Exhibit 3.18
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
BAY CREST CARE CENTER, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Limited Liability Company Operating Agreement (together with the
exhibits attached hereto, this "Agreement") of Bay Crest Care Center, LLC (the
"LLC"), is entered into by Summit Care Corporation, as the sole equity member
(the "Member"), effective as of July 3, 2003 (the "Effective Date").
The Member, by execution of this Agreement, hereby forms the LLC as a
limited liability company pursuant to, and in accordance with, the Delaware
Limited Liability Company Act, 6 Del. C. Section 18-101, et seq. (the "Act"),
and, in connection therewith, hereby agrees as follows:
ARTICLE I.
ORGANIZATIONAL AND OTHER MATTERS
Section 1.01 Name. The name of the LLC is Bay Crest Care Center, LLC
(the "LLC").
Section 1.02 Principal Business Office. The principal business office
of the LLC shall be located at 27442 Portola Parkway, Suite 200, Foothill Ranch,
California 92610 or such other location as may hereafter be determined by the
Member.
Section 1.03 Registered Office. The address of the registered office
of the LLC in the State of Delaware is c/o National Registered Agents, Inc., 9
East Loockerman Street, Suite 1B, Dover, Delaware 19901.
Section 1.04 Registered Agent. The name and address of the registered
agent of the LLC for service of process on the LLC in the State of Delaware is
National Registered Agents, Inc., 9 East Loockerman Street, Suite 1B, Dover,
Delaware 19901.
Section 1.05 Term. The LLC shall have a perpetual existence.
Section 1.06 Certificate of Formation. The LLC was formed as a limited
liability company under the Act by the filing of a Certificate of Formation by
Sally G. Burns, as an authorized person, with the Secretary of State of the
State of Delaware on July 3, 2003, as the same may be amended, restated or
supplemented from time to time. Upon the filing of the Certificate of Formation
with the Secretary of State of the State of Delaware, her powers as an
"authorized person" ceased, and the Member thereupon became the designated
"authorized person" and shall continue as the designated "authorized person"
within the meaning of the Act. The Member or an Officer shall execute, deliver
and file any other certificates (and any amendments, supplements and/or
restatements thereof) necessary for the LLC to qualify to do business in the
state of California and in any jurisdiction in which the LLC may wish to conduct
business. The existence of the LLC as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
ARTICLE II.
PURPOSE
Section 2.01 Purpose. The purpose to be conducted or promoted by the
LLC is to engage in the following activities:
(a) managing and operating the health care facility located on
the real property described on Exhibit A attached hereto and incorporated herein
by this reference, including leasing such real property (the "Facility
Operations"); and
(b) engaging in any lawful act or activity and exercising any
powers permitted to limited liability companies organized under the laws of the
State of Delaware.
ARTICLE III.
BOARD OF MANAGERS
Section 3.01 Board of Managers. Pursuant to Section 18-402 of the Act,
and to the extent specifically set forth in this Agreement, certain activities
of the LLC shall be managed through a Board of Managers (the "Board of
Managers"). The Board of Managers shall have the following characteristics:
(a) the Board of Managers shall be composed of no less than three
individuals (each, a "Manager").
(b) the initial Managers shall be as set forth on Exhibit B
attached hereto and incorporated herein by this reference;
(c) all actions of the Board of Managers shall require a majority
vote of the quorum of the Managers; provided, however, that the Board of
Managers may delegate the day-to-day management of the LLC to an individual(s)
or entity which may or may not be a Manager;
(d) the Board of Managers shall meet at such times as may be
necessary for the business of the LLC upon at least five business days' prior
written notice of the time, place and purpose of the meeting given by any two
Managers. Meetings of the Board of Managers may be in person or by conference
telephone or other similar communications system, and actions of the Board of
Managers may be by written consent (in which case, no notice shall be required),
which written consents, except as otherwise expressly required in this
Agreement, shall be effective if signed in one or more counterparts by a
majority of the Managers. The presence of two Managers, in person or by proxy,
shall constitute a quorum. Each Manager has the right to one vote. Each Manager
not only has the right to his own vote, but may vote by proxy for one other
Manager;
(e) the Member may remove any Manager for any reason or no reason
by executing a certificate setting forth the Manager being removed and the
replacement Manager;
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(f) in the event there exists a vacancy on the Board of Managers,
the Member shall, as soon as reasonably practicable, execute a certificate
setting forth a replacement Manager; and
(g) the debts, obligations and liabilities of the LLC, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the LLC, and no Manager shall be obligated for any such debt,
obligation or liability of the LLC solely by reason of its acting as a Manager
of the LLC.
ARTICLE IV.
MEMBER
Section 4.01 Member. Simultaneously with the execution and delivery of
this Agreement, the following Person is admitted as the sole equity member of
the LLC (the "Member") and shall hold all Membership Interests (as defined in
Section 4.02 below) effective as of the date of this Agreement. The name and
address of the Member is as follows:
Name and Address
Summit Care Corporation
27442 Portola Parkway, Suite 200
Foothill Ranch, California 92610
Attn: Legal Department
Section 4.02 Unit Certificates. The limited liability company
interests of the LLC shall consist of 100 units (the "Membership Interests"),
which shall be evidenced by a unit certificate issued to the Member (the "Unit
Certificate"). The Member hereby irrevocably elects that all Membership
Interests in the LLC shall be securities governed by Article 8 of the Uniform
Commercial Code as in effect in the State of Delaware and each other applicable
jurisdiction. The Unit Certificate shall bear the following legend:
"This certificate evidences a membership interest in Bay Crest Care
Center, LLC and shall be a security governed by Article 8 of the
Uniform Commercial Code as in effect in the State of Delaware and, to
the extent permitted by applicable law, Article 8 of the Uniform
Commercial Code of each other applicable jurisdiction."
"THIS CERTIFICATE AND THE MEMBERSHIP INTEREST EVIDENCED HEREBY ARE NOT
NEGOTIABLE AND ARE NOT TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE
TRANSFER RESTRICTIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT. The
Limited Liability Company maintains books for the purpose of
registering transfers. This Certificate has not been and will not be
registered under the Securities Act of 1933 or under the securities or
blue sky laws of any state. The holder of this Certificate, by its
acceptance hereof, represents that it is acquiring this security for
investment and not with a view to any sale or distribution hereof."
This provision shall not be amended, and any purported amendment to
this provision, shall be null and void.
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Section 4.03 Powers. The Member shall have the right and authority to
take all actions (i) specifically enumerated in this Agreement or (ii) which
such Member otherwise deems necessary, useful or appropriate for the day-to-day
management and conduct of the LLC's business and which are not otherwise
specifically reserved to the Managers.
Section 4.04 Liability. The Member shall not have any liability for
the obligations of the LLC except to the extent provided herein. Except as
required by the Act, the debts, obligations and liabilities of the LLC, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the LLC, and the Member shall not be obligated for any such
debt, obligation or liability of the LLC solely by reason of its status as the
Member of the LLC.
Section 4.05 Allocations and Distributions. The LLC's profits and
losses shall be allocated to the Member. At the time determined by a majority of
the Managers, the Managers may cause the LLC to distribute to the Member any
cash held by it which is neither reasonably necessary for the operation of the
LLC nor the performance of its contractual obligations, nor which is in
violation of Sections 18-607 or 18-804 of the Act or any contractual agreement
binding on the LLC.
ARTICLE V.
OFFICERS
Section 5.01 Officers. The day-to-day operation of the business of the
LLC shall be managed by officers (the "Officers") to the extent specifically set
forth in this Agreement and under the direction of the Member and the Board of
Managers. The Officers shall:
(a) be comprised minimally of a President, Chief Executive
Officer, Chief Financial Officer, Vice President, and Secretary;
(b) be selected by the Member;
(c) be allowed to serve on the Board of Managers;
(d) serve so long as the Member desires or until their
resignation, death or incapacitation; and
(e) meet at such times as may be necessary for the business of
the LLC.
Section 5.02 Initial Officers. The initial Officers shall take office
upon the execution of this Agreement by the Member and shall be:
Boyd Hendrickson Chief Executive Officer
Jose Lynch President
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Kelly Atkins Senior Vice President of Operations
John Harrison Chief Financial Officer
Roland Rapp Secretary
Section 5.03 Chief Executive Officer. The Chief Executive Officer
shall, under the direction of the Member and Board of Managers, perform all
duties incident to the office of Chief Executive Officer, have general charge of
the business, affairs and property of the LLC and general supervision over the
other Officers and any of the LLC's employees and agents and see that all orders
and resolutions of the LLC are carried into effect.
Section 5.04 President. The President shall, under the direction of
the Member, Board of Managers, and Chief Executive Officer, perform all duties
incident to the office of President and discharge such duties as may be assigned
to him or her by the Chief Executive Officer, Board of Managers or the Member.
During the absence or disability of the Chief Executive Officer, the President
shall exercise all the functions of the Chief Executive Officer and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Chief Executive Officer.
Section 5.05 Senior Vice President of Operations. The Senior Vice
President of Operations shall, under the direction of the Member, Board of
Managers and Chief Executive Officer, perform all duties incident to the office
of Senior Vice President of Operations and shall have such powers and discharge
such duties as may be assigned to him or her, from time to time, by the other
Officers, Board of Managers or the Member.
Section 5.06 Chief Financial Officer. The Chief Financial Officer
shall, under the direction of the Member, Board of Managers and Chief Executive
Officer, perform all duties incident to the office of Chief Financial Officer
and shall have such powers and discharge such duties as may be assigned to him
or her, from time to time, by the other Officers, Board of Managers or the
Member.
Section 5.07 Secretary. The Secretary shall, under the direction of
the Member, Board of Managers and Chief Executive Officer, perform all duties
incident to the office of Secretary and shall have such powers and discharge
such duties as may be assigned to him or her, from time to time, by the other
Officers, the Member or the Board of Managers. The Secretary shall:
(a) record all the actions taken by the LLC's Member, Officers
and the Board of Managers in a book to be kept for that purpose;
(b) if required, cause notices to be duly given in accordance
with the provisions of the Agreement and as required by statute;
(c) be custodian of the records; and
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(d) see that all of the books, reports, statements, certificates
and all other documents and records required to be kept by statute or this
Agreement are properly filed and kept.
ARTICLE VI.
INDEMNIFICATION
The LLC shall indemnify and hold harmless (i) the Member, (ii) any
affiliate of the Member, and (iii) any officer, director, employee, or agent of
the LLC, the Member or any of its affiliates, (each, an "Indemnitee"), from and
against any claim, loss, damage, liability, or reasonable expense (including
reasonable attorneys' fees, court costs, and costs of investigation and appeal)
suffered or incurred by any such Indemnitee by reason of, or arising from, the
operations, business, or affairs of, or any action taken or failure to act on
behalf of, the LLC.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Assignments; Additions; Transfers; Dissolution.
(a) Assignments. The Member may, with prior written notice to the
LLC and in compliance with applicable laws, sell assign or convey its Membership
Interests at any time without the consent of the Managers. If the Member
transfers all of its Membership Interests pursuant to this Section 7.01(a), the
transferee shall be admitted to the LLC as a member of the LLC upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the transfer and, immediately following such admission, the transferor
Member shall cease to be a member of the LLC. Any successor to a Member by
merger or consolidation shall, without further act, be the Member hereunder, and
such merger or consolidation shall not constitute an assignment for purposes of
this Agreement and the LLC shall continue without dissolution.
(b) Resignation. If the Member resigns pursuant to this Section
7.01(b), an additional member of the LLC may be admitted to the LLC, subject to
Sections 7.01(c), upon its execution of an instrument signifying its agreement
to be bound by the terms and conditions of this Agreement, which instrument may
be a counterpart signature page to this Agreement. Such admission shall be
deemed effective immediately prior to the resignation and, immediately following
such admission, the resigning Member shall cease to be a member of the LLC.
(c) Admission of Additional Members. One or more additional
members of the LLC may be admitted to the LLC with the written consent of the
Member.
(d) Dissolution. The LLC shall be dissolved, and its affairs
shall be wound up upon the first to occur of the following: (i) the termination
of the legal existence of the last remaining member of the LLC or the occurrence
of any other event which terminates the continued membership of the last
remaining member of the LLC in the LLC unless the LLC is continued without
dissolution in a manner permitted by this Agreement or the Act or (ii) the entry
of a decree of judicial dissolution under Section 18-802 of the Act.
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Section 7.02 Amendments. Subject to the provisions set forth herein,
this Agreement may be modified, altered, supplemented or amended pursuant to a
written agreement executed and delivered by the Member or any successor Member.
Section 7.03 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to principles of conflicts of laws).
Section 7.04 Severability. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
Section 7.05 Counterparts. This Agreement may be executed in any
number of identical counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
Section 7.06 Facsimile Signatures. This Agreement maybe executed by
facsimile transmission and such facsimile will be valid and binding to the same
extent as if it were an original.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Member has executed this Agreement effective
as of the Effective Date.
MEMBER:
SUMMIT CARE CORPORATION,
a California corporation
By: /s/ Roland Rapp
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Roland Rapp, Secretary
[Bay Crest Care Center, LLC Agreement]
S-1
EXHIBIT A
DESCRIPTION OF PROPERTY
PROPERTY NAME ADDRESS
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Bay Crest Care Center 3750 Garnet Street
Torrance, California 90503
A-1
EXHIBIT B
INITIAL MANAGERS
Jose Lynch
John Harrison
Roland Rapp
B-1
July 3, 2003
Bay Crest Care Center, LLC
27442 Portola Parkway, Suite 200
Foothill Ranch, California 92610
RE: Management Agreement - Bay Crest Care Center, LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons, who
have been designated as initial Managers of Bay Crest Care Center, LLC, a
Delaware limited liability company (the "Company"), in accordance with the
Limited Liability Company Operating Agreement of the Company, as it may be
amended or restated from time to time (the "LLC Agreement"), hereby agree:
1. To accept such person's rights and authority as a Manager (as defined in
the LLC Agreement) under the LLC Agreement and to perform and discharge such
person's duties and obligations as a Manager under the LLC Agreement and agrees
that such rights, authority, duties and obligations under the LLC Agreement
shall continue until such person's successor as a Manager is designated or until
such person's resignation or removal as a Manager in accordance with the LLC
Agreement. A Manager is designated as a "manager" of the Company within the
meaning of the Delaware Limited Liability Company Act.
2. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
IN WITNESS WHEREOF, the undersigned have executed this Management Agreement
as of the day and year first above written.
/s/ Jose Lynch
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Jose Lynch
/s/ John Harrison
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John Harrison
/s/ Roland Rapp
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Roland Rapp