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EXHIBIT (c)(3)
VOTING AND TENDER AGREEMENT
VOTING AND TENDER AGREEMENT, dated as of May 29, 1997 (this
"Agreement"), between INTEGRATED HEALTH SERVICES, INC. (the "Stockholder"), and
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII, a Delaware limited
partnership ("Parent"), and SLC ACQUISITION CORP., a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger Subsidiary").
WHEREAS, Integrated Living Communities, Inc., a Delaware
corporation (the "Company"), Parent and Merger Subsidiary propose to enter into
an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides for, among other things, an offer to purchase by
Merger Subsidiary all of the outstanding shares of common stock, par value $.01
per share, of the Company ("Company Common Stock") followed by the merger of
Merger Subsidiary with the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder owns 2,497,900
shares of Company Common Stock; and
WHEREAS, as a condition to the willingness of Parent and
Merger Subsidiary to enter into the Merger Agreement, each of Parent and Merger
Subsidiary has required that the Stockholder agree, and in order to induce
Parent and Merger Subsidiary to enter into the Merger Agreement, the Stockholder
has agreed, to enter into this Agreement with respect to (a) all the shares of
Company Common Stock now owned and which may hereafter be acquired by the
Stockholder (the "Shares") and (b) certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE 1
Section 1.1 Tender Agreement. (a) The Stockholder shall tender
for sale to Merger Subsidiary, pursuant to the terms of the Offer (as such term
is described in the Merger Agreement), the Stockholder's Shares then owned of
record or beneficially by the Stockholder and (b) except as provided in clause
(a) above, during the time this Agreement is in effect, the Stockholder shall
not sell, give, assign, hypothecate, pledge, encumber, grant a security interest
in or otherwise dispose of (whether by operation of law or by agreement or
otherwise), any Shares, or any right, title or interest therein or thereto.
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Section 1.2 Voting Agreement. The Stockholder hereby agrees
that during the time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, the Stockholder shall vote the Shares: (a) in favor
of the Merger, the Merger Agreement (as amended from time to time) and the
transactions contemplated by the Merger Agreement and (b) against any proposal
for any recapitalization, merger, sale of assets or other business combination
between the Company and any person or entity (other than the Merger) or any
other action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which could result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled.
Section 1.3 Acknowledgment. The Stockholder acknowledges
receipt and review of a copy of the Merger Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent as
follows:
Section 2.1 Authority Relative to This Agreement. The
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly and validly authorized by the Stockholder,
and no other proceedings on the part of the Stockholder are necessary to
authorize this Agreement or to consummate such transactions. This Agreement has
been duly and validly executed and delivered by the Stockholder and, assuming
the due authorization, execution and delivery by Parent and Merger Subsidiary,
constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms except to the
extent enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally or by general
principles governing the availability of equitable remedies.
Section 2.2 No Conflict. (a) The execution and delivery of
this Agreement by the Stockholder do not, and the performance of this Agreement
by the Stockholder shall not, (i) conflict with or violate the organizational
documents of the Stockholder, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Stockholder or by which
the Shares are bound or affected or (iii) result in any breach of or constitute
a default (or an event that with notice or lapse or time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a
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lien or encumbrance on any of the Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or the Shares are bound or affected, except, in the case of clauses
(ii) and (iii), for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by the
Stockholder do not, and the performance of this Agreement by the Stockholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any court or arbitrator or any governmental body,
agency or official except for applicable requirements, if any, of the Securities
Exchange Act of 1934, as amended, and except where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by the Stockholder of
its obligations under this Agreement.
Section 2.3 Title to the Shares. As of the date hereof, the
Stockholder is the record and beneficial owner of 2,497,900 shares of Company
Common Stock. Such Shares are all the securities of the Company owned, either of
record or beneficially, by the Stockholder and the Stockholder owns no other
rights or interests exercisable for or convertible into any securities of the
Company. The Shares are owned free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreement, limitations on the
Stockholder's voting rights, charges and other encumbrances of any nature
whatsoever. The Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares.
Section 2.4 Indemnification Agreement. That certain
Indemnification Agreement between the Stockholder and the Company dated as of
August 15, 1996 is, and at the Effective Time (as such term is defined in the
Merger Agreement) will be, valid and binding and in full force and effect and
enforceable against the Stockholder in accordance with its terms.
Section 2.5 Offer Price. To the best knowledge of the
Stockholder, the price per share of Company Common Stock to be paid by Parent
pursuant to the Offer and the Merger exceeds the price per share of Company
Common Stock offered to be paid by any of the other participants in the auction
conducted by the Company with the assistance of Xxxxx Xxxxxx Inc. pursuant to
the letter attached hereto as Schedule 2.5.
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ARTICLE 3
COVENANTS OF THE STOCKHOLDER
Section 3.1 No Inconsistent Agreement. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement, and the
Merger Agreement, the Stockholder shall not enter into any agreement or grant a
proxy or power of attorney with respect to the Shares which is inconsistent with
this Agreement.
Section 3.2 No Encumbrances. The Stockholder hereby covenants
and agrees that the Stockholder shall not by any action or omission cause any
security interests, liens, claims, pledges, charges, encumbrances, options,
rights of first refusals, agreements, or limitations on the Stockholder's voting
rights, to attach to the Shares to be tendered to the Merger Subsidiary pursuant
to Section 1.1 hereof.
Section 3.3 Certain Additional Agreements of the Stockholder.
(a) Effective at the Effective Time of the Merger, the
Stockholder shall be deemed to have irrevocably waived (x) the provisions of
Article XVI of each of the Litchfield Subleases, to the extent such provisions
provide for the termination of the Litchfield Subleases in the event the
Stockholder purchases the Litchfield Properties (as defined in Section 5.7)
pursuant to the Purchase Option Agreements (as defined in each of the Litchfield
Subleases) and (y) the provisions of the second sentence of Section 10.4 of each
of the Litchfield Subleases. In the event that the Stockholder purchases a
Litchfield Property pursuant to a Purchase Option Agreement and the Company has
not exercised any of the rights provided for in clauses (A), (B) and (C) below,
the applicable Litchfield Sublease (including all renewal options contained
therein) shall continue in full force and effect, provided that such Litchfield
Sublease shall be modified (i) to provide that it is superior to (or that the
lessee thereunder is entitled to a non-disturbance agreement reasonably
satisfactory to the lessee from) any mortgagee of such Litchfield Property and
(iii) in such other respects as shall be reasonably necessary to reflect the
fact that such Litchfield Sublease is no longer subject to any Litchfield
Xxxxxxxxx (as defined in Section 5.7) and that the current financing on the
Litchfield Properties is no longer in effect. In addition, effective at the
Effective Date of the Merger, the Stockholder shall be deemed to have granted to
the Company the following rights:
(A) the right, in the event the Stockholder elects to
purchase any Litchfield Property pursuant to a Purchase Option Agreement, to
purchase such Litchfield Property from the Stockholder (or to require that the
Stockholder designate the Company as the direct purchaser of such Litchfield
Property) (i) for the price payable by Stockholder for such Litchfield Property
under the terms of the Purchase Option Agreement (without taking into account
any credit to which the Stockholder is entitled against such purchase price
except by reason of amounts expended by the
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Company for capital improvements (the "Capital Improvement Credit") (as such
reductions are provided for in the applicable Purchase Option Agreement) but
without credit for any other deposits for which the Stockholder may have
received a credit when it acquired such Litchfield Property), and (ii) otherwise
on terms generally consistent with those set forth in the Purchase Option
Agreements;
(B) in the event the Stockholder elects not to
exercise the next available renewal option under a Litchfield Xxxxxxxxx, or
during any renewal term under a Litchfield Xxxxxxxxx, to require the Stockholder
to exercise the Option (as defined in each of the Purchase Option Agreements) as
to the applicable Litchfield Property and thereafter to purchase such Litchfield
Property pursuant to the Option at the time designated by the Company (upon
which purchase the Company and the Stockholder shall have the respective rights
set forth in clause (A) hereof); and
(C) in the event the Stockholder elects not to
exercise the next available renewal option under a Litchfield Xxxxxxxxx, or
during any renewal term under a Litchfield Xxxxxxxxx, to require the Stockholder
to assign the applicable Option to the Company or its designee(s) for no
consideration (in which case the Stockholder shall promptly assign such Option
to the Company or its designee pursuant to an instrument reasonably satisfactory
to the Company).
If the Company exercises its rights under clause (C), then, at the time it
acquires the Litchfield Property, the Company shall pay to the Stockholder the
amount of any credit it received against the purchase price for such Litchfield
Property on account of deposits made with respect to such Litchfield Property
(other than the Capital Improvement Credit).
The foregoing provisions of this Section 3.3(a) shall be deemed to be automatic
and self-operative at the Effective Time of the Merger, and the right to
purchase (or be designated as the purchaser of) the Litchfield Properties, or to
receive an assignment of the Options with respect thereto, provided for herein
shall be deemed a present grant of an option; provided, however, that at any
time at or after the Effective Time of the Merger, the Stockholder shall execute
and deliver such separate documents confirming the waiver and options provided
for in this Section as the Company shall reasonably request, each in form
reasonably satisfactory to the Company, and take such other actions as the
Company shall reasonably request to give effect to this Section 3.3 (including
the execution and delivery of a formal amendment to the Litchfield Sublease
giving effect to the provisions of Section 3.3(e) below).
For purposes of this Section 3.3(a) and the other clauses of this Section 3.3
relating to the Litchfield Properties, (i) the term "Stockholder" shall include
those affiliates of the Stockholder named herein which are lessors under the
Litchfield Subleases, and (ii) the term "Company" shall include those affiliates
of the Company named herein which are lessees under the Litchfield Subleases.
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If the Stockholder intends to exercise the Option with respect to a Litchfield
Property, it shall so certify by notice to the Company, and the Company shall
have the right, exercisable within 30 days after such notice, to exercise its
rights under clauses (A), (B) and (C) above.
In the event a Litchfield Property is purchased by the Company or its designee
as provided in this Section 3.3(a), the applicable Litchfield Xxxxxxxxx shall
terminate upon such purchase.
(b) The Stockholder agrees, effective as of the Effective Time
of the Merger, that it shall give advance notice to the Company if it does not
intend to exercise its renewal option under a Litchfield Xxxxxxxxx. Such notice
shall be given at least thirty (30) days prior to the last day on which the
Option may be exercised with respect to the applicable Litchfield Property. The
Company shall thereupon have the right, exercisable within such thirty-day
period, to exercise its rights under clauses (A), (B) and (C) above. If the
Stockholder fails to give such notice, it shall be required, if the Company
timely exercises its renewal options under the applicable Litchfield Sublease,
to timely exercise the corresponding renewal options under such Litchfield
Xxxxxxxxx.
(c)(i) The Stockholder has delivered to the Company, or shall
promptly hereafter deliver to the Company at its request, true, correct and
complete copies of all Litchfield Overleases (as defined in Section 5.7 hereof)
and all material documents entered into by the Stockholder on any affiliate
thereof in connection therewith, including all amendments and modifications (all
of the foregoing, the "Litchfield Xxxxxxxxx Documents") and true, correct and
complete copies of all loan agreements, mortgages, deeds of trust and other
material loan documents in the Stockholder's possession relating to the
Litchfield Properties, including all amendments and modifications (all of the
foregoing, the "Litchfield Loan Documents"), (ii) each Litchfield Xxxxxxxxx
Document and, to the best of the Stockholder's knowledge, each Litchfield Loan
Document is in full force and effect and (iii) to the best of the Stockholder's
knowledge, no monetary default or material non-monetary default (including, in
either case, a default covering by reason of a cross-default with another
document) exists on the part of any party under any Litchfield Xxxxxxxxx
Document or Litchfield Loan Document.
(d) From and after the Effective Time of the Merger, the
Stockholder shall pay, as and when due, all interest, principal, fees and any
other amounts (collectively, the "Loan Payments") due under the promissory note
in favor of Lincoln National Bank with respect to the Treemont facility in
Dallas, Texas (the "Treemont Note"), the mortgage securing the Treemont Note
(the "Treemont Mortgage") and any other related documentation (collectively, the
"Treemont Loan Documents") and perform all of its other obligations under the
Treemont Loan Documents. Upon the maturity date of the Treemont Note (or the
date of the prepayment thereof in full), the Stockholder shall cause the release
of the Treemont Mortgage and the termination of the other Treemont Loan
Documents. The
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Stockholder agrees, within 20 days after request by the Company (or such longer
period of time as may be required under the Treemont Loan Documents), to prepay
the Treemont Note in full, provided that in the event of any such request the
Company shall pay the prepayment penalty, if any, required under the Treemont
Loan Documents.
(e) Effective as of the Effective Time of the Merger, the
following amendments shall be deemed made to each of the Litchfield Subleases:
(A) Exhibit D to each of the Litchfield Subleases
shall be deemed modified as provided in Schedule 1 annexed hereto, with such
additional changes as are appropriate to reflect the fact that the Litchfield
Subleases cover only two properties and that the Company is not a party to any
documents relating to the Litchfield Properties (including the Loan Documents)
except the Litchfield Subleases.
(B) The annual Rent (as defined in the Litchfield
Subleases) payable under each Litchfield Sublease shall be deemed modified to be
the Rent payable thereunder on the date hereof (which Rent is $1,244,652 with
respect to the Litchfield Property located in Bradenton, Florida and $478,044
with respect to the Litchfield Property located in Colorado Springs, Colorado),
but subject to escalation on the terms provided in Section 3.3 of the applicable
Litchfield Xxxxxxxxx and plus any "Renewal Rent" payable under the applicable
Litchfield Xxxxxxxxx; and
(C) Section 6.7 shall be deemed amended to require
compliance with obligations in connection with a Loan Refinance (as defined in
each Litchfield Sublease) only to the extent such obligations are non-monetary
in nature and are not materially more burdensome to the Company than the terms
of the Sublease. Subject to the foregoing, the Company acknowledges that the
Stockholder intends to cause a Loan Refinance and agrees to provide reasonable
cooperation (including the provision of such information and the execution and
delivery of such certificates and documents as the Stockholder shall reasonably
request) in order to accomplish such Loan Refinance.
Notwithstanding anything to the contrary contained herein, to the extent that
consents of the lessor under the Litchfield Overleases ("Litchfield") and the
mortgagee of the Litchfield Properties (the "Mortgagee") are not obtained with
respect to the amendments provided for herein or the provisions of the first
sentence of Section 3.3(a), then, subject to the terms of the Litchfield
Xxxxxxxxx Documents and the Litchfield Loan Documents, each of the Company and
the Stockholder shall take such actions, including making payments to the other
in the event of any increase in rental resulting from a Loan Refinance, as are
necessary to put each other in the economic position it would have been in had
such consents been obtained. The Company and the Stockholder shall use
commercially reasonable efforts to obtain all such consents.
(f) Effective as of the Effective Time of the Merger, the
Stockholder agrees that it shall not take any action against the Company or the
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Litchfield Properties, or exercise any other right or remedy, take any other
action, or withhold any right or benefit to which the Company would otherwise be
entitled, by reason of the occurrence of an Event of Default under Section
11.1(l) of the Litchfield Sublease not caused by the breach by the Company of
any provision of either Litchfield Sublease.
(g) The Stockholder shall enter into such additional
agreements as the Company shall reasonably request in order to effectuate and
preserve the Company's right to the use and occupancy of the Litchfield
Properties under the Litchfield Subleases, and the right to acquire the
Litchfield Properties (or to require the Stockholder to acquire the Litchfield
Properties) pursuant to the Purchase Options, and to ensure that the Company
shall have no responsibilities with respect to the Litchfield Properties other
than as set forth in the Litchfield Subleases and this Agreement.
(h) Following the consummation of the Merger, the Company
(which term, for purposes of this Section 3.3(h), shall mean Integrated Living
Communities, Inc.) or any other direct or indirect parent company of the lessee
under each Litchfield Sublease shall maintain a net worth, determined in
accordance with generally accepted accounting principals, of no less than $20
million dollars. Failure to maintain such net worth shall be deemed a default
under the Litchfield Subleases.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT
Each of Parent and Merger Subsidiary has full right, power and
authority to enter into and perform this Agreement and this Agreement has been
duly authorized, executed and delivered by each of Parent and Merger Subsidiary
and is a valid and binding agreement of each of Parent and Merger Subsidiary
enforceable against each of Parent and Merger Subsidiary in accordance with its
terms.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Termination. This Agreement shall terminate upon
the termination of the Merger Agreement except that the representations and
warranties contained herein shall survive the termination hereof.
Section 5.2 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
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Section 5.3 Entire Agreement. This Agreement constitutes the
entire agreement between Parent and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Parent and the Stockholder with respect to the subject
matter hereof.
Section 5.4 Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
Section 5.5 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule or
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereby shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated.
Section 5.6 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law.
Section 5.7 Indemnification. (a) The Stockholder shall
indemnify and hold harmless each of the Company, Parent and Merger Subsidiary
and their respective directors, officers, employees, affiliates, successors and
assigns (each, an "Indemnified Person") from and against any and all losses,
lawsuits, liabilities (including, without limitation, liability arising under
principles of strict or joint and several liability), damages (including,
without limitation, such amounts as constitute punitive damages), deficiencies,
demands, claims (including, without limitation, demands, allegations, orders or
other actions by governmental agencies or other third parties), actions,
judgments or causes of action, assessments, costs, all amounts paid in
investigation, defense or settlement of any of the foregoing and expenses
(including, without limitation, interest, penalties and reasonable attorneys'
fees and disbursements incurred by the Indemnified Party in any action or
proceeding between the Stockholder and the Indemnified Party or between the
Indemnified Party and any third party or otherwise and all damages arising out
of the loss of the use, enjoyment or occupancy of any real or personal property)
suffered or incurred by such Indemnified Person based upon, arising out of or
otherwise in connection with
(i) any inaccuracy in, or any breach of, any
representation, warranty, covenant or agreement of the Stockholder; or
(ii)(A) the default of the Stockholder or any of its
subsidiaries or affiliates or any of their respective successors or assigns (in
each case, an "IHS Person") as lessee under, or guarantor of, any of the
Litchfield Overleases (as
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hereinafter defined) or under any document relating to any Litchfield Xxxxxxxxx
(including, without limitation, any "Affiliate Lease," as defined in each of the
Litchfield Overleases) or (B) the default of the owner of any Litchfield
Property (as hereinafter defined) under any mortgage or deed of trust affecting
such Litchfield Property (including, without limitation, a default arising by
reason of a cross default with another document); provided that the foregoing
indemnity shall not apply with respect to any default which arises by reason of
a breach by the Company or any other Indemnified Person of any provision
contained in a Litchfield Sublease (as hereinafter defined);
(iii) any failure of the Stockholder to make all Loan
Payments as required under Section 3.3(d) hereof;
(iv) any other default under the Treemont Loan
Documents or the Treemont Mortgage (other than a default arising by reason of
the actions of the Parent (or its subsidiary) as owner of the Treemont assisted
living facility;
(v) any failure of the Stockholder to cause the
release of the Treemont Mortgage or termination of the Treemont Loan
Documentation, as necessary, as provided for in Section 3.3 hereof;
As used herein, the term "Litchfield Xxxxxxxxx" means any of
those certain leases between Litchfield, as lessor, and one or more affiliates
of the Stockholder, as lessees, pursuant to which such affiliates lease
properties in Bradenton, Florida and Colorado Springs, Colorado (in each case, a
"Litchfield Property").
(b) The indemnity set forth in clause (ii) of Section 5.7(a)
shall become effective at the Effective Time of the Merger and shall survive the
consummation of the Merger but shall automatically terminate as to any
Litchfield Xxxxxxxxx upon the delivery to the Company of non-disturbance
agreements, in recordable form and otherwise reasonably satisfactory in form and
substance to the Company, pursuant to which the lessor under such Litchfield
Xxxxxxxxx, and the mortgagee (or its equivalent) of the property covered by such
Litchfield Xxxxxxxxx, agree that the Company's (or other applicable Indemnified
Person's) use, occupancy and enjoyment of such property under its sublease
thereof (in each case, a "Litchfield Sublease") will not be disturbed
notwithstanding the occurrence of a default of the type hereinabove described.
The Stockholder agrees to use its best efforts to obtain such non-disturbance
agreements with respect to each Litchfield Lease.
Section 5.8 Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Stockholder, Parent and Merger
Subsidiary have caused this Agreement to be duly executed on the date hereof.
INTEGRATED HEALTH SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President and General Counsel
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP VII
By: WH Advisors, L.P. VII, its General Partner
By: WH Advisors, Inc. VII, its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SLC ACQUISITION CORP.
By: /s/Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ACCEPTED AND AGREED AS TO SECTION 3.3 ONLY AS OF THE DATE FIRST ABOVE WRITTEN:
INTEGRATED HEALTH SERVICES OF XXXXXX, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President and General Counsel
