EXHIBIT 10.27
SETTLEMENT AGREEMENT RE: PHARMACY SUPPLY CONTRACTS
This "Settlement Agreement Re: Pharmacy Supply Contracts" ("Agreement")
is entered into as of October 9, 2001, by and among Mariner Post-Acute Network,
Inc. ("MPAN"), for itself and on behalf of each of its affiliates ("Affiliates,"
as the term "affiliate" is defined in section 101(2) of title 11 of the United
States Code (the "Bankruptcy Code")) (collectively, with MPAN, the "MPAN Group")
which has engaged in the past or is presently engaged in the purchase of
pharmaceutical products and services ("Pharmacy Products and Services") from any
member of the NeighborCare Group (as hereafter defined) on the one hand, and
NeighborCare Pharmacy Services, Inc., for itself and on behalf of each of its
Affiliates which has engaged in the past or is presently engaged in the sale or
supply of Pharmacy Products and Services to any member of the MPAN Group
(collectively, with NeighborCare, the "NeighborCare Group") on the other hand,
with each of the foregoing hereinafter referred to collectively as the "Parties"
and individually as a "Party", with reference to the following facts and
recitals:
RECITALS
A. MPAN and the other members of the MPAN Group are debtors and
debtors in possession in cases pending under in chapter 11 of the Bankruptcy
Code, Case Nos. 00-00113 through 00-00214, which cases are jointly administered
and consolidated for procedural purposes only under Case No. 00-00113
(collectively, the "MPAN Bankruptcy Case") pending in the United States
Bankruptcy Court for the District of Delaware (the "MPAN Bankruptcy Court"),
having filed their voluntary petitions on January 18, 2000 (the "MPAN Petition
Date").
B. NeighborCare and the other members of the NeighborCare Group
are the revested debtors in cases pending under chapter 11 of Bankruptcy Code,
Case Nos. 00-2691 (JHW) through 00-2836 (JHW), which cases are jointly
administered and consolidated for procedural purposes only under Case
No. 00-2692 (JHW) (collectively, the "NeighborCare Bankruptcy Case") pending
in the United States Bankruptcy Court for the District of Delaware (the
"NeighborCare Bankruptcy Court"), having confirmed their plan of reorganization
on September 20, 2001, the effective date of which occurred on October 2, 2001.
C. On the MPAN Petition Date, members of the MPAN Group and
members of the NeighborCare Group were parties to numerous executory contracts,
including, without limitation, an Omnibus Reconciliation Services Agreement
("ORSA"), various pharmaceutical supply agreements, whether or not in the form
appended to the ORSA, and various pharmaceutical consultant agreements, whether
or not in the form appended to the ORSA (collectively, including all executory
contracts and all other rights, duties and obligations among the MPAN Group on
the one hand and the NeighborCare Group on the other hand, the "Contracts"),
whereby members of the
NeighborCare Group supplied members of the MPAN Group with Pharmacy Products and
Services. The Contracts were assumed in the NeighborCare Bankruptcy Case;
however, to date, the Contracts have not been assumed or rejected in the MPAN
Bankruptcy Case.
D. In connection with the performance by the NeighborCare Group
and the MPAN Group under the Contracts prior to the MPAN Petition Date, the
NeighborCare Group asserts monetary defaults in the aggregate amount of
approximately $22.5 million, which amount the MPAN Group believes exceeds the
amount owing under the Contracts.
E. The NeighborCare Group additionally asserts administrative and
pre-petition claims in the MPAN Bankruptcy Case for liquidated damages under the
Contracts arising from the activities of the MPAN Group both prior and
subsequent to the MPAN Petition Date relating to the closure or divestiture of
operating locations. The MPAN Group has not paid any such liquidated damage
claims to NeighborCare and disputes the allowability of such claims as a cost of
administration in the MPAN Bankruptcy Case.
F. Members of the NeighborCare Group have filed numerous proofs
of claims in the MPAN Bankruptcy Case, including, without limitation, those
claims set forth on Schedule 1 hereto (collectively, the "NeighborCare Claims").
G. The NeighborCare Group has continued to provide Pharmacy
Products and Services to the MPAN Group following the MPAN Petition Date at the
prices and on the terms established by the Contracts. The MPAN Group has paid
the NeighborCare Group for such shipments within standard business terms.
H. NeighborCare, for an on behalf of the NeighborCare Group, has
filed a motion (the "NeighborCare Motion") in the MPAN Bankruptcy Case to (1)
compel assumption or rejection of the Contracts; (2) allow an administrative
claim; and (3) compel immediate payment thereof. MPAN has not yet filed the
reply of the MPAN Group to the Motion. The response and hearing dates on the
NeighborCare Motion have been continued from time to time.
I. The alternatives to entry into this Agreement are outright
assumption or rejection of the Contracts by the MPAN Group. The MPAN Group has
indicated that it will not assume the Contracts except as provided in this
Agreement. This Agreement is preferable to rejection of the Contracts because
the resolution of all outstanding claims and disputes relating to the Contracts
and the Motion will (A) avoid the costly and disruptive process that could be
occasioned by a transition to a new supplier of Pharmacy Products and Services,
(B) provide an uninterrupted supply of Pharmacy Products and Services to the
MPAN Group and its patients, and (C) avoid costly litigation over (1) the
continuation of services by the NeighborCare Group pending
transition to a new supplier, (2) the NeighborCare Group's right to critical
vendor funds, (3) the NeighborCare Group's prepetition claims for (a) arrearages
due under the Contracts, (b) breach of the Contracts, and (c) liquidated
damages, and (4) the appropriate amount of any administrative claim due
NeighborCare as a result of its asserted claim for liquidated damages and based
on the Pharmacy Products and Services delivered after the MPAN Petition Date.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. Assumption Of Contracts, As Modified; Transition Of Part B
Business; Rights Upon Assignment And Termination. On the Effective Date (as
defined in Paragraph 15 hereof):
a. Assumption of Contracts, As Modified. The MPAN Group
and the NeighborCare Group shall execute and deliver amended and restated
contracts relating only to the MPAN facilities which are presently serviced by
the NeighborCare Group under the Contracts in the form attached hereto as
Exhibit "A" (the "Pharmacy Dispensing Services Agreement"), as Exhibit "B" (the
Consultant Pharmacist Agreement") and as Exhibit "C" (the "Service Agreement")
(collectively, the "Amended And Restated Contracts"), which Amended And Restated
Contracts shall then be assumed in the MPAN Bankruptcy Case and shall replace
and supersede in their entirety any and all of the Contracts, which thereupon
shall be of no further force or effect except as provided for herein. Schedule 2
hereto identifies (1) the MPAN facilities which are presently serviced by the
NeighborCare Group (each a "Contracting Facility"); (2) the particular member of
the MPAN Group that will enter into the Amended And Restated Contracts for each
such facility; and (3) the particular member of the NeighborCare Group that will
enter into the Amended And Restated Contracts for each such facility.
b. Cure Of Defaults; Adequate Assurance Of Future
Performance. The MPAN Group and the NeighborCare Group each agree that in
connection with MPAN's assumption of the Amended And Restated Contracts, except
as provided in Paragraph 2 hereof, there are no monetary defaults that require
cure or compensation; accordingly, the Parties agree that the requirements of
sections 365(b)(1)(A) and (B) of the Bankruptcy Code shall be deemed satisfied
in connection with the Amended and Restated Contracts. Further, the NeighborCare
Group agrees that assumption of the Amended and Restated Contracts by members of
the MPAN Group provides the NeighborCare Group with adequate assurance of future
performance in satisfaction of the requirements of section 365(b)(1)(C) of the
Bankruptcy Code.
c. Part B Transition. Notwithstanding the execution of
the Service Agreement, Exhibit "C" hereto, members of the MPAN Group shall be
entitled to terminate such services without liability and transition the
services back to members of the MPAN group at a rate not to exceed ten
facilities per month. Upon termination of a Service Agreement for a particular
facility, the term "Amended and Restated Contracts" as it relates to such
facility shall mean only the Pharmacy Dispensing Services Agreement and the
Consultant Pharmacist Agreement applicable to such facility. The MPAN Group
shall not be entitled to terminate the Pharmacy Dispensing Services Agreement or
the Consultant Pharmacist Agreement except as set forth in those respective
agreements or as provided for in this Agreement.
d. Assignment of Contracts. If a member of the MPAN
Group transitions operations at a Contracting Facility to a new operator by any
means, including without limitation, by sale, lease rejection or termination
combined with an operations transfer agreement, or sublease, then such member of
the MPAN Group shall use its commercially reasonable efforts to assign to the
new operator the Amended and Restated Contracts applicable to such facility,
subject to the consent of the contracting member of the NeighborCare Group,
which consent shall not be unreasonably withheld. Any such assignment shall
relieve the member of the MPAN Group from any further liability thereunder
except for amounts payable under the Amended and Restated Contracts for goods
sold, services rendered and other claims and charges attributable to the period
prior to the effective date of the assignment of the Amended and Restated
Contracts.
e. Liquidated Damages. A Contracting Facility may
terminate its Amended and Restated Contracts in connection with (i) a sale,
divestiture or other disposition of the Contracting Facility to a third party
which is not then an Affiliate of MPAN; (ii) the rejection of the real property
lease applicable to the Contracting Facility in one of the pending chapter 11
cases of MPAN or one of its Affiliates; or (iii) the closure of cessation of
operations of the Contracting Facility, at which point it shall no longer be
counted as a Contracting Facility under this Agreement; provided, however, that
as of the first day of each calendar month through the initial term of the
Amended and Restated Contracts (the "Calculation Period") on which date there
are less than 53 remaining Contracting Facilities (the "Mariner Facilities
Threshold") MPAN shall promptly pay NeighborCare for the benefit of the members
of the NeighborCare Group which were parties to the terminated Amended and
Restated Contracts liquidated damages monthly in an amount equal to the product
of (i) $12,500 multiplied by (ii) the number by which the then-existing number
of Contracting Facilities is less than the Mariner Facilities Threshold;
provided, however, that the payment of such liquidated damages will continue
only for such period as would have remained on the Amended and Restated
Contracts to which each former Contracting Facility was a party had such Amended
and Restated Contracts not been terminated. For the purposes of calculating
liquidated damages pursuant to the preceding sentence, if the successor operator
(if any) of a Contracting Facility either: (x) assumes the Pharmacy Dispensing
Services
Agreement in effect at such Contracting Facility, or (y) enters into agreements
with a member of the NeighborCare Group, or an Affiliate thereof, with a term of
one year or more (or a shorter period if less than one year remains on the
terminated Pharmacy Dispensing Services Agreement, provided that the term of the
new Pharmacy Dispensing Services Agreement is coterminous with that which
remained on the terminated Pharmacy Dispensing Services Agreement) for the
provision of the services provided under the Pharmacy Dispensing Services
Agreement, then such facility in the hands of the new operator shall continue to
be counted as a Contracting Facility. In addition, the number of Contracting
Facilities shall be increased by each facility owned, managed, or operated by
any member of the MPAN Group or any of their Affiliates which: (1) (a) is not
currently subject to the Amended and Restated Contracts, or (b) does not
currently receive the types of services provided under the Amended and Restated
Contracts from any member of the NeighborCare Group or any Affiliate thereof,
(2) (s) enters into a Pharmacy Dispensing Services Agreement, or (t) enters into
an agreement with a member of the NeighborCare Group, or an Affiliate thereof,
for the provision of the services provided under the Pharmacy Dispensing
Services Agreement which is coterminous with the terminated Pharmacy Dispensing
Services Agreement which such contract is intended to replace, and (3)
specifically declares solely under this Agreement that the contractual
arrangements described in (s) or (t) above are intended to increase the number
of Contracting Facilities for purposes of calculation of liquidated damages
solely under this Paragraph. The Parties acknowledge and agree that the damages
which the NeighborCare Group would suffer upon the termination of the Amended
and Restated Contracts would be difficult to calculate, and that the liquidated
damages set forth herein represent the Parties' reasonable estimate of the
actual damages that would be incurred by the NeighborCare Group in the event of
any such termination. The liquidated damages payable under this subparagraph
shall be in addition to amounts payable under the Amended and Restated Contracts
for goods sold, services rendered and other claims and charges attributable to
the period prior to the effective date of the termination of the Amended and
Restated Contracts. MPAN shall have no obligation to pay any liquidated damages
pursuant to this section following the Calculation Period.
2. Cure; Withdrawal of Claims; Allowance of General Unsecured
Non-Priority Claims In Favor of NeighborCare Group. On the Effective Date:
a. In full and complete satisfaction of all disputes and
claims arising prior to the MPAN Petition Date among the members of the MPAN
Group on the one hand and the members of the NeighborCare Group on the other
hand by reason of, arising from, relating to, or in connection with the
Contracts, the delivery of Pharmacy Products and Services, or otherwise,
including, without limitation, claims for unpaid invoices, accounts receivables,
late charges, attorneys' fees, liquidated damages for the closure of MPAN
facilities, and any cure and compensation required to be paid in connection
with the assumption of the Amended and Restated Contracts pursuant to
section 365(b)(1)(A) and (B) of the Bankruptcy Code, Claim No. 004773 shall be
allowed as a general unsecured, non-priority claim in the MPAN Bankruptcy Case
in the name of NeighborCare, for and on behalf of the NeighborCare Group, in the
amount of $6,000,000.00, which allowed claim can be allocated among the members
of the MPAN Group in the discretion of NeighborCare; provided, however, that
(i) the amount allowed against any member of the MPAN Group shall not exceed the
amount of the proof of claim originally filed by the NeighborCare Group against
such member of the MPAN Group, and (ii) the NeighborCare Group shall not oppose
the substantive consolidation of the members of the MPAN Group or the collective
treatment under a plan of reorganization of all claims allowed against the
members of the MPAN Group.
b. With the exception of claims for amounts due but
unpaid under the Contracts for Pharmacy Products and Services actually delivered
from and after the Petition Date (the "Remaining Contract Claims"), the
NeighborCare Group waives and releases any right to recover and any right to
payment under the Contracts arising after the MPAN Petition Date, including,
without limitation, claims for unpaid invoices, accounts receivable, late
charges, attorneys' fees, liquidated damages for the closure of MPAN facilities,
and any cure and compensation required to be paid in connection with the
assumption of the Amended and Restated Contracts pursuant to section
365(b)(1)(A) and (B) of the Bankruptcy Code. The MPAN Group agrees to pay the
NeighborCare Group for Pharmacy Products and Services actually delivered from
and after the Petition Date through the date that the pricing for the Amended
and Restated Contracts goes into effect. The pricing for the Amended and
Restated Contracts shall go into effect as of the Effective Date for any
xxxxxxxx not yet issued and transmitted to the MPAN Group under the Contracts.
c. NeighborCare shall withdraw the NeighborCare Motion
and shall, for itself and on behalf of the NeighborCare Group, execute and
deliver the "Amendment To Claim No. 004773 and Withdrawal of Other Claims of
NeighborCare Pharmacy Services, Inc. and Affiliates" in the form annexed hereto
as Exhibit "D". The NeighborCare Group agrees (i) to withdraw any other
prepetition claims it may have against MPAN or any of its Affiliates including,
without limitation, any claims filed against Mariner Health Group or any of its
Affiliates whose chapter 11 cases are consolidated under Case No. 00-00215
(MFW), and (ii) not to file or assert against MPAN and its Affiliates any
further or additional pre- or post-MPAN Petition Date or claims with respect to
the Contracts except for the Remaining Contract Claims as authorized by
Paragraph 2.b. of this Agreement if not paid on a timely basis.
3. Mutual Release.
a. Mutual Release. Except for (i) the general unsecured
non-priority claim allowed pursuant to Paragraph 2.a hereof, (ii) the Remaining
Contract Claims, and (iii) claims arising under the Amended and Restated
Contracts, as of the Effective Date, the NeighborCare Group on the one hand and
the MPAN Group on the other hand, hereby release and discharge the other, and
their respective successors,
representatives, subsidiaries, Affiliates, assigns, agents, officers, directors,
employees, shareholders, and attorneys, and each of them, from and waive and
relinquish any and all claims, demands, debts, liabilities, obligations,
actions, causes of action, suits, sums of money, accounts, reckoning, covenants,
contracts, complaints, objections, controversies, agreements, promises and
rights whatsoever, whenever and however arising, known or unknown, suspected or
unsuspected, contingent or fixed, liquidated or unliquidated, matured or
unmatured, in law, equity, or otherwise, which either of them, or any person or
entity claiming from, through or under either of them, ever had, now has, or
hereafter can, shall, or may have against the other by reason of, arising from,
relating to, or in connection with the Contracts and the delivery of Pharmacy
Products and Services, including, without limitation, claims for unpaid
invoices, accounts receivables, late charges, attorneys' fees, liquidated
damages for the closure of MPAN facilities, or the reasonable value of the goods
sold and services rendered.
b. Subsequently Discovered Claims. In connection with
such release, waiver and relinquishment, each Party acknowledges that it is
aware that it may hereafter discover claims presently unknown or unsuspected, or
facts in addition to or different from those which it now knows or believes to
be true, with respect to the matters released herein. Nevertheless, it is the
intent of each Party in executing this Agreement fully, finally, and forever to
settle and release all such matters, and all claims relative thereto, which
exist, may exist or might have existed (whether or not previously or currently
asserted in any action) which are the subject of the release granted under
Paragraph 3.a hereof.
4. Payment of Expenses. Each Party hereto shall bear its own
legal, accounting, due diligence and other expenses incurred in connection with
the preparation and negotiation of this Agreement and the consummation of the
transactions contemplated hereby, whether or not the transactions are
consummated.
5. Attorneys' Fees. In the event of any dispute or controversy
arising out of this Agreement, including in connection with the interpretation
of any term or condition of this Agreement, the enforcement of the Agreement,
damages for breach of any provision hereof, or in the situation where any
provision of this Agreement is validity asserted as a defense, the prevailing
Party shall be entitled to recover costs of suit, including reasonable
attorneys' fees, from the other Party in addition to any other available remedy.
6. Representation By Counsel. The Parties acknowledge that they
have been represented by independent legal counsel of their choosing throughout
all of the negotiations which preceded the execution of this Agreement, and that
each Party has executed this Agreement with the consent and on the advice of
such independent legal counsel. This Agreement is a negotiated document. As a
result, any rule of construction providing for any ambiguity in the terms of
this Agreement to be construed
against the draftsperson of this Agreement shall be inapplicable to the
interpretation of this Agreement.
7. Due Authorization. Each Party to this Agreement hereby
represents and warrants that (a) such Party is duly authorized to enter into
this Agreement without the permission of any third party; and (b) the person
purporting to execute this Agreement on behalf of such Party has been duly
authorized to execute this Agreement on behalf of and bind such Party; provided,
however, that this representation and warranty shall be of no force and effect
with respect to matters that require the approval of the MPAN Bankruptcy Court
in the MPAN Bankruptcy Case unless and until such approval is obtained.
8. Entire Agreement; Amendment; Waiver. This Agreement, together
with the Exhibits hereto, constitutes the entire understanding among the Parties
with respect to the subject matter hereof, superseding all negotiations, all
prior discussions, preliminary agreements, representations, warranties, and
understandings of the Parties, whether oral, written or implied, as to the
subject matter hereof. No supplement, modification, or amendment of this
Agreement (including the Exhibits hereto) shall be binding unless executed in
writing by all Parties affected thereby.
9. Limitation on Third-Party Beneficiaries. Except as expressly
provided in Paragraph 3.a hereof, no provision contained in this Agreement is
intended to confer any rights or remedies under or by reason of this Agreement
on any person or entity other than the Parties hereto.
10. Successors and Assigns. This Agreement shall be binding upon,
and shall inure to the benefit of, the Parties and their respective legal
representatives, successors and assigns, including any trustee appointed under
chapters 11 or 7 of the Bankruptcy Code, and any responsible officer or examiner
appointed for any of the Parties.
11. No Representations or Warranties. Except as expressly set
forth in this Agreement, none of the Parties hereto makes any representation or
warranty, written or oral, express or implied.
12. Admissions. Neither this Agreement, nor any of the terms
hereof, nor any negotiations or proceedings in connection herewith, shall
constitute, be construed as or be deemed to be evidence of any admission on the
part of any Party of any liability or wrongdoing whatsoever, or the truth or
untruth, or merit or lack of merit of any claim or defense of any Party; nor
shall this Agreement, any of the terms hereof, any negotiations or proceedings
in connection herewith, any pleading filed in connection with seeking its
approval from the MPAN Bankruptcy Court, or any performance or forbearance
hereunder, be offered or received in evidence or used in any proceeding against
any
Party, or be used in any proceeding, or otherwise, for any purpose whatsoever
except with respect to the effectuation and enforcement of this Agreement.
13. Applicable Law. Except for issues related to the approval of
this Agreement by the MPAN Bankruptcy Court, which issues shall be governed by
the Bankruptcy Code, this Agreement shall be governed in all respects, including
the validity, interpretation and effect, by the laws of the State of Georgia.
14. Subsequent Events. The terms of any plan of reorganization
confirmed by the MPAN Group in the MPAN Bankruptcy Case shall not affect the
terms and conditions of this Agreement or any of the Exhibits hereto.
15. Effective Date. With the exception of Paragraph 16 hereof,
which shall be effective immediately, this Agreement is subject to the entry of
an order of the MPAN Bankruptcy Court in the MPAN Bankruptcy Case approving this
Agreement (including the Exhibits hereto) and authorizing the consummation of
the transactions contemplated thereby after notice and an opportunity for a
hearing (the "Closing Condition") and shall become effective, and the
transactions contemplated hereby shall close, on the first business day that is
more than 10 days following the satisfaction of the Closing Condition (the
"Effective Date"); provided, however, that if the Bankruptcy Courts enter orders
pursuant to Federal Rules of Bankruptcy Procedure 6006(d) so providing, the
Effective Date shall occur on the first business day following the satisfaction
of the Closing Condition (or such later date as the MPAN Bankruptcy Court may
order) so long as a court of competent jurisdiction has not issued a stay
pending appeal prior to the Effective Date. In the event of such a stay, the
Effective Date shall be the first business day that any such stay pending appeal
is dissolved, abrogated, or otherwise rendered unenforceable by a court of
competent jurisdiction. If the Closing Condition is not satisfied by November
20, 2001, notwithstanding the Parties' compliance with Paragraph 16 hereof, this
Agreement shall be of no further force and effect and the Parties shall be
returned to the status quo ante as if this Agreement had not been entered into
by the Parties.
16. Cooperation of the Parties. The Parties agree to seek promptly
and use their best efforts to obtain the approval of this Agreement (including
the Exhibits hereto) in the MPAN Bankruptcy Case.
17. Consent To Jurisdiction and Venue. The parties hereto consent
to the determination by the MPAN Bankruptcy Court without a jury trial and in a
contested matter as a "core proceeding" (as such term is defined in 28 U.S.C.
ss. 157 or any successor provision) of any and all disputes concerning this
Agreement, including, without limitation, disputes involving the validity,
interpretation, effect, or enforcement of this Agreement, and the Parties agree
that the MPAN Bankruptcy Court shall be the exclusive forum to hear, determine
and enter appropriate orders and judgments regarding all such disputes until the
closing of the MPAN Bankruptcy Case, after which any and all disputes arising
out of this Agreement shall be adjudicated by any court of competent
jurisdiction.
18. Headings. The descriptive headings of the several paragraphs
of this Agreement are inserted for convenience of reference only and do not
constitute a part of this Agreement.
19. Public Announcements. Subject to the requirements of
applicable law, and the content of pleadings in the MPAN Bankruptcy Case, the
timing and content of any press releases, public announcements, or other public
communications concerning this Agreement or the transactions contemplated hereby
shall be subject to the mutual agreement of MPAN and NeighborCare.
20. Counterparts. This Agreement may be executed in two or more
counterparts by the Parties, and all such counterparts taken together shall be
considered as and construed to be part of a single agreement.
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first above written.
NEIGHBORCARE PHARMACY SERVICES, INC.,
FOR ITSELF AND AS AUTHORIZED AGENT FOR THE OTHER
MEMBERS OF THE NEIGHBORCARE GROUP (AS
DEFINED HEREIN)
By
-----------------------------------------------
Its
----------------------------------------------
MARINER POST-ACUTE NETWORK, INC.,
DEBTOR AND DEBTOR IN POSSESSION, FOR ITSELF AND
AS AUTHORIZED AGENT FOR THE OTHER MEMBERS OF
THE MPAN GROUP (AS DEFINED HEREIN)
By
-----------------------------------------------
Its
----------------------------------------------
SCHEDULE OF SCHEDULES AND EXHIBITS
Schedule "1" The NeighborCare Group Claims
Schedule "2" The Parties Executing The Amended and Restated Contracts
Exhibit "A" Form of Pharmacy Dispensing Services Agreement
Exhibit "B" Form of Consultant Pharmacy Agreement
Exhibit "C" Form of Services Agreement
Exhibit "D" Form of Claim Withdrawal
SCHEDULE 1
CLAIMS FILED ON BEHALF OF
NEIGHBORCARE PHARMACY SERVICES, INC.
IN THE MARINER POST-ACUTE NETWORK, INC. CASE
CASE CLAIM DATE
MPAN DEBTOR NO. CLAIMANT CLAIM AMOUNT NO FILED
----------- ------ --------------------- -------------- ----- -------
Mariner Post-Acute 00-113 NeighborCare Pharmacy $22,503,000.00 4773 9/15/00
Network, Inc. Services, Inc.
Nightingale East Nursing 00-196 NeighborCare Pharmacy $331,084.24 8161 9/29/00
Center, Inc. Services, Inc.
Middlebelt Nursing 00-192 NeighborCare Pharmacy $279,234.97 8162 9/29/00
Home, Inc. Services, Inc.
Xxxxxxx Nursing 00-190 NeighborCare Pharmacy $121,966.33 8163 9/29/00
Center, Inc. Services, Inc.
Middlebelt-Hope Nursing 00-193 NeighborCare Pharmacy $192,029.04 8164 9/29/00
Home, Inc. Services, Inc.
Frenchtown Nursing 00-148 NeighborCare Pharmacy $276,968.86 8165 9/29/00
Home, Inc. Services, Inc.
GCI Prince Xxxxxx, Inc. 00-158 NeighborCare Pharmacy $138,844.02 8166 9/29/00
Services, Inc.
GCI Camellia Care 00-151 NeighborCare Pharmacy $102,093.42 8167 9/29/00
Center, Inc. Services, Inc.
GCI Xxxxxx Village, Inc. 00-152 NeighborCare Pharmacy $138,945.45 8168 9/29/00
Services, Inc.
GCI East Valley Medical 00-153 NeighborCare Pharmacy $76,168.98 8169 9/29/00
& Rehab Center Services, Inc.
GCI Village Green, Inc. 00-162 NeighborCare Pharmacy $61,095.61 8170 9/29/00
Services, Inc.
Cambridge South, Inc. 00-137 NeighborCare Pharmacy $222,230.00 8171 9/29/00
Services, Inc.
Cambridge North, Inc. 00-136 NeighborCare Pharmacy $281,241.77 8172 9/29/00
Services, Inc.
Cambridge East, Inc. 00-135 NeighborCare Pharmacy $199,834.08 8173 9/29/00
Services, Inc.
Cambridge Bedford, Inc. 00-134 NeighborCare Pharmacy $237,871.76 8174 9/29/00
Services, Inc.
GCI Springdale Village, 00-160 NeighborCare Pharmacy $234,617.06 8175 9/29/00
Inc. Services, Inc.
AMS Green Tree, Inc. 00-119 NeighborCare Pharmacy $339,367.66 8176 9/29/00
Services, Inc.
St. Xxxxxxx Nursing 00-202 NeighborCare Pharmacy $281,850.53 8177 9/29/00
Home, Inc. Services, Inc.
Living Centers- 00-186 NeighborCare Pharmacy $31,537.00 8178 9/29/00
Southeast, Inc. Services, Inc.
Crestmont Health 00-141 NeighborCare Pharmacy $342,645.36 8179 9/29/00
Center, Inc. Services, Inc.
Clintonaire Nursing 00-138 NeighborCare Pharmacy $562,457.98 8180 9/29/00
Home, Inc. Services, Inc.
CASE CLAIM DATE
MPAN DEBTOR NO. CLAIMANT CLAIM AMOUNT NO FILED
----------- ------ --------------------- -------------- ----- -------
Mariner Post-Acute 00-113 NeighborCare Pharmacy $18,653,395.43 8231 9/29/00
Network, Inc. Services, Inc.
Mariner Post-Acute 00-113 NeighborCare Pharmacy $22,503,000.00 8232 9/29/00
Network, Inc. Services, Inc.
GCI Bella Vita, Inc. 00-150 NeighborCare Pharmacy $185,758.61 8238 9/29/00
Services, Inc.
Hostmasters, Inc. 00-176 NeighborCare Pharmacy $103,305.03 8239 9/29/00
Services, Inc.
GCI Palm Court, Inc. 00-157 NeighborCare Pharmacy $850,804.30 8240 9/29/00
Services, Inc.
American-Cal Medical 00-117 NeighborCare Pharmacy $510,806.38 8241 9/29/00
Services, In. Services, Inc.
Evergreen Healthcare, 00-147 NeighborCare Pharmacy $108,986.33 8242 9/29/00
Ltd. L.P. Services, Inc.
Connerwood Healthcare, 00-139 NeighborCare Pharmacy $242,849.74 8243 9/29/00
Inc. Services, Inc.
GCI Health Care 00-155 NeighborCare Pharmacy $192,473.11 8244 9/29/00
Centers, Inc. Services, Inc.
Grancare of South 00-169 NeighborCare Pharmacy $460,603.77 8245 9/29/00
Carolina, Inc. Services, Inc.
GCI Wisconsin 00-163 NeighborCare Pharmacy $577,698.91 8246 9/29/00
Properties, Inc. Services, Inc.
EH Acquisition Corp. 00-143 NeighborCare Pharmacy $1,048,609.36 8247 9/29/00
Services, Inc.
EH Acquisition Corp. III 00-145 NeighborCare Pharmacy $327,276.43 8248 9/29/00
Services, Inc.
Grancare of Northern 00-168 NeighborCare Pharmacy $4,724.68 8249 9/29/00
California, Inc. Services, Inc.
Grancare, Inc. 00-170 NeighborCare Pharmacy $1,508,378.31 8250 9/29/00
Services, Inc.
AMS Properties, Inc. 00-120 NeighborCare Pharmacy $3,252,176.85 8251 9/29/00
Services, Inc.
National Heritage Reality 00-195 NeighborCare Pharmacy $668,630.89 8252 9/29/00
Services, Inc.
EH Acquisition Corp. II 00-144 NeighborCare Pharmacy $54,998.37 8253 9/29/00
Services, Inc.
GCI Xxxxxx Acres, Inc. 00-156 NeighborCare Pharmacy $67,119.15 8254 9/29/00
Services, Inc.
GCI Faith Nursing 00-154 NeighborCare Pharmacy $101,730.79 8255 9/29/00
Home, Inc. Services, Inc.
HMI Convalescent Care, 00-174 NeighborCare Pharmacy $109,076.69 Unknown 9/29/00
Inc. Services, Inc.
SCHEDULE 2
LIST OF FACILITIES AND CONTRACTING MEMBERS OF
THE MPAN AND NEIGHBORCARE GROUPS
CONTRACTING
NEIGHBORCARE CONTRACTING
ENTITY MPAN GROUP
(PHARMACY) ENTITY NAME OF FACILITY LOCATION
-------------- ----------------- ---------------- --------
CALIFORNIA FACILITIES
NeighborCare of Northern GRANCARE, INC. ALMADEN HEALTH AND REHABILITATION CENTER San Jose, CA
California, Inc. (Lodi)
NeighborCare of Northern GRANCARE OF NORTHERN CREEKSIDE HEALTHCARE CENTER San Pablo, CA
California, Inc. (Lodi) CALIFORNIA, INC.
NeighborCare of Northern GRANCARE OF NORTHERN DIAMOND RIDGE HEALTH AND Pittsburg, CA
California, Inc. (Lodi) CALIFORNIA, INC. REHABILITATION CENTER
NeighborCare of Northern GRANCARE, INC. DRIFTWOOD HEALTHCARE CENTER - HAYWARD Hayward, CA
California, Inc. (Lodi)
NeighborCare of Northern GRANCARE, INC. DRIFTWOOD HEALTHCARE CENTER - SANTA XXXX Santa Cruz, CA
California, Inc. (Lodi)
NeighborCare-TCI, GRANCARE, INC. DRIFTWOOD HEALTHCARE CENTER - TORRANCE Torrance, CA
Inc. (Cerritos)
NeighborCare-TCI, GRANCARE, INC. EL XXXXXX XXXXX XXXXXXXXXX XXXXXX Xxxx Xxxxxx, XX
Inc. (Cerritos)
NeighborCare of Northern HMI CONVALESCENT CARE, EXCELL HEALTH CARE CENTER Oakland, CA
California, Inc. (Lodi) INC.
NeighborCare-TCI, AMS PROPERTIES, INC. FLAGSHIP HEALTHCARE CENTER Newport Beach, CA
Inc. (Cerritos)
NeighborCare of Northern GRANCARE, INC. FLORIN HEALTHCARE CENTER Sacramento, CA
California, Inc. (Lodi)
NeighborCare of Northern GRANCARE, INC. FREMONT HEALTHCARE CENTER Fremont, CA
California, Inc. (Lodi)
CONTRACTING
NEIGHBORCARE CONTRACTING
ENTITY MPAN GROUP
(PHARMACY) ENTITY NAME OF FACILITY LOCATION
-------------- ----------------- ---------------- --------
NeighborCare of Northern HMI CONVALESCENT CARE, FRUITVALE HEALTHCARE CENTER Oakland, CA
California, Inc. (Lodi) INC.
NeighborCare of Northern GRANCARE, INC. HAYWARD HILLS HEALTH CARE CENTER Hayward, CA
California, Inc. (Lodi)
NeighborCare-TCI, AMERICAN-CAL MEDICAL INGLEWOOD HEALTHCARE CENTER Inglewood, CA
Inc. (Cerritos) SERVICES, INC.
NeighborCare-TCI, AMS PROPERTIES, INC. XXXX XXXXXXX XXXXXXXXXX XXXXXX Xxxx Xxxxxxx, XX
Inc. (Cerritos) (TO BE TRANSFERRED TO
GRANCARE OF NORTHERN
CALIFORNIA, INC.)
NeighborCare of Northern GRANCARE, INC. PARKVIEW HEALTHCARE CENTER Hayward, CA
California, Inc. (Lodi)
NeighborCare-TCI, AMERICAN-CAL MEDICAL SANTA XXXXXX HEALTHCARE CENTER Santa Monica, CA
Inc. (Chatsworth) SERVICES, INC.
NeighborCare-TCI, GRANCARE, INC. SKYLINE HEALTHCARE CENTER - LOS ANGELES Los Angeles, CA
Inc. (Cerritos)
NeighborCare of Northern
California, Inc. (Lodi) GRANCARE, INC. SKYLINE HEALTHCARE CENTER - SAN XXXX San Jose, CA
NeighborCare-TCI, AMS PROPERTIES, INC. TARZANA HEALTH AND REHABILITATION CENTER Tarzana, CA
Inc. (Chatsworth)
NeighborCare of Northern HOST MASTER'S INC. VALE HEALTHCARE CENTER San Pablo, CA
California, Inc. (Lodi)
NeighborCare-TCI, GRANCARE, INC. XXXXXXX XXXXX XXXXXXXXXX XXXXXX Xx Xxxxxxxxx, XX
Inc. (Chatsworth)
NeighborCare-TCI, GRANCARE, INC. AUTUMN HILLS HEALTHCARE CENTER Glendale, CA
Inc. (Chatsworth)
NeighborCare of Northern GRANCARE OF NORTHERN SKY PARK GARDENS ASSISTED LIVING CENTER Sacramento, CA
California, Inc. (Lodi) CALIFORNIA, INC.
NeighborCare of Northern GRANCARE OF NORTHERN MISSION XXXXXXXXXX HEALTHCARE CENTER Carmichael, CA
California, Inc. (Lodi) CALIFORNIA, INC.
CONTRACTING
NEIGHBORCARE CONTRACTING
ENTITY MPAN GROUP
(PHARMACY) ENTITY NAME OF FACILITY LOCATION
-------------- ----------------- ---------------- --------
COLORADO FACILITIES
NeighborCare-TCI, GCI CAMELLIA CARE CAMELLIA HEALTHCARE CENTER Aurora, CO
Inc. (Denver) CENTER, INC. (FORMERLY
NEW DS, INC.)
NeighborCare-TCI, GCI BELLA VITA, INC. RED ROCKS HEALTHCARE CENTER Denver, CO
Inc. (Denver)
ILLINOIS FACILITIES
NeighborCare Pharmacy EH ACQUISITION CORP. II BELVIDERE HEALTHCARE CENTER Belvidere, IL
Services, Inc. (Elgin)
NeighborCare Pharmacy EH ACQUISITION CORP. III CRESTVIEW HEALTHCARE CENTER Clinton, IL
Services, Inc. (Monticello)
NeighborCare Pharmacy EH ACQUISITION CORP. III XXXXX HEALTH CARE CENTER Dixon, IL
Services, Inc. (Elgin)
NeighborCare Pharmacy EH ACQUISITION CORP. III FLORA HEALTHCARE CENTER Flora, IL
Services, Inc. (Monticello)
NeighborCare Pharmacy NATIONAL HERITAGE GOOD SAMARITAN HEALTH CARE CENTER East Peoria, IL
Services, Inc. (Monticello) REALTY, INC.
NeighborCare Pharmacy EVERGREEN HEALTHCARE, LASALLE HEALTHCARE CENTER LaSalle, IL
Services, Inc. (Elgin) LTD., L.P.
NeighborCare Pharmacy EVERGREEN HEALTHCARE, LITCHFIELD HEALTHCARE CENTER Litchfield, IL
Services, Inc. (Monticello) LTD., L.P.
NeighborCare Pharmacy NATIONAL HERITAGE MONTEBELLO HEALTHCARE CENTER Hamilton, IL
Services, Inc. (Bettendorf) REALTY, INC.
NeighborCare Pharmacy EH ACQUISITION CORP. II NATURE TRAIL HEALTH CARE CENTER Mount Vernon, IL
Services, Inc. (Monticello)
CONTRACTING
NEIGHBORCARE CONTRACTING
ENTITY MPAN GROUP
(PHARMACY) ENTITY NAME OF FACILITY LOCATION
-------------- ----------------- ---------------- --------
NeighborCare Pharmacy EH ACQUISITION CORP. ODIN HEALTHCARE CENTER Odin, IL
Services, Inc. (Monticello)
NeighborCare Pharmacy EH ACQUISITION CORP. III PARKWAY HEALTH CARE CENTER Wheaton, IL
Services, Inc. (Elgin)
MICHIGAN FACILITIES
NeighborCare of PHCMI/CAMBRIDGE BEDFORD VILLA HEALTH CARE CENTER Southfield, MI
Indiana, Inc. Lansing) BEDFORD, INC.
NeighborCare of PHCMI/CAMBRIDGE CAMBRIDGE EAST HEALTHCARE CENTER Madison Heights, MI
Indiana, Inc. (Lansing) EAST, INC.
NeighborCare of PHCMI/CAMBRIDGE CAMBRIDGE NORTH HEALTHCARE CENTER Clawson, MI
Indiana, Inc. (Lansing) NORTH, INC.
NeighborCare of PHCMI/CAMBRIDGE CAMBRIDGE SOUTH HEALTHCARE CENTER Beverly Hills, MI
Indiana, Inc. (Lansing) SOUTH, INC.
NeighborCare of PHCMI/CLINTONAIRE CLINTON-AIRE HEALTHCARE CENTER Clinton Township, MI
Indiana, Inc. (Lansing) NURSING HOME, INC.
NeighborCare of PHCMI/CRESTMONT CRESTMONT HEALTH CARE CENTER Fenton, MI
Indiana, Inc. (Lansing) HEALTH CENTER, INC.
NeighborCare of PHCMI/HERITAGE NURSING HERITAGE MANOR NURSING CENTER Flint, MI
Indiana, Inc. (Lansing) HOME, INC.
NeighborCare of PHCMI/MIDDLEBELT-HOPE HOPE HEALTHCARE CENTER Westland, MI
Indiana, Inc. (Lansing) NURSING HOME, INC.
NeighborCare of PHCMI/NIGHTINGALE EAST NIGHTINGALE HEALTHCARE CENTER Warren, MI
Indiana, Inc. (Lansing) NURSING CENTER, INC.
SOUTH CAROLINA FACILITIES
NeighborCare-TCI, GRANCARE SOUTH BROOKVIEW HEALTHCARE CENTER Gaffney, SC
Inc. (Charlotte) CAROLINA, INC.
NeighborCare-TCI, GCI FAITH NURSING FAITH HEALTH CARE CENTER Florence, SC
Inc. (Florence) HOME, INC.
NeighborCare-TCI, GRANCARE SOUTH HALLMARK HEALTHCARE CENTER Summerville, SC
Inc. (Georgetown) CAROLINA, INC.
CONTRACTING
NEIGHBORCARE CONTRACTING
ENTITY MPAN GROUP
(PHARMACY) ENTITY NAME OF FACILITY LOCATION
-------------- ----------------- ---------------- --------
NeighborCare-TCI, GCI XXXXXX ACRES, INC. XXXXXX ACRES HEALTH CARE CENTER Orangeburg, SC
Inc. (Georgetown)
NeighborCare-TCI, GCI VILLAGE GREEN, INC. LAKE CITY SCRANTON HEALTHCARE CENTER Scranton, SC
Inc. (Florence)
NeighborCare-TCI, GRANCARE SOUTH OAKBROOK HEALTH AND REHABILITATION CENTER Summerville, SC
Inc. (Georgetown) CAROLINA, INC.
NeighborCare-TCI, GCI PRINCE XXXXXX, INC. PRINCE XXXXXX HEALTH CARE CENTER Georgetown, SC
Inc. (Georgetown)
NeighborCare-TCI, GCI SPRINGDALE SPRINGDALE HEALTHCARE CENTER Camden, SC
Inc. (Florence) VILLAGE, INC.
NeighborCare-TCI, GRANCARE SOUTH ST. XXXXXX HEALTH CARE CENTER Saint Xxxxxx, SC
Inc. (Georgetown) CAROLINA, INC.
WISCONSIN FACILITIES
NeighborCare-TCI, LIVING CENTERS-- PARK MANOR HEALTH CARE CENTER Milwaukee, WI
Inc. (Milwaukee) SOUTHEAST, INC.
NeighborCare-TCI, GCI-WISCONSIN SOUTHPOINTE HEALTH CARE CENTER Greenfield, WI
Inc. (Milwaukee) PROPERTIES, INC.
EXHIBIT "A"
FORM OF PHARMACY DISPENSING SERVICES AGREEMENT
EXHIBIT "B"
FORM OF CONSULTANT PHARMACIST AGREEMENT
EXHIBIT "C"
FORM OF SERVICES AGREEMENT
EXHIBIT "D"
FORM OF WITHDRAWAL OF CLAIM
