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 served as special Pennsylvania counsel to those certain wholly-owned, direct or indirect, as applicable, Pennsylvania subsidiaries of Omega Healthcare Investors, Inc., a Maryland corporation (the “Parent”), identified as “Opinion Subsidiaries” on Schedule I hereto (the “Opinion Subsidiaries”), 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 6¾% Senior Notes due 2022 (the “Exchange Notes”) for an equal aggregate principal amount of its 6¾% 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 “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 Original Indenture, as so supplemented, being herein referred to as the “Indenture”). All capitalized terms which are defined in the Indenture shall have the same meanings when used herein, unless otherwise specified.
We have not been involved in the preparation of the Registration Statement, nor were we involved in the negotiation, preparation or execution of the Indenture, the Guarantees (as defined below), or any of the related agreements executed or delivered in connection with the Initial Notes, the Exchange Notes, the Exchange Offer or the transactions described in the Registration Statement. We have been retained solely for the purpose of rendering certain opinions regarding Pennsylvania law.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 2
In connection herewith, we have examined copies of:
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1.
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the Registration Statement (including exhibits thereto relating to the Opinion Subsidiaries);
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2.
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an executed copy of the Indenture, including the guarantees of the Initial Notes and the Exchange Notes (each, a “Guarantee”) provided for therein;
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3.
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executed copies of the Initial Notes;
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4.
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the form of the Exchange Notes;
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5.
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the Articles of Incorporation and Bylaws of each of the Pennsylvania Opinion Subsidiaries that are corporations and the Statement of Registration and Limited Partnership Agreement of the Pennsylvania Opinion Subsidiary that is a limited partnership, in each case as in effect on the date hereof and as certified by the applicable Secretary, Assistant Secretary or other appropriate representative of such Opinion Subsidiary (the “Organizational Documents”);
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6.
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a certificate of legal existence and subsistence for each of the Opinion Subsidiaries; and
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7.
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certificates of the respective Secretaries, Assistant Secretaries or other appropriate representatives of each of the Opinion Subsidiaries, certifying as to resolutions relating to the transactions referred to herein and the incumbency of officers.
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The documents referenced as items (1) through (4) above are collectively referred to as the “Transaction Documents.”
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such other corporate and limited partnership records, agreements and instruments of the respective Opinion Subsidiaries, certificates of public officials and officers or other appropriate representatives of the Opinion Subsidiaries, and such other documents, records and instruments, and we have made such legal and factual inquiries, as we have deemed necessary or appropriate as a basis for us to render the opinions hereinafter expressed. In our examination of the Transaction Documents and 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. When relevant facts were not independently established, we have relied without independent inquiry or investigation as to matters of fact upon statements of governmental officials and upon representations made in or pursuant to certificates and statements of authorized representatives of the Opinion Subsidiaries.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 3
In connection herewith, we have assumed that, other than with respect to the Opinion Subsidiaries, all of the documents referred to in this opinion 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.
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 becomes effective under the Act, (ii) the Indenture becomes duly qualified under the Trust Indenture Act of 1939, as amended, and (iii) the Exchange Notes (in the form examined by us) are duly executed by the Parent and authenticated and delivered by the Trustee and issued in exchange for the Initial Notes in accordance with the provisions of the Indenture upon consummation of the Exchange Offer, and otherwise in accordance with the terms of the Registration Statement and the exhibits thereto, the Guarantee of each Opinion Subsidiary will constitute a valid and binding obligation of each such Opinion Subsidiary.
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 set forth herein reflects only the application of applicable law of the Commonwealth of Pennsylvania (excluding the securities and blue sky laws of such Commonwealth, as to which we express no opinion). 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.
(b) We express no opinion herein as to the Exchange Notes.
(c) Our opinion contained herein may be limited by and is subject to (i) applicable bankruptcy, insolvency, reorganization, arrangement, 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 and equitable defenses (regardless of whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 4
(d) 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.
(e) 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 Parent or any other person, including the Subsidiary Guarantors, 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 or the Guarantee relating to choice of law, or that authorizes the acceleration of the obligations under a Guarantee notwithstanding a stay or other prohibition preventing such acceleration in respect of the obligations guaranteed.
(f) 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.
Omega Healthcare Investors, Inc.
March 4, 2011
Page 5
We do not render any opinions except as expressly 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.” 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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| /s/ Montgomery, McCracken, Walker & Rhoads, llp |
Schedule I
Subsidiary Guarantors
(* indicates an Opinion Subsidiary)
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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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Subsidiary
|
State or Other
Jurisdiction of Formation
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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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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
|
Delaware
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CSE Indianapolis-Greenbriar LLC
|
Delaware
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CSE Jacinto City LLC
|
Delaware
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CSE Jefferson City LLC
|
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.
|
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.
|
Delaware
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CSE Lexington Park LLC
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Delaware
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CSE Lexington Park Realty LLC
|
Delaware
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CSE Ligonier LLC
|
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
|
-2-
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Subsidiary
|
State or Other
Jurisdiction of Formation
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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
|
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
|
Delaware
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CSE Ponca City LLC
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Delaware
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CSE Port St. Lucie LLC
|
Delaware
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CSE Richmond LLC
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Delaware
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CSE Ripley LLC
|
Delaware
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CSE Ripon LLC
|
Delaware
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CSE Safford LLC
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Delaware
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CSE Salina LLC
|
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
|
Delaware
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CSE Stillwater LLC
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Delaware
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CSE Taylorsville LLC
|
Delaware
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CSE Texarkana LLC
|
Delaware
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CSE Texas City LLC
|
Delaware
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CSE The Village LLC
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Delaware
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CSE Upland LLC
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Delaware
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CSE Walnut Cove L.P.
|
Delaware
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CSE West Point LLC
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Delaware
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CSE Whitehouse LLC
|
Delaware
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CSE Williamsport LLC
|
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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-3-
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Subsidiary
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State or Other
Jurisdiction of Formation
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Florida Lessor – Lakeland, Inc.
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Maryland
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Florida Lessor – Meadowview, Inc.
|
Maryland
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Florida Real Estate Company, LLC
|
Florida
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Georgia Lessor - Bonterra/Parkview, Inc.
|
Maryland
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Greenbough, LLC
|
Delaware
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Hanover House, Inc.
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Ohio
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Heritage Texarkana Healthcare Associates, Inc.
|
Texas
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House of Hanover, Ltd
|
Ohio
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Hutton I Land, Inc.
|
Ohio
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Hutton II Land, Inc.
|
Ohio
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Hutton III Land, Inc.
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Ohio
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Indiana Lessor – Jeffersonville, Inc.
|
Maryland
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Indiana Lessor – Wellington Manor, Inc.
|
Maryland
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Jefferson Clark, Inc.
|
Maryland
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LAD I Real Estate Company, LLC
|
Delaware
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Lake Park – Skilled Nursing, Inc.
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Texas
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Leatherman 90-1, Inc.
|
Ohio
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Leatherman Partnership 89-1, Inc.
|
Ohio
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Leatherman Partnership 89-2, Inc.
|
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.
|
Delaware
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OHI (Connecticut), Inc.
|
Connecticut
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OHI (Florida), Inc.
|
Florida
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OHI (Illinois), Inc.
|
Illinois
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OHI (Indiana), Inc.
|
Indiana
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OHI (Iowa), Inc.
|
Iowa
|
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OHI (Kansas), Inc.
|
Kansas
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OHI Asset (CA), LLC
|
Delaware
|
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OHI Asset (CO), LLC
|
Delaware
|
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|
OHI Asset (CT) Lender, LLC
|
Delaware
|
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|
OHI Asset (FL), LLC
|
Delaware
|
||
|
OHI Asset (FL) Lender, LLC
|
Delaware
|
||
|
OHI Asset (ID), LLC
|
Delaware
|
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|
OHI Asset (IL), LLC
|
Delaware
|
-4-
|
Subsidiary
|
State or Other
Jurisdiction of Formation
|
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|
OHI Asset (IN), LLC
|
Delaware
|
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OHI Asset (LA), LLC
|
Delaware
|
||
|
OHI Asset (MI/NC), LLC
|
Delaware
|
||
|
OHI Asset (MI), LLC
|
Delaware
|
||
|
OHI Asset (MO), LLC
|
Delaware
|
||
|
OHI Asset (OH) Lender, LLC
|
Delaware
|
||
|
OHI Asset (OH) New Philadelphia, LLC
|
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
|
-5-
|
Subsidiary
|
State or Other
Jurisdiction of Formation
|
||
|
Skilled Nursing – Hicksville, Inc.
|
Ohio
|
||
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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
|
||
|
Texas Lessor – Stonegate, Limited, Inc.
|
Maryland
|
||
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Texas Lessor – Stonegate, LP
|
Maryland
|
||
|
Texas Lessor – Treemont, Inc.
|
Maryland
|
||
|
The Suburban Pavilion, Inc.
|
Ohio
|
||
|
Washington Lessor – Silverdale, Inc.
|
Maryland
|
||
|
Waxahachie Healthcare Associates, Inc.
|
Texas
|
||
|
West Athens Healthcare Associates, Inc.
|
Texas
|
||
|
Wilcare, LLC
|
Ohio
|
-6-