Exhibit 10.17
Recovery and Subordination Agreement
THIS AGREEMENT, made and entered into as of the 1~ day of January 2002, by
and between MONY HEALTHCARE, INC., a corporation duly created, organized, and
existing under and by virtue of the Laws of the State of New York ("MDNY") and
each of ISLAND PROFESSIONAL ASSOCIATION I.P.A., INC. a corporation duly created,
organized, and existing under and by virtue of the Laws of the State of New York
("Island"), and MERCY MEDICAL CENTER, ST. XXXXXXXXX OF SIENA MEDICAL CENTER, ST.
XXXXXXX HOSPITAL AND REHABILITATION CENTER, ST. XXXXXXX HOSPITAL and GOOD
SAMARITAN HOSPITAL MEDICAL CENTER, all corporations duly created, organized and
existing under and by virtue of the laws of the State of New York ("the
Hospitals"), by their agent CATHOLICHEALTH SYSTEM OF LONG ISLAND, INC. (doing
business as "Catholic Health Services of Long Island) ("CHS"), a corporation
duly created, organized, and existing under and by virtue of the Laws of the
State of New York.
WITNESSETH:
WHEREAS, MDNY has made payments on Island's behalf in the amount of $23.5
million in excess of the negotiated capitated amount previously agreed upon (the
"Excess Amount");
WHEREAS, Island has agreed that it will repay the Excess Amount to MDNY
(the "Debt Outstanding");
WHEREAS, the Hospitals are participating providers of MDNY;
WHEREAS, in the event that MDNY becomes Insolvent (as hereinafter
defined), each of Island (for itself and on behalf of each of its participating
providers, consisting of all providers who have entered into a participating
provider contract with Island (the "Island Participating Providers")) and the
Hospitals have agreed to subordinate the payment of outstanding claims owed by
MDNY to each of them in accordance with the terms and provisions set forth
herein;
WHEREAS, following execution of this Agreement MDNY shall reflect the
recovery and subordination amounts in its financial statements in accordance
with the terms set forth herein.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, and intending to be legally bound hereby, MDNY, Island,
the Island Participating Providers and the Hospitals agree as follows:
1. Effective as of January 1, 2002, Island will retain a
"non-distributable" withhold in the amount of 5% from all payments
due to the Island Participating Providers for services rendered on
or after that date (the "Non-Distributable Withhold").
2. Each month, the Non-Distributable Withhold identified in paragraph 1
above and any Net Revenue (as defined in Paragraph 11) shall be
remitted in its entirety to MDNY.
3. MDNY will, subject to the terms of this agreement and of the Service
Agreement between Island and MDNY, make claims payments to Island
(or, to the extent directed by Island, directly to the Island
Participating Providers) on a fee for service basis.
4. Effective as of January 1, 2002, MDNY will be obligated to make
payment to Island for unrestricted access to its network of
participating providers in an amount equal to $1.50 per member/per
month (the "Network Access Fee.")
5. The amounts owed by MDNY to Island for the Network Access Fee shall
be retained and used by MDNY to repay, on a dollar for dollar basis,
the Debt Outstanding.
6. Collectively, the Non-Distributable Withhold, the Network Access Fee
and the payment of Net Revenue (as set forth in paragraph 11 below)
shall be referred to as the "Repayment Plan."
7. Until such time as repayment of the Debt Outstanding has been fully
satisfied,
a. the Repayment Plan shall remain in effect; and
b. the subordination obligations set forth in Paragraph 8
below shall be reduced by MDNY on a dollar for dollar
basis in an amount equal to the amounts received
pursuant to the Repayment Plan.
8. Each of Island (for itself and on behalf of each of its
Participating Providers), the Island Participating Providers and the
Hospitals agree to subordinate their rights to payment of
outstanding claims (including IBNR) owed by MDNY to all other
creditors of MDNY as follows (the "Subordination").
a. This Subordination will only become effective when and
if MDNY becomes Insolvent. For purposes of this
Agreement, MDNY shall become Insolvent when it becomes
subject to a Court Approved Order to Rehabilitate or
when it admits in writing its inability to generally pay
its debts when due.
b. The aggregate amount of this Subordination is equal to
the amount of Debt Outstanding at the time MDNY becomes
Insolvent.
c. The terms of this Subordination is that both the claims
of Island and the Island Participating Providers, and
the claims of the Hospitals, at the time MDNY becomes
Insolvent will be subordinated, in an amount equal to
the then remaining Debt Outstanding, to the claims of
all other creditors of MDNY. After the payment of all
claims of all other creditors of MDNY, all claims of
Island and the Island Participating Providers shall be
subordinated to all claims of the Hospitals.
d. MDNY will from time to time, but no less frequently than
every fiscal quarter, advise Island, CHS and the
Hospitals as to the outstanding amount of the Debt
Outstanding and as to its best estimate of the amounts
that Subordination of Island and the Island
Participating Providers and the Hospitals would be if
MDNY were then Insolvent.
e. Nothing in this Agreement or in the terms of the
Subordination shall create any obligation of CHS or any
of the Hospitals to pay the Debt Outstanding or any part
of it.
9. MDNY will reflect in its financial statements as an admitted asset
the Excess Amount,
which statements shall be periodically amended to reflect payments
made by Island pursuant to the Repayment Plan. Any such asset is
subject to audit and adjustment by the NYS Insurance Department.
10. MDNY will reflect the amounts of subordinate claims along with the
unpaid non-distributable withhold in a footnote to its filed
financial statements.
11. In an effort to further reduce the Debt Outstanding, Island shall
pay to MDNY a portion of all income it receives from sources other
than MDNY. Said payments will be in an amount equal to gross
collections minus operational and administrative expenses (the "Net
Revenue") received by Island from such sources. Said Net Revenue
shall be paid to MDNY until such time as the Debt Outstanding is
fully satisfied.
12. Island represents that it has the legal authority to bind the Island
Participating Providers to the terms and conditions of this
Agreement, including the terms and conditions of the subordination
contained in paragraph 8 hereof.
13. CHS represents that it has the legal authority to bind the Hospitals
to the terms and conditions of this Agreement, including the terms
and conditions of the subordination contained in paragraph 8 hereof.
14. Amendment to this Agreement shall require the approval of the
Superintendent of Insurance of the State of New York.
15. This Agreement, and all of the covenants and conditions hereinabove
contained, shall be binding upon and inure to the benefit of the
parties hereto and their respective successors or assigns.
16. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
17. This Agreement, and the rights and obligations of the parties
hereunder, shall be construed in accordance with, and governed by,
the internal laws of the State of New York, without regard to
conflicts of laws principles.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
by their proper corporate officers as of the day and year first above written.
MDNY HEALTHCARE, INC.:
By: ____________________________________
President
ISLAND PROFESSIONAL ASSOCIATION I.P.A., INC. (individually, and on behalf of
each of the Participating Providers)
By: ____________________________________
President
MERCY MEDICAL CENTER, ST. XXXXXXXXX OF SIENA MEDICAL CENTER, ST. XXXXXXX
HOSPITAL AND REHABILITATION CENTER, ST. XXXXXXX HOSPITAL and GOOD SAMARITAN
HOSPITAL MEDICAL CENTER, by CATHOLIC HEALTH SYSTEM OF LONG ISLAND, INC., AS
AGENT
By: ____________________________________
President and Chief Executive Officer
of Catholic Health System of Long
Island, Inc.
Amendment No. 1 to the Recovery and Subordination Agreement
THIS AGREEMENT, made and entered into as of the 1st day of January 2002,
by and between MDNY HEALTHCARE, INC., a corporation duly created, organized, and
existing under and by virtue of the Laws of the State of New York ("MDNY") and
each of ISLAND PROFESSIONAL ASSOCIATION I.P.A., INC. a corporation duly created,
organized, and existing under and by virtue of the Laws of the State of New York
("Island"), and MERCY MEDICAL CENTER, ST. XXXXXXXXX OF SIENA MEDICAL CENTER, ST.
XXXXXXX HOSPITAL AND REHABILITATION CENTER, ST. XXXXXXX HOSPITAL and GOOD
SAMARITAN HOSPITAL MEDICAL CENTER, all corporations duly created, organized and
existing under and by virtue of the laws of the State of New York ("the
Hospitals"), by their agent CATHOLICHEALTH SYSTEM OF LONG ISLAND, INC. (doing
business as "Catholic Health Services of Long Island) ("CHS"), a corporation
duly created, organized, and existing under and by virtue of the Laws of the
State of New York.
WHEREAS, each of MDNY, Island and the Hospitals by their agent, CHS, have
executed that certain Recovery and Subordination Agreement dated as of January
1, 2002 (the "Agreement"); and
WHEREAS, each of MDNY, Island and CHS have agreed to amend the Agreement
in accordance with the terms west forth herein,
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, and intending to be legally bound hereby, MDNY, Island,
the Island Participating Providers and the Hospitals agree as follows:
1. Xxxxxxxxx 0x xxxxx xx deleted in its entirety and the following language
shall be inserted in lieu thereof:
This Subordination will only become effective when and if MDNY becomes
Insolvent. For purposes of this Agreement, MDNY shall become Insolvent
when it becomes subject to a Court Approved Order of Rehabilitation or
when it admits in writing its inability to generally pay its debts when
due.
2. Except as amended hereby, the Agreement shall remain in full force and effect
and no further amendment to the Agreement shall effect or override this
Amendment, except pursuant to a signed written agreement among the parties
hereto which refers specifically to the Agreement and this Amendment.
3. This Amendment may be executed in counterparts, each of which when so
executed shall be an original, but all such counterparts shall together
constitute but on e and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
by their proper corporate officers as of the day and year first above written.
