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EXHIBIT 10.19
AMENDMENT TO
OPERATING AGREEMENT OF
HEART HOSPITAL OF BK, LLC (the "Company")
THIS AMENDMENT to the Operating Agreement of the Company is effective
as of December 1, 1999 (the "Amendment").
This Amendment is made under the terms of Section 11.1(e) of the
Operating Agreement in order to ensure that the Company remains in compliance
with all federal and state laws, rules, regulations and interpretations thereof.
The undersigned have also determined that this Amendment will not materially
reduce the economic return on investment in the Company to any of its Members.
Accordingly, the Operating Agreement is hereby amended as follows:
1. A new Section 5.17 is hereby added to the Operating Agreement
as follows:
SECTION 5.17 Guarantee Fee. In the event that any
Member of the Company or its Affiliates provide a guarantee of
any indebtedness of the Company which is acceptable to and
required by the Company's lenders ("Guarantor Members") and
such guarantees are not provided on a pro rata basis by all
other Members of the Company (the "Nonguarantor Members"),
then the Guarantor Members shall be paid an annual guarantee
fee equal to (a) the amount of such indebtedness which is
guaranteed by the Guarantor Members, multiplied by (b) .0075,
multiplied by (c) the percentage Membership Interest in the
Company owned by the Nonguarantor Members (the "Guarantee
Fee"). The Guarantee Fee shall be paid quarterly and the
expense thereof shall be allocated to the Nonguarantor Members
as follows:
(a) The Guarantee Fee shall be deducted
from the Cash Distributions otherwise distributable
to the Nonguarantor Members and shall be paid to the
Guarantor Members;
(b) To the extent that at the time such
Guarantee Fee is due to be paid hereunder there are
no anticipated Cash Distributions, then the Company
shall pay such Guarantee Fee to the Guarantor Members
and the amount of such payments shall be charged to
the Capital Accounts of the Nonguarantor Members;
(c) When Cash Distributions become
available for distribution to the Members in the
future, the Cash Distributions otherwise
distributable to the Nonguarantor Members shall first
be retained by the Company to the extent that amounts
were previously charged to the Capital Accounts of
the Nonguarantor Members in accordance with (b)
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above and any remaining Cash Distributions shall be
distributed to the Members in accordance with Section
6.1.
2. Section 6.1 shall be deleted in its entirety and the following
new Section 6.1 shall be substituted in lieu thereof:
SECTION 6.1 Distributions of Cash Flow from
Operations and Cash from Sales or Refinancing. Prior to the
dissolution of the Company, Cash Flow from Operations and Cash
from Sales or Refinancing, if any, remaining after repayment
of any loans made by the Members to the Company, shall be
distributed quarterly by the Managers as Cash Distributions
according to the relative percentage Membership Interests of
the Members and Economic Interest Owners; provided, however,
that to the extent possible, any Guarantee Fee shall be
deducted from the Cash Distributions otherwise distributable
to the Nonguarantor Members and paid to the Guarantor Members
as set forth in Section 5.17. Notwithstanding anything herein
to the contrary, no distributions shall be made to Members if
prohibited by the Act.
3. The opening phrase of Section 6.2 shall be deleted and the
following shall be substituted in lieu thereof:
SECTION 6.2 Profits. Except as provided in the
Regulatory Allocations Exhibit and subject to Section 6.6,
Profits shall be allocated as follows:
4. The opening phrase of Section 6.3 shall be deleted and the
following shall be substituted in lieu thereof:
SECTION 6.3 Losses. Except as provided in the
Regulatory Allocations Exhibit and subject to Section 6.6,
Losses shall be allocated as follows:
5. The following shall be added as a new Section 6.6:
SECTION 6.6. Special Allocations of Guarantee Fees.
Any and all deductions, losses or reductions to Capital
Account attributable to the payment by the Company of
Guarantee Fees shall be allocated to the Nonguarantor Members
in accordance with their relative percentage Membership
Interests.
6. Section 7.3(b)(ii) shall be deleted in its entirety and the
following new section shall be substituted in lieu thereof:
(ii) To the payment of all debts and
liabilities (including interest), and including
without limitation any accrued but unpaid Guarantee
Fees, owed to the Members or their Affiliates as
creditors; and
Except as provided herein, the Operating Agreement shall remain in full
force and effect.
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