EXHIBIT 4.1
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ATRIA COMMUNITIES, INC.
as Borrower
And
THE LENDERS NAMED HEREIN
as Lenders
And
PNC BANK, NATIONAL ASSOCIATION
as Administrative Agent
PNC BANK, KENTUCKY, INC.
as Managing Agent
NATIONAL CITY BANK OF KENTUCKY
as Documentation Agent
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AMENDMENT NO. 4
dated as of
September 29, 1997
to
CREDIT AGREEMENT
dated as of
August 15, 1996
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AMENDMENT NO. 4 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT, dated as of September 29, 1997
("this Amendment"), among ATRIA COMMUNITIES, INC. a Delaware corporation
(herein, together with its successors and assigns, the "Borrower"); the Lenders
who have executed this Amendment as indicated by their signatures on the
signature pages hereof, constituting all of the Lenders party to the Credit
Agreement referred to herein (the "Lenders"); PNC BANK, NATIONAL ASSOCIATION, a
national banking association, as administrative agent (the "Administrative
Agent") for the Lenders under the Credit Agreement (hereafter defined); PNC
BANK, KENTUCKY, INC., a Kentucky banking corporation, as managing agent (the
"Managing Agent") for the Lenders under the Credit Agreement; and NATIONAL CITY
BANK OF KENTUCKY, a national banking association, as documentation agent (the
"Documentation Agent") for the Lenders under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders named therein, and the Agents party hereto
entered into the Credit Agreement, dated as of August 15, 1996, Amendment No. 1
to Credit Agreement, dated as of January 15, 1997, Amendment No. 2 to Credit
Agreement, dated as of March 27, 1997, and Amendment No. 3 to Credit Agreement,
dated as of May 27, 1997 (as so amended, the "Credit Agreement"; with the terms
defined therein, or the definitions of which are incorporated therein, being
used herein as so defined).
(2) The Borrower desires to issue up to $175 million of convertible
subordinated notes due 2002 to several initial purchasers who propose to resell
such notes to "qualified institutional buyers" (as defined in Rule 144A under
the Securities Act of 1933, as amended) in reliance on Rule 144A, and
institutional "accredited investors" within the meaning of Rule 501(a)(1),(2),
(3) or (7) under such Securities Act.
(3) The Borrower, such Agents and the Lenders party hereto desire to amend
certain of the terms and provisions of the Credit Agreement in order to permit
the issuance of such convertible subordinated notes, all as more fully set forth
below.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT.
1.1 Indebtedness. Effective on the Effective Date (as hereinafter
defined), clause (c) of section 8.4 of the Credit Agreement is amended to
include reference to the Convertible Subordinated Notes (as hereinafter
defined), so that as so amended such clause reads in its entirety as follows:
(c) the following:
(i) Existing Indebtedness, and any refinancing, extension,
renewal or refunding of any such Existing Indebtedness, provided that
(A) the aggregate principal amount of any such Indebtedness in respect
of Residential Mortgage Bond programs of the Borrower and its
Subsidiaries (as described in the Registration Statement) currently in
existence is not increased above $50,000,000, and (B) the principal
amount of any other such Existing Indebtedness is not increased:
(ii) the American ElderServe Assumed Debt (including any guaranty
by the Borrower or any Subsidiary of any of the American ElderServe
Assumed Debt), provided that the entire American ElderServe Assumed
Debt (and any such guaranty), other than the Suburban Lodge Debt (and
any such guaranty in respect thereof), is retired, repaid or prepaid
in full within 90 days following the date the American ElderServe
Acquisition is completed and not refinanced in whole or in part with
Indebtedness other than Loans made hereunder;
(iii) Contingent Obligations of the Borrower and its
Subsidiaries in respect of the American ElderServe Assumed Finance
Lease Obligations covering not more than $25,000,000 of Approved Costs
(as defined in the documents governing the American ElderServe Assumed
Finance Lease Obligations as in effect on the date the American
ElderServe Acquisition is completed); and
(iv) the Convertible Subordinated Notes; and any refinancing,
extension, renewal or refunding thereof effected in compliance with
the applicable provisions of section 8.7;
1.2. Prepayments and Refinancings. Effective on the Effective Date, clause
(c) of section 8.7 of the Credit Agreement is redesignated as clause (d) and
clause (b) of section 8.7 of the Credit Agreement is replaced with the following
clauses (b) and (c):
(b) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying
when due) or exchange of, or refinance or refund, any Convertible
Subordinated Notes, or any Indebtedness (other than Indebtedness consisting
of the Notes issued hereunder) which has previously refinanced any of the
Convertible Subordinated Notes; provided that the Borrower may refinance
or refund any Convertible Subordinated Notes or any such Indebtedness if
(i) the aggregate outstanding principal amount thereof is not increased,
(ii) the weighted average life to maturity thereof (computed in accordance
with standard financial practice) is not reduced, and (iii) any such
refinancing, extension, renewal or refunding of thereof involves terms of
subordination no less favorable to the Lenders than those originally
applicable to the Convertible Subordinated Notes;
(c) amend or modify (or permit the amendment or modification of) any
of the terms or provisions of or terminate (other than any scheduled
termination in accordance with the terms thereof) (i) in any manner adverse
to the interests of the Lenders any documents or agreement governing any
Existing Indebtedness or the Convertible Subordinated Notes, or (ii) in any
manner that has, or which would reasonably be expected to have, a Material
Adverse Effect, any Acquisition Document; and/or
1.3. Definitions. Effective on the Effective Date, section 10 of the
Credit Agreement is amended to include the following definition in its
appropriate alphabetic order:
"Convertible Subordinated Notes" shall mean up to $175,000,000
aggregate principal amount of Convertible Subordinated Notes due 2002,
issued by the Borrower as contemplated by the Offering Memorandum dated
September 26, 1997, a true and correct draft of which has been furnished to
the Lenders, provided that the terms of subordination applicable to such
Notes are not changed from the description thereof contained in such draft
in a manner adverse to the interests of the Lenders.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
2.1. Authorization, Validity and Binding Effect. This Amendment has been
duly authorized by all necessary corporate action on the part of the Borrower,
has been duly executed and delivered by a duly authorized officer or officers of
the Borrower, and constitutes the valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms.
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2.2. Representations and Warranties True and Correct. The representations
and warranties of the Borrower contained in the Credit Agreement, as amended
hereby, are true and correct on and as of the date hereof as though made on and
as of the date hereof, except to the extent that such representations and
warranties expressly relate to a specified date, in which case such
representations and warranties are hereby reaffirmed as true and correct when
made.
2.3. No Event of Default, etc. No condition or event has occurred or
exists which constitutes or which, after notice or lapse of time or both, would
constitute an Event of Default.
2.4. Compliance. The Borrower is in full compliance with all covenants and
agreements contained in the Credit Agreement, as amended hereby, and the other
Credit Documents to which it is a party.
2.5. Offering Memorandum. The Borrower has delivered or caused to be
delivered to the Lenders prior to the execution hereof by any Lender a current
draft of the Offering Memorandum pursuant to which the Convertible Subordinated
Notes are to be offered. The terms of the Convertible Notes as originally issued
will be as described in such draft Offering Memorandum (with blank information
as to interest rate, payment dates, etc, appropriately completed, and any
changes in principal amount not involving an increase in the aggregate principal
amount above $175 million being permitted), but with no changes therein as to
subordination, redemption or maturity matters which are adverse to the Lenders.
2.6. Senior Indebtedness, etc. Loans outstanding under the Credit
Agreement, as well as reimbursement obligations in respect of Letters of Credit
issued under the Credit Agreement, and all related obligations in respect of
principal, interest, fees, costs, enforcement expenses and indemnity obligations
under the Credit Agreement, will constitute "Senior Indebtedness" as defined in
the Indenture governing the Convertible Subordinated Notes, and the Senior
Indebtedness under the Credit Agreement will constitute "Designated Senior
Indebtedness" as defined in such Indenture.
SECTION 3. RATIFICATIONS.
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Credit
Agreement, and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
SECTION 4. BINDING EFFECT.
This Amendment shall become effective if and when, on a date (the
"Effective Date") on or prior to November 30, 1997, the following conditions
shall have been satisfied:
(a) this Amendment shall have been executed by the Borrower, the
Administrative Agent, the Managing Agent and the Documentation Agent, and
counterparts hereof as so executed shall have been delivered to the
Administrative Agent;
(b) the Acknowledgment and Consent appended hereto shall have been
executed by the Credit Parties named therein, and counterparts thereof as
so executed shall have been delivered to the Administrative Agent;
(c) the Administrative Agent shall have been notified by the Required
Lenders that such Lenders have executed this Amendment (which notification
may be by facsimile or other written confirmation of such execution); and
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(d) the Borrower shall have completed the initial issuance of the
Convertible Subordinated Notes, without giving effect to any over-allotment
option; and shall have so notified the Administrative Agent thereof;
and thereafter this Amendment shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent, the Managing Agent, the Documentation
Agent and each Lender and their respective permitted successors and assigns.
After this Amendment becomes effective, the Managing Agent will promptly
furnish a copy of this Amendment to each Lender and the Borrower and confirm the
specific Effective Date hereof.
SECTION 5. MISCELLANEOUS.
5.1. Survival of Representations and Warranties. All representations and
warranties made in this Amendment shall survive the execution and delivery of
this Amendment, and no investigation by any Agent or any Lender or any
subsequent Loan or other Credit Event shall affect the representations and
warranties or the right of any Agent or any Lender to rely upon them.
5.2. Reference to Credit Agreement. The Credit Agreement and any and all
other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3. Expenses. As provided in the Credit Agreement, but without limiting
any terms or provisions thereof, the Borrower agrees to pay on demand all costs
and expenses incurred by the Administrative Agent, the Managing Agent or the
Documentation Agent in connection with the preparation, negotiation, and
execution of this Amendment, including without limitation the costs and fees of
the Documentation Agent's and the Administrative Agent's special legal counsel,
regardless of whether this Amendment becomes effective in accordance with the
terms hereof, and all costs and expenses incurred by the Administrative Agent,
the Managing Agent, the Documentation Agent or any Lender in connection with the
enforcement or preservation of any rights under the Credit Agreement, as amended
hereby.
5.4. Severability. Any term or provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.5. Applicable Law. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky.
5.6. Headings. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. Entire Agreement. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
5.8. Counterparts. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
ATRIA COMMUNITIES, INC. THE BANK OF NEW YORK
By: /s/ J. Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx, III
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Chief Financial Officer and Vice President
Vice President of Development
PNC BANK, NATIONAL ASSOCIATION, THE CHASE MANHATTAN BANK
Individually and as
Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxx Xxx
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Vice President Vice President
NATIONAL CITY BANK OF KENTUCKY, XXXXXX GUARANTY TRUST COMPANY OF
Individually and as NEW YORK
Documentation Agent
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Inkof
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Vice President Vice President
PNC BANK, KENTUCKY, INC. AMSOUTH BANK OF ALABAMA
Individually and as
Managing Agent
By: /s/ Xxxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Vice President Vice President
THE TORONTO-DOMINION BANK US BANK OF WASHINGTON,
NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx By:
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Mgr. Credit Administration Vice President
BANK ONE, KENTUCKY, NA FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxx
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Senior Vice President Senior Vice President
NATIONSBANK, N.A. KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxx Xxxxxx By: /s/ J. Xxxx Xxxxxx
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Vice President Assistant Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxx Xxxxxxxxxxxxx
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Senior Vice President
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ACKNOWLEDGMENT AND CONSENT
For the avoidance of doubt, and without limitation of the intent and effect
of sections 5 and 6 of the Parent Guaranty and sections 6 and 10 of the
Subsidiary Guaranty (as each of such terms is defined in the Credit Agreement
referred to in the Amendment No. 4 to Credit Agreement (the "Amendment"), to
which this Acknowledgment and Consent is appended), each of the undersigned
hereby unconditionally and irrevocably (i) acknowledges receipt of a copy of the
Credit Agreement and the Amendment, and (ii) consents to all of the terms and
provisions of the Credit Agreement as amended by the Amendment.
Capitalized terms which are used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement referred to herein.
This Acknowledgment and Consent is for the benefit of the Lenders, the
Administrative Agent, the Collateral Agent, the Managing Agent, the
Documentation Agent, any other person who is a third party beneficiary of the
Parent Guaranty or the Subsidiary Guaranty, and their respective successors and
assigns. No term or provision of this Acknowledgment and Consent may be modified
or otherwise changed without the prior written consent of the Administrative
Agent, given as provided in the Credit Agreement. This Acknowledgment and
Consent shall be binding upon the successors and assigns of each of the
undersigned. This Acknowledgment and Consent may be executed by any of the
undersigned in separate counterparts, each of which shall be an original and
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered
this Acknowledgment and Consent as of the date of the Amendment referred to
herein.
SIGNATURES OF PARTIES TO THE PARENT GUARANTY
VENCOR, INC.
FIRST HEALTHCARE CORPORATION
NORTHWEST HEALTH CARE, INC.
MEDISAVE PHARMACIES, INC.
NATIONWIDE CARE, INC.
TheraTx, Incorporated
(successor by merger with
Peach Acquisition Corp.)
VENCOR HOSPITALS ILLINOIS, INC.
VENCOR HOSPITALS SOUTH, INC.
VENCOR HOSPITALS EAST, INC.
VENCOR HOSPITALS CALIFORNIA, INC.
VENCOR HOSPITALS TEXAS, LTD.
By: VCI Specialty Services, Inc.,
its General Partner
VENTECH SYSTEMS, INC.
PASATIEMPO DEVELOPMENT CORP.
VCI SPECIALTY SERVICES, INC.
VENCOR PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Vice President
SIGNATURES OF PARTIES TO THE PARENT GUARANTY-Continued
PersonaCare, Inc.
Respiratory Care Services, Inc.
TheraTx Medical Supplies, Inc.
TheraTx Healthcare Management Inc.
TheraTx Staffing, Inc.
Horizon Healthcare Services, Inc.
PersonaCare of Connecticut, Inc.
PersonaCare of Huntsville, Inc.
PersonaCare of Ohio, Inc.
PersonaCare of Owensboro, Inc.
PersonaCare of Pennsylvania, Inc.
PersonaCare of Reading, Inc.
PersonaCare of San Antonio, Inc.
PersonaCare of San Xxxxx, Inc.
PersonaCare of Wisconsin, Inc.
PersonaCare of Rhode Island, Inc.
PersonaCare of St. Petersburg, Inc.
PersonaCare of Pompano West, Inc.
PersonaCare of Clearwater, Inc.
PersonaCare of Bradenton, Inc.
PersonaCare of Pompano East, Inc.
PersonaCare of Shreveport, Inc.
Xxxxxx Nursing Center, Inc.
Lafayette Health Care Center, Inc.
PersonaCare of Warner Robins, Inc.
NFM, Inc.
Stamford Health Facilities, Inc.
Courtland Gardens Health Center, Inc.
Courtland Gardens Residence, Inc.
Homestead Health Center, Inc.
Xxxxxxxx Enterprises, Inc.
Stamford Health Associates Limited Partnership
By: Stamford Health Facilities, Inc.,
its General Partner
Care Venture Partners, L.P.
By: PersonaCare of Rhode Island, Inc.
its General Partner
Oak Hill Nursing Associates Limited Partnership
By: PersonaCare of Rhode Island, Inc.,
its General Partner
Health Xxxxxx Associates Limited Partnership
By: PersonaCare of Rhode Island, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Vice President
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SIGNATURES OF PARTIES TO THE PARENT GUARANTY--Continued
Transitional Hospitals Corporation, a Nevada corporation
Transitional Hospitals Corporation, a Delaware corporation
Community Psychiatric Centers of California, a California corporation
Transitional Hospitals Corporation of Louisiana Inc., a Louisiana corporation
Transitional Hospitals Corporation of Texas Inc., a Texas corporation
THC-Seattle, Inc., a Washington corporation
Transitional Hospitals Corporation of Indiana, Inc., an Indiana corporation
THC Minneapolis, Inc., a Washington corporation
X. X. Xxxxxx Hospital, Inc., a Massachusetts corporation
Transitional Hospitals Corporation of Nevada, Inc., a Nevada corporation
THC-Chicago, Inc., an Illinois corporation
THC-North Shore, Inc., an Illinois corporation
Transitional Hospitals Corporation of New Mexico, Inc., a New Mexico corporation
Transitional Hospitals Corporation of Tampa, Inc., a Florida corporation
THC-Hollywood, Inc., a Florida corporation
THC-Houston, Inc., a Texas corporation
Transitional Hospitals Corporation of Wisconsin, Inc., a Wisconsin corporation
THC-Orange County, Inc., a California corporation
THC-San Diego, Inc., a California corporation
Community Psychiatric Centers Properties, Incorporated, a California corporation
CPC Investment Corporation, a California corporation
Vencor Kentucky, Inc., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Vice President of Finance and
Corporate Controller, on behalf of
each of the above corporations
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SIGNATURES OF PARTIES TO THE SUBSIDIARY GUARANTY
LANTANA PARTNERS, LTD.
By: HILLHAVEN PROPERTIES, LTD.,
a General Partner
PHILLIPPE ENTERPRISES, INC.
HILLHAVEN PROPERTIES, LTD.
CASTLE GARDENS RETIREMENT CENTER
By: HILLHAVEN PROPERTIES, LTD.,
a General Partner
HILLCREST RETIREMENT CENTER, LTD.
By: FAIRVIEW LIVING CENTERS, INC.
a General Partner
XXXXX RETIREMENT CENTER LIMITED PARTNERSHIP
By: HILLHAVEN PROPERTIES, LTD.,
a General Partner
TOPEKA RETIREMENT CENTER, LTD.
By: HILLHAVEN PROPERTIES, LTD.,
a General Partner
EVERGREEN XXXXX, LTD.
By: ATRIA COMMUNITIES, INC.,
a General Partner
FAIRVIEW LIVING CENTERS, INC.
TWENTY-NINE HUNDRED ASSOCIATES, LTD.
By: TWENTY-NINE HUNDRED CORPORATION,
a General Partner
TWENTY-NINE HUNDRED CORPORATION
WOODHAVEN PARTNERS, LTD.
By: HILLHAVEN PROPERTIES, LTD.,
a General Partner
TUCSON RETIREMENT CENTER LIMITED PARTNERSHIP
By: HILLHAVEN PROPERTIES, LTD.,
a General Partner
By: /s/ J. Xxxxxxx Xxxxxx
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Vice President
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SIGNATURES OF PARTIES TO THE SUBSIDIARY GUARANTY-Continued
ATRIA COMMUNITIES SOUTHEAST, INC.
AMERICAN ELDERSERVE MANAGEMENT, INC.
SOUTHERN CARE, INC.
AMERICAN ELDERSERVE OF ALABAMA, INC.
AMERICAN ELDERSERVE OF TEXAS, INC.
SOUTHEAST ASSISTED LIVING RESIDENCES, INC.
AMERICAN ELDERSERVE OF NORTH CAROLINA, INC.
AMERICAN ELDERSERVE OF FLORIDA, INC.
PLANTATION SOUTH ON CYPRESSWOOD LIMITED PARTNERSHIP
By: American ElderServe of Texas, Inc.
its General Partner
PLANTATION SOUTH AT AUBURN PARTNERSHIP
By: American ElderServe of Alabama, Inc.
its General Partner
By: /s/ J. Xxxxxxx Xxxxxx
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Vice President
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