S-4: Registration of securities issued in business combination transactions
Published on March 4, 2011
March 4, 2011
Omega Healthcare Investors, Inc.
200 International Circle
Suite 3500
Hunt Valley, Maryland 21030
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Re:
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Registration Statement on Form S-4 to be filed by Omega Healthcare Investors, Inc.
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Ladies and Gentlemen:
We have acted as special Michigan counsel to Long Term Care – Michigan, Inc., a Michigan corporation (the “Guarantor”) and wholly owned subsidiary of Omega Healthcare Investors, Inc., a Maryland corporation (the “Parent”), in connection with the Registration Statement on Form S-4 (the “Registration Statement”) to be filed by the Parent and the subsidiary guarantors listed on Schedule I hereto (the “Subsidiary Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the offer by the Parent (the “Exchange Offer”) to exchange up to $575,000,000 in aggregate principal amount of the Parent’s registered 6-3/4% Senior Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of its existing 6-3/4% Senior Notes due 2022 issued and outstanding in the aggregate principal amount of $575,000,000 (the “Initial Notes”), under the indenture dated as of October 4, 2010 (the “Original Indenture”), among the Parent, the Subsidiary Guarantors signatory thereto and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by that certain First Supplemental Indenture dated as of January 13, 2011, among the Parent, the Subsidiary Guarantors signatory thereto and the Trustee (the “Supplemental Indenture” and, together with the Original Indenture, the “Indenture”). All capitalized terms which are defined in the Indenture shall have the same meanings when used herein, unless otherwise specified.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 2
We have not been involved in the preparation of the Registration Statement, nor were we involved in the negotiation, preparation or execution of any of the other Transaction Documents (as defined below), or any of the related agreements executed or delivered in connection therewith. We have been retained solely for the purpose of rendering certain opinions pursuant to Michigan law.
In connection herewith, we have examined:
1. the Registration Statement in the form to be filed with the Commission on March 4, 2011;
2. an executed copy of the Original Indenture, including the guarantee of the Notes (each, a “Guarantee”) provided for therein;
3. an executed copy of the Supplement Indenture;
4. an executed copy of the Initial Notes and the notation of Subsidiary Guarantee endorsed thereon;
5. the form of the Exchange Notes attached as Exhibit A to the Original Indenture;
6. the form of notation of Subsidiary Guarantee to be endorsed on the Exchange Notes attached as Exhibit E to the Original Indenture;
7. the Articles of Incorporation of the Guarantor as certified by the Secretary of State of the State of Michigan as of February 8, 2011 (the “Articles”);
8. the Bylaws of the Guarantor, as in effect on the date hereof and as certified by the Secretary of the Guarantor;
9. a Certificate of Good Standing from the Michigan Department of Labor and Economic Growth dated February 22, 2011 with respect to the Guarantor;
10. a certificate of the Secretary of the Guarantor dated March 4, 2011 (the “Secretary Certificate”); and
11. certain resolutions adopted by the sole director of the Guarantor on September 27, 2010 and November 22, 2010 relating to the transactions referred to herein, as certified by the Secretary of the Guarantor.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 3
The documents references as items (1) through (6) above are collectively referred to as the “Transaction Documents.”
For purposes of this opinion letter, we have not reviewed any documents other than the foregoing. In particular, we have not reviewed any document that is referred to in or incorporated by reference into the Indenture (other than the Initial Notes, the form of Exchange Notes and the form of notation of Subsidiary Guarantee). We have assumed that there exists no provision in any document that we have not reviewed that bears upon or is inconsistent with the opinion stated herein. We have also assumed, with your permission, that (i) the certifications set forth in the Secretary Certificate are true and correct as of the date hereof and (ii) the resolutions and by-laws referenced in the Secretary Certificate and the Articles referred to above, have not been amended, altered, repealed or superseded. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects.
In our examination of the foregoing, we have assumed the genuineness of all signatures, the legal competence and capacity of natural persons, the authenticity of documents submitted to us as originals and the conformity with authentic original documents of all documents submitted to us as copies. As to matters of fact material to our opinion, we have relied, without independent investigation, upon the representations contained in the Transaction Documents and on statements of governmental officials and upon representations made in or pursuant to certificates and statements of appropriate representatives of the Guarantor.
In connection herewith, we have assumed that, other than with respect to the Guarantor, all of the Transaction Documents have been duly authorized by, have been duly executed and delivered by, and constitute the valid, binding and enforceable obligations of, all of the parties thereto, all of the signatories to such documents have been duly authorized by all such parties and all such parties are duly organized and validly existing and have the power and authority (corporate or other) to execute, deliver and perform such documents. We have also assumed, with your permission, that the Trustee has duly authenticated the Initial Notes.
Based upon the foregoing and in reliance thereon, and subject to the assumptions, comments, qualifications, limitations and exceptions set forth herein, we are of the opinion that, when (i) the Registration Statement as finally amended (including all post-effective amendments) has become effective under the Act, (ii) the Indenture has become duly qualified under the Trust Indenture Act of 1939, as amended, and (iii) the Exchange Notes (in the form examined by us) have been duly executed by the Parent and duly authenticated and delivered by the Trustee in accordance with the provisions of the Indenture and issued in exchange for the Initial Notes upon consummation of and otherwise in accordance with the Exchange Offer, the Guarantee provided for in the Indenture by the Guarantor with respect to the Exchange Notes will constitute a valid and binding obligation of the Guarantor.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 4
In addition to the assumptions, comments, qualifications, limitations and exceptions set forth above, the opinion set forth herein is further limited by, subject to and based upon the following assumptions, comments, qualifications, limitations and exceptions:
a. Our opinion herein reflects only the application of applicable Michigan law (excluding the securities and blue sky laws of such State) that we, based on our experience, recognize as applicable to the Guarantor in a transaction of the type contemplated by the Indenture. We express no opinion as to the effect of the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. We note that the Guarantee and the Indenture are to be governed by and are to be construed and enforced in accordance with the substantive laws of the State of New York. However, in rendering the opinions expressed herein, we have assumed, with your permission, that the substantive laws of the State of Michigan would apply.
b. We express no opinion as to the enforceability of the Exchange Notes.
c. The opinion set forth herein is made as of the date hereof and is subject to, and may be limited by, future changes in the factual matters set forth herein, and we undertake no duty to advise you of the same. The opinion expressed herein is based upon the law in effect (and published or otherwise generally available) on the date hereof, and we assume no obligation to revise or supplement this opinion should such law be changed by legislative action, judicial decision or otherwise. In rendering our opinion, we have not considered, and hereby disclaim any opinion as to, the application or impact of any laws, cases, decisions, rules or regulations of any other jurisdiction, court or administrative agency.
d. Our opinion contained herein is subject to the effect of any (i) applicable bankruptcy, insolvency, reorganization, receivership, moratorium or similar laws affecting or relating to the rights and remedies of creditors generally including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination, (ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law), (iii) implied covenant of good faith and fair dealing, and (iv) securities laws and public policy underlying such laws with respect to rights to indemnification and contribution.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 5
e. Our opinion is further subject to the effect of generally applicable rules of law arising from statutes, judicial and administrative decisions, and the rules and regulations of governmental authorities that: (i) limit or affect the enforcement of provisions of a contract that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness; (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected; (iii) limit the enforceability of provisions releasing, exculpating, or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct; (iv) may, where less than all of the contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; and (v) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees.
f. We express no opinion as to the enforceability of (1) any provision of the Indenture purporting or attempting to (A) confer exclusive jurisdiction and/or venue upon certain courts or otherwise waive the defenses of forum non conveniens or improper venue, (B) confer subject matter jurisdiction on a court not having independent grounds therefor, (C) modify or waive the requirements for effective service of process for any action that may be brought, (D) waive the right of the Company or any other person to a trial by jury, (E) provide that remedies are cumulative or that decisions by a party are conclusive or (F) modify or waive the rights to notice, legal defenses, statutes of limitations or other benefits that cannot be waived under applicable law or (2) any provision of the Indenture relating to choice of law.
g. We express no opinion as to whether a subsidiary may guarantee or otherwise be liable for indebtedness incurred by its parent except to the extent that such subsidiary may be determined to have benefited from the incurrence of the indebtedness by its parent or whether such benefit may be measured other than by the extent to which the proceeds of the indebtedness incurred by its parent are, directly or indirectly, made available to such subsidiary for its corporate or other analogous purposes.
h. We express no opinion as to (i) the authorizations, approvals or consents that may be necessary under federal or state securities and “blue sky” laws (including without limitation, Michigan securities and “blue sky” laws) in connection with the transactions contemplated by the Transaction Documents or (ii) the qualification of the Indenture under federal or state securities laws, including without limitation the Trust Indenture Act of 1939, as amended.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 6
We do not render any opinions except as set forth above. The opinion set forth herein is made as of the date hereof. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name therein and in the related prospectus under the captions “Legal Matters.” We also consent to your filing copies of this opinion as an exhibit to the Registration Statement with agencies of such states as you deem necessary in the course of complying with the laws of such states regarding the Exchange Offer. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
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Very truly yours,
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| Miller Johnson | |||
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By
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/s/ Maxwell N. Barnes | ||
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Maxwell N. Barnes
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MNB:jao
Enclosure
Schedule I
Subsidiary Guarantors
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Subsidiary
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State or other jurisdiction of formation
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Arizona Lessor - Infinia, Inc.
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Maryland
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Baldwin Health Center, Inc.
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Pennsylvania
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Bayside Alabama Healthcare Second, Inc.
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Alabama
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Bayside Arizona Healthcare Associates, Inc.
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Arizona
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Bayside Arizona Healthcare Second, Inc.
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Arizona
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Bayside Colorado Healthcare Associates, Inc.
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Colorado
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Bayside Colorado Healthcare Second, Inc.
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Colorado
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Bayside Indiana Healthcare Associates, Inc.
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Indiana
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Bayside Street II, Inc.
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Delaware
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Bayside Street, Inc.
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Maryland
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Canton Health Care Land, Inc.
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Ohio
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Carnegie Gardens LLC
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Delaware
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Center Healthcare Associates, Inc.
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Texas
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Cherry Street – Skilled Nursing, Inc.
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Texas
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Colonial Gardens, LLC
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Ohio
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Colorado Lessor - Conifer, Inc.
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Maryland
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Copley Health Center, Inc.
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Ohio
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CSE Albany LLC
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Delaware
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CSE Amarillo LLC
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Delaware
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CSE Anchorage LLC
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Delaware
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CSE Arden L.P.
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Delaware
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CSE Augusta LLC
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Delaware
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CSE Bedford LLC
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Delaware
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CSE Blountville LLC
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Delaware
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CSE Bolivar LLC
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Delaware
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CSE Cambridge LLC
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Delaware
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CSE Cambridge Realty LLC
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Delaware
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CSE Camden LLC
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Delaware
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CSE Canton LLC
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Delaware
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CSE Casablanca Holdings II LLC
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Delaware
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CSE Casablanca Holdings LLC
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Delaware
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CSE Cedar Rapids LLC
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Delaware
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CSE Centennial Village
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Delaware
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CSE Chelmsford LLC
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Delaware
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CSE Chesterton LLC
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Delaware
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CSE Claremont LLC
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Delaware
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CSE Corpus North LLC
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Delaware
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CSE Crane LLC
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Delaware
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CSE Denver Iliff LLC
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Delaware
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CSE Denver LLC
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Delaware
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CSE Douglas LLC
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Delaware
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CSE Dumas LLC
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Delaware
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CSE Elkton LLC
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Delaware
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CSE Elkton Realty LLC
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Delaware
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CSE Fairhaven LLC
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Delaware
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CSE Fort Wayne LLC
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Delaware
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CSE Frankston LLC
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Delaware
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CSE Georgetown LLC
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Delaware
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Subsidiary
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State or other jurisdiction of formation
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CSE Green Bay LLC
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Delaware
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CSE Hilliard LLC
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Delaware
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CSE Huntingdon LLC
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Delaware
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CSE Huntsville LLC
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Delaware
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CSE Indianapolis-Continental LLC
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Delaware
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CSE Indianapolis-Greenbriar LLC
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Delaware
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CSE Jacinto City LLC
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Delaware
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CSE Jefferson City LLC
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Delaware
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CSE Jeffersonville-Hillcrest Center LLC
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Delaware
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CSE Jeffersonville-Jennings House LLC
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Delaware
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CSE Kerrville LLC
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Delaware
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CSE King L.P.
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Delaware
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CSE Kingsport LLC
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Delaware
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CSE Knightdale L.P.
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Delaware
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CSE Lake City LLC
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Delaware
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CSE Lake Worth LLC
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Delaware
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CSE Lakewood LLC
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Delaware
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CSE Las Vegas LLC
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Delaware
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CSE Lawrenceburg LLC
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Delaware
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CSE Lenoir L.P.
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Delaware
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CSE Lexington Park LLC
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Delaware
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CSE Lexington Park Realty LLC
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Delaware
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CSE Ligonier LLC
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Delaware
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CSE Live Oak LLC
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Delaware
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CSE Logansport LLC
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Delaware
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CSE Lowell LLC
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Delaware
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CSE Marianna Holdings LLC
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Delaware
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CSE Memphis LLC
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Delaware
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CSE Mobile LLC
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Delaware
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CSE Moore LLC
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Delaware
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CSE North Carolina Holdings I LLC
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Delaware
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CSE North Carolina Holdings II LLC
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Delaware
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CSE Omro LLC
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Delaware
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CSE Orange Park LLC
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Delaware
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CSE Orlando-Pinar Terrace Manor LLC
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Delaware
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CSE Orlando-Terra Vista Rehab LLC
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Delaware
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CSE Pennsylvania Holdings
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Delaware
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CSE Piggott LLC
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Delaware
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CSE Pilot Point LLC
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Delaware
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CSE Ponca City LLC
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Delaware
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CSE Port St. Lucie LLC
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Delaware
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CSE Richmond LLC
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Delaware
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CSE Ripley LLC
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Delaware
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CSE Ripon LLC
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Delaware
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CSE Safford LLC
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Delaware
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CSE Salina LLC
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Delaware
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CSE Seminole LLC
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Delaware
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CSE Shawnee LLC
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Delaware
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CSE Spring Branch LLC
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Delaware
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CSE Stillwater LLC
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Delaware
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CSE Taylorsville LLC
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Delaware
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CSE Texarkana LLC
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Delaware
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CSE Texas City LLC
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Delaware
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CSE The Village LLC
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Delaware
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Subsidiary
|
State or other jurisdiction of formation
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CSE Upland LLC
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Delaware
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CSE Walnut Cove L.P.
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Delaware
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CSE West Point LLC
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Delaware
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CSE Whitehouse LLC
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Delaware
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CSE Williamsport LLC
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Delaware
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CSE Winter Haven LLC
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Delaware
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CSE Woodfin L.P.
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Delaware
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CSE Yorktown LLC
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Delaware
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Dallas – Skilled Nursing, Inc.
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Texas
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Delta Investors I, LLC
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Maryland
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Delta Investors II, LLC
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Maryland
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Desert Lane LLC
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Delaware
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Dixon Health Care Center, Inc.
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Ohio
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Florida Lessor – Crystal Springs, Inc.
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Maryland
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Florida Lessor – Emerald, Inc.
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Maryland
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Florida Lessor – Lakeland, Inc.
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Maryland
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Florida Lessor – Meadowview, Inc.
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Maryland
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Florida Real Estate Company, LLC
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Florida
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Georgia Lessor - Bonterra/Parkview, Inc.
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Maryland
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Greenbough, LLC
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Delaware
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Hanover House, Inc.
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Ohio
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Heritage Texarkana Healthcare Associates, Inc.
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Texas
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House of Hanover, Ltd
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Ohio
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Hutton I Land, Inc.
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Ohio
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Hutton II Land, Inc.
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Ohio
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Hutton III Land, Inc.
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Ohio
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Indiana Lessor – Jeffersonville, Inc.
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Maryland
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Indiana Lessor – Wellington Manor, Inc.
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Maryland
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Jefferson Clark, Inc.
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Maryland
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LAD I Real Estate Company, LLC
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Delaware
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Lake Park – Skilled Nursing, Inc.
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Texas
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Leatherman 90-1, Inc.
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Ohio
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Leatherman Partnership 89-1, Inc.
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Ohio
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Leatherman Partnership 89-2, Inc.
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Ohio
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Long Term Care – Michigan, Inc.
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Michigan
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Long Term Care – North Carolina, Inc.
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North Carolina
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Long Term Care Associates – Illinois, Inc.
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Illinois
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Long Term Care Associates – Indiana, Inc.
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Indiana
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Long Term Care Associates – Texas, Inc.
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Texas
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Meridian Arms Land, Inc.
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Ohio
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North Las Vegas LLC
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Delaware
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NRS Ventures, L.L.C.
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Delaware
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OHI (Connecticut), Inc.
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Connecticut
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OHI (Florida), Inc.
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Florida
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OHI (Illinois), Inc.
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Illinois
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OHI (Indiana), Inc.
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Indiana
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OHI (Iowa), Inc.
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Iowa
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OHI (Kansas), Inc.
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Kansas
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|
OHI Asset (CA), LLC
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Delaware
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OHI Asset (CO), LLC
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Delaware
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|
OHI Asset (CT) Lender, LLC
|
Delaware
|
|
OHI Asset (FL), LLC
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Delaware
|
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OHI Asset (FL) Lender, LLC
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Delaware
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OHI Asset (ID), LLC
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Delaware
|
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Subsidiary
|
State or other jurisdiction of formation
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OHI Asset (IL), LLC
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Delaware
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OHI Asset (IN), LLC
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Delaware
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OHI Asset (LA), LLC
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Delaware
|
|
OHI Asset (MI/NC), LLC
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Delaware
|
|
OHI Asset (MI), LLC
|
Delaware
|
|
OHI Asset (MO), LLC
|
Delaware
|
|
OHI Asset (OH) Lender, LLC
|
Delaware
|
|
OHI Asset (OH) New Philadelphia, LLC
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Delaware
|
|
OHI Asset (OH), LLC
|
Delaware
|
|
OHI Asset (PA) Trust
|
Maryland
|
|
OHI Asset (PA), LLC
|
Delaware
|
|
OHI Asset (SMS) Lender, Inc.
|
Maryland
|
|
OHI Asset (TX), LLC
|
Delaware
|
|
OHI Asset CSB LLC
|
Delaware
|
|
OHI Asset CSE – E, LLC
|
Delaware
|
|
OHI Asset CSE – U, LLC
|
Delaware
|
|
OHI Asset Essex (OH), LLC
|
Delaware
|
|
OHI Asset II (CA), LLC
|
Delaware
|
|
OHI Asset II (FL), LLC
|
Delaware
|
|
OHI Asset II (PA) Trust
|
Maryland
|
|
OHI Asset III (PA) Trust
|
Maryland
|
|
OHI Asset IV (PA) Silver Lake Trust
|
Maryland
|
|
OHI Asset, LLC
|
Delaware
|
|
OHI of Texas, Inc.
|
Maryland
|
|
OHI Sunshine, Inc.
|
Florida
|
|
OHI Tennessee, Inc.
|
Maryland
|
|
OHIMA, Inc.
|
Massachusetts
|
|
Omega (Kansas), Inc.
|
Kansas
|
|
Omega TRS I, Inc.
|
Maryland
|
|
Orange Village Care Center, Inc.
|
Ohio
|
|
OS Leasing Company
|
Kentucky
|
|
Panama City Nursing Center LLC
|
Delaware
|
|
Parkview – Skilled Nursing, Inc.
|
Texas
|
|
Pavillion North Partners, Inc.
|
Pennsylvania
|
|
Pavillion North, LLP
|
Pennsylvania
|
|
Pavillion Nursing Center North, Inc.
|
Pennsylvania
|
|
Pine Texarkana Healthcare Associates, Inc.
|
Texas
|
|
Reunion Texarkana Healthcare Associates, Inc.
|
Texas
|
|
San Augustine Healthcare Associates, Inc.
|
Texas
|
|
Skilled Nursing – Gaston, Inc.
|
Indiana
|
|
Skilled Nursing – Herrin, Inc.
|
Illinois
|
|
Skilled Nursing – Hicksville, Inc.
|
Ohio
|
|
Skilled Nursing – Paris, Inc.
|
Illinois
|
|
Skyler Maitland LLC
|
Delaware
|
|
South Athens Healthcare Associates, Inc.
|
Texas
|
|
St. Mary’s Properties, Inc.
|
Ohio
|
|
Sterling Acquisition Corp.
|
Kentucky
|
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Sterling Acquisition Corp. II
|
Kentucky
|
|
Suwanee, LLC
|
Delaware
|
|
Texas Lessor – Stonegate GP, Inc.
|
Maryland
|
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Texas Lessor – Stonegate, Limited, Inc.
|
Maryland
|
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Texas Lessor – Stonegate, LP
|
Maryland
|
|
Texas Lessor – Treemont, Inc.
|
Maryland
|
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The Suburban Pavilion, Inc.
|
Ohio
|
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Subsidiary
|
State or other jurisdiction of formation
|
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Washington Lessor – Silverdale, Inc.
|
Maryland
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Waxahachie Healthcare Associates, Inc.
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Texas
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West Athens Healthcare Associates, Inc.
|
Texas
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Wilcare, LLC
|
Ohio
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