provided
that the Corporation shall not be required to register in any states which
require it to qualify to do business or subject itself to general service of
process.
4.6 Form S-3. If the Corporation becomes eligible to use Form
S-3 under the Securities Act or a comparable successor form, the Corporation
shall use its best efforts to continue to qualify at all times for registration
on Form S-3 or such successor form. At any time and from time to time after the
Corporation becomes eligible to use Form S-3 or such successor form, the
Holders of an aggregate of not less than ten percent (10%) of Registrable
Securities then outstanding and held by the Holders shall have the right to
request and have effected a registration of shares of Registrable Securities on
Form S-3 or such successor form for a public offering of shares of Registrable
Securities having an aggregate proposed offering price of not less than
$2,000,000 (such requests shall be in writing and shall state the number of
shares of Registrable Securities to be disposed of and the intended method of
disposition of such shares by such Holder or Holders). The Corporation shall
not be required to cause a registration statement requested pursuant to this
Section 4.6 to become effective prior to ninety (90) days following the
effective date of a registration statement initiated by the Corporation, if the
request for registration has been received by the Corporation subsequent to the
giving of written notice by the Corporation, made in good faith, to the Holders
of Registrable Securities to the effect that the Corporation is commencing to
prepare a Corporation-initiated registration statement (other than a
registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 or any other similar rule of the Commission under
the Securities Act is applicable); provided, however, that the Corporation
shall use its best efforts to achieve such effectiveness promptly following
such ninety (90) day period if the request pursuant to this Section 4.6 has
been made prior to the expiration of such ninety (90) day period. The
Corporation may postpone the filing of any registration statement required
hereunder for a reasonable period of time, not to exceed sixty (60) days, if
the Corporation has been advised by legal counsel that such filing would
require the disclosure of a material transaction or other factor and the
Corporation determines reasonably and in good faith that such disclosure would
have a material adverse effect on the Corporation. The Corporation shall give
notice to all Holders of the receipt of a request for registration pursuant to
this Section 4.6 and shall provide a reasonable opportunity for such Holders to
participate in the registration. Subject to the foregoing, the Corporation will
use its best efforts to effect promptly the registration of all shares of
Common Stock on Form S-3 or such successor form to the extent requested by the
Holder or Holders thereof for purposes of disposition. If so requested by any
Holder in connection with a registration under this Section 4.6, the
Corporation shall take such steps as are required to register such Holder's
Registrable Securities for sale on a delayed or continuous basis under Rule
415, and to keep such registration effective until all of such Holder's
Registrable Securities registered thereunder are sold (but not in excess of 365
days). All expenses incurred in connection with a registration requested
pursuant to this Section 4.6, including, without limitation, all registration,
qualification, printing, and accounting and counsel fees, shall be paid by the
Holders participating in such registration on a pro-rata basis in proportion to
such participation. Notwithstanding the foregoing, the Corporation shall not be
required to effect a registration under this Section 4.6 if, in the opinion of
counsel for the Corporation, which counsel and opinion shall be acceptable to
the Holders, such Holders may then sell all Registrable Securities proposed to
be sold in the manner proposed without registration under the Securities Act.
4.7 Indemnification. Incident to any registration statement
referred to in this Article 4, and subject to applicable law, (a) the
Corporation will indemnify each underwriter, each Holder of
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Registrable Securities so registered, and each person controlling any of them,
against all claims, losses, damages and liabilities, including legal and other
expenses reasonably incurred in investigating or defending against the same,
arising out of any untrue statement of a material fact contained therein, or
any omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of any
violation by the Corporation of the Securities Act, any state securities or
"blue-sky" laws or any rule or regulation thereunder in connection with such
registration, except insofar as the same may have been caused by an untrue
statement or omission based upon information furnished in writing to the
Corporation by such underwriter, Holder, or controlling person, respectively,
expressly for use therein, and (b) with respect to such untrue statement or
omission in the information furnished in writing to the Corporation by such
Holder, such Holder will indemnify the underwriters, the Corporation, its
directors and officers, the other Holders and each person controlling any of
them against any losses, claims, damages, expenses (including legal or other
expenses) or liabilities to which any of them may become subject to the same
extent.
4.8 Rule 144 Requirements. The Corporation will use its best
efforts to file with the Commission such information as the Commission may
require under the reporting requirements of either Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended, and in such event, the
Corporation shall use its best efforts to take all action as may be required as
a condition to the availability of Rule 144 under the Securities Act (or any
successor exemptive rule hereafter in effect). The Corporation shall furnish to
any Holder of Registrable Securities upon request a written statement executed
by the Corporation as to the steps it has taken to comply with the current
public information requirement of Rule 144 or such successor rule.
4.9 Amendment or Waiver of Registration Rights. The registration
rights provided for in this Article 4 may not be waived otherwise than by a
written instrument signed by the party so waiving such rights; provided,
however, that changes in or additions to, and any consents required by this
Article 4 may be made, and compliance with any term, covenant, condition or
provision set forth in this Article 4 may be omitted or waived (either
generally or in a particular instance and either retroactively or
prospectively) by a consent or consents in writing signed by Holders holding a
majority in interest of the Registrable Securities held by the Holders and (in
the case of any such change or addition) the Corporation. Any amendment or
waiver effected in accordance with this Section 4.9 shall be binding upon each
Holder of Registrable Securities, each transferee of a Holder under Section
4.10 and the Corporation.
4.10 Transfer of Rights.
(a) The rights granted to Apollo under this Agreement may be
transferred by a Holder (a) to another person or entity that is then a
stockholder of the Corporation, (b) to any affiliate of a Holder or to any
person or entity acquiring Registrable Securities representing ownership of, or
the right to acquire at least 500,000 shares of Common Stock (as adjusted for
stock splits, stock dividends, recapitalization or similar events), or (c) to a
shareholder or partner of a Holder who receives Registrable Securities as a
distribution from such Holder. Each such transferee shall be deemed to be a
"Holder" for purposes of this Article 4.
(b) Any transferee (other than a stockholder who is already a party to
an agreement in form and substance similar to this Agreement) to whom rights
under this Agreement are transferred shall, as a condition to such transfer,
deliver to the Corporation a written instrument by which such
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transferee identifies itself, give the Corporation notice of the transfer of
such rights, indication the Registrable Securities owned by it and agrees to be
bound by the obligations imposed upon Apollo under this Agreement.
(c) A transferee to whom rights are transferred pursuant to this
Section 4.10 may not again transfer such rights to any other person or entity,
other than as provided in this Section 4.10.
ARTICLE 5.
MISCELLANEOUS
Section 5.1 Succeeding Securities. In the event the Common Stock
of the Corporation covered by this Agreement is converted into any other
security of the Corporation or any other corporation, the terms of this
Agreement shall apply with full force and effect to any such other security and
the obligations of the Corporation to effect registration and offer pre-emptive
rights shall include such other filings, qualifications, notices and similar
acts as may be necessary to enable Apollo to realize the benefits of
registration and pre-emptive rights provided by this Agreement.
Section 5.2 Consent. Wherever reference is made in this
Agreement to a request or consent of holders of a certain percentage of
Registrable Securities, the determination of such percentage shall include
shares of Common Stock issuable upon conversion or exercise of the Registrable
Securities held by a holder even if such conversion or exercise has not yet
been effected.
Section 5.3 Waivers; Modifications in Writing. No failure or
delay on the part of Apollo, or any holder of rights under this Agreement, in
exercising any right, power, or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. No amendment, modification, supplement,
termination, consent or waiver of or to any provision of this Agreement, nor
consent to any departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by Apollo and the Corporation. Any waiver
of any provision of this Agreement, and any consent to any departure by the
Corporation from the terms of any provisions of this Agreement, shall be
effective only in the specific instance and for the specific purpose for which
given. No notice to or demand on the Corporation in any case shall entitle the
Corporation to any other or further notice or demand in similar or other
circumstances.
Section 5.4 Notices, etc. All notices, demands, instructions and
other communications required or permitted to be given to or made upon any
party hereto shall be in writing delivered to the parties at the addresses set
forth below (or such other address as may be provided by one party in a notice
to the other):
If to Apollo:
c/o Apollo Real Estate Advisors, L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
C/M: 11926.0033 421450.4
Attention: Xxxxxx Xxxxxxxxx
with a copy to:
Apollo Real Estate Advisors, L.P.
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
and a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx, Esq.
If to the Corporation:
NextHealth, Inc.
00000 X. Xxxx Xxx Xxx Xxxxxxx
Xxxxxx, XX 00000
Attention: President
with a copy to:
Xxxx, Gerber & Xxxxxxxxx
0 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Notice delivered in accordance with the foregoing shall be effective (i) when
delivered, if delivered personally or by facsimile transmission, (ii) two days
after being delivered in the United States (properly addressed and all fees
paid) for overnight delivery service to a courier (such as Federal Express)
which regularly provides such service and regularly obtains executed receipts
evidencing delivery or (iii) five days after being deposited (properly
addressed and stamped for first-class delivery) in a daily serviced United
States mail box.
Section 5.5 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
Section 5.6 Headings. Article and Section headings used in this
Agreement are for convenience of reference only and shall not constitute a part
of this Agreement for any purpose or affect the construction of this Agreement.
Section 5.7 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts,
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taken together, shall constitute one and the same Agreement. This Agreement
shall become effective upon the execution of a counterpart hereof by each of
the parties hereto.
Section 5.8 Governing Law. This Agreement shall be deemed to
have been made in the State of Delaware and the validity of this Agreement, the
construction, interpretation, and enforcement thereof, and the rights of the
parties thereto shall be determined under, governed by, and construed in
accordance with the internal laws of the State of Delaware, without regard to
principles of conflicts of law.
Section 5.9 Waiver of Jury Trial. The Corporation hereby waives
all right to trial by jury in any action, proceeding or counterclaim arising
out of or relating to this Agreement, or any other agreement or instrument
contemplated hereby.
Section 5.10 Specific Performance. Apollo and each other Holder
shall have the right to specific performance by the Corporation of the
provisions of this Agreement. The Corporation hereby irrevocably waives, to the
extent that it may do so under applicable law, any defense based on the
adequacy of a remedy at law which may be asserted as a bar to the remedy of
specific performance in any action brought against the Corporation for specific
performance of this Agreement by Apollo or any other Holder.
Section 5.11 Severability of Provisions. Whenever possible this
Agreement and each provision hereof shall be interpreted in such manner as to
be effective, valid and enforceable under applicable law. If and to the extent
that any such provision shall be held invalid and unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provisions hereof or thereof, and any determination
that the application of any provision hereof or thereof to any person or under
any circumstance is illegal and unenforceable shall not affect the legality,
validity and enforceability of such provision as it may be applied to any other
person or in any other circumstance.
Section 5.12 Survival of Agreements, Representations and
Warranties. All agreements, representations and warranties made herein shall
survive the execution and delivery of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first hereinabove set
forth.
Borrower
NEXTHEALTH, INC.
By:
Name:
Title:
Apollo
AP NH LLC
By AP GP NH LLC, its Managing Member
By KRONUS PROPERTY, INC.,
its Managing Member
By:
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
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SCHEDULE I
