EXHIBIT 99.2
FORBEARANCE AGREEMENT
This FORBEARANCE AGREEMENT (the "Agreement") is made and entered into this
2nd day of May, 1997, by and between PCA PROPERTY & CASUALTY COMPANY, a Florida
corporation ("PCA") and THE STATE OF FLORIDA, EX REL, THE DEPARTMENT OF
INSURANCE (the "Department"), joined by PHYSICIAN CORPORATION OF AMERICA, a
Delaware corporation ("PCOA") and PCA SOLUTIONS, INC., a Florida corporation
("Solutions").
RECITALS
A. PCA is a Florida corporation with its principal place of business at
000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, and is a domestic
insurer authorized to transact an insurance business in this state. PCA is a
subsidiary of PCOA.
B. PCOA is a Delaware corporation with its principal place of business at
0000 Xxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, and is a managed health care
holding company that, among other things, provides administrative and management
services through its workers' compensation third-party administration companies,
i.e. Solutions, and workers' compensation and health related insurance through
its insurance companies, i.e. PCA.
C. Solutions is a Florida corporation with its principal place of
business at 000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, and is
a workers' compensation third-party administrator and managing general agent.
Solutions is a subsidiary of PCOA.
D. On February 25, 1997, the Department filed its Petition for Order to
Show Cause (the "Petition") with the Circuit Court of the Second Judicial
Circuit in and for Xxxx County, Florida (the "Court").
E. On February 25, 1997, the Court entered its Order to Show Cause,
Temporary Injunction, and Notice of Automatic Stay which, among other things,
ordered PCA to appear before the Court on May 2, 1997, to show good cause why
the Department should not be appointed receiver of PCA for the purpose of
rehabilitation in accordance with Chapter 631, Part 1, Florida Statutes.
F. As evidenced by this Agreement, the parties herein have reached an
agreement with respect to the Petition and certain matters related thereto, and
will submit this Agreement to the Court on May 2nd for its approval.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises, terms and conditions hereinafter set forth and the performance of
each, the parties, for themselves and their respective successors and assigns,
agree as follows:
1. Recitals:
The recitals to this Agreement are true and correct and are incorporated
into this Agreement.
2. Forbearance:
PCA hereby admits that it is insolvent and consents (i) to the entry of an
order by the Court in the form attached hereto as Exhibit A (the "Consent
Order") and (ii) to placing it in receivership for the purposes of
rehabilitation or of liquidation in accordance with the terms of the Consent
Order and this Agreement. The Department shall be entitled to secure from the
Court an Order of Rehabilitation or of Liquidation (individually or
collectively, the "Order"), at any time, on or after June 2, 1997, by submitting
the Order to the Court ex parte. The decision with respect to which Order to
secure shall be made by the Department, in its sole and absolute discretion.
PCA hereby waives hearings, and further waives any and all challenges available
to it in any forum to contest the adjudication of insolvency, the appointment of
the Department as receiver, as well as the entry of this Consent Order or of any
Order entered by this Court with respect thereto, including any right to appeal
this Consent order or any such Order.
PCA and the Department hereby agree that enforcement of this Consent Order
shall not take place prior to June 2, 1997. In the event that, on or before
June 2, 1997, PCA submits to the Department an agreement, recapitalization or
other transaction providing for the full guarantee of timely payment of all
known or potential claims of PCA and which agreement, recapitalization or other
transaction is acceptable to the Department, in its sole and absolute discretion
(provided, however, that the Department shall act in good faith and not
arbitrarily), the Department shall not proceed with rehabilitation, liquidation
or any other form or receivership at that time. The Department shall review any
agreement, recapitalization or other transaction within a reasonable time and
shall identify to PCA any concerns or objections of the Department with respect
to such proposals within a reasonable time.
A copy of the Consent Order, attached hereto as Exhibit "A", is
incorporated herein by reference and made a part of this Agreement.
3. Pending Discovery:
All pending discovery requests and/or public records requests made by, or
on behalf of, PCOA or PCA, with respect only to these proceedings, are hereby
withdrawn and of no further force and effect.
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4. Data and computer access:
The Department shall have complete, total and free access to all existing
PCA accounting, claims and other data as well as the use of all computers and
software relating to or required for the generation and production of such data.
PCOA and/or Solutions will grant a license to PCA and the Department to use any
and all software that is either proprietary or which PCOA and/or Solutions is a
licensee, unless prohibited by such license. In the event such a license is
prohibited, PCOA and Solutions will use their best efforts to obtain a
sublicense for PCA and the Department, at their sole cost and expense.
5. Office Space:
PCOA and Solutions, as the case may be, shall continue to provide the
Department, free of any charge or expense to the Department, with sufficient
office space as may be reasonably required by the Department, from time to time,
in order for the Department to carry out the intent and purpose of this
Agreement and the Consent Order.
6. Access to Records:
The Department shall have direct access to any and all records that PCA
and/or Solutions and/or any other subsidiary of PCOA may have in its possession
relating to PCA. Such information shall be made available, upon the request of
Department, either in electronic form or otherwise. This information shall be
made available to the Department notwithstanding the physical location of such
information, (regardless of whether such information may be found in Miami,
Orlando, South Carolina or any other location). Notwithstanding the provisions
of this paragraph 6, no party to this Agreement shall be deemed to have waived
any privileges to which they may be entitled by applicable law and which have
not previously been waived.
7. Operational Matters:
The following measures will be immediately implemented:
a. INVESTMENT ACCOUNT CUSTODY - PCA shall provide to the Department
daily transaction ledgers and confirmations received from
brokerage and other investment accounts. Any transfers shall be
authorized in writing by dual signature; one signature by a
representative of the Department and one signature by a
representative of PCA. No transfers from such accounts in excess
of $500 thousand in any one day, whether individually or in the
aggregate, shall be authorized without the prior written approval
of the Department. Any individual transfers in excess of
$500,000 shall require the prior written consent of the
Department.
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b. OTHER BANK ACCOUNTS - The Department shall be a signatory for all
checks, drafts and transfer instructions to be issued in respect
of PCA accounts effective from and after the date of this
Agreement in excess of $5,000. Monthly bank statements shall be
provided to the Department unopened upon receipt and thereafter
shall be promptly provided to an employee of PCA for
reconciliation. Employees of PCA and the Department shall be
joint signatories on all checking accounts of PCA. PCA shall
provide daily check registers in respect of all bank accounts to
the Department.
c. PCA STOCK REGISTER, STOCK CERTIFICATES AND MINUTE BOOK - The
originals shall be provided to the Department for custody. In
the event that any stock certificates are being held by a third
party for purposes of perfecting a security interest in the
shares represented by such certificates, the identify of the
holder of the certificates and their location shall be identified
in writing to the Department.
d. PCA LEASES - The originals of all leases to which PCA is a party
shall be provided to the Department.
e. INSURANCE - A copy of any and all insurance policies covering PCA
real and personal properties shall be provided to the Department.
f. CLAIMS MANAGEMENT - PCA and Solutions shall permit the Department
direct access to all claims files.
g. PREMIUM AND AGENTS' BALANCES - The Department shall have direct
access to any and all PCA records regarding premiums and/or
agents' balances.
h. REINSURANCE RECOVERABLE - The Department shall have direct access
to all PCA records with respect to any and all reinsurance
recoverables on loss and loss adjustment expenses payments.
i. SALVAGE AND SUBROGATION - The Department shall have direct access
to all records of PCA concerning salvage and subrogation, and any
settlements in respect thereof shall require the prior written
consent of the Department.
8. Pending transactions:
PCOA and PCA have informed the Department that they are currently
soliciting for their consideration various proposals and agreements the effect
of which are to guarantee the payment of all
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known and potential claims of PCA. PCOA and PCA shall, contemporaneously with
their distribution, submit to the Department any and all information distributed
by PCOA, PCA or its agents as part of their formal solicitation process.
Additionally, PCOA, PCA or its agents shall, contemporaneously with their
receipt, submit to the Department any and all information (including but not
limited to, reinsurance agreements, letter of intent and purchase and sale
agreements) received by all or any one of them either in response to any such
formal solicitation or otherwise. To the extent permitted by law, the
Department shall treat all such information and documents as confidential
pursuant to Section 624.82, Florida Statutes.
Nothing contained in this Agreement shall be construed as waiving any
right(s) that the Department may have pursuant to its statutory authority,
including but not limited to, the approval of the structure of any such proposed
transaction or of the parties thereto.
9. Reimbursement of costs and expenses:
PCA shall be responsible for and shall reimburse the Department for any and
all costs and expenses incurred by it with respect to this matter from and after
May 1, 1997.
10. Bankruptcy:
PCA stipulates and agrees that it is a domestic insurance company and that,
consequently, it may not be a debtor under any chapter of the United States
Bankruptcy Code. PCOA and PCA likewise stipulate that the filing by PCOA of a
petition for relief under any chapter of the United States Bankruptcy Code shall
not stay enforcement of the Consent Order against PCA, pursuant to 11 U.S.C. 362
(b) (4) and/or (b) (5), and the Department shall be entitled to an ex parte
order annulling any such stay from the United States Bankruptcy Court where such
petition for relief is filed, without necessity for any declaratory relief or
any other adversary proceeding or contested matter. This provision shall not
limit (i) the rights of any person other than PCA to petition for relief under
said Code or (ii) the right of the Department to challenge whether any such
person may be a debtor under any chapter of the United States Bankruptcy Code.
11. No Liability:
The parties hereby acknowledge that the Department, in addition to its
statutory immunities, shall have no liability of any kind with respect to the
subject matter of this Agreement. Other than the duty of forbearance described
in Paragraph 2 of this Agreement, the Department is under no obligation or duty
to take any action whatsoever, legal or otherwise, with respect to this
Agreement, and no implied duties or obligations shall be imposed upon the
Department under this Agreement.
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12. Attorneys' Fees and Costs:
If attorney's fees or other costs are incurred to secure performance of any
obligations hereunder, or to establish damages for the breach thereof or to
obtain any other appropriate relief based on this Agreement, whether by way of
prosecution or defense, the prevailing party will be entitled to recover
reasonable attorneys' fees and costs incurred in connection therewith, including
costs on appeal.
13. Further Assurance:
Each party agrees to execute any and all documents and to perform such
other acts as may be necessary or expedient to further the purposes of this
Agreement.
14. Counterparts:
This Agreement may be executed in one or more counterparts for the
convenience of the parties hereto, all of which together will constitute one and
the same instrument.
15. Entire Agreement:
This Agreement contains the entire understanding of the parties relating to
the subject matter hereof and supersedes all prior written or oral agreements
and all contemporaneous oral agreements and understandings relating to the
subject matter hereof. This Agreement cannot be modified or amended except in
writing signed by the party against whom enforcement is sought.
18. Governing Law:
This Agreement shall be governed by and construed, interpreted and enforced
in accordance with the laws of the State of Florida.
19. Paragraph Headings:
The captions in this Agreement are inserted for convenience of reference
and in no way define, describe or limit the scope or intent of this Agreement or
any of the provisions hereof.
20. Binding:
The terms of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their successors, transferees and assigns.
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21. Assignment:
Neither this Agreement nor any of the rights, interests and obligations
hereunder may be assigned or delegated by PCOA, Solutions or PCA. This
Agreement is not intended to and does not confer any rights or benefits to any
person other than the parties hereto.
22. Termination:
This Agreement shall terminate upon the earliest of (a) the express
agreement of the parties to such effect or (b) appointment of a receiver for
PCA.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
PCA PROPERTY AND CASUALTY INSURANCE
COMPANY
BY:__________________________________
Xxxxx X. Xxxxxxxxxx, its President and CEO
FLORIDA DEPARTMENT OF INSURANCE
BY:___________________________________
Xxxxxxx X. Xxxxxx, Deputy Insurance
Commissioner
JOINDER
The undersigned, jointly and severally, hereby join in the execution of
this Agreement for the purpose of:
(i) signifying their agreement to be bound by the terms and conditions of
this Agreement which require their joint or several performance; and,
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(ii) signifying their agreement to perform in accordance with such terms
and conditions:
PHYSICIAN CORPORATION OF AMERICA
BY:__________________________________
E. Xxxxxxx Xxxxxxxxx, its Chairman
and CEO
PCA SOLUTIONS, INC.
BY:__________________________________
Xxxxx X. Xxxxxx, its Vice President
and CFO
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