MEDICAL CLAIMS SERVICING AGENCY AGREEMENT
Exhibit
10.4
MEDICAL
CLAIMS
THIS
MEDICAL CLAIMS SERVICING AGENCY AGREEMENT
(the
“Agreement”)
is
entered into as of the 17th
day
of
April,
2007
("Effective
Date"),
by
and between HEALTHCARE
CLAIMS MANAGEMENT CORPORATION,
a
Georgia Corporation (“Servicer”),
and
PARK
INFUSION SERVICES, LP,
formerly known as PARK
INFUSION SERVICES, LP,
d/b/a
PARK
INFUSION CARE, PARK
INFUSIONCARE OF DALLAS, LP,
a Texas
Limited Partnership, PARK
INFUSIONCARE OF HOUSTON, LP,
a Texas
limited partnership and PARK
INFUSIONCARE OF SAN ANTONIO, LP,
a Texas
limited partnership (together, jointly and severally, the “Provider”).
RECITALS
WHEREAS,
Provider is engaged in the business of providing healthcare services to the
public; and
WHEREAS,
Servicer is engaged in the business of providing claim production, processing
and reporting services with respect to receivables arising from the provision
of
healthcare services and the sale of related goods and equipment;
and
WHEREAS,
Provider desires to retain Servicer as its agent under this agreement for the
purpose of providing claim, processing and reporting services for payment of
Claims (as defined below) from Obligors (as defined below) as provided by the
terms and conditions herein;
AGREEMENT
NOW,
THEREFORE, for the consideration stated herein and other good and valuable
consideration, the parties agree as follows:
1. AGENCY;
SCOPE OF SERVICES.
(a) Provider
hereby appoints Servicer as its agent with respect to all claims for payment
on
all of Provider's Healthcare Receivables (as defined below) against Obligors
(the “Claims”),
with
power to pursue all rights and remedies of Provider against Obligors and the
right to endorse and deposit all checks and instruments received in connection
with such Claims as provided herein, and Provider agrees to execute all
documents reasonably requested by Servicer to effect such agency and to appoint
Servicer as Provider's attorney-in-fact for such purposes.
(b) With
respect to Healthcare Receivables subject to this Agreement, and in providing
the services specified herein, Servicer shall act only as the agent of Provider.
The specific services Servicer agrees to provide shall include the following
with respect to all of Provider’s Healthcare Receivables:
(i) Servicer
shall provide telephone support to assist Provider in the initial electronic
interface.
(ii) Servicer
shall input all Healthcare Receivables information into its system and post
all
payments into its system to track all Provider’s Healthcare Receivable activity.
Servicer will receive from Provider, and Provider agrees to timely furnish
to
Servicer, all electronic files submitted to or received from any Obligor for
Healthcare Receivables tracking purposes, including, but not limited to, claim
files and ERA payment files.
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(iii) Servicer
agrees to deliver to Provider, at intervals mutually agreed to by Servicer
and
Provider, reports related to Provider’s Healthcare Receivables, including, but
not limited to, reports relating to ineligible accounts, unbilled revenue
reports, aging reports and such additional reporting as may be mutually agreed
to by the parties.
(iv) Servicer
shall retrieve and maintain all payment information regarding Claims submitted
by Provider.
(c) Upon
the
initiation of the relationship with Provider, Provider and Servicer shall design
a workflow for all operational procedures between the parties. Said procedures
shall hereafter be referred to as the “Agreed
Upon Procedures”
and
are
attached hereto as Exhibit A. Provider agrees to perform all duties relating
to
Provider in the Agreed Upon Procedures in a manner consistent with said
procedures.
Notwithstanding
anything contained herein to the contrary, Provider shall be responsible for
collecting amounts due on any unpaid Claim unless Provider has requested that
Servicer provide such service with regard to such Claim; provided, however,
that
in the event Provider is not taking reasonable measures to collect amounts
due
on an unpaid Claim, in Servicer's sole reasonable opinion, Servicer may, but
shall not be obligated to, take all reasonable measures on Provider's behalf
to
collect such Claim and shall charge Provider accordingly.
For
purposes of this Agreement:
(i) “Collections”
means
the amounts received or deemed received by Servicer with respect to a Healthcare
Receivable.
(ii) “Governmental
Obligor”
means
the United States, any State, any political subdivision of a State and any
agency or instrumentality of the United States or any State, political
subdivision or fiscal intermediary thereof which is obligated to make any
payments with respect to Medicare or Medicaid Receivables or with respect to
Healthcare Receivables representing amounts owing under any other program
established by federal or state law which provides for payments for healthcare
services to be made to Providers of such services (including, without
limitation, CMS and the program set forth in Title 38 U.S.C. Section
1713).
(iii) “Governmental
Receivable”
means a
Healthcare Receivable that is payable by a Governmental Obligor.
(iv) “Governmental
Programs”
means
Medicare or Medicaid.
(v) “Healthcare
Receivables”
means
all accounts receivable billed to Obligors representing amounts due and owing
to
the Provider arising from the prospective (solely as contemplated by the U.
S
Center for Medicare and Medicaid Services in the rules and regulations governing
the prospective payment system for healthcare providers or similar governmental
programs or regulations), or actual (i) sale, rental or lease of durable health
care goods (including, without limitation, medical equipment), or (ii) the
provision of medical services (and services and sales ancillary thereto),
including all rights and remedies of the Provider relating thereto, together
with any and all proceeds in any way derived, directly or indirectly, therefrom;
provided, however, that “Healthcare Receivable” shall not include claims arising
under any workers’ compensation statutes;
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(vi) “Non
Governmental Obligors”
means
all Obligors that are not Governmental Obligors.
(vii) “Non
Governmental Receivables”
means
all Healthcare Receivables that are not Governmental Receivables;
and
(viii) “Obligors”
means
any commercial insurance company, nonprofit insurance company, employer or
union
that self-insures for employee or member health insurance, HMO, PPO, the United
States, any State, any political subdivision of a State and any agency or
instrumentality of the United States or any State, political subdivision or
fiscal intermediary thereof which is obligated to make payments with respect
to
amounts due from Medicare, Medicaid or any other program established under
federal or state law which provides for payments for healthcare and medical
goods or services.
2. LOCKBOX
AND LOCKBOX ACCOUNT; IDENTIFICATION OF RECEIVABLES; STANDING REVOCABLE
INSTRUCTION.
(a) Provider
shall (A) maintain a post office box in the name of Provider to which Provider
shall cause Obligors to deliver all items with respect to Healthcare Receivables
(the “Lockbox”),
and
(B) establish in its own name a depository account at an insured depositary
institution (which shall be identified in Attachment A to this Agreement) (the
“Lockbox
Account”)
into
which Provider shall cause to be deposited all Collections of Healthcare
Receivables received by Provider (including, without limitation, all Collections
received by Provider in the Lockbox) and into which Provider shall direct all
Governmental Obligors to electronically transfer Collections of Governmental
Receivables. The records of the depositary institution at which Provider
maintains the Lockbox Account shall indicate that such account is maintained
solely by Provider. Provider shall deliver, and Provider shall direct the
depositary institution at which Provider maintains the Lockbox Account to
deliver, to Servicer copies of all statements and notices delivered by Provider
and such depositary institution with respect to the Lockbox
Account.
(b) With
respect to the Lockbox and the Lockbox Account, Provider shall give the
following standing revocable instruction (the “Standing
Revocable Instruction”)
to the
depositary institution servicing the Lockbox and at which the Lockbox Account
is
established, which Standing Revocable Instruction may be revoked, amended or
otherwise changed by Provider at any time and for any reason upon written order
of an authorized officer of Provider (a “Provider
Order”)
delivered to such depositary institution: On each Business Day, the depositary
institution at which Provider maintains the Lockbox shall deposit Collections
received in such lockbox into the Lockbox Account and shall transfer all funds
held in the Lockbox Account to the account set forth in the
Addendum.
3. PAYMENTS
OF CLAIMS.
(a) Servicer
will receive copies of all correspondence regarding Claims from the Lockbox.
Provider hereby agrees to assist Servicer in changing the remittance
instructions to the Obligors on Claims to the Lockbox. All payments will be
posted, and requests for additional information retrieved as mutually agreed
in
writing by all parties. Original documentation will be forwarded to Provider.
If
payments and/or correspondence are sent to Provider, Provider will ensure that
all EOBs, ERAs and any correspondence relating to the Claims or Collections
will
be sent to Servicer for posting. All payments shall be in the name of Provider
and not in the name of Servicer. Provider shall cooperate with Servicer in
the
identification of items received in the Lockbox and the Lockbox and amounts
received in the Lockbox and the Lockbox Account.
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(b) Claim
payments received at the Lockbox shall be deposited in the Lockbox Account
or as
otherwise set forth in a written payment disposition instruction delivered
to
the financial institution holding the Lockbox and the Lockbox Account (with
a
copy of said instructions to Servicer) not less than 10 days prior to the
proposed Effective Date hereof. Notwithstanding
anything herein to the contrary, Provider may amend, modify, revoke or otherwise
change its payment disposition instructions to the financial institution holding
the Lockbox and the Lockbox Account with respect to Collections of Governmental
Receivables at any time and for any reason upon written order of an authorized
officer delivered to such financial institution. Upon
collection of funds, amounts on deposit in the Lockbox Account shall be
withdrawn in accordance with the Standing Revocable Instruction.
4. COMPENSATION
OF SERVICER.
(a) For
the
services provided by Servicer to Provider under this Agreement, Provider agrees
to pay Servicer a Healthcare Receivables management fee equal to one-half
percent
(.5%)
of the
estimated net realizable value of all Healthcare Receivables generated by
Provider as determined by Servicer during each calendar month of the term of
this Agreement. The fees for Provider’s Additional Services shall
be:
(b) Servicer
shall invoice Provider at the end of each month for all fees due hereunder.
Said
invoice shall be due and payable by Provider on or before the 15th day of the
month following any invoicing period. Servicer shall maintain records with
respect to the number of individual Healthcare Receivables processed and the
charges for its services hereunder with respect to each such Healthcare
Receivable it processes. Provider further agrees to pay Servicer a fee equal
to
any and all penalty fees and charges imposed by any depository institution
in
connection with the receipt of and deposit of amounts in the Lockbox Account
on
behalf of Provider. Such fee shall include, but not be limited to, charges
for
returned and dishonored checks.
(c) Provider’s
obligation to pay fees to Servicer under this Agreement shall be absolute and
without regard to collections and payments it receives on its Healthcare
Receivables, and payments due to Servicer hereunder shall not be contingent
upon
collection of Claims or the related Healthcare Receivables.
5. TERM
OF AGREEMENT; TERMINATION.
(a) The
term
of this Agreement shall begin on the Effective Date of this Agreement and shall
continue in full force and effect for a period of one year from the date of
execution, and shall automatically be renewed for successive periods of one
year
unless either party gives written notice to the other of its intention not
to
renew this Agreement at least 60 days prior to the end of any one-year term
of
this Agreement.
(b) If
Provider determines for any reason to terminate or remove Servicer, Provider
may
do so only upon not less than 30 days’ written notice delivered to Servicer
along with (i) a certified copy of the resolution unanimously adopted by the
governing body of Provider authorizing and directing that Servicer be terminated
as agent under this Agreement and (ii) a certificate signed by Provider and
to
be signed by Servicer evidencing termination of the Agreement.
6. SUBCONTRACTING.
It
is
specifically agreed that Servicer may, in its sole discretion, subcontract
any
or all of its services provided herein including, but not limited to, all
billing procedures associated with Provider’s Claims.
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7. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PROVIDER.
(a) Provider
represents and warrants (i) that the Claim information furnished to Servicer
by
Provider, including, without limitation, any information with regard to the
services rendered, goods and equipment delivered and the fees due, shall be
true
and correct in all respects, (ii) that the Claims are owned by Provider and
(iii) that Provider is in full and complete compliance with all federal, state
and municipal laws and regulations with regard to the Claim.
(b) Provider
agrees and covenants (i) that Provider will notify Servicer immediately of
any
and all disputes, counterclaims and/or offsets affecting any Claim, (ii) that,
on or before the date of this Agreement, Provider will furnish to Servicer
a
certified copy of the resolution unanimously adopted by the governing body
of
Provider authorizing and directing that Provider enter this Agreement and
confirming the appointment of Servicer as the agent of Provider and (iii) that
Provider will not change the remittance instructions given pursuant to Section
2
and Section 3 hereof with respect to the Lockbox Account during the term of
this
Agreement without the express prior written consent of Servicer.
(c) Provider
agrees to indemnify, hold harmless and forever defend Servicer, its directors,
officers, shareholders, employees and agents from any and all losses, damages
or
liabilities and from any suits, claims or demands (including reasonable
attorneys’ fees actually incurred in investigating or defending such suit, claim
or demand) suffered by any of them, whether asserted by Provider, any Obligor
or
any other person or entity, caused by, arising out of, or in any way connected
with (1) the sale of goods, wares, merchandise, or services evidenced by any
Healthcare Receivables or Claim, (2) any and all performance, responsibility
or
duty owed by Provider to any Obligor for a Healthcare Receivable or any third
party, (3) Servicer’s reliance on any representation or warranty made by
Provider (or any of its officers or employees) under or in connection with
this
Agreement, any Healthcare Receivable or Claim, or any information or report
delivered by Provider pursuant to this Agreement, (4) the failure by Provider
to
comply with any applicable law, rule or regulation with respect to any
Healthcare Receivable or Claim or the nonconformity of any Healthcare Receivable
or Claim with any such applicable law, rule or regulation, or (5) any failure
of
Provider to perform its duties or obligations in accordance with the provisions
of this Agreement, unless determined by a final judgment of a court of competent
jurisdiction to have been caused solely by the gross negligence or willful
misconduct of any of the indemnified parties. The provisions of this Section
8(c) shall survive the expiration and termination of this
Agreement.
8. LIMITATION
OF LIABILITY.
Servicer
will not be liable to any person or entity for any damages resulting from
Servicer’s performance or failure to perform pursuant to this Agreement (whether
in contract, tort, strict liability, or otherwise); provided, however, that
Servicer will be liable for its own gross negligence or willful misconduct
in
performing or failing to perform pursuant to this Agreement.
IN
TAKING
ANY ACTION PURSUANT TO THIS AGREEMENT, SERVICER WILL ACT SOLELY AS AGENT OF
PROVIDER. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS CREATING A
PARTNERSHIP, JOINT VENTURE, EMPLOYER-EMPLOYEE OR ANY OTHER RELATIONSHIP BETWEEN
THE PARTIES HERETO EXCEPT THAT OF PRINCIPAL AND AGENT. THERE ARE NO EXPRESS
OR
IMPLIED WARRANTIES, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, RESPECTING THE PERFORMANCE OF SERVICER
PURSUANT TO THIS AGREEMENT. THE REMEDIES SET FORTH IN THIS SECTION WITH RESPECT
TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICER ARE THE SOLE REMEDIES RELATING
TO SERVICER’S LIABILITY TO PROVIDER. THIS SECTION WILL SURVIVE ANY TERMINATION
OR EXPIRATION OF THIS AGREEMENT.
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9. NOTICES.
All
notices and other communications provided for hereunder shall, unless otherwise
stated herein, be in writing (including facsimile communication) and be mailed
and transmitted by facsimile or delivered, as to each Person listed below,
at
its address set forth below or at such other address as shall be designated
by
such Person in a written notice to the parties hereto.
if
to
Servicer:
Healthcare
Claims Management Corporation
Xxxx
Xxxxxx Xxx 000000
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxxxxx Xxxxxx
Facsimile:
(000) 000-0000
if
to
Provider:
Park
InfusionCare, LP
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxx
Facsimile:
972) 250-0934
10. DISPUTE
RESOLUTION.
In
the
event of any dispute between Servicer and Provider as to any of the terms and
conditions of this Agreement and as a condition precedent to the filing of
any
lawsuit, the party raising the dispute shall give the other party written notice
of the specific nature of the dispute and shall provide such noticed party
at
least 10 business days to submit its written response to cure the alleged
default.
11. VENUE
OF DISPUTES.
If
either
party files any action at law or in equity, the proper venue for such action
shall be the federal and state courts with geographic jurisdiction over Tucker,
DeKalb County, Georgia. The parties agree to personal jurisdiction in such
courts and consent to venue being laid in such courts and will not file any
motion with any court in any other venue or jurisdiction alleging the
inconvenience of the forum or requesting that venue be moved to any court other
than a district court, county court or federal court located in DeKalb County,
Georgia.
12. ATTORNEYS’
FEES AND COSTS.
If
any
action at law or in equity is necessary to enforce or interpret the terms and
conditions of this Agreement, the prevailing party shall be entitled to recover
from the nonprevailing party all of its reasonable attorneys’ fees, costs and
necessary disbursements in addition to any other relief to which such party
may
be entitled.
13. GEORGIA
LAW TO APPLY.
This
Agreement shall be governed by and construed by and in accordance with the
laws
of the State of Georgia, and all obligations of the Parties created by this
Agreement are, for purposes of this Agreement, to be performed in Tucker, DeKalb
County, Georgia.
14. PARTIES
BOUND.
This
Agreement shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and assigns.
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15. ENTIRE
AGREEMENT.
This
Agreement constitutes the sole and only Agreement of the parties and supersedes
any prior understanding or written or oral Agreements between the parties
respecting the subject matter herein.
IN
WITNESS HEREOF, the parties have executed this Agreement as of the date stated
hereinabove.
PROVIDER:
PARK
INFUSIONCARE, LP, A TEXAS LIMITED PARTNERSHIP, Borrower
By:
Xxxxxxxxx’x Operating GP, LLC, Its General Partner
By:
/s/ Xxxxx X. Xxxx
Name:
Xxxxx
X. Xxxx
Title
:
Managing
Member, Chairman of the Board, President and
Chief
Executive Officer
PARK
INFUSIONCARE OF DALLAS, LP, A TEXAS LIMITED PARTNERSHIP,
Borrower
By:
Park
InfusionCare Of Dallas, GP, LLC,
Its
General Partner
By:
/s/ Xxxxx X. Xxxx
Name:Xxxxx
X. Xxxx
Title
:
Managing
Member, Chairman of the Board, President and
Chief
Executive Officer
PARK
INFUSIONCARE OF HOUSTON, LP, A TEXAS LIMITED PARTNERSHIP, BORROWER
By:
Park
InfusionCare Of Houston, GP, LLC, Its General Partner
By:
/s/ Xxxxx X. Xxxx
Name:Xxxxx
X. Xxxx
Title
:
Managing
Member, Chairman of the Board, President and
Chief
Executive Officer
PARK
INFUSIONCARE OF SAN ANTONIO, LP, A TEXAS LIMITED PARTNERSHIP,
BORROWER
By:
Park
InfusionCare Of San Antonio, GP, LLC, Its General Partner
By:
/s/ Xxxxx X. Xxxx
Name:Xxxxx
X. Xxxx
Title
:
Managing
Member, Chairman of the Board, President and
Chief
Executive Officer
SERVICER
Healthcare
Claims Management Corporation, As Servicer
By:
/s/ Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chief Executive Officer
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ATTACHMENT
A
LOCKBOX
ACCOUNT
All
Healthcare Receivables shall be deposited in the following account of
Provider:
Depository
Bank: (Bank Name)
Routing
Number: (Bank Routing Number)
Account
Number: (Bank Account Number)
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ADDENDUM
TO MEDICAL CLAIMS
(FORM
2)
THIS
ADDENDUM TO MEDICAL CLAIMS SERVICING AGENCY AGREEMENT (the
“Addendum”)
is
entered into as of
April 17, 2007
(the
"Effective Date"),
by
and between PARK
INFUSION SERVICES, LP,
formerly known as PARK
INFUSIONCARE OF DALLAS, LP PARK
INFUSION SERVICES, LP,
PARK
INFUSIONCARE OF DALLAS, LP,
a Texas
Limited Partnership, PARK
INFUSIONCARE OF HOUSTON, LP,
a Texas
limited partnership and PARK
INFUSIONCARE OF SAN ANTONIO, LP,
a Texas
limited partnership (together, jointly and severally, the “Provider”) and
HEALTHCARE
CLAIMS MANAGEMENT CORPORATION (“Servicer”).
Capitalized terms used herein, unless otherwise defined, shall have the meanings
ascribed thereto in the Servicing Agreement (as defined below).
RECITALS
WHEREAS,
Provider and Servicer have entered that certain Medical Claims Servicing Agency
Agreement dated as of April
17, 2007
(the
“Servicing
Agreement”),
pursuant to which Servicer, as agent for Provider, is providing the claims
production, processing and reporting services specified therein to Provider
with
respect to Provider’s Healthcare Receivables; and
WHEREAS,
pursuant to the Servicing Agreement, Servicer maintains (i) a lockbox for the
purpose of receiving checks, other forms of Collections, ERAs and EOBs from
Obligors and all other items of correspondence with respect to the Healthcare
Receivables and (ii) the Lockbox Account for the purpose of depositing checks
and all other forms of Collections received from Obligors; and
WHEREAS,
Provider desires to provide Servicer with certain payment disposition and other
instructions with respect to the Servicing Agreement;
AGREEMENT
NOW,
THEREFORE, for the consideration stated herein and other good and valuable
consideration, the parties agree as follows:
1. STANDING
INSTRUCTION.
From
and after the Effective Date of this Addendum, Provider hereby instructs
Servicer that, in accordance with the provisions of Section 2 of the Servicing
Agreement, and subject to the Standing Revocable Instruction (as defined in
Section 2 of the Servicing Agreement), it shall, or shall cause the depositary
institution holding the Lockbox Account to transfer on each Business Day all
cleared payments received for the benefit of Provider to the following
account:
Depository
Bank: (Bank
Name)
Routing
Number: (Bank
Routing Number)
Account
Number: (Bank
Account Number)
2. REVOCATION
OF STANDING REVOCABLE INSTRUCTION AND NOTICE.
Provider’s Standing Revocable Instruction, including the Provider’s instruction
as set forth in Section 1 of this Addendum, may be revoked, amended or otherwise
changed only as provided in Section 2 of the Servicing Agreement and this
Section 2:
Provider’s
Standing Revocable Instruction may be revoked, amended or otherwise changed
by
Provider at any time and for any reason upon written order of an authorized
officer of the Provider delivered to the depositary institution identified
in
Attachment A and Servicer.
[Remainder
of Page Intentionally Blank]
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IN
WITNESS HEREOF, the parties have executed this Addendum as of the date stated
hereinabove:
PROVIDER:
PARK
INFUSIONCARE, LP, A TEXAS LIMITED PARTNERSHIP, BORROWER
By:
Xxxxxxxxx’x Operating GP, LLC,
Its
General Partner
By:
/s/ Xxxxx X. Xxxx
Name:
Xxxxx
X. Xxxx
Title
:
Managing
Member, Chairman of the Board, President
and
Chief Executive Officer
PARK
INFUSIONCARE OF DALLAS, LP, A TEXAS LIMITED PARTNERSHIP,
BORROWER
By:
Park
InfusionCare Of Dallas, GP, LLC,
Its
General Partner
By:
/s/ Xxxxx X. Xxxx
Name:Xxxxx
X. Xxxx
Title
:
Managing
Member, Chairman of the Board, President
and
Chief Executive Officer
PARK
INFUSIONCARE OF HOUSTON, LP, A TEXAS LIMITED PARTNERSHIP, BORROWER
By:
Park
InfusionCare Of Houston, GP, LLC,
Its
General Partner
By:
/s/ Xxxxx X. Xxxx
Name:Xxxxx
X. Xxxx
Title
:
Managing
Member, Chairman of the Board, President
and
Chief Executive Officer
PARK
INFUSIONCARE OF SAN ANTONIO, LP, A TEXAS LIMITED PARTNERSHIP,
BORROWER
By:
Park
InfusionCare Of San Antonio, GP, LLC,
Its
General Partner
By:
/s/ Xxxxx X. Xxxx
Name:Xxxxx
X. Xxxx
Title
:
Managing
Member, Chairman of the Board, President
and
Chief Executive Officer
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