Exhibit 3.46
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
FLATONIA OAK MANOR GP, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Second Amended and Restated Limited Liability Company Operating
Agreement (together with the exhibits attached hereto, this "Agreement") of
Flatonia Oak Manor GP, LLC (the "LLC"), is made and entered into effective as of
July 20, 2004 (the "Effective Date"), by Summit Care Corporation, a California
corporation, as the sole equity member (the "Member").
The Member, by execution of this Agreement, hereby continues 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 continued hereby is Flatonia
Oak Manor GP, LLC (the "LLC").
Section 1.02 Principal Business Office. The principal business office
of the LLC shall be located at ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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., ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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., ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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 initial Limited Liability Company
Agreement of the LLC, effective as of July 3, 2003, and the filing of a
Certificate of Formation by ▇▇▇▇▇ ▇. ▇▇▇▇▇, 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 (as defined
herein) 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 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
The business purpose of the LLC is to engage in any lawful act or
activity and exercise 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 continuing Managers shall be as set forth on Exhibit A
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. Notice of any meeting need not be given to any Manager who submits a
signed waiver of notice or who attends such meeting without protesting the lack
of notice to him. Meetings of the Board of Managers may be in person or by
conference telephone or other similar communications system. 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 at a meeting, 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 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 (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 legends:
"This certificate evidences a membership interest in Flatonia Oak
Manor GP, 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.
Section 4.02 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.
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Section 4.03 Liability. 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 4.04 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 not 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 of such offices as shall be designated by the
Member and may include one or more of the following offices: Chief Executive
Officer, President, 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 Continuing Officers. The Member may elect one person to
more than one position. The Officers shall continue in office following the
execution of this Agreement by the Member:
▇▇▇▇ ▇▇▇▇▇ President and Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇▇▇▇ Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇ Vice President and Secretary
The Member or the Board of Managers may also appoint such additional
officers, including a Treasurer, Assistant Treasurers, Assistant Secretaries and
Vice Presidents, as it may deem advisable.
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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 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 Chief Executive Officer, Board of Managers or
the Member.
Section 5.06 Vice President. The Vice President shall, under the
direction of the Member, Board of Managers, and Chief Executive Officer, perform
all duties incident to the office of Vice President and discharge such duties as
may be assigned to him or her by the Chief Executive Officer, 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 Chief
Executive Officer, the Member or the Board of Managers. The Secretary shall:
(a) record all the actions taken by the Member 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
(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.
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ARTICLE VI.
INDEMNIFICATION
Section 6.01 Indemnification.
(a) Subject to the standard of conduct set forth in Section
6.01(e), any individual, corporation, partnership, joint venture, limited
liability partnership, limited liability company, association, joint stock
company, trust, unincorporated organization, whether or not a legal entity, or
other business or governmental entity ("Person") who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a Manager or agent of the LLC, shall be
indemnified and held harmless by the LLC to the fullest extent legally
permissible against all expenses, liabilities and losses (including attorney's
fees and disbursements), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such Person in connection with such action,
suit or proceeding.
(b) To the extent that a Manager or agent of the LLC has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (a) of this Section 6.01, or in defense of
any claim, issue or matter therein, he shall be indemnified by the LLC against
expenses (including attorneys' fees and disbursements) actually and reasonably
incurred by him in connection therewith without the necessity of any action
being taken by the LLC other than the determination, in good faith, that such
defense has been successful. In all other cases wherein indemnification is
provided by this Section 6.01, unless ordered by a court, indemnification shall
be made by the LLC only as authorized in the specific case upon a determination
that indemnification of the Manager or agent has met the applicable standards
specified in this Section 6.01. Such determination shall be made (1) by the
Board of Managers by a majority vote of a quorum consisting of Managers who were
not parties to such action, suit or proceeding (each, a "Disinterested
Manager"), or (2) if such a quorum is not obtainable, or even if obtainable (if
a majority of a quorum of Disinterested Managers so directs), by independent
legal counsel in a written opinion.
(c) The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, in itself, create a presumption that the Person
seeking indemnification did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the LLC,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(d) Expenses (including attorneys' fees and disbursements)
incurred by a Manager or an agent of the LLC in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
LLC in advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Managers in the specific case upon receipt of an
undertaking by or on behalf of such Manager or agent to repay such amount unless
it shall ultimately be determined that he is entitled to be indemnified by the
LLC.
(e) To the fullest extent permitted by law, no Manager of the LLC
shall be personally liable to the LLC for monetary damages for any breach of
fiduciary duty by such
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Person as a Manager. Notwithstanding the foregoing sentence, a Manager shall be
liable (i) for breach of the Manager's duty of loyalty to the LLC or the Member,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law or (iii) for any transaction from which
the Manager derived an improper personal benefit. No amendment to or repeal of
this Section 6.01(e) shall apply to or have any effect on the liability or
alleged liability of any Manager of the LLC for or with respect to any acts or
omissions of such Manager occurring prior to such amendment.
(f) The indemnification and advancement of expenses provided by
this Section 6.01 shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement may be entitled under any
agreement, vote of the Board of Managers or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office, and shall continue as to a Person who has ceased to be a Manager,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such Person.
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
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continued without dissolution in a manner permitted by this Agreement or the Act
(ii) an agreement of all Members to dissolve the LLC or (iii) the entry of a
decree of judicial dissolution under Section 18-802 of the Act.
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/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇
Secretary
Second Amended and Restated Limited Liability Company Operating Agreement of
Flatonia Oak Manor GP, LLC
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EXHIBIT A
CONTINUING MANAGERS
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