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EXHIBIT 10.9
AMENDMENT TO
OPERATING AGREEMENT OF
ARIZONA HEART HOSPITAL, LLC (the "Company")
THIS AMENDMENT to the Operating Agreement of the Company is effective
as of February 23, 2000 (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 or
its Affiliates, 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 Schedule B
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 Schedule B
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 further
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.
[***]
[***] These portions of this exhibit have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment.
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