LIMITED LIABILITY COMPANY AGREEMENT OF CLARKSTON CARE, L.L.C.
Exhibit 3.62
OF
CLARKSTON CARE, L.L.C.
This Limited Liability Company Agreement (this “Agreement”) of CLARKSTON CARE, L.L.C. (the
“Company”), dated and effective as of June 14, 2006, is entered into by AVIV FINANCING I, L.L.C.,
as the sole member (the “Member”).
The Member, by execution of this Agreement, hereby agrees as follows:
2. Certificates. The Member is hereby designated an authorized person within the
meaning of the Delaware Limited Liability Company Act (6 Del.C. §18-101, et
seq.), as amended from time to time (the “Act”). The Member is hereby authorized to
execute, deliver and file any certificates (and any amendments and/or restatements thereof) (a) to
be filed in the office of the Secretary of State of the State of Delaware, or (b) necessary for the
Company to qualify to do business in any jurisdiction in which the Company may wish to conduct
business.
4. Period of Duration. The period of duration of the Company (“Period of Duration”)
shall be through December 31, 2060, commencing on the date of the filing of the Certificate of
Formation with the Secretary of State of the State of Delaware, unless the Company is terminated or
dissolved sooner, in accordance with the provisions of this Agreement
(a) Acquire by purchase, lease, contribution of property or otherwise, own, hold, sell,
convey, transfer or dispose of any real or personal property that may be necessary, convenient or
incidental to the accomplishment of the purposes of the Company;
(b) Act as a trustee, executor, nominee, bailee, director, officer, agent or in some other
fiduciary capacity for any person or entity and to exercise all of the powers, duties, rights and
responsibilities associated therewith;
(c) Take any and all actions necessary, convenient or appropriate as trustee, executor,
nominee, bailee, director, officer, agent or other fiduciary, including the granting or
approval of waivers, consents or amendments of rights or powers relating thereto and the
execution of appropriate documents to evidence such waivers, consents or amendments;
(d) Operate, purchase, maintain, finance, improve, own, sell, convey, assign, mortgage, lease
or demolish or otherwise dispose of any real or personal property that may be necessary, convenient
or incidental to the accomplishment of the purposes of the Company;
(e) Borrow money and issue evidences of indebtedness in furtherance of any or all of the
purposes of the Company, and secure the same by mortgage, pledge or other lien on the assets of the
Company;
(f) Invest any funds of the Company pending distribution or payment of the same pursuant to
the provisions of this Agreement;
(g) Prepay, in whole or in part, refinance, recast, increase, modify or extend any
indebtedness of the Company and, in connection therewith, execute any extensions, renewals or
modifications of any mortgage or security agreement securing such indebtedness;
(h) Enter into, perform and carry out contracts of any kind, including, without limitation,
contracts with any person or entity affiliated with the Member, necessary to, in connection with,
convenient to, or incidental to the accomplishment of the purposes of the Company;
(i) Employ or otherwise engage employees, managers, contractors, advisors, attorneys and
consultants and pay reasonable compensation for such services;
(j) Enter into partnerships, limited liability companies, trusts, associations, corporations
or other ventures with other persons or entities in furtherance of the purposes of the Company; and
(k) Do such other things and engage in such other activities related to the foregoing as may
be necessary, convenient or incidental to the conduct of the business of the Company, and have and
exercise all of the powers and rights conferred upon limited liability companies formed pursuant to
the Act.
7. Registered Office. The address of the registered office of the Company in the
State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
8. Registered Agent. The name and address of the registered agent of the Company for
service of process on the Company in the State of Delaware are The Corporation
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Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
Name | Address | |
Aviv Financing I, L.L.C.
|
0 Xxxxx Xx Xxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx 00000 |
15. Management. In accordance with Section 18-402 of the Act, management of the
Company shall be vested in the Member. The Member shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the purposes described herein,
including all powers, statutory or otherwise, possessed by members of a limited liability company
under the laws of the State of Delaware. The Member has the authority to bind the Company.
16. Officers. The Member may, from time to time as it deems advisable, select natural
persons who are employees or agents of the Company and designate them as officers of the Company
(the “Officers”) and assign titles (including, without limitation, President, Vice President,
Secretary, and Treasurer) to any such person. Unless the Member decides otherwise, if the title is
one commonly used for officers of a business corporation formed under the Delaware General
Corporation Law, the assignment of such title shall constitute the
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delegation to such person of the authorities and duties that are normally associated with that
office. Any delegation pursuant to this Section 16 may be revoked at any time by the Member. An
Officer may be removed with or without cause by the Member.
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(a) The Company shall dissolve and its affairs shall be wound up upon the first to occur of
the following: (i) the written consent of the Member, (ii) at any time there are no members of the
Company unless the Company is continued in accordance with the Act, or (iii) the entry of a decree
of judicial dissolution under Section 18-802 of the Act.
(b) The bankruptcy of the Member shall not cause the Member to cease to be a member of the
Company and upon the occurrence of such an event, the business of the Company shall continue
without dissolution.
(c) In the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the Company in an orderly
manner), and the assets of the Company shall be applied in the manner, and in the order of
priority, set forth in Section 18-804 of the Act.
(a) If any of the provisions of this Agreement or the Articles of Organization (the
“Organizational Documents”) conflicts with the terms of the note, mortgage, deed of trust, security
agreement, or the HUD Regulatory Agreement (“HUD Loan Documents”), the provisions of the HUD Loan
Documents shall control.
(b) No provision required by HUD to be inserted into this Agreement may be amended without
prior HUD approval, so long as HUD is the insurer or holder of the note.
(c) So long as the Secretary of The Department of Housing and Urban Development (“Secretary”)
or the Secretary’s successors or assigns is the insurer or holder of the note secured by the deed
of trust on the Project, no amendment to the Certificate of Formation or this Agreement that
results in any of the following will have any force or effect without the prior written consent of
the Secretary:
i. Any amendment that modifies the term of the Company;
ii. Any amendment that activates the requirement that a HUD previous participation
certification be obtained from any additional member;
iii. Any amendment that in any way affects the note, deed of trust or security
agreement on the Project or the Regulatory Agreement between HUD and the Company (the
“Regulatory Agreement”);
iv. Any amendment that would authorize any member other than the Member to bind the
Company for all matters concerning the project which require HUD’s consent or approval;
v. A change in the Member of the Company; or
vi. Any change in a guarantor of any obligation to the Secretary.
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(d) The Company is authorized to assume a note, deed of trust and security agreement in order
to secure a loan to be insured by the Secretary and to assume the Regulatory Agreement and other
documents required by the Secretary in connection with the HUD-insured loan.
(e) Any incoming member must as a condition of receiving an interest in the Company agree to
be bound by the note, deed of trust, security agreement, the Regulatory Agreement and any other
documents required in connection with the HUD-insured loan to the same extent and on the same terms
as the other members.
(f) Notwithstanding any other provision of the Organizational Documents, upon any dissolution,
no title or right to possession and control of the Project, and no right to collect rents from the
Project, shall pass to any person who is not bound by the Regulatory Agreement in a manner
satisfactory to the Secretary.
(g) The members, and any assignee of a member, agree to be liable in their individual
capacities to HUD with respect to the following matters:
i. For funds or property of the Project coming into their possession, which by the
provisions of the Regulatory Agreement, they are not entitled to retain;
ii. For their own acts and deeds, or acts and deeds of other which they have
authorized, in violation of the provisions of the Regulatory Agreement;
iii. For the acts and deeds of affiliates, as defined in the Regulatory Agreement,
which they have authorized in violation of the provisions of the Regulatory Agreement; and
iv. As otherwise provided by law.
(h) So long as the Secretary or the Secretary’s successors or assigns is the insurer or holder
of the note on the Project, the Company may not voluntarily be dissolved without the prior written
approval of the Secretary.
(i) No provision required by HUD to be inserted into this Agreement may be amended without
prior HUD approval, so long as HUD is the insurer or holder of the note.
(j) The Company has designated the following person as the official representative for all
matters concerning the Project which require HUD consent or approval: Xxx Xxxxxxx, Manager of Aviv
Healthcare, L.L.C., the General Partner of Aviv Heathcare Properties Limited Partnership, the
general partner of Aviv Heathcare Properties Operating Partnership I, L.P., the sole member of Aviv
Financing I, L.L.C., a Delaware limited liability company, which is the sole Member of the
mortgagor entity, will bind the Company in all such matters and such person is authorized to
execute all documentation on behalf of the Company in connection with the HUD Insured Loan. The
Company may from time to time appoint a new representative for all matters concerning the Project
which require HUD consent or approval, but
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within three business days of doing so, the Company will provide HUD with written notice of
the name, address, and telephone number of such new representative. When a member and/or person
other than the member and/or person identified above has full or partial authority for management
of the Project, the Company will promptly notify HUD with the name of that member and/or person and
the nature of that member’s and/or person’s management authority.
26. Governing Law. This Agreement shall be governed by, and construed under, the laws
of the State of Delaware (without regard to conflict of laws principles), all rights and remedies
being governed by said laws.
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AVIV FINANCING I, L.L.C. |
||||
By: | AVIV HEALTHCARE PROPERTIES | |||
OPERATING PARTNERSHIP I, L.P. | ||||
Its: | Sole member | |||
By: | AVIV HEALTHCARE PROPERTIES | |||
LIMITED PARTNERSHIP | ||||
Its: | General partner | |||
By: | AVIV HEALTHCARE, L.L.C. | |||
Its: | General partner | |||
By: | /s/ Xxx Xxxxxxx | |||
Name: | Xxx Xxxxxxx | |||
Its: | Manager | |||
By: | /s/ Xxxxx X. Xxxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxxx | |||
Its: | Manager |
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