XXXXXXX 00.00
XXX LIMITED GUARANTY AND SURETYSHIP AGREEMENT
LOGO
CONTRACT NO. 3207
THIS LIMITED GUARANTY AND SURETYSHIP AGREEMENT (this "AGREEMENT") is
entered into effective as of September 13, 2001 by PHYSICIAN'S SURGICAL CARE,
INC. ("SURETY") to and for the benefit of DVI FINANCIAL SERVICES INC. ("DVI").
BACKGROUND
A. DVI has agreed, or may in the future agree, to extend,
maintain or continue certain loans, leases or other credit facilities
(collectively, the "CREDIT FACILITIES") to or for the benefit of AMBULATORY
SURGICAL ASSOCIATES, L.L.C. (individually and collectively, the "OBLIGOR").
B. Surety has a direct or indirect economic interest in Obligor
and Surety will be directly and materially benefited by the extension of the
Credit Facilities by DVI to Obligor.
C. DVI, as a condition to its agreement to extend, maintain or
continue such Credit Facilities to Obligor, and as a material inducement
thereto, has required that Surety execute this Agreement for all of the
purposes hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and affirmed, and intending to be
legally bound hereby, Surety agrees as follows:
l. SPECIFIC DEFINITIONS. As used in this Agreement, the
following terms (whether used in the plural or singular form) will mean:
"AFFILIATE" means, with respect to any Person, any other
Person that directly or indirectly Controls, is controlled by or is under
common Control with that Person.
"CONTROL" means (a) the ownership of a majority of the voting
power of all classes of voting stock of a corporation, (b) the ownership of a
majority of the beneficial interest in income and/or capital of a Person (other
than a corporation or an individual) or (c) possession, directly or indirectly,
of power to direct or cause the direction of management or policies (whether
through ownership of securities or other interests in a Person (other than an
individual), partnership, by contract or otherwise).
"EVENT OF DEFAULT" has the meaning specified in Section 6
hereof.
"GAAP" means generally accepted accounting principles as
adopted in the United States, consistently applied and maintained.
"GOVERNMENTAL AUTHORITY" means any governmental or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality thereof, or any court, tribunal, grand jury or
arbitrator, in any case, whether foreign or domestic.
"GUARANTEED OBLIGATIONS" means (a) the due and punctual
payment and performance by each Obligor of its respective obligations with
respect to all loans, leases and other credit facilities owed by it to DVI or
any Affiliate of DVI, whether now existing or hereafter arising (including,
without limitation, those owed by Obligor to others and acquired by DVI or any
Affiliate of DVI by purchase, assignment, or otherwise) and whether direct or
indirect, primary or as guarantor or surety, absolute or contingent, liquidated
or unliquidated, matured or unmatured and (b) any of the foregoing that arises
after the filing of a petition by or against an Obligor, or any of them, under
the United States Bankruptcy Code even if the obligations do not accrue because
of the automatic stay under the United States Bankruptcy Code Section 362 or
otherwise and (c) the payment on demand of all Lender Expenses (as defined in
the Loan Documents).
"LOAN DOCUMENTS" means all certificates, documents,
instruments, agreements and riders delivered by any Obligor or any other Person
to DVI pursuant to the terms of, or otherwise in connection with, this
Agreement or any of the Guaranteed Obligations, as the same may be amended,
increased, decreased, modified, replaced, supplemented, renewed or extended
from time to time.
"MATERIAL ADVERSE EFFECT" means, with respect to Surety or
any event or circumstance, a material adverse change in (a) the business,
assets, financial condition or operations of Surety or (b) the ability of
Surety to perform the Guaranteed Obligations.
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CONTRACT NO. 3207
"PERSON" means an individual, corporation, partnership,
limited liability company, trust, unincorporated association, joint venture,
joint-stock company, government (including, without limitation, political
subdivisions), Governmental Authority or any other entity.
"SECURITY DOCUMENTS" means any stock pledge agreement,
mortgage, security agreement and any other agreement, assignment or instrument
now or hereafter entered into by Surety and DVI, or executed by Surety and
delivered to DVI, to secure the Guaranteed Obligations or any of them
2. THE GUARANTY. Subject to the limitations on the amount of
Surety's liability hereunder as described in Rider A attached hereto, Surety
hereby irrevocably, unconditionally and absolutely guarantees to DVI, its
successors, endorsees and assigns (a) the prompt payment when due, whether at
maturity or upon earlier acceleration, of all Guaranteed Obligations and (b)
the prompt and complete compliance with and performance by each Obligor of all
covenants, agreements, indemnities and other obligations to be performed by
each Obligor pursuant to the terms of the Loan Documents.
3. GUARANTEED OBLIGATIONS ABSOLUTE AND UNCONDITIONAL. Subject to
the limitations on the amount of Surety's liability hereunder as described in
Rider A attached hereto, this Agreement will constitute an (a) agreement of
suretyship as well as of guaranty and (b) absolute and unconditional
undertaking by Surety with respect to the payment and performance of the
Guaranteed Obligations by each Obligor. The liability of Surety hereunder will
be direct and may be enforced without DVI being required to resort to any other
right, remedy or security. This Agreement will be enforceable against Surety,
its successors and assigns, without the necessity of any notice of (i)
acceptance of this Agreement, (ii) DVI's intention to act in reliance hereon,
(iii) any loan, lease or other credit facility to or other transaction between
DVI and any Obligor, or (iv) any default by any Obligor, all of which Surety
hereby expressly waives.
4. FURTHER UNDERTAKINGS.
(a) Surety expressly: (i) agrees that the validity of
this Agreement will in no way be terminated, affected or impaired by reason of
the assertion or the failure to assert by DVI against any Obligor, or its
successors or assigns, or any collateral securing the Guaranteed Obligations of
any of the rights or remedies reserved pursuant to the Loan Documents or
otherwise available to DVI at law or in equity, (ii) waives any right that
Surety might otherwise have under any statute, rule of law or practice or
custom to require DVI to take any action against any Obligor or to proceed
against or exhaust any security held by DVI before proceeding against Surety,
(iii) except for notices expressly required hereunder, waives any notice of (A)
any presentment, demand, protest, notice of protest and of dishonor, notices of
default and all other notices with respect to any of the Guaranteed Obligations
and (B) the commencement or prosecution of any enforcement proceeding,
including any proceeding in any court, against any Obligor or any other person
or entity with respect to any of the Guaranteed Obligations and (iv) agrees
that any failure by DVI to exercise any right hereunder will not be construed
as a waiver of the right to exercise the same or any other right at any other
time and from time to time thereafter.
(b) Until the earlier of (i) all of the Guaranteed
Obligations are completely fulfilled to the satisfaction of DVI and each and
every one of the terms, covenants, and conditions of this Agreement are fully
performed, or (ii) Surety has paid to DVI the full amount of its liability
hereunder as limited by the terms of Rider A attached hereto, the liability of
Surety under this Agreement will not be released, discharged or in any way
impaired by: (i) any amendment or modification of, supplement to or extension
or renewal of any Loan Document or any agreements made or to be made between
DVI and any Obligor with respect to any of the Guaranteed Obligations, (ii) any
exercise or non-exercise by DVI of any right, power, remedy or privilege under
or with respect to any Loan Document or this Agreement or any waiver, consent
or approval by DVI with respect to any of the covenants, terms, conditions or
agreements contained in any Loan Document, or any indulgence, forbearance or
extension of time for performance or observance allowed to any Obligor by DVI
from time to time and for any length of time, (iii) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or similar
proceeding relating to any Obligor, its successors or assigns or any of their
respective properties, (iv) any transfer by an Obligor of all or any part of
that Obligor's interest in any collateral or (v) any act or circumstances which
might, but for the terms and provisions of this Section 4, be deemed a legal or
equitable discharge of Surety.
(c) Surety hereby expressly waives and surrenders any
defenses (other than satisfaction of the Guaranteed Obligations) to Surety's
liability hereunder based upon any of the foregoing acts, omissions, agreements
or waivers by DVI, it being the purpose and intent of this Agreement that the
obligations of Surety hereunder are absolute and unconditional.
(d) Surety hereby further agrees and consents that DVI
may, without affecting the liability of Surety hereunder: (i) exchange,
surrender or release any property pledged by any Obligor or any other Person or
accept additional security for the Guaranteed Obligations or any of them, (ii)
renew, extend and change the terms of any Guaranteed Obligation, (iii) waive
any of DVI's rights or remedies against any Obligor or any other surety or
guarantor for any Guaranteed Obligation, (iv) release, substitute or add any
one or more surety or other sureties or (v) proceed against Surety without
first resorting to, utilizing or invoking the remedies available against any
Obligor or any other surety or guarantor under the Loan Documents whether at
law or in equity. No enforcement of rights and remedies under this Agreement or
any of the Loan Documents will constitute an election of remedies by DVI. DVI
will not be obligated to marshal] remedies or assets as a condition to
enforcing the liabilities incurred hereunder against Surety. The liability of
Surety hereunder will be in addition to that stated in any other guaranty or
suretyship agreement, if any, heretofore or hereafter delivered to DVI.
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CONTRACT NO. 3207
(e) This Agreement and Surety's payment obligations
hereunder will continue to be effective or be reinstated, as the case may be,
if at any time payment of any of the Guaranteed Obligations is rescinded or
must otherwise be restored or returned by DVI all as though such payments had
not been made. DVI's good faith determination as to whether a payment must be
restored or returned shall be binding on Surety.
5. NO SUBROGATION. Nothing herein contained is intended or will
be construed to give Surety any right of subrogation in, to or under any Loan
Document or any right to participate in any way therein, notwithstanding any
payments by Surety to DVI hereunder. SURETY HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHTS IT MAY HAVE AT ANY TIME (WHETHER ARISING DIRECTLY OR INDIRECTLY, BY
OPERATION OF LAW OR CONTRACT) TO ASSERT ANY CLAIM AGAINST ANY OBLIGOR ON
ACCOUNT OF PAYMENTS MADE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
ANY AND ALL RIGHTS OF SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION OR
INDEMNITY, UNLESS AND UNTIL THE GUARANTEED OBLIGATIONS ARE SATISFIED IN FULL.
6. REPRESENTATIONS AND WARRANTIES. Surety hereby represents and
warrants to DVI as follows:
(a) EXISTENCE. Surety, if not a natural person, is duly
formed, validly existing and in good standing under the laws of the state of
its organization. Surety is qualified and licensed to do business and is in
good standing in any state in which the conduct of its business or its
ownership of property requires that it be so qualified or licensed, except
where the failure to be so qualified or licensed does not result in a Material
Adverse Effect, and has the power and authority (corporate and otherwise) to
execute and carry out the terms of the Loan Documents to which it is a party,
to own its assets and to carry on its business as currently conducted.
(b) AUTHORIZATION. The execution, delivery and
performance by Surety of this Agreement and each Loan Document to which it is a
party have been duly authorized by all necessary action. Surety has duly
executed and delivered this Agreement and each other Loan Document to which it
is a party, and this Agreement and each such Loan Document constitute a valid
and binding obligation of Surety enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditor's rights generally and by
general principles of equity.
(c) NO BREACH. The execution, delivery and performance
by Surety of this Agreement and each other Loan Document to which it is a party
(i) will not contravene any law or any governmental rule or order binding on it
or its assets, (ii) will not violate any provision of the applicable
organizational and governance documents of Surety, (iii) will not violate any
agreement or instrument by which Surety or its assets are bound and (iv) do not
require any notice to or consent by any Governmental Authority, except for
consents already obtained, currently in effect and copies of which have been
delivered to DVI.
(d) LAWS AND AGREEMENTS. Surety is in compliance in all
material respects with (a) all material contracts and agreements applicable to
it and (b) all laws, rules, regulations and orders of all federal, state and
local governmental agencies and courts applicable to it or to the ownership or
use of is assets.
(e) FINANCIAL CONDITION. All financial statements and
information relating to Surety or its assets that have been, or may hereafter,
be delivered by Surety to DVI are and will be accurate and complete in all
material respects and have been and will be prepared in accordance with GAAP,
to the extent applicable. There are no material obligations or liabilities of
any kind of Surety not disclosed in financial information previously provided
to DVI and no Material Adverse Effect has occurred since the date of the most
recent financial statements submitted to DVI.
(f) CUMULATIVE REPRESENTATIONS. The warranties,
representations and agreements set forth herein are cumulative and in addition
to any and all other warranties, representations and agreements that Surety
gives, or causes to be given, to DVI, either now or hereafter.
(g) FULL DISCLOSURE. No representation, warranty or
statement by Surety contained in this Agreement, any schedule, exhibit or rider
attached hereto, any Loan Document or any other document, instrument or
certificate furnished by or on behalf of it pursuant to this Agreement contains
any inaccurate, incomplete or misleading statement of material fact, or omits
to state a material fact necessary to make the statements contained therein not
materially misleading.
7. COVENANTS.
Except with prior written consent of DVI, Surety will comply with the
following, as applicable:
(a) COMPLIANCE WITH LAWS. Surety will comply in all
material respects with all laws and regulations applicable to it in the
operation of its business.
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CONTRACT NO. 3207
(b) RICO. Surety will not engage in any conduct or fail
to take any action which will, or would, under the facts and circumstances
relative thereto, violate the Racketeer Influenced and Corrupt Organization Act
as amended by the Comprehensive Act of 1984, 18 U.S.C. ss.ss.1961-68.
8. EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" hereunder:
(a) If there occurs an "Event of Default" under any
other Loan Document (whether or not an Obligor is a party thereto) and such
event of default is not remedied within the applicable notice, grace or cure
period, if any, provided in such other Loan Document,
(b) If Surety fails to make any payment of principal or
interest or any other payment on any Guaranteed Obligation when due . and
payable, by acceleration or otherwise, and such failure continues for ten (10)
calendar days after such amount is first due,
(c) If Surety fails to observe or perform any covenant,
condition or agreement to be observed or performed hereunder and such failure
is not cured within thirty (30) days of written notice of such failure from DVI
to Surety. If such failure is capable of cure but cannot be cured within such
thirty (30) day period, Surety will have an additional thirty (30) days to cure
such failure, provided that Surety promptly commences such cure upon receipt of
the foregoing written notice and, at all times thereafter, diligently pursues
such cure. The notice and cure periods set forth in this SECTION 8(C) apply
only to the extent that the Event of Default in question is not specifically
covered by another subparagraph of this SECTION 8,
(d) (i) The adjudication of Surety as a bankrupt or an
insolvent, (ii) the entry of a decree or order for relief in respect of Surety
in an involuntary case under any applicable bankruptcy, insolvency, or other
similar law then in effect, (iii) the appointment of a receiver, liquidator,
assignee, custodian, trustee, or sequestrator (or other similar official) of
Surety or for any part of any of its property, (iv) the entry of an order for
the windup or liquidation of Surety's affairs or (v) a petition initiating an
involuntary case under any such bankruptcy, insolvency, or similar law is filed
against Surety and is pending for ninety (90) days without dismissal,
(e) If Surety (i) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law then in effect, (ii)
makes any general assignment for the benefit of creditors, (iii) fails
generally to pay its debts as such debts become due or (iv) takes any action in
furtherance of any of the foregoing,
(f) If a final judgment for the payment of money on any
claim is rendered against Surety which if undischarged for thirty (30) days
after the date of entry, would either individually or in the aggregate with any
other judgments against Surety then of record likely result in the occurrence
of a Material Adverse Effect,
(g) If Surety revokes or attempts to revoke this
Agreement or any Security Documents to which it is a party,
(h) if any representation or warranty made in writing to
DVI by Surety in connection with this Agreement is incorrect in any material
respect or materially misleading when made,
(i) If there occurs an event of default under any other
document, instrument or agreement executed by Surety or any Affiliate of Surety
and delivered to DVI or any Affiliate of DVI, whether or not constituting a
Loan Document, and such event of default is not remedied within the applicable
notice, grace or cure period, if any, provided therein,
(j) If there occurs a suspension of more than thirty
(30) consecutive days of the operation of Surety's business, or the termination
of existence or liquidation of Surety or
(k) if a Material Adverse Effect occurs.
All notice, grace and cure periods provided herein shall run concurrently with
all notice, grace and cure periods provided in any other Loan Documents.
9. SET-OFF. DVI will have a lien upon, a security interest in
and a right of set-off against all property of Surety now or at any time
hereafter in the possession of or under the control of DVI or any DVI Affiliate
in any capacity whatsoever, as security for this undertaking, provided that
Surety may deal with and/or dispose of such property prior to an Event of
Default hereunder. Each such lien, security interest and right of set-off may
be enforced or exercised without demand or notice to Surety, will continue in
full force and effect unless specifically waived or released by DVI in writing
and will not be deemed waived by any conduct of DVI, by any failure of DVI to
exercise any such right of set-off or to enforce any such lien or security
interest or by any neglect or delay in so doing.
10. EQUITABLE RELIEF. Surety recognizes that in the event Surety
fails to perform, observe or discharge any of the Guaranteed Obligations or
liabilities under this Agreement, in certain cases no remedy of law will
provide adequate relief to DVI, and DVI shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages or posting any bond.
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CONTRACT NO. 3207
11. TIME IS OF THE ESSENCE. Time is of the essence in Surety's
performance of the Guaranteed Obligations.
12. DELAY AND WAIVER. No delay or omission to exercise any right
shall impair any such right or be a waiver thereof, but any such right may be
exercised from time to time and as often as may be deemed expedient. A waiver
on one occasion is limited to that particular occasion.
13. COMPLETE AGREEMENT. This Agreement, together with any riders,
schedules and exhibits attached hereto are the complete agreement of the
parties hereto and supersede all previous understandings relating to the
subject matter hereof. This Agreement may be amended only by an instrument in
writing that explicitly states that it amends this Agreement and is signed by
the party against whom enforcement of the amendment is sought.
14. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be an original and all of which will constitute a single
agreement.
15. SEVERABILITY. If any part of this Agreement or the
application thereof to any Person or circumstance is held invalid, the
remainder of this Agreement will be unaffected thereby. The section headings
herein are included for convenience only and may not be deemed to be a part of
this Agreement.
16. BINDING EFFECT; ASSIGNMENT. This Agreement will be binding
upon and inure to the benefit of Surety and DVI and their respective successors
and assigns, except that Surety will not have the right to assign or delegate
its rights or obligations under any of such documents. DVI may at any time
assign or grant participation in all or any portion of this Agreement and the
amounts due thereunder.
17. INTERPRETATION. All references herein to Surety or DVI will
include their respective successors or assigns.
18. NOTICES. All notices, requests and other communications made
or given in connection with this Agreement will be in writing and will be
deemed to be received (a) upon personal delivery to the individual or division
or department to whose attention notices to a party are to be addressed by
private carrier, (b) three (3) business days after being sent by registered or
certified mail, return receipt requested or (c) upon confirmed receipt by
telecopy or e-mail with the original forwarded by first-class mail, in all
cases, with charges prepaid, addressed to Surety, at the address set forth on
the signature page hereof, and to DVI, at the addresses set forth below:
To DVI: With copies to:
DVI Financial Services Inc. DVI, Inc.
0000 Xxxx Xxxx 0000 Xxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Chief Credit Officer Attention: Legal Department
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
E-Mail: XXX@xxx-xxx.xxx E-Mail: XXX@xxx-xxx.xxx
Any party may change such address by sending notice of the change to the other
parties; such change of address is effective only upon actual receipt of such
notice by the other parties.
19. GOVERNING LAW. ALL ACTS AND TRANSACTIONS HEREUNDER AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO ARE GOVERNED, CONSTRUED AND
INTERPRETED M ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT RESORT TO PRINCIPLES OF CONFLICTS OF LAWS.
20. JURISDICTION. The state and federal courts in the
Commonwealth of Pennsylvania will have jurisdiction over all matters arising
out of this Agreement and the Loan Documents; provided, however, that nothing
contained herein will prohibit DVI from initiating action against Surety in any
jurisdiction in which Surety resides or is located, as the case may be. Service
of process in any such proceeding will be effective if mailed to Surety at the
address described in SECTION 18 of this Agreement. Surety waives any right it
may have to assert the defense of forum non conveniens or to object to such
venue in any such proceeding.
21. WAIVER OF TRIAL BY JURY. DVI AND SURETY HEREBY WAIVE THE
RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR ANY OF
THE LOAN DOCUMENTS OR THE CONDUCT OF THE RELATIONSHIP BETWEEN DVI AND SURETY.
EACH PARTY HERETO ACKNOWLEDGES THAT SUCH WAIVER HAS BEEN GRANTED AFTER
CONSULTATION WITH COUNSEL.
22. PRESS RELEASE. Surety will not issue any press release or
make any public announcement relating to this Agreement or any Credit
Facilities extended to Obligor without DVI's express written consent except for
disclosures required by applicable law.
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CONTRACT NO. 3207
23. AUTOMATIC ADJUSTMENT IN LIABILITY. In the event that the
guaranty and suretyship established hereunder would constitute a "fraudulent
conveyance" under any applicable Federal, state or local statute; regulation or
court decision and thereby result in the invalidity or unenforceability of this
Agreement, in whole or in part, with respect to Surety, then the maximum
liability of Surety hereunder will automatically be limited to the greatest
dollar amount to which Surety could be liable hereunder without this Agreement
so constituting a fraudulent conveyance with respect to Surety with the intent
and effect that this Agreement will be so interpreted and construed to be valid
and enforceable to the maximum extent permitted by law.
24. CONTRACT NUMBER. The inclusion of a Contract Number herein is
not intended, and should not be interpreted, to limit in any way the
enforceability or applicability of this Agreement solely to the Guaranteed
Obligations relating to such Contract Number.
25. UNDERWRITING. Surety acknowledges that in the course of
underwriting the Credit Facilities, DVI has obtained, or may hereafter obtain,
thirty-party credit reports and references for Surety. Surety hereby confirms
that such action by DVI was and is authorized by Surety.
26. RECEIPT OF LOAN DOCUMENTS. Surety acknowledges that it has
received copies of, and read, all of the Loan Documents.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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CONTRACT NO. 3207
SIGNATURE PAGE - GUARANTY AND SURETYSHIP AGREEMENT
IN WITNESS WHEREOF, Surety has executed this Agreement by its duly
authorized representative effective as of the date first above written.
PHYSICIAN'S SURGICAL CARE, INC.
By: (/s/ Xxxx X. Xxxxxxxxx)
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Name: (Xxxx X. Xxxxxxxxx)
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Title: (CFO)
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Address: (5847 San Xxxxxx St 2375
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Houston, TX 77057)
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Contact Person: (CFO)
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Telephone: (000-000-0000)
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Facsimile: (713-532-8484)
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E-Mail: (xxxxx@XXXXXX.xxx)
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