Khyati Undavia, Minu RX LTF and Minu GP, LLC v. Avant Medical Group, P.A., D/B/A Interventional Spine Associates, and Brett L. Garner, D/B/A Allied Medical Centers

Case Information

FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 4/3/2015 11:45:08 AM CHRISTOPHER A. PRINE Clerk

ACCEPTED 14-15-00295-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 4/3/2015 11:45:08 AM CHRISTOPHER PRINE

CLERK NO. __________________________ In the ______________ District Court of Appeals Houston, Texas K HYATI U NDAVIA , M INU RX, L TD ., AND M INU GP, L LC Appellants, v. A VANT M EDICAL G ROUP , P.A., D / B / A I NTERVENTIONAL S PINE A SSOCIATES , AND B RETT L. G ARNER , D / B / A A LLIED M EDICAL C ENTERS Appellees. On Appeal from the 152 nd Judicial District Court, Harris County, Texas Trial Court Cause No. 2014-22186 PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER Ashish Mahendru State Bar No. 00796980 amahendru@thelitigationgroup.com Darren A. Braun State Bar No. 24082267 dbraun@thelitigationgroup.com M AHENDRU , PC 639 Heights Boulevard Houston, Texas 77007

713-571-1519 713-651-0776 fax APPELLATE COUNSEL FOR APPELLANTS

IDENTITY OF PARTIES AND COUNSEL

The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made so that the Judges in this Court may evaluate possible disqualification issues. Appellants/Defendants: Minu RX, Ltd. d/b/a Memorial

Compounding Pharmacy Minu GP, LLC Khyati Undavia

Counsel for Appellants Ashish Mahendru State Bar No. 00796980 Darren A. Braun State Bar No. 24082267 Mahendru, P.C. 639 Heights Blvd. Houston, Texas 77007 amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com

Appellees/Plaintiffs:

Brett Garner Brett Garner, P.A. Avant Medical Group, P.A d/b/a Allied Medical Centers. Interventional Spine Associates Nisal Corp. Qualcare Rehabilitation

Counsel for Appellees/ Plaintiffs: Matias Adrogue

State Bar No. 24012192 Robert Stephan Kaase State Bar No. 24083287 1629 West Alabama St. Houston, Texas 77006 713-425-7270 (Telephone) 713-425-7571 (Facsimile)

ii service@mjalawyer.com Co-Defendant: Compass Bank Counsel for Co-Defendants Compass Bank: William P. Huttenbach

State Bar No. 24002330 Jacob M. Stephens State Bar No. 24066143 Hirsch & Westheimer 1415 Louisiana, 36 th Floor Houston, Texas 77002 (713) 223-5181 (Main) (713) 223-9319 (Fax)

iii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ........................................................... ii TABLE OF CONTENTS ......................................................................................... iv TABLE OF AUTHORITIES ................................................................................... vi STATEMENT OF THE CASE ................................................................................ ix ISSUES PRESENTED ............................................................................................... x SUMMARY ............................................................................................................. xi STATEMENT OF FACTS ........................................................................................ 1

A. The Underlying Lawsuit And Mutual Release ....................................... 2 B. The Current Lawsuit ............................................................................... 2 C. Appellees And Appellants Are Inextricably Connected With The Signatories Of The Mutual Release ....................................... 3

SUMMARY OF THE ARGUMENT ........................................................................ 7 ARGUMENT AND AUTHORITIES ........................................................................ 9 I. THE ORDER TO BE APPEALED INVOLVES A CONTROLLING ISSUE

OF

LAW AS TO WHICH THERE IS SUBSTANTIAL GROUNDS FOR DISAGREEMENT. .......................................................................................10 A. This Appeal Involves A Controlling Issue Of Law Because, If Mutual

Release Encompasses Appellee’s Claims, Then Those Claims Are Barred, And Appellants Are Entitled To Summary Judgment. ..........11

iv B. Substantial Grounds For Disagreement Exist Because The Issue Before The Court Is Novel And There Is Little Or No Authority Upon Which The Trial Court Can Rely. .......................................................11 (i) The issue before the Court is novel because no Texas court

appears to have considered to what extent, and under what circumstances, an unnamed plaintiff is bound by a release ......12 a. Texas courts broadly apply the protection of releases to

unnamed defendants that are intimately connected to the facts giving rise to the release . . . . . . . . . . . . . . . . . . . .13

b. Despite the absence of case law, there are no policy reasons for not applying the law applicable to unnamed defendants to unnamed plaintiffs . . . . . . . . . . . . . . . . .17

c. The interpretation of "agent" in the context of a release is also a novel issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 (ii) There are grounds for substantial difference of opinion with regard to the controlling issue of law because there is an absence of case law on the issue ...............................................20

II. AN IMMEDIATE APPEAL MATERIALLY ADAVANCES THE

ULTIMATE

TERMINATION OF THIS LITIGATION. ..............................20 CONCLUSION ........................................................................................................22 CERTIFICATE OF COMPLIANCE .......................................................................24 CERTIFICATE OF SERVICE ................................................................................25 APPENDIX ..............................................................................................................26

v TABLE OF AUTHORITIES Cases Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983) .................................................28 Dyrcz v. Longview Enter., Ltd. , 2:05-CV-476 (TJW), 2006 WL 3289046, at *1 (E.D. Tex. Nov. 13, 2006), aff'd sub nom. Dyrcz v. Graham Bros. of Longview, LLC , 234 Fed. Appx. 236 (5th Cir. 2007) ............................................................ 25, 26, 27 Gulf Coast Asphalt Company, LLC v. Lloyd , 2015 WL 393407, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2015, no. pet. h.). .......... 20, 21, 22 Jorgensen v. Stuart Place Water Supply Corp. , 676 S.W.2d 191, 194 (Tex. App.—Corpus Christi 1984, no writ) .............................................................29 McMillen v. Klingensmith , 467 S.W.2d 193, 197 (Tex. 1971) ................................23

Mem'l Med. Ctr. of E. Tex. v. Keszler,

943 S.W.2d 433, 435 (Tex.1997) ...............23

Michael Lee Andrews Trust v. Licari

, CIV.A.3:02-CV-1076-N, 2004 WL 524941, at *2 (N.D. Tex. Mar. 17, 2004) ................................................24 Stinnett v. Colo. Interstate Gas Co ., 227 F.3d 247, 254 (5th Cir. 2000) .......... 23, 26

Vera v. North Star Dodge Sales

, Inc., 989 S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no pet.) ................................................................25 Winkler v. Kirkwood Atrium Office Park , 816 S.W.2d 111, 113-14 (Tex. App.—Houston [14 th Dist.] 1991, writ denied) ................................. 23, 24, 26

Statutes

T EX . C IV . P RAC . R EM . C ODE §51.014(d) ..................................................................19 T EX . R. C IV . P. 168 ...................................................................................................19

vi NO. _______________________ In the ________ District Court of Appeals

Houston, Texas

K HYATI U NDAVIA , M INU RX, L TD ., AND MINU GP, LLC Appellants, v. A VANT M EDICAL G ROUP , P.A., D / B / A I NTERVENTIONAL S PINE A SSOCIATES , AND B RETT L. G ARNER , D / B / A A LLIED M EDICAL C ENTERS Appellees. On Appeal from the 152 nd Judicial District Court, Harris County, Texas Trial Court Cause No. 2014-22186

PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellants, Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC, file this Petition for Permission to Appeal Interlocutory Order issued by the Honorable Robert Schaffer, Judge in the 152nd Judicial District Court, on March 20, 2015, granting in-part and denying in-part Appellants’ Motion for Summary Judgment on

vii the basis of a prior release agreement and non-suit with prejudice between the parties. Because the release applies to all claims asserted by all Appellees in a manner which presents a controlling issue of law, which if resolved by this Court unquestionably materially advances the ultimate termination of the litigation, as validated by the trial court in applying the release to Nisal Corp. and dismissing all its claims in this lawsuit. If the release applies to Nisal Corp. in this series of transactions as articulated by Appellees in this lawsuit, then it equally applies to all parties.

The attached appendix will be referred to as "AR001-208". viii STATEMENT OF THE CASE N ATURE OF THE C ASE : Appellees, former tenants of a landlord, filed suit against the landlord’s agents for various claims arising out of the parties’ landlord-tenant relationship. Previously, one of the Appellees sued the landlord regarding a lease dispute, settled the case, and entered into a broad-form mutual release. Although there are multiple parties here, this case—like the previous case— is a dispute between the landlord and tenants, which was fully resolved, released, and dismissed with prejudice. Appellants contend that the mutual release bars Appellees’ claims in this lawsuit, because the Appellee and Appellants are all agents of the parties to the underlying lawsuit and release.

T RIAL C OURT : The Honorable Judge Robert Schaffer, 152nd

Judicial District Court, Harris County, Texas

T RIAL C OURT ’ S D ISPOSITION : After a hearing, the trial court granted in part and denied in part Appellants’ Motion for Summary Judgment, amended its original order and granted permission to appeal by stating the controlling issue of law and that an immediate appeal will materially advance a termination of this lawsuit.

ix ISSUES PRESENTED The trial court granted Appellants’ motion to present the interlocutory order granting in-part and denying in-part their summary judgment for an immediate appeal to this Court. In doing so, the trial court set forth the following controlling issues of law:

Issue No. 1: Whether the broad-form release signed in a prior lawsuit by parties intimately related to parties in the current lawsuit encompasses the claims asserted in this lawsuit. The scope of the release, therefore, is controlling. Further, the controlling question involves the extent to which principal-agent analysis applies in the construction of a release. Issue No. 2: Whether Appellants’ sought relief will materially advance the ultimate termination of the litigation.

x SUMMARY Appellees consist of a chiropractor and the various companies through which he carries out his chiropractic business. Appellants are the owner and property manager of Providian, a landlord that leased office space to Appellees.

In 2013, after the lease ended, one of the Appellees and another company owned by the chiropractor sued Providian for breach of the lease agreement. The parties settled that lawsuit and entered into a broad-form mutual release (“Mutual Release”) in which the parties released any claims against each other, whether known or unknown.

One year later, the chiropractor discovered that the landlord’s property manager—in a mail mix-up—had accidently indorsed and deposited checks belonging to the chiropractor during the term of the lease. He and his companies brought suit against the property manager and the owner of landlord for the alleged-conversion.

Appellants moved for summary judgment, arguing that Appellee’s claims fell squarely within the broad scope of the Mutual Release. The trial court agreed in-part, and granted summary judgment with respect to Nisal Corp.—one of the companies that actually signed the Mutual Release. The trial court refused to extend the Mutual Release to the other remaining Appellees, who are intimately

xi connected with both Nisal Corp. and Sterling Practice Management, the other signatory of the Mutual Release.

Without doubt, the broad language of the Mutual Release bars any and all claims that Appellees have against Appellants, because they all arise out of the landlord-tenant relationship between the parties. That relationship was squarely at issue in the original lawsuit that engendered the Mutual Release.

xii STATEMENT OF FACTS Appellant Minu Rx (“Minu”) is a pharmacy. (AR 93). Appellant Khyati

Undavia (“Undavia”), a pharmacist, owns Minu.

Id.

Undavia also owns Providian Holding, Inc. (“Providian”).

Id. Providian, in turn, owns one asset: the building located at 2918 San Jacinto St., Houston, Texas 77004 (the “Building”). Id. Minu operates on the lower floor of the Building. Id.

Providian has no physical office space and its only employee is Undavia.

Id.

Instead, Providian simply uses Minu’s offices and employees for its needs.

Id.

From 2009 through 2013, Nisal Corp. (“Nisal”) and Sterling Practice Management, L.L.C. (“Sterling”) rented the second floor of the Building from Providian to provide Avant Medical Group P.A. and Qualcare Rehabilitation (Nisal’s d/b/a) with medical offices. (AR 41-85, 94). Sterling “managed” Avant’s non-medical business dealings. (AR 143). Likewise, Avant managed some of Sterling’s business as well: the summary judgment evidence established that Avant paid Sterling’s rent from its accounts and also procured the lease-required insurance policy on Sterling’s behalf. (AR 108; AR 109). Additionally, all of these entities—Sterling, Nisal, Avant, and Qualcare—are owned, at least in part, by Appellee Brett Garner, who is also a chiropractor for Avant and Qualcare. AR 106; AR 107; AR 113.

1 A. The Underlying Lawsuit In 2013, Providian ended its leases with Nisal and Sterling. (AR 114). Nisal and Sterling then sued Providian over a breach of the lease agreements. (AR 110- 112). The parties settled the case and executed a broad-form mutual release (“Mutual Release”):

NISAL [and STERLING] . . . [their] officers, directors, shareholders, partners, successors, agents, assigns, employees, servants, and attorneys . . . . hereby RELEASE, ACQUIT, and

FOREVER DISCHARGE

PROVIDIAN, its officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs, and attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which . . . NISAL [and STERLING] . . . have ever had or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release[.]

(AR 86-90). Importantly, the Mutual Release extends not only to Nisal, Sterling, and Providian but also to their officers, directors, agents, employees, and servants. Id . After the parties executed the Mutual Release, Sterling and Nisal nonsuited their claims against Providian with prejudice. (AR 91-92). B. The Current Lawsuit

Between 2009 and 2013, the postal service, when delivering mail to the Building, intermingled the mail. (AR 20). It did not make separate deliveries to each of the Building’s tenants. Id . Instead, it simply dumped all of the Building’s

2 mail in a reception area. Because Minu is a pharmacy, it received hundreds of checks per month as payment for dispensed medications. Id . There was no formal system of mail sorting or separation; each of Providian’s tenants took an ad hoc approach to the mail handling. Id .

Through this clumsy process, a few checks dated between 2011 to 2013 made payable to Avant that arrived via the mail were accidentally sorted into Minu’s large mail pile, stamped with Minu’s endorsement stamp, and then deposited in Minu’s account. Id .

In 2014, more than one year after Providian, Sterling, and Nisal entered into the Mutual Release in the underlying lawsuit, Avant realized that they had not received payment for some of their outstanding accounts receivable. (AR 1-10). They then learned that some checks intended for Avant had been received by Minu and deposited into Minu’s account. Plaintiffs immediately sued Defendants. Id .

C.

Appellees And Appellants Are Inextricably Connected With The

Signatories Of The Mutual Release Three parties signed the Mutual Release: Providian, Sterling, and Nisal.

(AR 86-90). Each Appellee is an agent, officer, employee, or servant of either Sterling or Nisal. Likewise, each Appellant is an agent, officer, employee, and servant of Providian.

3 (i) Appellee Garner is an agent and officer of both Sterling and Nisal Here, Garner is both the president and director of Nisal. (AR 106). Further, he signed Nisal’s commercial lease with Providian as its “CEO.” (AR 54). He is also an owner of Sterling. (AR 143). Garner also works as a chiropractor for Nisal. Id .

(ii)

Appellee Avant is an agent of Sterling Avant is the agent of both Nisal and Sterling. During the lease, Avant paid Sterling’s rent using Avant checks. (AR 95; AR 109). Similarly, Avant procured a commercial general liability policy on behalf of Sterling. (AR 108).

Also, although not actually a party to the written lease, Avant nevertheless operated in the office space leased by Nisal and Sterling. (AR 95; AR 01-10). In fact, Sterling and Nisal had no operations in the Building; their leased premises were occupied by Avant. (AR 95). Sterling and Nisal even negotiated for a lease provision that prevented Providian from leasing space to any other “chiropractor” or “pain management business” in order to protect Avant from competition. (AR 53).

(iii) Sterling is Appellee Avant’s agent Sterling also acted as Avant’s agent. As admitted by Appellee Garner, Sterling managed Avant’s non-medical business dealings. (AR 143). 4 (iv) Garner is Avant’s agent Garner also had a management role at Avant during Avant’s tenancy in the Building and worked for Avant as a chiropractor. (AR 95). (v) Appellees connect themselves via a confusing web of D/B/As In their case caption, Plaintiffs state that “Allied” is the d/b/a of Avant. (AR

1). Allied, in turn, is also the d/b/a of Garner. (

Id ; AR 143). Allied is again listed as a d/b/a of Avant in the Proof-of-Insurance certificate that Sterling provided to Providian at the outset of the Commercial Leases. (AR 108). Garner also admits that Allied is the d/b/a of Avant. (AR 143).

Simply put, Avant, Sterling, and Nisal were inextricably linked and were all representatives and agents of each other with respect to the lease between Providian, on one hand, and Nisal and Sterling, on the other.

(vi) Appellant Undavia is the owner, director, and agent of Providian As mentioned above, Providian is a signatory to the Mutual Release. Undavia is Providian’s owner and sole employee. (AR 93; AR 107). Undavia even signed the Mutual Release on behalf of Providian. (AR 90).

(vii) Appellant Minu is Providian’s property manager Minu was Providian’s agent and representative and was expressly authorized to act on behalf of Providian for any matters, especially matters related to 5 Providian’s lease with Plaintiffs. (AR 93-95). In fact, Providian has no physical office space or employees; its physical address is actually that of Minu’s. (AR 93). Minu handled a variety of matters for Providian, including collecting rent, obtaining insurance for the Building, arranging and paying for the Building’s security, arranging and paying for grounds, facilities, and common area maintenance, and arranging and paying for the Building’s elevator inspections and servicing . (AR 93-95; AR 97-101; AR 102-105).

Thus, although Providian owned the building, Minu was the management company and was authorized to act on behalf of Providian for any matters with respect to the Plaintiffs’ tenancy at the building. (AR 93-95).

6 SUMMARY OF THE ARGUMENT This appeal involves a controlling question of law as to which there exist substantial grounds for disagreement. The trial court held that the Mutual Release binds only the specifically-named signatories, without consideration of whether the release extended to the signatories’ officers, directors, agents, and servants. Indeed, each of the Appellees is an officer, director, agent, or servant of a Mutual Release signatory.

Further, each of the Appellees had an intimate connection not only to the signatories of the Mutual Release, but also to the dispute giving rise to the Mutual Release. Texas case law is clear: an unnamed defendant can claim the protection of a release when its connection with the dispute is not in doubt. But no court has ever considered whether this rule applies to an unnamed plaintiff whose connection to the underlying dispute is not in doubt. Thus, there exist substantial grounds for disagreement.

Similarly, no Texas court has considered the level of inquiry necessary to determine whether a plaintiff is an “agent” of a signatory and therefore bound by a release. Appellees argued to the trial court that the inquiry is a fact question for the jury to decide. However, such a rule would undermine the purpose of release because it requires parties to fully litigate a case simply to determine whether the claim is barred.

7 Finally, an immediate appeal will materially advance the ultimate termination of this litigation. If Appellants and Appellees are subject to the Mutual Release, then Appellee’s claims are barred and Appellants will be entitled to a full and final summary judgment.

Accordingly, this Court should grant Appellants’ request for a permissive interlocutory appeal. 8 ARGUMENT AND AUTHORITIES This Court has discretionary jurisdiction to accept this appeal. T EX . C IV . P RAC . R EM . C ODE §51.014(d) establishes the standard for permissive appeals: On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and

(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. In conjunction with this statute, the legislature enacted T EX . R. C IV . P. 168: On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

T EX . R. C IV . P. 168. Appellants easily establish that this appeal involves a controlling issue of law as to which there is substantial grounds for disagreement, and also establish that an immediate appeal would materially advance the ultimate termination of the litigation. Accordingly, Appellants’ petition for permissive interlocutory appeal should be granted.

9 I. THE ORDER TO BE APPEALED INVOLVES A CONTROLLING

ISSUE

OF LAW AS TO WHICH THERE IS SUBSTANTIAL GROUNDS

FOR

DISAGREEMENT.

On March 20, 2015, the trial court amended its original order, and granted Appellants’ request for permissive interlocutory appeal. The order further granted in-part and denied in-part Appellants’ motion for summary judgment.

Texas courts have little guidance as to what constitutes a controlling legal issue as to which there is a difference of opinion. In Gulf Coast Asphalt Company,

LLC v. Lloyd

, the Houston Court of Appeals recognized this absence, and it cited to a Texas commentator's suggestion of looking to federal cases in interpreting the federal counterpart to section 51.014:

[A] controlling question of law is one that deeply affects the ongoing process of litigation. If resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case, the question is controlling. Generally, if the viability of a claim rests upon the court's determination of a question of law, the question is controlling[.] Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling circuit law is doubtful, when controlling circuit law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely[.] Generally, a district court will make [a finding that the appeal will facilitate final resolution of the case] when resolution of the legal question dramatically affects recovery in a lawsuit.

Gulf Coast Asphalt Company, LLC v. Lloyd , 2015 WL 393407, at *5 (Tex. App.— Houston [14th Dist.] Jan. 29, 2015, no. pet. h.).

10 Thus, the commentator not only suggests a test for defining a “controlling question of law,” but also sets forth factors for determining whether there are “substantial grounds for disagreement”: (1) when the question presented to the court is novel or difficult; (2) when controlling circuit law is doubtful; and (3) when there is little authority on which the trial court can rely. Id . Appellants conclusively establish that there is a controlling question of law, and establish substantial grounds for disagreement. A. This Appeal Involves A Controlling Issue Of Law Because, If Mutual

Release Encompasses Appellee’s Claims, Then Those Claims Are Barred, And Appellants Are Entitled To Summary Judgment. Here, the first sub-element of obtaining a permissive interlocutory appeal is

met. There is little doubt that Appellants’ position, if adopted, will “considerably shorten the time, effort and expense of litigating the case” and affect “the viability of” Appellees’ claims. Id . If the Mutual Release encompasses the claims in this lawsuit, then those claims are barred, and the case is over. This fact is further evidenced by the trial court’s order, which granted Defendants’ a full and final summary judgment with respect to Nisal Corp.’s claims.

Appellants have thus established that this case involves a “controlling question of law.” B. Substantial Grounds For Disagreement Exist Because The Issue Before

The Court Is Novel And There Is Little Or No Authority Upon Which The Trial Court Can Rely. 11 Appellants also establish the second sub-element for obtaining a permissive interlocutory appeal, because the controlling issue of law is subject to “substantial grounds for disagreement.”

“Substantial grounds for disagreement” exist when the issue before the court is novel, or when there is little or no authority upon which the trial court can rely. Id . Here, the issue before the court is novel: whether a plaintiff not specifically named, but nonetheless encapsulated by the categories of defined persons or parties in a release, is so connected to the subject matter giving rise to a release and to the signatories of a release that it, too, is bound by the release. Additionally, there is no controlling law upon which the trial court can rely.

(i) The issue before the Court is novel because no Texas court appears to have considered to what extent, and under what circumstances, an unnamed plaintiff is bound by a release

Appellants’ position is that Appellees, who are not

specifically

named by the Mutual Release, are so connected to the signatories of the Mutual Release and to the dispute that spawned the lawsuit that they, too, are bound by the Mutual Release. Unquestionably, Appellees were tenants of Appellants, and that landlord- tenant relationship engendered the County Court Lawsuit and Mutual Release. Appellees are also agents, principals, owners, and employees of the Mutual Release signatories. Unquestionably, the Mutual Release should bind them.

However, no Texas case appears to have addressed the extent, and under 12 what circumstances, a release can bind an unnamed plaintiff. There is an extensive body of case law on the inverse situation: the extent to which an unnamed defendant can claim the protection of a release. This case law supports Appellants’ position that Appellees’ claims are barred by the Mutual Release.

a. Texas courts broadly apply the protection of releases to unnamed defendants that are intimately connected to the facts giving rise to the release

Generally, “unless a party is named in a release, he is not released.” McMillen v. Klingensmith , 467 S.W.2d 193, 197 (Tex. 1971). “Mentioning does not require particularized enumeration or detailed description, only that the claim being released come within the express contemplation of the release provision when viewed in context of the contract in which the release provision is contained.” Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5th Cir.

2000);

Mem'l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997).

“A tortfeasor can claim the protection of a release if he is referred to with such descriptive particularity that his connection with the tortious event is not in doubt.” Winkler v. Kirkwood Atrium Office Park , 816 S.W.2d 111, 113-14 (Tex. App.—Houston [14 th Dist.] 1991, writ denied). “Indeed, Texas courts have consistently rejected the argument that defendants cannot avail themselves of the protection of a release just because they were not specifically identified as parties

13 to that release.” Michael Lee Andrews Trust v. Licari , CIV.A.3:02-CV-1076-N, 2004 WL 524941, at *2 (N.D. Tex. Mar. 17, 2004).

In Winkler , a health club member signed the following release at the outset of his club membership: Buyer does hereby for his or herself, heirs, executors, legatees, administrators, or assigns, waive, release and forever discharge any and all claims the Buyer may now or in the future have against the Club for injuries suffered by the Buyer while participating in any programs of the Club.

Id . at 113. While exercising at the club, the member suffered a fatal heart attack.

Id

. at 112. His estate and next of kin filed suit against the club as well as several

individuals associated with the club.

Id . at 113. All defendants, including the individual defendants, moved for summary judgment on the basis that the decedent had released his claims against them. Id . Plaintiffs argued in response that the “[defendants] cannot avail themselves of the protection of the release because they were not specifically identified as parties to the release.” Id . The court rejected that argument, holding that “[i]n releasing ‘the Club’ from any injuries suffered while participating in the center’s programs, it is clear that Winkler intended to release any claim against all individuals and entities involved in the operation, maintenance, and administration of the center.” Id . at 114.

Likewise, the court in

Vera v. North Star Dodge Sales, Inc. interpreted a contract between a consumer and a corporation that included a release that 14 “release[d] North Star Dodge from any and all liability regarding the purchase of a 1993 Mazda Protg[.]” 989 S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no pet.) Although the release enumerated only the car dealership with particularity, the court held that the broad release of “all liability regarding the [vehicle] purchase” barred claims against the sales manager and the employee who handled the financing:

In this case, it is clear that the release of “North Star Dodge” from any liability associated with the sale of the Mazda, also released the North Star Dodge employees associated with that sale. Under the circumstances, the connection of Powers and Hall with North Star Dodge and the sale of the Mazda is apparent. Therefore, the release encompasses Higinio’s claims against North Star Dodge as well as his claims against North Star Dodge employees involved in the sale of the Mazda.

Id . at 18.

In

Dyrcz v. Longview Enterprise, Ltd. , the court reached the same conclusion. There, the plaintiff signed a release prior to participating in a dodgeball game that released:

Grand Central Station Longview, its partners, agents, and employees from any responsibility or liability for personal injury . . . [that] may [occur] from participating in the Dodge Ball contest.

Dyrcz v. Longview Enter., Ltd. , 2:05-CV-476 (TJW), 2006 WL 3289046, at *1

(E.D. Tex. Nov. 13, 2006), aff'd sub nom.

Dyrcz v. Graham Bros. of Longview,

LLC

, 234 Fed. Appx. 236 (5th Cir. 2007). Plaintiff thereafter sued Longview

15 Enterprises—the employer of the management and staff at Grand Central Station Longview—for injuries sustained in a dodgeball match. Id . Longview Enterprise moved for summary judgment pursuant to the release even though it was not mentioned by the release. Id . In evaluating Longview Enterprise’s argument, the court noted that “[i]n Texas, in order to claim the protection of a release, the claim being released must come within ‘the express contemplation of the release provision when viewed in context of the contract.” Id ., citing Stinnett , 227 F.3d at 255. Further, the court recognized that “a tortfeasor can claim the protection of a release as long as he is referred to “with such descriptive particularity that his identity or his connection with the tortious event is not in doubt,” and therefore, that “a defendant may still avail himself of the protection of a release even though he has not been specifically identified as a party to the release.” Dyrcz , 2006 WL

3289046, at *1, citing

Winkler , 816 S.W.2d at 111.

Applying these rules, the court concluded that: [T]he claims against Defendant Longview Enterprises fit within the release signed by Plaintiff. There is no dispute that Plaintiff’s claims resulted from participating in a dodgeball game at Graham Central Station. . . . . Although the release does not specifically name Longview Enterprise, the release does cover “partners, agents, and employees” of Graham Central Station . . . [t]herefore, by releasing Graham Central Station, it is clear that Plaintiff intended to release any claim against all individuals and entities involved in the operations and activities of

16 Graham Central Station, which would include . . . . Longview Enterprise.

Dyrcz , 2006 WL 3289046, at *2. Accordingly, the court granted the defendant

summary judgment.

Id .

In sum, the rule in Texas is well-established: an unnamed defendant can claim the protection of a release provided that his connection to the event giving rise to the release is unmistakable.

b. The policy reasons for applying releases to unnamed defendants apply with equal force to unnamed plaintiffs Despite the well-established case law discussing the application of a release to unnamed defendants, Appellants’ counsel have found no case law that discusses the application of a release to unnamed plaintiffs . Despite this absence, there is no policy or legal reason why the rule applicable to unnamed defendants should not also be applicable to unnamed plaintiffs.

In this case, the failure of the trial court to extend the Mutual Release to the unnamed Appellees produces a starkly absurd result. Appellee Garner is the owner, director, and president of Nisal Corp. Nisal Corp., as well as its agents, officers, and servants—including Garner—agreed to release any and all claims, whether known or unknown, that they had against the Appellants, whether arising out of the lease or not. Although the trial court granted Appellants’s summary

17 judgment as to Nisal Corp.’s claims, it denied the motion with respect to Garner’s claims. In doing so, the trial court wholly ignored the language in the release extending the release to the agents, officers, and servants of Nisal Corp.

The trial court’s ruling highlights Appellants’ point: the Mutual Release is not so narrow that it applies only to the specifically identified signatories. Otherwise, the language that extends the Mutual Release to the signatories’ “officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs, and attorneys” is rendered meaningless. However, “[c]ourts should . . . give effect to all the provisions of the contract so that none will be rendered meaningless.” See Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983).

Because no Texas court has considered the issue to what extent an unnamed plaintiff is bound by a release, it is a novel issue. Accordingly, there exist substantial grounds for disagreement. Appellants’ petition for permissive interlocutory appeal should be granted.

c. The interpretation of “agent” in the context of a release is also a novel issue As discussed above, the Mutual Release extends not only to the named signatories, but also to their “agents.” A novel question thus arises: how does a court determine whether a party qualifies as an agent of a signatory such that they are bound by a release?

18 In the trial court, the Appellees offered a simple, but untenable solution: whether a party is an agent of a signatory is a question of fact for the jury to decide. Indeed, Appellees cited the trial court to the rule that “a question of agency is one of fact.” AR 186-192 (citing Jorgensen v. Stuart Place Water Supply Corp. , 676 S.W.2d 191, 194 (Tex. App.—Corpus Christi 1984, no writ).

In furtherance of public policy, this cannot be the rule. The purpose of a release is to buy peace and bring finality to a dispute. If a plaintiff sues on a claim that is within the scope of the release, the defendant claiming the protection of the release should not have to fully litigate the matter through trial in order to obtain a ruling that the claims in the lawsuit are within the scope of the release and therefore barred as a matter of law. The application of fact-driven inquiries will thwart every release, prevent finality, and will force parties to contemplate and actually and specifically name each party subject to the release. In the context of a large multinational corporation, it would force the corporation to specifically list out by name each one of their employees, contractors, and other agents they want encompassed by the release or else face repeated litigation. But worst of all, it would force parties to reject settlement and continue litigation to obtain a final judgment that is not subject to a subsequent lawsuit brought by parties attempting to thwart the effect of the release. This untenable situation cannot be the law in Texas.

19 (ii) There are grounds for substantial difference of opinion with regard to the controlling issue of law because there is an absence of case law on the issue.

As discussed above, the controlling issues of law in this case are novel because no Texas court appears to have addressed them. Consequently, there is an utter absence of case law discussing the extent to which an unnamed plaintiff is bound by a release. Likewise, Appellants have found no case law discussing the proper interpretation of “agents” in the context of a release.

Accordingly, because there is an absence of controlling law, there are grounds for substantial difference of opinion. Appellants’ petition for permissive interlocutory appeal should be granted.

II. AN IMMEDIATE APPEAL MATERIALLY ADAVANCES THE ULTIMATE TERMINATION OF THIS LITIGATION. Appellants’ summary judgment sought complete and total dismissal of all

Appellees’ claims. That is, the granting of Appellants’ motion disposes of all of Appellees’ claims against Appellants. When the trial court granted judgment in favor of Appellants as to Nisal Corp.’s claim, it fully acknowledged that this case is subject to immediate termination.

It can be no other way. If the release applies to all parties, then Appellees have no extant claims. The case is over and terminated. Accordingly, Appellants have shown that an immediate appeal will 20 materially advance the ultimate termination of this case. This Court should grant Appellants’ petition for permissive interlocutory appeal.

21 CONCLUSION Without doubt, this appeal presents a controlling question of law. If Appellants are correct, then the Mutual Release bars Appellees’ claims, and Appellants are entitled to summary judgment. Without doubt, the controlling question of law is subject to substantial grounds for disagreement. Despite the well-developed and well-reasoned case law applying the protections of releases to unnamed defendants, no Texas court has considered the extent to which an unnamed plaintiff is bound by a release. Likewise, no court has considered the factual intrusion necessary to determine whether a plaintiff is an “agent” of a release signatory and therefore bound as well. Without any law to guide the parties or court, the controlling question of law is subject to substantial grounds for disagreement.

Finally, an immediate appeal from the trial court’s order will materially advance the ultimate termination of this case. If the Mutual Release bars Appellees’ claims, then this case is over.

For the foregoing reasons, Appellants respectfully request the Court to grant their petition for permissive interlocutory appeal and for all other relief to which they may show themselves justly and equitably entitled.

22 Date: April 3, 2015 Respectfully submitted, MAHENDRU, P.C. By: Ashish Mahendru Texas Bar No. 00796980 Darren A. Braun Texas Bar No. 24082267 639 Heights Boulevard Houston, Texas 77007 (713) 571-1519 (Telephone) (713) 651-0776 (Facsimile) amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com ATTORNEYS FOR DEFENDANTS—APPELLANTS

23 CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Rule 9.4(i)(2)(B) because it contains 4,812 words, excluding any parts exempted by Rule 9.4(i)(1).

Ashish Mahendru 24 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing of Appellants’

Petition for Permission for Interlocutory Appeal

was served on the following counsel of record on the 3rd day of April, 2015 via email:

Matias J. Adrogué via email: mja@mjalawyer.com Robert Stephan Kaase 1629 West Alabama St. Houston, Texas 77006 1629 West Alabama St. Houston, Texas 77006 713-425-7270 (p) 713-425-7271 (f) Counsel for Plaintiffs/Appellees

William P. Huttenbach via email: whuttenback@hirschwest.com State Bar No. 24002330 Jacob M. Stephens State Bar No. 24066143 Hirsch & Westheimer 1415 Louisiana, 36 th Floor Houston, Texas 77002 (713) 223-5181 (Main) (713) 223-9319 (Fax) Counsel for Defendant Compass Bank

Ashish Mahendru 25 APPENDIX 1.

Plaintiffs' Second Amended Original Petition

AR 1-10

2.

Defendants' Third Amended Answer, Verified Denial,

and Counterclaim

AR 11-16

3.

Defendants' Motion for Summary Judgment AR 17-40

Ex. A:

Commercial Lease with Nisal Corp AR 41-70

Ex. B:

Commercial Lease Sterling Practice AR 71-85

Ex. C: Mutual Release

AR 86-90

Ex. D: Non-Suit with Prejudice

AR 91-92

Ex. E:

Declaration of Khyati Undavia AR 93-96

Ex. F:

Elevator Invoices AR 97-101

Ex. G: Minu Rx’s Quickbooks

AR 102-105

Ex. H: Officers and Directors of Nisal Corp.

AR 106

Ex. I:

Officers and Directors of Providian Holdings, Inc. AR 107

Ex. J:

Proof of Insurance for Avant Medical Group AR 108

Ex. K:

Copy of Avant Rent Check AR 109

Ex. L:

County Court Lawsuit Petition AR 110-112

Ex. M:

Officers and Directors of Sterling

Practice Management

AR 113

Ex. N:

Lease Termination Letter AR 114-115

Ex. O: Declaration of Ashish Mahendru

AR 116-119

26 Ex. P: Avant Medical Group Account Status AR 120

4.

Plaintiffs' Response to Defendants'

Motion for Summary Judgment

AR 121-142

Ex. 1:

Affidavit of Brett Garner AR 143-145

Ex. 2:

Affidavit of Carmen Manzo AR 146-147

Ex. 3:

Cancelled Check AR 148-155

Ex. 4:

Original Petition from Cause No. 1036848 AR 156-160

Ex. 5: Mutual Release

AR 161-165

Ex. 6:

Assumed Name Filing for Allied Medical

Centers

AR 166

Ex. 7:

Public Information Report for

Avant Medical Group

AR 167-169

5.

Defendants' Reply to Plaintiffs' Response to Motion for

Summary Judgment

AR 170-185

6.

Defendants' Response to Plaintiffs’ Objections to Defendants’

Summary Judgment Evidence

AR 186-192

7.

Order on Defendants' Motion

for Summary Judgment—March 3, 2015

AR 193

8.

Defendants' Motion for Permission to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for Stay AR 194-201

9.

Plaintiffs' Response to Defendants' Motion for Permission

to Appeal Interlocutory Summary Judgment

AR 202-206

10.

Order Granting Defendants' Motion for Summary Judgment 27 And Permissive Appeal--March 20, 2015 AR 207-208 28 CAUSE NO. 2014-22186 IN THE DISTRICT COURT OF AVANT MEDICAL GROUP, P.A. d/b/a § ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, §

§

HARRIS COUNTY, TEXAS

§ Plaintiffs § VS. § § KHYATI MOHAMED UNDA VIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL CORP. d/b/a QUALCARE REHABILITATION ("Plaintiffs") and file this Second Amended Original Petition complaining of KHY A TI MOHAMED UNDA VIA, MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK, and for cause of action would respectfully show the Court as follows:

I.

DISCOVERY CONTROL PLAN 1. Pursuant to Rules 190.1 and 190.3 of the Texas Rules of Civil Procedure, discovery in this matter is intended to be conducted under Discovery Control Plan Level 2.

II. PARTIES

2. Plaintiff, AV ANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, is a Texas Professional Association. 3. Plaintiff, NISAL CORP. d/b/a QUALCARE REHABILITATION is a Texas Corporation. 4. Plaintiff, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS is an individual

residing and doing business in Texas. PAGE 1 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION

AR 000001

5. Defendant, KHY ATI MOHAMED UNDA VIA, is an individual residing in Texas. Defendant KHY ATI MOHAMED UNDA VIA has been served with process and has appeared in this lawsuit.

6. Defendant, MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY is a Texas Limited Partnership. MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY has been served with process and has appeared in this lawsuit.

7. Defendant, MINU GP, LLC is a Texas Limited Liability Company. MINU GP, LLC has been served with process and has appeared in this lawsuit. 8. Defendant, COMPASS BANK, is a Foreign Financial Institution doing business in the State of Texas, and may be served through its registered agent for service of process, C T Corporation System, 1999 Bryan St., Suite 900, Dallas, Texas 75201-3136. Citation is requested.

III. JURISDICTION AND VENUE

9. This Court has subject matter jurisdiction over this controversy because all events or occurrences giving rise to this lawsuit occurred within the State of Texas. 10. This court has personal jurisdiction over the parties because they are all residents of Texas or are doing business in the State of Texas. 11. Venue is proper in Harris County under the Texas Civil Practice & Remedies Code, § 15.002.

IV. FACTS

12. Plaintiffs are former tenants in a commercial building which is owned and/or managed by Defendant KHY A TI MOHAMED UNDA VIA or an entity for which Defendant KHY A TI MOHAMED UNDAVIA is a principal, agent, representative, or employee (the "Building"). PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE 2

AR 000002

While Plaintiffs were tenants in the Building, all mail was delivered to the Building's main address, where it would be collected by Defendant KHY A TI MOHAMED UNDA VIA and distributed by her to the other tenants. Because the checks were delivered to Plaintiffs' mailing address, Plaintiffs were in possession of the checks and have a possessory interest in them.

13. Plaintiffs recently discovered that during their tenancy at the building, Defendant KHY A TI MOHAMED UNDA VIA would frequently take letters containing checks, from the mail, endorse the checks with the name and bank account information for MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY, and deposit them into at least two bank accounts of MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY. The checks were presented for deposit to Defendant COMPASS BANK, who presented the checks without the payee's endorsement to the various drawee banks. Plaintiffs were only able to discover this recently because Plaintiffs frequently provide medical services to personal injury victims and often have agreements to suspend collection efforts for extended periods of time while the patients attempt to obtain compensation for the third parties responsible for their injuries. Thus far, Plaintiffs have identified over $40,000.00 in checks that were stolen by the Defendants in the above-described manner, and expects to discover more as investigation and discovery in this case progresses. It is uncertain at this time if additional checks were endorsed and deposited or cashed by other entities.

V. CASUSES OF ACTION AGAINST KHY ATI MOHAMED UNDA VIA AND

MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY CONVERSION & THEFT 14. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged herein. Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a PAGE 3 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION AR 000003 MEMORIAL COMPOUNDING PHARMACY have exercised dominion and control over Plaintiffs' property interest in the checks, their proceeds, and all interest earned on their proceeds, inconsistent with, and in denial of, Plaintiffs' right to possession.

TEXAS THEFT

LIABILITY ACT

15. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged herein. The Texas Theft Liability Act provides civil liability for certain acts proscribed by the Texas Penal Code, including unlawfully appropriating a trade secret. See id. § 134.002(2); IBP, Inc. v. Klumpe, 101 S.W.3d 461, 472 (Tex. App.-Amarillo 2001, pet. denied). The Texas Theft Liability Act provides that a person "who commits theft is liable for the damages resulting from the theft." Tex. Civ. Prac & Rem. Code. § 134.003(a). In addition, under the Texas Theft Liability Act a person "who has sustained damages" may recover the amount of actual damages found by the trier of fact. Id. § 134.005(a)(1). Finally, a "person who prevails" in a suit under the Act " shall be awarded court costs and reasonable and necessary attorney's fees." Id. § 134.005(b ).

16. Defendants KHY A TI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY violated the Texas Theft Liability Act, when, without authorization, consent or approval, they cashed and/or deposited checks payable to Plaintiff. Defendants appropriated of the checks and the proceeds of the checks with the intent to deprive Plaintiffs of that interest. The appropriation of Plaintiffs' property interest in the checks and the proceeds of the checks was without Plaintiffs' consent and constituted theft under the Texas Penal Code. Plaintiffs therefore bring suit against Defendants KHY A TI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all

PAGE 4 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION AR 000004 all actual damages, exemplary damages and attorney's fees recoverable under the Texas Theft Liability Act.

FRAUD - COMMON LAW

17. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged herein. Defendants KHY A TI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY knowingly made numerous fraudulent representations to Plaintiffs regarding the delivery of mail to Plaintiffs. Plaintiffs reasonably relied on the misrepresentations, causing significant injury. Plaintiffs hereby bring suit for fraudulent misrepresentation against Defendant KHY A TI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY, and hereby seek to recover actual damages incurred as a proximate cause of said fraud, as well as exemplary damages. CONSTRUCTIVE TRUST & EQUITABLE LIEN

18. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged herein. Under Texas common law the checks, their proceeds, and all interest earned on the proceeds are impressed with a constructive trust for the benefit of the Plaintiffs and Plaintiffs request a judicial declaration that the checks, their proceeds, and all interest earned on the proceeds, are impressed with a constructive trust. The checks, their proceeds, and all interest earned on the funds are further impressed with an equitable lien in favor of the Plaintiffs.

MONEY HAD AND RECEIVED

19. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged herein. Defendants KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY hold money that in equity and good conscience belong to the Plaintiff, namely, the proceeds of the checks and all interest earned on the

PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION

PAGES

AR 000005

proceeds. Plaintiffs therefore bring suit against Defendants KHY A TI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all damages and attorney's fees recoverable under a cause of action for Money had and Received.

BREACH OF CONTRACT

20. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged herein. Defendants KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY had an oral agreement with Plaintiffs to collect all mail received at the Building and deliver the same to Plaintiffs. Defendants KHY A TI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY committed a material breach of this agreement by withholding mail items addressed to Plaintiffs and converting the checks contained therein, causing injury to Plaintiffs. Plaintiffs therefore bring suit against Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all damages and attorney's fees recoverable as a result of Defendants' breach.

BREACH OF FIDUCIARY DUTY

21. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged herein. Plaintiffs allege that Defendant KHY A TI MOHAMED UNDA VIA acted as an agent of Plaintiffs with respect to collecting and delivering mail, and therefore owed fiduciary duties to Plaintiffs. Defendant KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY committed a material breach her duties by withholding mail items addressed to Plaintiffs and converting the checks contained therein, causing injury to Plaintiffs. Plaintiffs therefore bring suit against Defendants KHY A TI

PAGE 6 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION AR 000006 MOHAMED UNDAVIA for all damages and attorney's fees recoverable as a result of Defendant's breach.

CONVERSION - STATUTORY

22. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged herein. In the alternative, Plaintiffs allege that Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY are liable to Plaintiffs for conversion as defined in Tex. Bus. & Com. Code. § 3.420. Plaintiffs therefore bring suit against Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all damages recoverable as a result of Defendants' actions.

VI. CAUSES OF ACTION AGAINST MINU GP, LLC VICARIOUS LIABILITY - PARTNERSHIP 23. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged herein. Because Defendant MINU GP, LLC is the active general partner of Defendant MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY and is therefore jointly and severally liable for all obligations of Defendant MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY. Tex. Bus. Orgs Code § 152.304.

VII. CAUSES OF ACTION AGAINST COMPASS BANK CONVERSION - STATUTORY 24. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged herein. Plaintiffs allege that Defendant COMPASS BANK is liable to Plaintiffs for conversion as defined in Tex. Bus. & Com. Code. § 3.420. Plaintiffs therefore bring suit against Defendant COMPASS BANK for all damages recoverable as a result of Defendant's actions. PAGE 7 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION

AR 000007 MONEY HAD AND RECEIVED 25. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged herein. Plaintiffs allege that Defendant COMPASS BANK held or currently hold money that in equity and good conscience belong to the Plaintiffs, namely, the proceeds of the checks and all interest earned on the proceeds. Plaintiffs therefore bring suit against Defendant COMPASS BANK for all damages and attorney's fees recoverable under a cause of action for Money had and Received.

NEGLIGENCE

26. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged herein. Plaintiffs allege that Defendant COMPASS BANK was negligent in accepting for deposit and presenting for payment checks which did not bear the payee's endorsement. In accepting checks for deposit from a person not entitled to enforce the checks and presenting them for payment, Defendant COMPASS BANK failed to observe reasonable banking standards, causing harm to the Plaintiffs. Plaintiffs therefore bring suit against Defendant COMPASS BANK for all damages and attorney's fees recoverable under a cause of action for Money had and Received.

VIII. ATTORNEY'S FEES

27. Request is made for all costs and reasonable and necessary attorney's fees incurred by or on behalf of Plaintiffs herein, induding all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just, as provided by; (a) Section 134.005 of the Texas Civil Practice and Remedies Code; (b) Section 38.001 of the Texas Civil Practice and Remedies Code; and (c) the common law.

IX. DAMAGES PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGES

AR 000008

28. As a direct and proximate result of the actions of Defendants described herein, Plaintiffs have incurred damages in excess of the minimum jurisdictional limits of this Court and will in all likelihood continue to incur damages in the future. Plaintiffs seek all legally recoverable damages, including:

a. Actual damages including economic, loss of use & consequential damages; b. Attorney's fees; c. Exemplary damages; d. Prejudgment & post judgment interest at the maximum legal rate; e. Court costs; and f. Other monetary & equitable relief as the Court deems appropriate.

29. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, each claimant seeks monetary reliefless over $200,000.00 but not more than $1,000,000.00.

X. CONDITIONS PRECEDENT

30. All conditions precedent have been performed or have occurred. Tex. R. Civ P. 54.

XI. DEMAND FOR JURY

31. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

XII. PRAYER

32. WHEREFORE, PREMISES CONSIDERED, Plaintiffs, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL CORP. d/b/a QUALCARE REHABILITATION, ask that the Defendants be cited to appear and answer and that Plaintiffs have judgment against the Defendants for damages, including monetary compensation and any other damages within the jurisdictional limits of this Court, pre-judgment and post-judgment interest as allowed by law,

PAGE 9 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION AR 000009 costs of suit, and all other relief the Court deems necessary and appropriate and to which Plaintiffs are justly entitled.

Respectfully submitted, Robert Stephan Kaase State Bar No. 24083287 1629 West Alabama St. Houston, Texas 77006 713-425-7270 Telephone 713-425-7271 Facsimile service@mjalawyer.com ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been se~ to all counsel of record in accordance with the Texas Rules of Civil Procedure, 0 this the _l_~ aay of February, 2015.

PAGE 10 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION AR 000010 CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, §

§ Plaintiffs § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD., §

152 ND JUDICIAL DISTRICT § Defendants

DEFENDANTS’

THIRD AMENDED ANSWER AND

VERIFIED

DENIAL AND ORIGINAL COUNTERCLAIMS

TO THE HONORABLE JUDGE ROBERT SCHAFFER:

Defendants, Khyati Undavia,Minu RX, Ltd., and MINU GP, LLC, file this Third Amended Answer and Verified Denial and Original Counterclaims and would respectfully show the Court as follows:

I.

G ENERAL D ENIAL 1. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants file this General Denial of the claims and allegations contained in Plaintiffs’ Second Amended Original Petition, and Defendants request that the Court require Plaintiffs to prove their claims and allegations by a preponderance of the evidence as required by the Constitution and the laws of the State of Texas. Defendants hereby reserve their right to amend this answer and assert other and further defenses and claims as the facts of this case warrant.

1 AR 000011 II. V ERIFIED D ENIAL 2. Pursuant to Rule 93 of the Texas Rules of Civil Procedure, Defendant, Khyati Mohamed Undavia (“Undavia”), files this verified denial to Plaintiffs’ claims against her. Specifically, Defendant Undavia denies that she is liable in her individual capacity for Plaintiffs’ claims. (See Declaration of Undavia; Ex. A).

III.

A FFIRMATIVE D EFENSES 3. Subject to and without waiving the foregoing, Defendants assert and raise the following affirmative defenses to Plaintiffs’ claims: a. Plaintiffs’ claims are barred in whole or in part because Plaintiffs come into the Court with unclean hands. b. Plaintiffs’ claims are barred in whole or in part by the doctrine of estoppel, including, but not limited to, collateral estoppel. c. Plaintiffs’ claims are barred in whole or in part by the doctrine of res judicata. d. Plaintiffs’ claims are barred in whole or in part by the statute of repose. e. Plaintiffs’ claims are barred in whole or in part because Plaintiffs failed to perform all conditions precedent. f. Plaintiffs’ claims are barred in whole or in part because Plaintiffs intentionally relinquished Plaintiffs’ known rights or engaged in intentional conduct inconsistent with claiming those rights.

g. Plaintiffs’ claims are barred in whole or in part by the statute of frauds. h. Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver. 2

AR 000012

i. Plaintiffs’ claims are barred in whole or in part by abandonment of opportunity. j. Plaintiffs’ claims are barred because they are unreasonable, frivolous, vexatious and brought to harass Defendants. k. Plaintiffs’ claims are barred because there is a defect in the parties. l. Plaintiffs’ claims are barred in whole or in part because Defendants

acted at all times in good faith and in a reasonable manner. m. Plaintiffs’ claims are barred in whole or in part because Plaintiffs failed to mitigate their damages. n. Plaintiffs’ claims are barred in whole or in part because of laches. o. Plaintiffs have no claims based on release and settlement. p. Plaintiffs’ claims are barred in whole or in part by the statute of

limitations. q. Plaintiffs’ claims are barred by accord and satisfaction.

IV.

D EFENDANTS ' O RIGINAL C OUNTERCLAIMS 4. Counter-plaintiffs Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC have made an appearance through counsel. 5. Counter-defendants Avant Medical Group, P.A. d/b/a Interventional Spine Associates, Nisal Corp. d/b/a Qualcare Rehabilitation, and Brett L. Garner d/b/a Allied Medical Centers have made an appearance through counsel.

A.

VENUE AND JURISDICTION 6. This court has jurisdiction over the claims because the amount in controversy exceeds the jurisdictional requirements of the court. Venue is proper in Harris County because all or a substantial part of the events or omissions giving rise to the claim

3

AR 000013

occurred in Harris County. This court has personal jurisdiction over the parties because they are all Texas residents and have all made an appearance in this lawsuit.

B.

BACKGROUND 7. Defendants Minu Rx (“Minu”) is a pharmacy. Defendant Khyati Undavia (“Undavia”), a pharmacist, owns Minu. 8. Undavia also owns Providian Holding, Inc. (“Providian”). As a holding company, Providian, in turn, owns 2918 San Jacinto St., Houston, Texas 77004 (the “Building”). Minu operates on the lower floor of the Building.

9. Beginning in 2009, Plaintiff Nisal Corp. (“Nisal”) and Sterling Practice Management (“Sterling”) rented the second floor of the Building from Providian under two separate leases.

10. In 2013, Nisal and Sterling ended their leases with Providian. Nisal and Sterling then sued Providian over a breach of the lease agreements in County Court of Harris County. The parties entered into a settlement agreement and executed a broad- form mutual release (“Mutual Release”) in which they released “any and all claims . . . whether known or unknown” that they may have had against each other. Sterling and Nisal then nonsuited their claims against with prejudice.

11. Because the Mutual Release and Nonsuit with Prejudice bar all claims between the parties, this lawsuit is in direct breach of the Mutual Release. V. CLAIMS A. Declaratory Judgment 12. Counter-Plaintiffs request this Court to declare their rights, status, and legal 4

AR 000014

relations with respect to the Mutual Release. Counter-defendants contend that Counter- Defendants released all of their claims in this matter through the Mutual Release and dismissal with prejudice of the County Court lawsuit.

13. Counter-Plaintiffs are entitled to recover attorney’s fees incurred in the prosecution of this matter. T EX . C IV . P RAC . & R EM . Code §37.009. B. Breach of Contract

14. Counter-Plaintiffs and Counter-Defendants entered into a Mutual Release. Counter-Defendants breached that Mutual Release by filing claims in this lawsuit directly released in that Mutual Release. Counter-Plaintiffs are, therefore, damaged as a result and sue for their attorney's fees under Chapter 38 of the Civil Practices and Remedies Code.

VI.

C ONCLUSION 15. For the foregoing reasons, Defendants ask the Court to order that Plaintiffs take nothing on their claims, that costs be assessed against Plaintiffs, and that Additionally, Counter-Plaintiffs ask the Court to award damages as a result of Counter- Defendants' breach of the Mutual Release, including, but not limited to attorney's fees and expenses. Counter-Plaintiffs further seek a declaratory judgment from this Court that all claims asserted in this lawsuit are released and dismissed as a matter of law. Counter- Plaintiffs also seek their attorney's fees under the Declaratory Judgment Act.

16. Defendants and Counter-Plaintiffs request all other relief to which they are entitled at law or equity. 5

AR 000015

Dated: February 16, 2015 Respectfully submitted,

MAHENDRU, P.C.

By:

Ashish Mahendru State Bar No. 00796980 Darren A. Braun State Bar No. 24082267 639 Heights Blvd. Houston, Texas 77007 Telephone: 713-571-1519 Facsimile: 713-651-0776 amahendru@thelitigationgroup.com dbraun @thelitigationgroup.com ATTORNEYS FOR DEFENDANTS AND COUNTER-PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 16 th day of February, 2015. Matias J. Adrogué Email:mja@mjalawyer.com Robert Stephan Kaase Email: rsk@mjalawyer.com 1629 West Alabama St. Facsimile: 713.425.7271 Houston, Texas 77006

Ashish Mahendru 6 AR 000016 CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, §

§ Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD., §

§ 152 ND JUDICIAL DISTRICT Defendants §

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE ROBERT SCHAFFER:

Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu GP, L.L.C. file this Motion for Summary Judgment and would respectfully show the Court as follows:

I.

S UMMARY 1. Plaintiffs entered into a Mutual Release with all Defendants; therefore, Plaintiffs have no extant claims. All Defendants are named in the Mutual Release. Not only that, the law on releases captures all Defendants and Plaintiffs even if Plaintiff somehow convinces this Court that only some of the parties are named in the Mutual Release. 2. Beyond the application of the Mutual Release and release law, the claims are barred because Plaintiffs dismissed their claims against Defendants in an underlying lawsuit with prejudice. Res judicata, therefore, bars the claims.

1

AR 000017

3. With respect to the conversion claim, Plaintiffs are mere payees of the converted checks and, according to the plain language of the Texas Business and Commerce Code, have no cause of action against Defendants. 4. Finally, several of Plaintiffs claims are barred by the statute of limitations.

II.

I SSUES PRESENTED 5. In this motion, Defendants present the following issues for this Court’s decision as a matter of law:

a. By executing a full, unqualified release in a related lawsuit, did Plaintiffs release their claims in the instant lawsuit? b. Are Plaintiffs’ claims barred by the doctrine of res judicata because they nonsuited with prejudice their claims against Defendants in a related lawsuit?

c. Are Plaintiffs foreclosed from bringing a conversion claim for the checks where Plaintiffs never actually received delivery of the checks? d. Are Plaintiffs’ claims barred in-part by the statute of limitations? As a matter of law, the answer to the foregoing question is a resounding "Yes."

III.

S UMMARY J UDGMENT E VIDENCE 6. This motion is based on the following evidence: • Commercial Leases (Exhibits A and B) • Mutual Release (Exhibit C) • Non-Suit with Prejudice (Exhibit D) • Declaration of Khyati Undavia (Exhibit E) • Elevator Invoices (Exhibit F) • Minu Rx’s Quickbooks (Exhibit G ) • Officers and Directors of Nisal Corp. (Exhibit H) • Officers and Directors of Providian Holdings, Inc. (Exhibit I)

2

AR 000018

• Proof of Insurance Coverage for Avant Medical Group (Exhibit J) • Copy of Rent Check (Exhibit K) • County Court Lawsuit Petition (Exhibit L) • Officers and Directors of Sterling (Exhibit M) • Lease Termination Letter (Exhibit N) • Declaration of Ashish Mahendru (Exhibit O) • Avant Medical Group Account Status (Exhibit P)

IV.

B ACKGROUND F ACTS 7. The facts below are supported by the Declaration of Khyati Undavia, which declaration is incorporated by reference as if fully stated herein. (See Undavia Declaration; Ex. E). 8. Defendant Minu Rx (“Minu”) is a pharmacy. Defendant Khyati Undavia (“Undavia”), a pharmacist, owns Minu. 9. Undavia also owns Providian Holding, Inc. (“Providian”). As a holding company, Providian, in turn, owns 2918 San Jacinto St., Houston, Texas 77004 (the “Building”). Outside of that, Providian does not conduct regular business. Minu operates on the lower floor of the Building. Providian has no physical office space, nor does it have any employees aside from Undavia. Instead, Providian simply uses Minu’s offices and employees for its needs. 10. Beginning in 2009, Plaintiff Nisal Corp. (“Nisal”) and Sterling Practice Management (“Sterling”) rented the second floor of the Building from Providian under two separate leases. (See Commercial Leases; Exs. A and B). 11. In 2013, Nisal and Sterling ended their leases with Providian. Nisal and Sterling then sued Providian over a breach of the lease agreements. (See County Court Petition; Ex.

3

AR 000019

L). The parties entered into a settlement agreement and executed a broad-form mutual release (“Mutual Release”) in which they released “any and all claims . . . whether known or unknown” that they may have had against each other. (See Mutual Release; Ex. C). Sterling and Nisal then nonsuited their claims against with prejudice. (See Nonsuit With Prejudice; Ex. D). 12. During the pendency of the leases, the postal service, when delivering mail to the Building, intermingled the mail. It did not make separate deliveries to each of the Building’s tenants. Instead, it simply dumped all of the Building’s mail in Minu’s offices. Because Minu is a pharmacy, it received hundreds of checks per month as payment for dispensed medications. There was no formal system of mail sorting or separation, and each tenant of Providian took an ad hoc approach to the mail handling. 13. Allegedly, through this process, a few checks dated from 2011 to 2013 made payable to Plaintiffs that arrived via the mail were accidently sorted into Minu’s mail pile and then deposited into Minu’s account. 14. Because the Mutual Release and Nonsuit with Prejudice bar all claims between the parties, this Court must grant summary judgment.

V.

S UMMARY J UDGMENT S TANDARD 9. Rule 166a provides a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine fact issue. See Swilley v. Hughes , 488 S.W.2d 64, 68 (Tex. 1972). The party moving for summary judgment carries the burden of establishing that no material fact issue exists and that it is

4

AR 000020

entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Nixon v. Mr. Property Mgt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex. 1966). The nonmovant has a burden to respond after the movant conclusively establishes its cause of action or defense. See Oram v. General Am. Oil Co ., 513 S.W.2d 533, 534 (Tex. 1974); Swilley , 488 S.W.2d at 67-68. The movant must establish its right to summary judgment on the issues expressly presented to the trial court by conclusively proving all elements of the movant’s cause of action or defense as a matter of law. See Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); City of Houston , 589 S.W.2d at 678. 10. As shown below, Defendants conclusively prove each element of their affirmative defenses of release and res judicata as a matter of law. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995); MMP, Ltd. v. Jones , 710 S.W.2d 59, 60 (Tex. 1986). Defendants are therefore entitled to summary judgment.

VI.

L EGAL S TANDARD FOR R ELEASES 11. Generally, “unless a party is named in a release, he is not released.” McMillen v. Klingensmith , 467 S.W.2d 193, 197 (Tex. 1971). In order to release a claim, the releasing document must “mention it.” Victoria Bank and Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991). However, “a tortfeasor can claim the protection of a release if he is referred to with such descriptive particularity that his connection with the

5

AR 000021

tortious event is not in doubt.” Winkler v. Kirkwood Atrium Office Park , 816 S.W.2d 111, 113-14 (Tex. App.—Houston [14 th Dist.] 1991, writ denied ). 12. “Mentioning does not require particularized enumeration or detailed description, only that the claim being released come within the express contemplation of the release provision when viewed in context of the contract in which the release provision is contained.” Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5th Cir.2000); Mem'l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997). “Indeed, Texas courts have consistently rejected the argument that defendants cannot avail themselves of the protection of a release just because they were not specifically identified as parties to that release.” Michael Lee Andrews Trust v. Licari , CIV.A.3:02-CV-1076-N, 2004 WL 524941, at *2 (N.D. Tex. Mar. 17, 2004). 13. Releases “[do] not require that the parties anticipate and identify each potential cause of action relating to the releases subject matter,” and a “valid release may encompass unknown claims and damages[.] Keck, Mahin & Cate v. National Union Fire Ins. Co. of Pittsburgh, Pa. , 20 S.W.3d 692, 698 (Tex. 2000).

VII.

M OTION FOR S UMMARY J UDGMENT 14. Whether by the plain language of the Mutual Release, or by Texas courts’ liberal application of releases to unnamed parties, the Mutual Release bars Plaintiffs’ claims in this lawsuit as to all Defendants.

6

AR 000022

A. B Y T HE P LAIN T ERMS O F THE R ELEASE , P LAINTIFFS H AVE R ELEASED D EFENDANTS . 15. The Mutual Release specifically names each Defendant, each Plaintiff, and each claim in this lawsuit. Plaintiffs’ claims are entirely barred.

(i) Each Plaintiff and Defendant in this lawsuit is specifically mentioned in the Mutual Release 16. The Mutual Release states, in relevant part, that: NISAL [and STERLING] . . . [their] officers, directors, shareholders, partners, successors, agents, assigns, employees, servants, and attorneys . . . . hereby RELEASE, ACQUIT, and FOREVER DISCHARGE PROVIDIAN, its officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs, and attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which . . . NISAL [and STERLING] . . . have ever had or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release[.]

(See Mutual Release, p. 1-2; Ex. C) (emphasis in original). In this case, each party is either a signatory to the Mutual Release or an agent of a signatory.

a. Plaintiff Nisal is bound by the Mutual Release because it is a signatory. 17. This is a no-brainer. Nisal is both a Plaintiff and a signatory to the Mutual Release. Accordingly, it is bound by the Mutual Release, and its claims are barred.

b. Plaintiff Garner is bound by the Mutual Release because he is an agent of Nisal. 18. In addition to Nisal, Garner is also bound by the Mutual Release. 7

AR 000023

19. The Mutual Release extends not only to the named parties, but also to their “agents” and “employees.” Id . Accordingly, any agent or employee of Nisal is bound by the release. 20. Here, Garner is both the president and director of Nisal. (See Officers and Directors of Nisal Corp.; Ex. H). Further, he signed Nisal’s commercial lease with Providian as its “CEO.” (See Nisal Commercial Lease, p. 14; Ex. A). Likewise, he is designated as Nisal’s representative for any official notice required by the lease. Id . at p. 13. 21. Accordingly, Garner is Nisal’s agent as a matter of law, and is bound by the Mutual Release. His claims are barred.

c. Plaintiff Avant is bound by the Mutual Release because it is an agent of both Sterling and Nisal 22. Rounding out the Plaintiffs, Avant is the agent of both Nisal and Sterling, and is bound by the Mutual Release. 23. First, even Plaintiffs admit that Avant is Allied, and that Allied is Garner, and thus, Avant is Garner. In their case caption, Plaintiffs state that Allied is the d/b/a of Avant. (See Plaintiffs’ First Amended Petition). Allied, in turn, is the d/b/a of Garner. Id . at ¶4. Allied is again listed as a d/b/a of Avant in the Proof-of-Insurance certificate that Sterling provided to Providian at the outset of the Commercial Leases. (See Proof of Insurance Coverage for Avant Medical Group; Ex. J). Because Avant is simply a d/b/a for entities bound by the Mutual Release, it too is bound by the Mutual Release.

8

AR 000024

24. Second, Avant paid Sterling’s rent out of its own account . (See Avant Rent Check; Ex. K); (See Declaration of Khyati Undavia, ¶15; Ex. E). Similarly, Avant procured a CGL policy on behalf of Sterling . (See Proof of Insurance Coverage for Avant Medical Group; Ex. J). 25. Third, although not actually a party to the written lease, Avant nevertheless operated in the office space leased by Nisal and Sterling. (See Declaration of Khyati Undavia; Ex. E); (See Plaintiff’s First Amended Petition; ¶11). In fact, Sterling and Nisal had no operations in the Building; their leased premises were occupied by Avant. Id . Sterling and Nisal even negotiated for a lease provision that prevented Providian from leasing space to any other “chiropractor” or “pain management business” in order to protect Avant from competition. (See Nisal Commercial Lease, p. 13; Ex. A). 26. Finally, Plaintiff Garner is the president and director of Nisal and the member- manager and registered agent of Sterling. (See Officers and Directors of Nisal; Ex. H); (See Officers and Directors of Sterling; Ex. M). Sterling, in turn, serves as Avant’s registered agent. (See Avant Medical Group Account Status; Ex. P). Garner also had a management role at Avant during Avant’s tenancy in the Building and worked for Avant as a chiropractor. (See Declaration of Khyati Undavia, ¶13; Ex. E). 27. Avant, Sterling, and Nisal were inextricably linked and were all representatives and agents of each other with respect to the lease between Providian, on one hand, and Nisal and Sterling, on the other. Having signed a Mutual Release of all claims, these Plaintiffs are forever barred from bringing claims for anything related to Defendants.

9

AR 000025

d. Defendant Undavia is subject to the Mutual Release because she is an agent of Providian 28. Just like the Plaintiffs, Undavia is bound by—and protected by—the Mutual Release. 29. Providian is a signatory to the Mutual Release. Undavia is Providian’s owner and sole employee. (See Declaration of Khyati Undavia; Ex. E); (See Officers and Directors of Providian Holdings, Inc.; Ex. I). Undavia even signed the Mutual Release on behalf of Providian. (See Mutual Release; Ex. C). Accordingly, Undavia is Providian’s agent and is specifically mentioned in the Mutual Release. Therefore, all claims against her as an individual are barred.

e. Defendant Minu is bound by the Mutual Release because it is an agent of Providian. 30. Like Undavia, Minu was Providian’s agent and representative and was expressly authorized to act on behalf of Providian for any matters, including matters related to Providian’s lease with Plaintiffs. (See Declaration of Khyati Undavia; Ex. E). In fact, Providian has no physical office space or employees; its physical address is actually that of Minu’s. Id . at ¶13. Minu handled a variety of matters for Providian, including collecting rent, obtaining insurance for the Building, arranging and paying for the Building’s security, arranging and paying for grounds, facilities, and common area maintenance, and arranging and paying for the Building’s elevator inspections and servicing. Id . at ¶5-12; (See Minu Rx's Quickbook; Ex. G); (See Elevator Invoices; Ex. F). The Commercial Leases made many of these tasks Providian’s responsibilities. (See

10

AR 000026

Commercial Lease, p. 8; Exs. A and B) (Stating that “grounds maintenance” and “common area” maintenance are Provdian’s obligations). 31. That Minu was Providian’s agent with regard to the lease is further evidenced by the Plaintiffs’ own allegations. Plaintiffs allege that:

Defendants . . . had an oral agreement with Plaintiffs to collect all mail received at the Building and deliver the same to Plaintiffs.

(Plaintiffs’ First Amended Petition, ¶19). Plaintiffs allege that Minu was responsible for receiving and sorting the Building’s mail—a task of the Landlord—and certainly one that would not arise in the absence of an agency relationship between Providian and Minu. Moreover, despite only having a lease with Providian, Minu was so involved in the management of the Building as alleged by Plaintiffs that Plaintiffs characterize their agreement as being with Minu and not Providian. In fact, Plaintiffs failed mention Providian once in their amended petition. Following that logic, Minu is the "landlord" of Plaintiffs. 32. Although Providian owned the building, Minu was the management company and was authorized to act on behalf of Providian for any matters with respect to the Plaintiffs’ tenancy at the building. (See Declaration of Khyati Undavia, ¶4; Ex. E). It is therefore subject to, and protected by, the Mutual Release. 33. Plaintiffs’ claims against Minu GP fail for the same reasons specified above. Further, Plaintiffs’ have alleged vicarious liability on Minu GP because of its relationship to Minu. Because Minu is not liable for Plaintiffs’ claims, Plaintiffs’ claims against Minu GP likewise fail.

11

AR 000027

(ii) The Mutual Release specifically mentions each claim in this lawsuit 34. The Mutual Release, aside from specifically mentioning each party in this lawsuit, also specifically mentions each claim in this lawsuit. These claims are, therefore, barred. 35. In settling the Original Lawsuit, the parties executed the Mutual Release in which Nisal and Sterling, as well as their officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys” released Providian, as well as its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees, servants, and attorneys, from “ all liabilities, claims, demands, causes of actions, judgments, liens, liabilities or potential causes of action which Sterling and Nisal have ever had or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release[.]” (See Mutual Release; Ex. C). In this release, the parties no doubt contemplated the claims in this current lawsuit because they released not only those claims actually alleged in the original lawsuit, but also all claims “whether known or unknown , which have arisen or may arise.” Id . 36. This Mutual Release was signed on October 3, 2013. In this instant lawsuit, all allegedly-converted checks are dated prior to this time. (See Plaintiffs' Original Petition). Indeed, releases “[do] not require that the parties anticipate and identify each potential cause of action relating to the releases subject matter,” and a “valid release may encompass unknown claims and damages[.] Keck, Mahin & Cate v. National Union Fire Ins. Co. of Pittsburgh, Pa. , 20 S.W.3d 692, 698 (Tex. 2000). The parties’ broad,

12

AR 000028

unqualified release language encompasses the Plaintiffs’ unknown claims against Defendants as a matter of law. Defendants are entitled to summary judgment. B. T HE P ARTIES A RE S O I NTIMATELY C ONNECTED T O T HE M UTUAL R ELEASE

T HAT T HEY A RE B OUND B Y I T . 37. Even if certain Plaintiffs and Defendants are not specifically mentioned in the Mutual Release, each party is so intimately connected to the other parties and claims involved in the Mutual Release that they are bound by the Mutual Release. Indeed, Texas courts readily extend releases to unnamed, but related, parties. 38. In Winkler , a health club member signed the following release at the outset of his club membership:

Buyer does hereby for his or herself, heirs, executors, legatees, administrators, or assigns, waive, release and forever discharge any and all claims the Buyer may now or in the future have against the Club for injuries suffered by the Buyer while participating in any programs of the Club.

Id . at 113. While exercising at the club, the member suffered a fatal heart attack. Id . at 112. His estate and next of kin filed suit against the club as well as several individuals associated with the club. Id . at 113. All defendants, including the individual defendants, moved for summary judgment on the basis that the decedent had released his claims against them. Id . Plaintiffs argued in response that the “[defendants] cannot avail themselves of the protection of the release because they were not specifically identified as parties to the release.” Id . The court rejected that argument, holding that “[i]n releasing ‘the Club’ from any injuries suffered while participating in the center’s programs, it is clear that Winkler intended to release any claim against all individuals and

13

AR 000029

entities involved in the operation, maintenance, and administration of the center.” Id . at 114. 39. Likewise, the court in Vera v. North Star Dodge Sales, Inc. interpreted a contract between a consumer and a corporation that including a release that “release[d] North Star Dodge from any and all liability regarding the purchase of a 1993 Mazda Protg[.]” 989 S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no pet.) Although the release enumerated only the car dealership with particularity, the court held that the broad release of “all liability regarding the [vehicle] purchase” barred claims against the sales manager and the employee who handled the financing:

In this case, it is clear that the release of “North Star Dodge” from any liability associated with the sale of the Mazda, also released the North Star Dodge employees associated with that sale. Under the circumstances, the connection of Powers and Hall with North Star Dodge and the sale of the Mazda is apparent. Therefore, the release encompasses Higinio’s claims against North Star Dodge as well as his claims against North Star Dodge employees involved in the sale of the Mazda.

Id . at 18. 40. In Dyrcz v. Longview Enterprise, Ltd. , the court reached the same conclusion. There, the plaintiff signed a release prior to participating in a dodgeball game that released:

Grand Central Station Longview, its partners, agents, and employees from any responsibility or liability for personal injury . . . [that] may [occur] from participating in the Dodge Ball contest.

Dyrcz v. Longview Enter., Ltd. , 2:05-CV-476 (TJW), 2006 WL 3289046, at *1 (E.D. Tex. Nov. 13, 2006), aff'd sub nom. Dyrcz v. Graham Bros. of Longview, LLC , 234 Fed. Appx. 236 (5th Cir. 2007). Plaintiff thereafter sued Longview Enterprises—the employer of the

14

AR 000030

management and staff at Grand Central Station Longview—for injuries sustained in a dodgeball match. Id . Longview Enterprise moved for summary judgment pursuant to the release even though it was not mentioned by the release. Id . In evaluating Longview Enterprise’s argument, the court noted that “[i]n Texas, in order to claim the protection of a release, the claim being released must come within ‘the express contemplation of the release provision when viewed in context of the contract.” Id ., citing Stinnett , 227 F.3d at 255. Further, the court recognized that “a tortfeasor can claim the protection of a release as long as he is referred to “with such descriptive particularity that his identity or his connection with the tortious event is not in doubt,” and therefore, that “a defendant may still avail himself of the protection of a release even though he has not been specifically identified as a party to the release.” Id ., citing Winkler , 816 S.W.2d at 111. 41. Applying these rules, the court concluded that:

[T]he claims against Defendant Longview Enterprises fit within the release signed by Plaintiff. There is no dispute that Plaintiff’s claims resulted from participating in a dodgeball game at Graham Central Station. . . . . Although the release does not specifically name Longview Enterprise, the release does cover “partners, agents, and employees” of Graham Central Station . . . [t]herefore, by releasing Graham Central Station, it is clear that Plaintiff intended to release any claim against all individuals and entities involved in the operations and activities of Graham Central Station, which would include . . . . Longview Enterprise.

Id . at 2. Accordingly, the court granted the defendant summary judgment. Id . 42. In Memorial Medical Center , the Texas Supreme Court applied these same concepts in finding that a physician, in releasing a hospital from “all claims” arising out of the parties’ employer-employee relationship, also released the physician’s unknown

15

AR 000031

claims for exposure to toxic chemicals. Memorial Medical Center of East Texas , 943 S.W.2d at 434. 43. All of the foregoing cases lead to only one conclusion in the case at hand-- Plaintiffs Nisal, Avant, Garner, as well as Defendants Minu and Undavia, are bound by the Mutual Release because of their intimate connection to the underlying subject matter—the Commercial Leases.

(i) The parties were all intimately involved in the Commercial Leases 44. First, Providian—a company owned by Undavia—leased office space to Nisal and Sterling. Although not actually parties to the lease, Avant and Garner nevertheless operated in the office space leased by Nisal and Sterling. In fact, Nisal and Sterling had no operations in the building. Plaintiff Garner is a principal of Avant and is the president and director of Nisal and the member-manager and registered agent of Sterling. (See Officers and Directors of Nisal; Ex. H); (See Officers and Directors of Sterling; Ex. M). 45. Sterling, in turn, serves as the registered agent of Avant. Sterling, Nisal, and Avant were inextricably linked and were all representatives and agents of each other with respect to the lease between Providian, on one hand, and Nisal and Sterling, on the other. 46. This notion is cemented by Plaintiffs’ own allegations. They allege:

Plaintiffs are former tenants in a commercial building which is owned and/or managed by Defendant Khyati Mohamed Undavia or an entity for which Defendant Khyati Mohamed Undavia is a principal, agent, representative, or employee (the “Building”).

. . . . While Plaintiffs were tenants in the Building, all mail was delivered to the Building’s main address, where it would be collected by Defendant Khyatia Mohamed Undavia and distributed by her to her other tenants. . . . .

16

AR 000032

Plaintiffs recently discovered during their tenancy at the building , Defendant Khyati Mohamed Undavia would frequently take letters containing checks, from the mail, endorse the checks with the name and bank account information for Minu Rx, LTD. d/b/a Memorial Compounding Pharmacy, and deposit them into at least two bank accounts of Minu RX, LTD. d/b/a Memorial Compounding Pharmacy. . . . . Defendants . . . had an oral agreement with Plaintiffs to collect all mail received at the Building and deliver the same to Plaintiffs. . . . . Plaintiffs allege that Defendant Khyati Mohamed Undavia acted as an agent of Plaintiffs with respect to collecting and delivering mail, and therefore owed fiduciary duties to Plaintiff.

(See Plaintiff’s Amended Petition, ¶ 11, 12, 19, 20). Through these statements, Plaintiffs acknowledge they were all tenants under the leases. If they were all tenants under the lease, then surely they were parties to the Mutual Release.

(ii) The Original Lawsuit—which spawned the Mutual Release—arose out of Plaintiffs’ tenancy with Defendants 47. Aside from being inextricably connected to each other, the parties in this lawsuit were also all involved in the lawsuit that gave rise to the Mutual Release. 48. The Original Lawsuit arose out of a dispute concerning the commercial leases between Providian and Nisal/Sterling. The Plaintiffs’ original petition in that lawsuit alleged:

Sterling entered into a lease agreement with [Providian] . . . upon termination of the lease and sixty days after Sterling provided a forwarding address, [Providian] has refused to refund the security deposit to Sterling. [Providian] has acted in bad faith. . . . . . Nisal entered into a lease agreement with [Providian] . . . upon termination of the lease and sixty days after Sterling provided a forwarding address, [Providian] has refused to refund the security deposit to Nisal. [Providian] has acted in bad faith.

17

AR 000033

(See Original Petition in Original Lawsuit; Ex. L). 49. In settling the Original Lawsuit, the parties executed a Mutual Release in which Nisal and Sterling, as well as their officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys” released Providian, as well as its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees, servants, and attorneys, from “ all liabilities, claims, demands, causes of actions, judgments, liens, liabilities or potential causes of action which Sterling and Nisal have ever had or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release[.]” (See Mutual Release; Ex. C). 50. In other words, this lawsuit involves the same parties, the same subject matter, and the same claims that were captured in the Mutual Release. The inescapable conclusion is that each Plaintiff, each Defendant, and each claim in this lawsuit—whether or not specifically mentioned in the Mutual Release—is so intimately connected to that release that it is unequivocally encompassed in the Mutual Release.

C.

PLAINTIFFS’ CLAIMS ARE BARRED BY THE DOCTRINE OF RES

JUDICATA

51. The Mutual Release is not the only bar to Plaintiffs’ claims in this lawsuit. Plaintiffs’ claims are also barred by the doctrine of res judicata. 52. “Res Judicata bars litigation of all issues and defenses which, with the use of diligence, might have been tried in the prior suit.” Bell v. Morris , 832 S.W.2d 749, 754 (Tex. App.—Houston [14 th Dist.] 1992, writ denied). “When there has been a prior

18

AR 000034

judgment in a subsequent suit in which there is identity of the parties, issues, and subject matter, such judgment is treated as an absolute bar to retrial of claims pertaining to the same cause of action on the theory that they have merged into the judgment.” Id . “Summary judgment may be granted upon a proper plea of res judicata.” Id . 53. “In general, if [a] dismissal is with prejudice, res judicata applies.” Id . at 755. “Also, if the dismissal is entered by agreement of the parties in pursuance of the compromise or settlement of a controversy, res judicata applies.” Id . 54. Here, the doctrine of res judicata bars’ Plaintiffs’ claims. In the Original Lawsuit, Plaintiffs contended that:

Sterling entered into a lease agreement with [Providian] . . . upon termination of the lease and sixty days after Sterling provided a forwarding address, [Providian] has refused to refund the security deposit to Sterling. [Providian] has acted in bad faith. . . . . . Nisal entered into a lease agreement with [Providian] . . . upon termination of the lease and sixty days after Sterling provided a forwarding address, [Providian] has refused to refund the security deposit to Nisal. [Providian] has acted in bad faith.

(See Original Petition in Original Lawsuit; Ex. L). Plaintiffs’ allegations in this lawsuit are for a claim for breach of contract. (See §5 of the Nisal Commercial Lease; Ex. A) (“Within 60 days after tenant surrenders the leased premises . . . Landlord will refund the security deposit[.]”). Included are various torts including breach of duty of good faith and fair dealing, conversion, theft liability act, and breach of fiduciary duty. These torts are in play because Plaintiffs’ alleged “bad faith”.

19

AR 000035

55. The claims in the Original Lawsuit are the exact same claims that Plaintiffs now assert against Defendants. Further, these current claims and the prior claims all arise out of the exact same subject matter: the parties’ lease agreements. 56. Of course, res judicata only bars those claims that a party could have asserted in the underlying lawsuit “with the use of diligence.” Bell , 832 S.W.2d at 754. Here, Plaintiffs could have asserted their current claims in the Original Lawsuit had they used any diligence at all. Defendants allegedly deposited Plaintiffs’ checks as early as August 2011. (See Plaintiffs' Original Petition); (See First Amended Petition). Plaintiffs did not file the Original Lawsuit until September 5, 2013, meaning that Plaintiffs had over two years to discover the fact that Defendants had deposited their checks. As a matter of law, two years is not due diligence. 57. Accordingly, Plaintiffs claims are barred by the doctrine of res judicata. Defendants are entitled to summary judgment as a matter of law. D. P LAINTIFFS N EVER R ECEIVED D ELIVERY O F T HE C HECKS A ND T HEREFORE

H AVE N O A CTION FOR C ONVERSION A GAINST D EFENDANTS 58. Here, Plaintiffs allege that Defendants took the checks intended for Plaintiffs and deposited them into Defendants’ own bank accounts. Under the Texas Business and Commerce Code, Plaintiffs have no claims against Defendants. 59. “An action for conversion of an instrument may not be brought by . . . a payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or a co-payee.” Tex. Bus. & Com. Code § 3.420(b). The policy behind this rule is that:

20

AR 000036

Until delivery, the payee does not have any interest in the check. The payee never became the holder of the check nor a person entitled to enforce the check. Section 3-301. Nor is the payee injured by the fraud. Normally the drawer of a check intends to pay an obligation owed to the payee. But if the check is never delivered to the payee, the obligation owed to the payee is not affected. If the check falls into the hands of a thief who obtains payment after forging the signature of the payee as an indorsement, the obligation owed to the payee continues to exist after the thief receives payment. Since the payee's right to enforce the underlying obligation is unaffected by the fraud of the thief, there is no reason to give any additional remedy to the payee.

Tex. Bus. & Com. Code Ann. § 3.420, cmt 3. 60. Here, Plaintiffs contend that Defendants “stole” Plaintiffs’ checks before the checks were delivered to Plaintiffs’ offices. Thus, Plaintiffs never received “delivery” of the checks and cannot maintain a conversion action against Defendants. 61. Further, there is no basis for holding that Defendants were Plaintiffs’ agents. First, Plaintiffs terminated their tenancy on or about March 31, 2013. (See Original Lawsuit; Ex. L) (Lease Termination Letter; Ex. N). Any agency relationship between the Defendants and Plaintiffs, assuming arguendo that one existed, ended on that date. Yet several of the checks allegedly converted by Defendants are dated well after the end of Plaintiffs’ tenancy. (See Exhibit 1 to Plaintiffs' Motion to Compel) (four checks totaling $11,387.15 dated September 25, 2013). 62. Even during the Plaintiffs’ tenancy, there was no agency relationship between Plaintiffs and Defendants regarding the mail, and Plaintiffs’ contention that Defendants

21

AR 000037

“orally agreed” to accept Plaintiffs’ mail is untenable. The leases between Plaintiffs and Defendants contained standard merger and no-oral modification clauses:

The lease contains the entire agreement between the Landlord and Tenant and may not be changed except by written agreement.

(See Nisal Commercial Lease, § 38(A); Ex. A). The alleged “contract” regarding the mail is not mentioned by the lease agreements. In fact, there is no mention of mail anywhere. Accordingly, Plaintiffs’ reliance on the alleged oral agreement violates either the parol-evidence rule or the no-oral modification clause. See Robbins v. Warren , 782 S.W.2d 509, 511 (Tex. App.—Houston [1 st Dist.] 1989, no writ) (in a contract required by law to be written, a no-oral modification clause is valid and enforceable); see Tex. Bus. & Com. Code §26.01(b)(5) (providing that a lease of real estate for more than one year must be in writing to be enforceable); (See Nisal Commercial Lease; Ex. A) (providing for a three-year lease). E. P LAINTIFFS ’ C LAIMS A RE B ARRED I N P ART B Y T HE S TATUTE O F L IMITATIONS . 63. Plaintiffs’ claims are also barred in part by the applicable statute of limitations period. 64. Conversion is subject to a two-year statute of limitations. Tex. Civ. Prac. & Rem. Code §16.003. Unjust enrichment and money had and received claims are also subject to a two-year limitations period. Elledge v. Friberg-Cooper Water Sup. , 240 S.W.3d 869, 870 (Tex. 2007). 65. Here, Plaintiffs seek recovery for checks that Defendants allegedly took as early as 2011. Yet Plaintiffs did not file suit until April 22, 2014, and they allege no basis

22

AR 000038

sufficient to toll the statute of limitations. Accordingly, based on the allegations Plaintiffs have asserted, their claims pre-date April 22, 2012; therefore, claims for conversion, unjust enrichment, and money had and received are barred as a matter of law. F. D EFENDANTS /C OUNTER -P LAINTIFFS A RE E NTITLED T O T HEIR A TTORNEY ’ S

F EES 66. Pursuant to Tex. Civ. Prac. Rem. Code §37.009 and §38.001, Counter-Plaintiffs are entitled to their reasonable attorney’s fees in prosecuting their affirmative claims. To date, Counter-Plaintiffs have incurred $11,257.50 in reasonable and necessary attorney's fees. (See Declaration of Ashish Mahendru, ¶13; Ex. O).

VIII.

C ONCLUSION 67. Plaintiffs entered into a Mutual Release in which they released any known or unknown claims that they had against all Defendants. By operation of law and by application of the Mutual Release, Plaintiffs’ claims are barred as to all Defendants. Additionally, Plaintiffs’ claims are barred by res judicata because Plaintiffs nonsuited their prior lease claims against Defendants with prejudice. Because Plaintiffs never received delivery of the checks, they have no claim for conversion. Plaintiffs’ claims are also barred in part by the applicable limitations periods. 68. Defendants respectfully request that this Court grant them summary judgment, dismiss Plaintiffs’ claims with prejudice, grant them their reasonable attorney’s fees, and grant Defendants all further relief to which they are entitled at law or equity.

23

AR 000039

Date: January 30, 2015 Respectfully submitted,

MAHENDRU, P.C.

By:

Ashish Mahendru Texas Bar No. 00796980 Darren A. Braun Texas Bar No. 24082267 639 Heights Boulevard Houston, Texas 77007 (713) 571-1519 (Telephone) (713) 651-0776 (Facsimile) amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 30 th day of January 2015. Matias J. Adrogué Robert Stephan Kaase 1629 West Alabama St. Houston, Texas 77006

Ashish Mahendru 24

AR 000040

~~

~~

TEXAS ASSOCIATION OF REALTORS TEXAS ASSOCIATION OF REALTORS' COMMERCIAL LEASE COMMERCIAL LEASE USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED. USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS Of THE TEXAS ASSOCI.o.TlONOF REALTQRS®IS NOT AUTHORIZED . «exu ASsOCiation of REAL TORS®. (Qt;. ^[2006] .;rr.~ .. A . . ""llIIlon ofREALTOR$e>, Inc. 20GEI Table of Contents Table of Contents H2:. Paragraph Description E9:. E!b Pg. No. Paragraph Description f9:. Paragraph Description M2: No. Paragraph Description 22. Holdover 10 10 2 22. Holdover 2 1. 1. Parties Parties 23. Landlord's Lien & Security Interest 10 10 2 23. Landlord's Lien & Security Interest 2 2. Leased Premises Leased Premises 2. 24. Assignment and Subletting 10 10

2 2 24. Assignment and Subletting 3. 3. Term Term 11 25. Relocation 11 A. Term 25. Relocation A. Term 11 11

26. Subordination 26. Subordination B. Delay of Occupancy B. Delay of Occupancy 11 11 27. Estoppel Certificates 27. Estoppel Certificates 3 3 4. Rent and Expenses 4. Rent and Expenses 11 11 28. Casualty Loss 28. Casualty Loss A. Base Monthly Rent A. Base Monthly Rent 12 12 29. Condemnation 29. Condemnation B. First Full Month's Rent B. First Full Month's Rent 12 12 30. Attorney's Fees 30. Attorney's Fees C. Prorated Rent C. Prorated Rent 12 12 31. Representations 31. Representations D. Additional Rent O. Additional Rent 12 32. Brokers 32. Brokers 12 E. Place of Payment. E. Place of Payment. 13 33. Addenda 33. Addenda 13 F. Method of Payment F. Method of Payment 13 13

34. Notices 34. Notices G. Late Charges G. Late Charges 35. Special Provisions 13 13 35. Special Provisions H. Returned Checks H. Returned Checks 14 14 4 4 36. Agreement of the Parties 36. Agreement of the Parties 5. 5. Security Deposit Security Deposit 4 4 6. 6. Taxes Taxes 4 4 7. 7. Utilities Utilities 5 5 ADDENDA & EXHIBITS {check all that aQQ1:t} 8. 8. Insurance Insurance ADDENDA & EXHIBITS (check all that a~el~l 9. 5 5 9. Use and Hours Use and Hours

on Exhibit A 6 6 10. 10. Legal Compliance Legal Compliance l1li Exhibit A 6 6 0 Exhibit 11. 11. Signs 0 Exhibit Signs Access By Landlord 7 7 0 Commercial Lease Addendum for Broker's Fee 12. 12. Access By Landlord 0 Commercial Lease Addendum for Broker's Fee 7 13. 7 0 Commercial Lease Expense Reimbursement 0 Commercial Lease Expense Reimbursement 13. Move-In Condition Move-In Condition 7 7 14. 14. Addendum Move-Out Condition Move-Out Condition Addendum 7 7 15. 15. I» Commercial Lease Addendum for Extension l1li Commercial Lease Addendum for Extension Maintenance and Repairs Maintenance and Repairs

A. Cleaning Option A. Cleaning Option 0 Commercial Lease Addendum for Percentage B. Conditions Caused by a Party 0 Commercial Lease Addendum for Percentage B. Conditions Caused by a Party c. Repair & Maintenance Responsibility C. Repair & Maintenance Responsibility Rent Rent D. Repair Persons OJ Commercial Lease Parking Addendum D. Repair Persons ~ Commercial Lease Parking Addendum E. HVAC Service Contract E. HVAC Service Contract 0lI Commercial Landlord's Rules and Regulations l1li Commercial Landlord's Rules and Regulations F. Common Areas l1li Commercial Lease Guaranty 0lI Commercial Lease Guar~nty F. Common Areas G. Notice of Repairs G. Notice of Repairs 0lI Commercial Lease Right of First Refusal to Lease l1li Commercial Lease Right of First Refusal to Lease H. Failure to Repair H. Failure to Repair Addendum Addendum

16. 16. 9 9 0 Commercial Lease Addendum for Optional Alterations Alterations 0 Commercial Lease Addendum for Optional 17. 17. 9 9 Liens Liens Space Space 18. 18. 9 9 I» Commercial Leasehold Construction Addendum Liability Uability IliI Commercial Leasehold Construction Addendum 19. 19. Indemnity 9 9 Indemnity ~ Acceptance Eorm ~ Acceptance Eor:m 9 ii IU gbt of Eh:st Refusal to Em::cbase 20. 20. 9 Default Default ~ Rjgbt of Ehst Befllsa] to EIlJ.:cbase 21. 21. Abandonment, Interruption of Utilities, Abandonment. Interruption of Utilities, 10

Removal of Property & Lockout 10 Removal of Property & Lockout Initialed for Identification by Tenant:~ __ • aod Laodlom(@ Initialed for Identification by Tenant:&_. __ , aod Laod'O<dM Page 1 of 14 Page 1 of 14 (TAR-2101) 5-26-06 (TAR-2101) 5-26-06 '-"" AR 000041 EXHIBIT A •

~~

TEXAS ASSOCIATION OF REALTORS" TEXAS AsSOCIATION OF REALTORS"'

COMMERCIAL LEASE

COMMERCIAL LEASE use OF THIS fORU BY PERSONSWHOARE NOT UEIII!ERS OFntETEXASASSOCIAllCW OF REALTORSIIIS NOT AlITHORIZED. USE CFlHS RlRII BY PERSalSWHOARE I'CJT IIaII!ERS CF TlETEXllSASSOCIATJa\I CF REALT~ IS NOT A1.ITHORIZED_ .... _ ' r • .. __ ~ __ _

fi_'ta,c ^[7] • _lIaIU~IDc._ 1. PARTIES: The parties\olhis lease are: 1. PARTIES: The parties to this lease are: N~sa.l Corporation N~"iil Corporation Tenant: Tenant: __________________________________________________________ ~;and ___________________________________________________ --",and

Landkxd: Providian Holdings, Inc. LandkKd: Providian Holdings, Inc. 2. LEASED PREMISES: 2. LEASED PREMISES: real property, ~n as the "leased premises: along A LandkKd leases to Tenant the following described real property, known as the -leased premises," along A Landlonlleases to Tenant the following _ with al its improvements (Check only one box): willi al i!s improvements (Check only one box): a (1) Multiple-Tenant Properly: Suite or Un~ Number 200 g (1) MuIi!>l&: Tenant Property: Suite or Unil Number 200

containing approximately 4 7 nn containing approximately 4 700 square feet of rentable area in MemorJ.al Compoundlng Pharmacy Building (prOject name) square feet of rentable area in Memorial Compounding Pharmacy Building (project name) m 2918 San Jacinto street at 2918 San Jacinto Street (address) in Houston (address] in Houston (city), (city), (county), 77004 77004 Harris Harris (county), Texas. which is legally described on attached Exhibit A Texas, which is IegaIy described on attached Exhibit A or as follows: or as follows:

The premises are being leased "AS IS". Tenant has inspected the premjses and The premises are being leased "AS IS". Tenant has insl?ected the premjses and accepts the premises "AS IS". accepts the premises "AS IS".

a (2) Single-Tenant Properly: The real property at: ____________ --:-___ --:-:- (] (2) S!!gle- Tenant Prope!Iy: The real property at:

_____________________________________________________ ~(~)in (adcress) in (city),, ________ (county), Texas, which (city1,----------------:-c-::(county), Texas, which

-is-:IegaDy---descri----:"bed--on-attached~-:---:-:Exh~"::'ibit-:':' -=--=-____________ or as follows: ____ _ ~is-;Iega8y:---=--;descri:--~·c.-bed-;--on-a\lached;:--:-:--.-:=Exh""""'ibiI'"'·;-_- ___ ________ or as follows: ________ _

B. If Paragraph 2A(1) applies: B. If Paragraph 2A(1) applies: (1) "Property" means the building or complex in which the leased premises are located, inclusive of any (1) ~ means the building or complex in which the leased premises are located, incIusiw of any common areas, drives, parking areas, and walks; and common areas, drives, parking areas, and walks; and (2) the parties agree thai \he rentable area of the leased premises may not equal the actual or useable (2) the parties agree that the rentable area of the leased premises may not equal the actual or useable

area within the leased premises and may include an allocation at common areas in the Property. area within the leased premises and may include an allocation of common areas in the Property, 3. TERM: 3. TERM: A Term: The term of this lease is __ 3_6 ___ months and A Term: The term of this lease is _::.3,,6 ___ months and _-,,0,-_ days. commencing on: 0 days, commencing on: March 1, 2009 March 1, 2009 (Commencement Date) and ending on (Commeocement Date) and ending on Februarv ?q. 201? (Expiration Date). Februarv 2Q, 2011 (Expiration Date),

Initialed for Identification by T enant:~ - - ' and Lan~v. (T AR-21 01) 5-26-06 (TAR-2101) 5-26-06 Page2of14 Page2af14

AR 000042

Commercial Lease conceming:, ______________________________ _ Commercialleaseconceming: _______________________________ _ 8. Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date B. Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, landlord will not be liable to Tenant complete or a prior tenant's holding over of the leased premises, Landlord will not be liable to Tenant for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement Date will automatically be extended to the date Tenant is able to occupy the Property and the Date will automatically be extended to the date Tenant is able to occupy the Property and the Expiration Date will also be extended by a like number of days, so that the length of this lease remains Expiration Date will also be extended by a like number of days, so that the length of this lease remains unchanged. If Tenant is unable to occupy the leased premises after the 90 1h day after the unchanged. If Tenant is unable to occupy the leased premises after the 90 th day after the Commencement Date because of construction on the teased premises to be completed by Landlord Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may terminate this lease by giving written notice to Landlord before the leased premises become available terminate this lease by giving written notice to Landlord before the leased. premises become available to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. This Paragraph 3B does not apply to any delay in occupancy caused by cleaning or repairs. This Paragraph 3B does not apply to any delay in occupancy caused by cleaning or repairs.

C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for the leased premises if required by a governmental body. the leased premises if required by a governmental body.

4. RENT AND EXPENSES:

4. RENT AND EXPENSES: A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay Landlord base monthly rent as described .B:atllilr::D8g~zzzzzzzzzzzZzzzzt:lgas follOWS: Landlord base monthly rent as described aB:stI:IiI':.t!l.EI~&&&&&&&&&&&&&&&&8Jif;as follows: to August 31, 2009 to February 28, 2010 to February 28, 2011 to February 29, 2012 to from March I, 2009 to August 31 t 2009 $ 0.00 from March 1, 2009 $ 0.00 from SeEtember I, 2009 to Februar2 28, 2010 $ 3,600 .0'OLmonth $ 3,600 .OO/month from SeEtember I, 2009 $ 3 ,900. OO/month $ '3,90'0. OOLmonth , , from March I, 2010 from March " 2010 to February 28, 2011 to February 29, 2012 $ 4 ,200. aD/month from March I, 2'011 from March " 2011 $~ ,200.00Lmonth from from to $ $

B. First Full Month's Rent: The first full base monthly rent is due on or before September 1. 2'0'09 B. First Full Month's Rent: The first full base monthly rent is due on or before September J. 2009 C. Prorated Rent If the Commencement Date is on a day other than the first day of a month, Tenant will C. Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will

pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following fraction: the number of days from the Commencement Date to the first day of the following month fraction: the number of days from the Commencement Date to the first day of the following month divided by the number of days in the month in which this lease commences. The prorated rent is due divided by the number of days in the month in which this lease commences. The prorated rent is due on or before the Commencement Date. on or before the Commencement Date.

D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord aU other amounts, as provided by the attached (Check all that apply.): other amounts, as provided by the attached (Check a/l that apply.): o (1) Commercial Expense Reimbursement Addendum N/A a (1) Commercial Expense Reimbursement Addendum N/A (J (2) Commercial Percentage Rent Addendum N/A Cl (2) Commercial Percentage Rent Addendum N/A (J (3) Commercial Parking Addendum N/A (J (3) Commercial Parking Addendum N/A o (4)~N~!A~~~~~~~~~~~~~~~~==~~~~~~~~~~~~~ (J (4)~N~/A=_ __ ~--~~~--~~--~~--~~--~--~--~-------------- All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this lease. lease.

E. Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person E. Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person at the place stated or to such other person or place as Landlord may later designate in writing: at the place stated or to such other person or place as Landlord may later designate in writing: Name: Providian Holdings, Inc. Name: Providian Holdings, Inc. Address: 2918 San Jacinto Street. Suite 100 Address: 2918 San Jacinto Street, Suite 100

Houston, Texas 77004 . Houston. Texas 77004 F. Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as F. Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as permitted by law or this lease. If Tenant fails to timely pay any amO~due under this lease or if any permitted by law or this lease. If Tenant fails to timely pay any amo~due. under this lease or if any check of Tenant is retumed to Landlord bY~~7'jnstitutjOn on w Ich i was drawn, Landlord after check of Tenant is returned to Landlord bY~~7Anstitution on w Ich, i was drawn, Landlord after

(TAR-2101) 5-26-06 (TAR-2101) 5-26-06 Initialed for Identification by Tenantrz-r' ___ , and Landlord: Initialed for Identification by Tenant~, ___ , and landlord: . __ .' __ ' _ Page 3 of 14 Page 3 of 14

AR 000043

Commercial Lease conceming: ____ ___________ _ _____ __ ___ _ _ _ _ _ _ Commercial Lease conceming: ______________________________ _

providing written notice to Tenant may require Tenant to pay subsequent amounts that become due providing written notice to Tenant may require Tenant to pay subsequent amounts that become due under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies under this lease for Tenant's failure to make timely payments with good funds. under this lease for Tenant's failure to make timely payments with good funds.

G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment within 5 days after the date it is due, Tenant will pay Landlord a late charge equal to 5% of the amount within 5 days after the date it is due. Tenant will pay Landlord a late charge equal to 5% of the amount due. In this paragraph. the mailbox is not the agent for receipt for Landlord. The late charge is a cost due. In this paragraph, the mailbox is not the agent for receipt for Landlord. The late charge is a cost associated with the collection of rent and Landlord's acceptance of a late charge does not waive associated with the collection of rent and Landlord's acceptance of a late charge does not waive Landlord's right to exercise remedies under Paragraph 20. Landlord's right to exercise remedies under Paragraph 20. (not to exceed $25) for each check Tenant tenders to

H. Returned Checks: Tenant will pay $25098 H. Returned Checks: Tenant will pay $25. Be (not to exceed $25) for each check Tenant tenders to Landlord which is returned by the institution on which it is drawn for any reason, plus any late charges Landlord which is returned by the institution on which it is drawn for any reason, plus any late charges until Landlord receives payment. until Landlord receives payment.

5. SECURITY DEPOSIT:

5. SECURITY DEPOSIT: A. Upon execution of this lease. Tenant will pay $_3 ___ .6_0_0_ ^[0] _0_0 _ _ _ ____ to Landlord as a security A. Upon execution of this lease, Tenant will pay $_3_, ... 6"..0 ... 0_._0_0 ________ to Landlord as a security deposit. deposit. B. Landlord may apply the security deposit to any amounts owed by Tenant under this lease. If Landlord B. Landlord may apply the security deposit to any amounts owed by Tenant under this lease. If Landlord applies any part of the security deposit during any time this lease is in effect to amounts owed by applies any part of the security deposit during any time this lease is in effect to amounts owed by Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit to the amount stated. to the amount stated.

C. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of C. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of Tenant's forwarding address, Landlord will refund the security deposit less any amounts applied toward Tenant's forwarding address, Landlord will refund the security deposit less any amounts applied toward amounts owed by Tenant or other charges authorized by this lease . amounts owed by Tenant or other charges authorized by this lease.

. personal ,PnfUional 6. TAXES: Unless otherwise agreed by the parties, Landlord will pay air t@tJf property ad valorem taxes 6. TAXES: Unless otherwise agreed by the parties, Landlord will pay air property ad valorem taxes assessed against the leased premises. assessed against the leased premises.

7. UTILITIES:

7. UTILITIES: A. The party designated below will pay for the following utility charges to the leased premises and any A. The party designated below will pay for the following utility charges to the leased premises and any connection charges for the utilities. (Check aI/ that apply.) connection charges for the utilities. (Check all that apply.) N/A N/A Landlord Landlord Tenant Tenant (1) Water 0 (1) Water 0 i9 0 0 ~ Qg (2) Sewer (2) Sewer 0 0 i9 0 0 (3) Electric 0 (3) Electric 0 Ill! 0 0

~ (4) Gas (4) Gas 0 0 0 IllI 0 ~ (5) Telephone 0 0 (5) Telephone 0 0 QII III (6) Trash, Cleaning (6) Trash, Cleaning 0 0 0 0 QlI IllI (7) Cable (7) Cable 0 0 0 0 il IllI (8) (8) 0 0 0 0 0 0 (9) All other utilities (9) AU other utilities 0 0 0 0 W III

B. The party responsible for the charges under Paragraph 7 A will pay the charges directly to the utility B. The party responsible for the charges under Paragraph 7A will pay the charges directly to the utility service provider. The responsible party may select the utility service provider, except that if Tenant selVice provider. The responsible party may select the utility service provider, except that if Tenant selects the provider, any access or alterations to the Property or leased premises necessary for the selects the provider, any access or alterations to the Property or leased premises necessary for the utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold. utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold. If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse Landlord such amount. Landlord such amount.

'n;«.'ed for identffication by T ""ant1-_· _ , and landkm!~__ IT AR-21 01) 5-26-<J6 lolHaled for IdeotificaHoo by Teoaot:1_ aod LaOdIOrdQ__ Page 4 of 14 (TAR·2101) 5·26·06 Page 4 of 14

AR 000044

Commercial Lease concerning", _______________________________ _ Commercial lease concerning:: ___________________________ - - - - C. Notice: Tenant should determine if all necessary utilities are available to the leased premises C. Notice: Tenant should determine if all necessary utilities are available to the leased premises and are adequate for Tenant's intended use. and are adequate for Tenant's intended use. D. After-Hours HVAC Charges: ~HVAC services n mean heating, ventilating, and air conditioning of the D. After-Hours HVAC Charges: "HVAC services" mean heating. ventilating. and air conditioning of the leased premises. (Check one box only.) leased premises. (Check one box only.) (81 (1) Landlord is obligated to provide the HVAC services to the leased premises only during the ~ (1) Landlord is obligated to provide the HVAC services to the leased premises only during the Property's operating hours specified under Paragraph 9C. Property's operating hours specified under Paragraph 9C. I.XI (2) Landlord will provide the HVAC services to the leased premises during the operating hours UlI (2) Landlord will provide the HVAC services to the leased premises during the operating hours specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC services to the leased premises during other hours for an additional charge of $ 2 O. 00 services to the leased premises during other hours for an additional charge of $ 20. 00 per per hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services under this paragraph. to provide the additional HVAC services under this paragraph.

o (3) Tenant will pay for the HVAC services under this lease. o (3) Tenant will pay for the HVAC services under this lease.

8. INSURANCE:

8. INSURANCE: A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and effect from an insurer authorized to operate in Texas: effect from an insurer authorized to operate in Texas: $2 fOOD f 000 _ 00 $2 , 000 , 000 • 00 (1) public liability insurance in an amount not less than $1,000,000.00.on an occurrence basis naming (1) public liability insurance in an amount not less than $1,000,000.00 iSn an occurrence basis naming

Landlord as an additional insured; and Landlord as an additional insured; and (2) personal propertY damage ins~or Tenant's business operations and contents on the leased (2) personal propertY damage insi:ii'anCe1or Tenant's business operations and contents on the leased premises in an amount sufficient to replace such contents after a casualty loss. premises in an amount sufficient to replace such contents after a casualty loss. B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates evidencing the required coverage. If the insurance coverage is renewed or changes in any manner or evidencing the required coverage. If the insurance coverage is renewed or changes in any manner or degree at any time this lease is in effect, Tenant must, not later than 10 days after the renewal or degree at any time this lease is in effect, Tenant must, not later than 10 days after the renewal or change, provide Landlord a copy of an insurance certificate evidencing the renewal or change. change, provide Landlord a copy of an insurance certificate evidencing the renewal or change.

C. If Tenant fails to maintain the required insurance in full force and effect at all times this lease is in C. If Tenant fails to maintain the required insurance in full force and effect at all times this lease is in effect, Landlord may: effect, Landlord may: (1) purchase insurance that witl provide Landlord the same coverage as the required insurance and (1) purchase insurance that will provide Landlord the same coverage as the required insurance and

Tenant must immediately reimburse Landlord for such expense; or Tenant must immediately reimburse Landlord for such expense; or (2) exercise Landlord's remedies under Paragraph 20. (2) exercise Landlord's remedies under Paragraph 20. D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for: (1) fire D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for: (1) fire and extended coverage in an amount to cover the reasonable replacement cost of the improvements of and extended coverage in an amount to cover the reasonable replacement cost of the improvements of the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable and appropriate. and appropriate.

E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its contents that is caused by Tenant, Tenant's use of the leased premises, or any improvements made by contents that is caused by Tenant, Tenant's use of the leased premises, or any improvements made by or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph 8E will be after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph 8E will be equal to the actual amount of the increase in Landlord's insurance premium. equal to the actual amount of the increase in Landlord's insurance premium.

9. USE AND HOURS:

9. USE AND HOURS: A. Tenant may use the leased premises for the following purpose and no other: general office use A. Tenant may use the leased premises for the following purpose and no other; general office use (TAR-2101) 5-26-06 (TAR-21 01) 5-26-06 initiaied for identification by Tenant: Initialed for Identification by Tenant: . __ , and Landlord:.p'-"'-;"'. __ Page 5 of 14 Page 5 of 14 • - ' and landlord:.~~.y.

AR 000045

Commercial lease concerning: _______________________________ _ Commercial Lease concerning:: _______________________________ _ B. Unless otherwise specified in this lease, Tenant will operate and conduct its business [~ the leased B. Unless otherwise specified in this lease, Tenant will operate and conduct its business i~ the leased premises during business hours that are typical of the industry in which Tenant represents It operates. premises during business hours that are typical of the industry in which Tenant represents It operates. C. The Property maintains operating hours of (specify hours, days of ~eek, and if incll!sive or exclusive of C. The Property maintains operating hours of (specify hours, days of ~eek, and if incll!sive or exclusive of weekends and holidays): 8 ;30am 7: OOpm, Monday thru Fr~day excluslve of weekends and holidays): 8: 30am - 7 :OOpm, Monday thru Fr~day exclus~ve of holidays which includes Memorial Day. Independence Day. Labor Day. Thanks9]vjn~ holidays which includes Memorial Day. Independence Day. Labor Day. Thanksgjvin~ Day. Christmas Day and New Year's Da¥. Also Saturday 8:30am 2:00pm except hol+days. Day. Christmas Day and New Year's Da¥ Also Saturday 8:30am-2:00pm except hol+days.

10. LEGAL COMPLIANCE:

10. LEGAL COMPLIANCE: A. Tenant may not use or permit any part of the leased premises or the Property to be used for: A. Tenant may not use or permit any part of the leased premises or the Property to be used for: (1) any activity which is a nuisance or is offensive, noisy, or dangerous; (1) any activity which is a nuisance or is offensive, noisy, or dangerous; (2) any activity that interferes with any other tenant's normal business operations or Landlord's (2) any activity that interferes with any other tenant's normal business operations or Landlord's

management of the Property; management of the Property; (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, governmental order, owners' association rules, tenants' association rules, Landlord's rules or governmental order, owners' association rules, tenants' association rules, Landlord's rules or regulations, or this tease; regulations, or this lease;

(4) any hazardous activity that would require any insurance premium on the Property or leased (4) any hazardous activity that would require any insurance premium on the Property or leased premises to increase or that would void any such insurance; premises to increase or that would void any such insurance; (5) any activity that violates any applicable federal, state, or local law, including but not limited to those (5) any activity that violates any applicable federal, state, or local law, including but not limited to those laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air emissions, or other environmental matters; emissions, or other environmental matters;

(6) the permanent or temporary storage of any hazardous material; or (6) the permanent or temporary storage of any hazardous material; or (7)=================== (7) ______________________________________________________ ___

B. ~Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, B. "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent, or oil as defined by any federal, state, or local environmental law, hazardous substance, solvent, or oil as defined by any federal, state, or local environmental law, regulation, ordinance, or rule existing as of the date of this lease or later enacted. regulation, ordinance, or rule existing as of the date of this lease or later enacted.

C. Landlord does not represent or warrant that the leased premises or Property conform to applicable C. Landlord does not represent or warrant that the leased premises or Property conform to applicable restrictions, zoning ordinances, setback lines, parking requirements, impervious ground cover ratio restrictions, zoning ordinances, setback lines, parking requirements, impervious ground cover ratio requirements, and other matters that may relate to Tenant's intended use. Tenant must satisfy itself requirements, and other matters that may retate to Tenant's intended use. Tenant must satisfy itself that the leased premises may be used as Tenant intends by independently investigating all matters that the leased premises may be used as Tenant intends by independently investigating all matters related to the use of the leased premises or Property. Tenant agrees that it is not relying on any related to the use of the leased premises or Property. Tenant agrees that it is not relving on any warranty or representation made by Landlord, Landlord's agent. or any broker concerning the use of warranty or representation made by Landlord, Landlord's agent or any broker concerning the use of the leased premises or Property. the leased premises or Property.

11. SIGNS:

11. SIGNS: A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without Landlord's written consent. Landlord may remove any unauthorized sign, and Tenant will promptly Landlord's written consent. Landlord may remove any unauthorized sign, and Tenant will promptly reimburse Landlord for its cost to remove any unauthorized sign. reimburse Landlord for its cost to remove any unauthorized sign.

B. Any authorized sign must comply with all laws, restrictions, zoning ordinances, and any governmental B. Any authorized sign must comply with all laws, restrictions, zoning ordinances, and any governmental order relating to signs on the leased premises or Property. Landlord may temporarily remove any order relating to signs on the leased premises or Property. Landlord may temporarily remove any authorized sign to complete repairs or alterations to the leased premises or the Property. authorized sign to complete repairs or alterations to the leased premises or the Property.

C. By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move C. By prOViding written notice to Tenant before this lease ends, Landlord may require Tenant, upon move out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs that Landlord does not require Tenant to remove and that are fixtures, become the property of the that Landlord does not require Tenant to remove and that are fixtures, become the property of the Landlord and must be surrendered to landlord at the time this lease ~, Landlord and must be surrendered to Landlord at the time this lease ~.'1

Initialed for Identification by Tenant:~ __ , and LandIOrd~/__ Initialed for Identification bYTenant:~ __ • and LandIOrd(~::~jl_l _ (TAR-2101) 5-26-06 (TAR-2101) 5-26-06 Page 6 of 14 Page 6 of 14 (S/ C::::/

AR 000046 CommeroDl~~ ________________________________________________________ ___

~I~~---------------------------------------------------------

12. ACCESS BY lANDLORD: 12. ACCESS BY LANDLORD:

A During Tenant's normal business hours Landlord may enter the leased premises for any reasonable A. During Tenant's normal business hours Landlord may enter the leased premises for any reasonable purpose, including but not limited to purposes for repairs, maintenance, alterations. and showing the purpose. including but not limited to purposes for repairs, maintenance, aHerations, and showing the leased premises to prospective tenants or purchasers. Umdlord may access the leased premises after leased premises to prospective tenants or purchasers. Landlord may access the leased premiseS after Tenant's nonnaI business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary Tenant's normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary to comptete emergency repairs. Landlord wit not unreasonably intelfere with Tenant's business to complete emergency repairs. landlord wil not unreasonabty interfere with Tenant's business operations when accessing the teased premises. operations when accessing the leased premises.

B. During the last 90 B. During the last 90 days of this tease, Umdlord may place a "For Lease" or similar1y worded sign in days of this lease, Landlord may place a -For Lease" or similarly worded sign in the leased premises. the leased premises. 13. MOVE-W CONDIllON: Tenant has inspected the leased premises and accepts ~ in ~s present (as-is) 13. MOVE-IN CONDITION: Tenant has inspected the leased premises and accepts it in its present (as-is) condition unless expressly noted otherwise in this lease. landlord and any agent have made no express condition unless expressly noted otherwise in this tease. Landlord and any agent have made no express or implied warranties as to the condition or permitted use of the leased premises or Property. or implied warranties as to the condition or pennitled use of the leased premises or Property.

14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT'S PERSONAL PROPERTY:

14. MOVE-OUT CONDITION AND FORFEITURE OF TENANTS PERSONAL PROPERTY: A At the time this tease ends, Tenant wi. surrender the leased premises in the same conditiOn as when A. M the time this lease ends, Tenant win surrender the leased premises in the same condition as when received. except for normal wear and tear. Tenant wiD leave the leased premises in a clean condition received, except for normal wear and tear. Tenant wiD leave the leased premises in a clean condition free of all trash, debris, personal property, hazardous materials, and environmental contaminants. free of all trash. debris. personal property. hazardous materials, and environmental contaminants.

B. If Tenant leaves any pen;onal property in the leased premises after Tenant surrenders possessiOn of B ~ Tenant leaves any per.;onal property in the leased premises _ r Tenant surrenders possession of the leased premises, landlord may: (1) require Tenant, at Tenant's expense, 10 remove the per.;onal the leased premises, landlord may: (1) require Tenant, at Tenant's expense, to remove the personal property by providing written notice to Tenant; or (2) retain such personal property as foJfeJted property property by providing written notice to Tenant; or (2) retain suCh personal property as forfeited property to Landlord. to Landlord.

C. ·Surrender" means vacating the leased premises and returning all keys and access deyjces to C. ·Surrender" means vacating the leased premises and returning all keys and access devices to Landlord. "Normal wear and tea" means deterioration that occurs wMJout negligence, carefessness, landlord. -Normal wear and tear" means deterioration that occurs without negligence, carelessness. accident, or abuse. accident, or abuse. D. By providing written notice to Tenant before this lease ends, Landlord may require Tenant. upon move

D. By providing wlitten notice to Tenant before this lease ends, landlord may require Tenant, upon move out and at Tenant's expense, to remove. without damage to the Property or leased premises, any or aU out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or aU fixtures thai were placed on the Properly or leased premises by or at the requesl of Tenant. Any fixtures that were placed on the Properly or leased premises by or at the request of Tenant. Any fixtures that Landlord does not require Tenant to remove become the property of the landlord and must fixtures that landlord does not require Tenant to remove become the property of the landlord and must be surrendered to Landlord at the time this lease ends. be surrendered to Landlord at the time this lease ends.

15. MAINTENANCE AND REPAIRS:

15. MAINTENANCE AND REPAIRS: A Cteaning: Tenant must keep the leased premises ctean and sanitary and prompUy dispose of all A. Cleaning: Tenant must keep the leased premises clean and sanitary and promptly dispose of all garbage in appropriale receplacJes. 0 landlonl I\J( Tenant will provide, at ~ expense, jan~ofial garbage in appropriate receptacles. Q landlord ~ Tenant will provide, at its expense, janitorial services to the leased premises that are customary and ordinary for the property type. Tenant Will services to the leased premises that are customary and ordinary for the property type. Tenant will mairtain any grease trap on the Property which Tenant uses, including but not limited to periodtc maintain any grease trap on the Properly which Tenant uses, including but not limited to periodic emptying and cleaning, as well as making any modification to the grease hap thai may be necessary to emptying and cleaning, as well as making any modification to the grea~ trap that may be necessary to comply with any appficable taw. Tenant shall clean the premJ.ses and the restrooms on comptywith any appficable law. Tenant shall clean the premises and the restrooms on the second floor at its expense. the second floor at its expense.

B. Repairs of Conditions Caused by a Party: Each party must promptly repair a condition in need of repair S. Repairs of Conditions Caused by a Party: Each party must promptly repair a condition in need of repair that is caused, either intentionally or negligently, by that party or that party's guests, patrons, invitees, thai is caused, e-.- inleniionally or negligently, by thai party or thai party's guests, patrons, invitees, contractors or permitted subtenants. contractors or permitted subtenants.

C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party designated below. at its expense, is responsible to maintain and repair the following specified items in designated below, at its expense, is responsible to maintain and repair the following specified items in party designated to maintain the item must complete and pay the n of the modification. The the leased premises (if any). The specified items must be maintained in dean and good operable the leased premises (if any). The specified items must be maintained in clean and good operable condition. if a governmental regulation or order requires a modification to any of the specified items, the condition. If a governmental regulation or order requires a modification to any of the specified items, the party designated to maintain the ~em must complete and pay the {"'j" of the modification. The

........... _byTenant-o/~ _1.an<Iont~_oo _ Inftialed for Identification by Tenant~ __ , and Landotd:~___

(TAR-2101)5-26-00 Page 7 of 14 Page 7 of 14 (TAR-2101) 5-26-06

AR 000047

Commercial Lease conceming:: ______________________________ _ Commercial lease concerning:' _______________________________ _ specified items include and relate only to real property in the leased premises. Tenant is responsible for specified items include and relate only to real property in the leased premises. Tenant is responsible for the repair and maintenance of its personal property. (Check all that apply.) the repair and maintenance of its personal property. (Check all that apply.) Tenant Landlord Landlord Tenant

N/A o o o to III Foundation, exterior walls, roof, and other structural components Foundation, exterior walls. roof, and other structural components 0 (1) (1) o

o

tl D (2) Glass and windows (2) Glass and windows o o o o o ill Cl (3) Fire protection equipment and fire sprinkler systems Fire protection equipment and fire sprinkler systems (3) Cl III Cl Exterior & overhead doors, including closure devices, molding, Exterior & overhead doors. including closure devices. molding. (4) (4) locks, and hardware locks, and hardware o

o

19 Cl Cl Grounds maintenance, including landscaping and irrigation Grounds maintenance, including landscaping and irrigation (5) (5) systems systems o o Cl

Interior doors, including closure devices, frames, molding, locks, Interior doors. including closure devices. frames, molding, locks. (6) (6) and hardware and hardware a o o

Cl

(7) Parking areas and walks (7) Parking areas and walks o o Cl Cl (8) Plumbing systems, drainage systems, electrical systems, and Plumbing systems. drainage systems, electrical systems. and (8) mechanical systems, except systems or mechanical systems. except systems or items specifically items specifically designated otherwise designated otherwise

a o o

Il!l

Ballast and lamp replacement Ballast and lamp replacement (9) (9) o a o

III

Heating, Ventilation and Air Conditioning (HVAC) systems Heating, Ventilation and Air Conditioning (HVAC) systems (10) (10) (11 ) Signs and lighting: Tenant shall pay for cost of new sign Signs and lighting: Tenant shall pay for cost of new sign (11) o o o o

and cost of repair and maintena9ce there~. t~~dig~j ~~s£e~~~io~~d a~~ig~;n~~~~ t~;re~. Cl Cl

( )P I (a) Pylon a yon Landlord must approve any new Sl.gn as o III (b) Facia (b) Facia as to design, location and size before 0 as to design, location and size before 0 ~ a o (c) Monument (c) Monument any new sign is installed. Cl 0 any new sign is installed. Cl o Cl 0 ~ ~ (d) Door/Suite Cl OO~~~ o o o o o 31 W Cl (12) Extermination and pest control, excluding wood-destroying insects Extermination and pest control, excluding wood-destroying insects 0 Cl (12) o 01 lin Cl (13) Fences and Gates Fences and Gates Cl {13} m o ill Cl (14) Storage yards and storage buildings Storage yards and storage buildings Cl (14) m o 01 Cl (15) Wood-destroying insect treatment and repairs (15) Wood-destroying insect treatment and repairs Cl o Cl Cl (16) Cranes and related systems Cranes and related systems l(JI (16) )QI o o a o Repairs costing less than $100.00 Cl ill (17) _R"esP"a'C",," "C"" s,-,c"o"s"t~i",,,, gLC1"e"s"s,-,:t"hc:a.:.:n-'.$"""O,,O,-" 0:.0'--__ _ (17) ~ o o o Cl Cl Cl (18) (18) o Cl Cl (19) All other items and systems (19) All other items and systems D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons. D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons. E. , E.

o is Cl is not o is Cl is not required to maintain, at its expense, a regularly scheduled m required to maintain. at its expense, a regularly scheduled nd service nd service contract for the HVAC system. The maintenance and service contract for the HVAC system. The maintenance and service e purchased from a HVAC e purchased from a HVAC maintenance company that regularly provide racts to similar properties. If Tenant fails to maintenance company that regularly provide racts to similar properties. If Tenant fails to maintain a required HVAC maintain a required HVAC' e and service contract in effect at all times during this lease, e and service contract in effect at all times during this lease, Landlord landlord n charge Tenant the expense of such a maintenance and service contract or n charge Tenant the expense of such a maintenance and service contract or

F. Common Areas: Landlord will maintain any common areas in the Property in a manner as Lanqlorq F. Common Areas: Landlord will maintain any common areas in the Property in a manner as Lanqlorq determines to be in the best interest of the Property. Landlord will maintain any elevator and;§igMhl ng determines to be in the best interest of the Property. Landlord will maintain any elevator and,,§igns'lrl- ng the common area. Landlord may change the size. dimension, and location of any common areas, the common area. Landlord may change the size, dimension, and location of any common areas, provided that such change does not materially impair Tenant's use and access to the leased premises. provided that such change does not materially impair Tenant's use and access to the leased premises. Tenant has the non-exclusive license to use the common areas in compliance with Landlord's rules and Tenant has the non-exclusive license to use the common areas in compliance with Landlord's rules and restrictions. Tenant may not solicit any business in the common areas or interfere with any other restrictions. Tenant may not solicit any business in the common areas or interfere with any other person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2) applies. person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2) applies.

loilialed roc Ideolificalioo by Teoao,¥-, __ , aod LaOdIO~ __ Inffialed')r 1_ by renant:¥ ~ and U.-@. __ (TAR-2101) 5~26-06 Page 8of14 (TAR-2101) 5-26-06 Page 8 of 14

AR 000048

Commercialleaseconcerning" _______________________________ _ Commercial lease concerning:: ______________________________ _ G. Notice of Repairs: Tenant must promptly notify Landlord of any item that is in need of repair and that is G. Notice of Repairs: Tenant must promptly notify Landlord of any item that is in need of repair and that is Landlord's responsibility to repair. All requests for repairs to Landlord must be in writing. Landlord's responsibility to repair. All requests for repairs to Landlord must be in writing. H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable period of time after Tenant provides Landlord written notice of the needed repair. period of time after Tenant provides Landlord written notice of the needed repair. If Tenant fails to If Tenant fails to repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides Tenant written notice of the needed repair or maintenance, Landlord may: (1) repair or maintain the Tenant written notice of the needed repair or maintenance, Landlord may: (1) repair or maintain the item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse Landlord for the cost to repair or maintain; or (2) exercise Landlord's remedies under Paragraph 20. Landlord for the cost to repair or maintain; or (2) exercise Landlord's remedies under Paragraph 20.

16. ALTERATIONS: 16. ALTERATIONS: A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written consent. Landlord will not unreasonably withhold consent for the Tenant to make reasonable non consent Landlord will not unreasonably withhold consent for the Tenant to make reasonable non structural alterations, modifications, or improvements to the leased premises. structural alterations, modifications, or improvements to the leased premises.

B. Tenant may not alter any locks or any security devices on the Property or the leased premises without B. Tenant may not alter any locks or any security devices on the Property or the leased premises without Landlord's consent. If Landlord authorizes the changing, addition, or rekeying of any locks or other Landlord's consent If Landlord authorizes the changing, addition, or rekeying of any locks or other security devices, Tenant must immediately deliver the new keys and access devices to Landlord. security devices, Tenant must immediately deliver the new keys and access devices to Landlord.

C. If a governmental order requires alteration or modification to the leased premises, the party obligated to C. If a governmental order requires alteration or modification to the leased premises, the party obligated to maintain and repair the item to be modified or altered as designated in Paragraph 15 wilt, at its maintain and repair the item to be modified or altered as designated in Paragraph 15 will, at its expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A and 17. Tenant must obtain at its expense all permits required for any improvements. and 17. Tenant must obtain at its expense all permits required for any improvements.

D. Any alterations, improvements, fixtures or additions to the Property or leased premises installed by D. Any alterations, improvements, fixtures or additions to the Property or leased premises installed by either party during the term of this lease will become Landlord's property and must be surrendered to either party during the term of this lease will become Landlord's property and must be surrendered to Landlord at the time this lease ends, except for those fixtures Landlord requires Tenant to remove Landlord at the time this lease ends, except for those fixtures Landlord requires Tenant to remove under Paragraph 11 or 14 or if the parties agree otherwise in writing. under Paragraph 11 or 14 or if the parties agree otherwise in writing.

17. LIENS: Tenant may not do anything that will cause the title of the Property or leasE;KJ premises to be 17. LIENS: Tenant may not do anything that will cause the title of the Property or leas~d premises to be encumbered in any way. If Tenant causes a lien to be filed against the Property or leased premises, Tenant encumbered in any way. If Tenant causes a lien to be filed against the Property or leased premises, Tenant will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; or (2) take action to discharge the lien. Tenant will provide Landlord a copy of any release Tenant obtains or (2) take action to discharge the tien. Tenant will provide Landlord a copy of any release Tenant obtains pursuant to this paragraph. pursuant to this paragraph.

kt all times ~t all times 18. L1ABILlTY;tYQthe-extentpermitted by law. Landlord is NOT responsible to Tenant or Tenant's employees. 18. LlABILlTY/JO the extent permitted by law. Landlord is NOT responsible to Tenant or Tenant's employees, patrons. guests, or invitees for any damages. injuries. or losses to person or property caused by: ' patrons. guests, or invitees for any damages, injuries. or losses to person or property caused by: A. an act. omission, or neglect of: Tenant; Tenant's agent; Tenant's guest: Tenant's employees; Tenant's A. an act, omission, or neglect of: Tenant; Tenant's agent: Tenant's guest: Tenant's employees: Tenant's

patrons; Tenant's invitees; or any other tenant on the Property; patrons; Tenant's invitees; or any other tenant on the Property; B. fire, flood, water leaks, ice, snow, hail, winds, explosion, smoke. riot. strike. interruption of utilities, theft, B. fire, flood, water leaks, ice, snow, hail. winds, explosion, smoke, riot. strike, interruption of utilities, theft, burglary, robbery, assault, vandalism. other persons, environmental contaminants, or other occurrences burglary, robbery. assault, vandalism, other persons, environmental contaminants, or other occurrences or casualty losses. or casualty losses.

19. INDEMNITY: Each party will indemnify and hold the other party harmless from any property damage. 19. INDEMNITY: Each party will indemnify and hold the other party hannless from any property damage, personal injury, suits, actions, liabilities. damages, cost of repairs or service to the leased premises or personal injury. suits. actions, liabilities. damages. cost of repairs or service to the leased premises or Property, or any other loss caused, negligently or otherwise, by that party or that party's employees, Property. or any other loss caused, negligently or otherwise. by that party or that party's employees, patrons, guests, or invitees. patrons, guests, or invitees.

20. DEFAULT: 20. DEFAULT: A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If, failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If, however, Landlord's non-compliance reasonably requires more than 30 days to cure, Landlord will not however, Landlord's non-compliance reasonably requires more than 30 days to cure, Landlord will not be in default if the cure is commenced within the 3D-day period and r t lY pursued. be in default if the cure is commenced within the 30-day period and ~tlY pursued.

'ol,l.,ed foe Ideoll'",lIoo by Te""o' r?j: ~ aod L a od l o e J@__ p ag e90f14 (TAR.2101) 5-26.(]6 (TAR-2101) 5-26-06 'n"ale<! {O, ldenlffi"""'n by Tenantt?f _ _ . and l an d lo , J ,@ __ p age90f14

AR 000049

Commercial lease conceming: _____________________________ _ Commerdal leaseconceming:' _______________________________ _ B. If Landlord does not actually receive at the place designated for payment any rent due under this lease B. If Landlord does not actually receive at the place designated for payment any rent due under this lease within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in default. default.

C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable during the remainder of this lease or any renewal period without notice or demand. Landlord will during the remainder of this lease or any renewal period without notice or demand. Landlord will attempt to mitigate any damage or loss caused by Tenant's breach by using commercially reasonable attempt to mitigate any damage or loss caused by T enanfs breach by using commercially reasonable means. If Tenant is in default, Tenant will be liable for: means. If Tenant is in default. Tenant will be liable for: ( 1 ) any lost rent; (1) any lost rent; (2) Landlord's cost of reletting the leased premises, including brokerage fees, advertising fees, and (2) Landlord's cost of reletting the leased premises, including brokerage fees, advertising fees, and

other fees necessary to relet the leased premises; other fees necessary to relet the leased premises; (3) repairs to the leased premises for use beyond normal wear and tear; (3) repairs to the leased premises for use beyond normal wear and tear; (4) all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and (4) all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and

prejudgment interest; prejudgment interest; (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and returned check charges; returned check charges; (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property; (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property; (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental

contaminants left by Tenant or Tenant's employees, patrons, guests, or invitees in the leased contaminants left by Tenant or Tenant's employees, patrons, guests, or invitees in the leased premises or Property; premises or Property;

(9) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or (9) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or Property; Property; (10) any other recovery to which Landlord may be entitled under this lease or under law. (10) any other recovery to which Landlord may be entitled under this lease or under law.

21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND LOCKOUT:

21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's property; and (d) abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's property; and (d) ~lock-outH of Tenant. "lock-out" of Tenant.

22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ends, Tenant will become 22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ends, Tenant will become a tenant-at-will and must vacate the leased premises immediately upon receipt of demand from Landlord. a tenant-at-will and must vacate the leased premises immediately upon receipt of demand from Landlord. No holding over by Tenant. with or without the consent of Landlord, will extend this lease. Tenant will No holding over by Tenant, with or without the consent of Landlord, will extend this lease. Tenant will indemnify Landlord and any prospective tenants for any and all damages caused by the holdover. Rent for indemnify Landlord and any prospective tenants for any and all damages caused by the holdover. Rent for any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily basis and will be immediately due and payable daily without notice or demand. basis and will be immediately due and payable daily without notice or demand.

23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's performance under this lease, 23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's performance under this lease, Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property that is in the leased premises or Property, This lease is a security agreement for the purposes of the that is in the leased premises or Property. This lease is a security agreement for the purposes of the Uniform Commercial Code. Landlord may file a copy of this lease as a finanCing statement. Uniform Commercial Code. Landlord may file a copy of this Jease as a financing statement

24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent owner of the 24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent owner of the Property. Tenant may not assign this lease or sublet any part of the leased premises without Landlord's Property. Tenant may not assign this lease or sublet any part of the leased premises without Landlord's written consent. An assignment of this lease or subletting of the leased premises without Landlord's written written consent An assignment of this lease or subletting of the leased premises without Landlord's written consent is voidable by Landlord. If Tenant assigns this lease or SUblets any part of the leased premises, consent is voidable by Landlord. If Tenant assigns this lease or sublets any part of the leased premises, Tenant will remain liable for all of Tenant's obligations under this lease regardless if the assignment or Tenant will remain liable for all of Tenant's obligations under this lease regardless if the assignment or sublease i;3 made with or without the consent of Landlord. Tenant may not sul?lease or assign this sublease is made with or without the consent of I andlord Tenant may not sublease or assign this lease wlthout the consent of Landlorawhlch consent may be subJect to terms and lease without the consent of Landlora whLch' consent may be subject to terms and conditions imposed' by Lgndlord regarding any such sublease or assignment and the conditions imposed by Landlord regarding any such sublease or assignment and the payment of rent ther~under. payment of rent ther~under.

Initialed for Identification by Tenant:¥ __ • and landia""@ __ Initialed for Identification by Tenant¥ __ . ood Loodloo" ~ __

(TAR-2101) 5-26-06 (TAR-2101) 5-26-06 Page 10 of 14 Page 10 of 14

AR 000050

~lu..~ ________________________________________________________ ___ ~l~~: ______________________________________________________ ___

25. RELOCATION: 25. RELOCATION:

to relocate to another location in the Property, provided that the other location is equal in to relocate to another location in the Property, provided that the other location is equal in arger arger than the leased premises then occupied by Tenant and contains similar than the leased premises then ocrupied by Tenant and contains similar improvements. mprovements. 'ng to the oIher location. landlonl wi. pay Tenant's reasonable ou\-Of-pOCkeI moving expen landlord will pay Tenant's reasonable out-ot:-pocket moving e ving to the oIber location. I movers, utility companies for "Moving expenses'" means reasonable expenses paya "Moving expenses" means reasonable expenses pays . movers, utility companies for . connection and disconnection fees, wiring . s for connecting and cflSCOOnecting Tenant's office connection and disconnection fees, wiring • s for connecting and disconnecting Tenant's office equipment required by the re ' . printing companies for reprinting Tenant's stationary and ' . printing companies for reprinting Tenant's stationary and equipment required by the re Tenant wil not change or affect any oIber provision of this lease that is business cards. A business cards. A . . Tenant wil not change or affecI any oIher provision of this lease thai is Ing rent and reimbursement amounts, except that the description of the suite or unit Ing rent and reimbursement amounts, except that the ~ of the suite or unit then in then in

\ ~~wu~mm~~~Bm~~\ )ijI a. landlord may not require Tenant to relocate to another location in the Property without Tenant's prior '1lI B. Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior

consent consent.

26. SUBORDINATION:

26. SUBORDINATION: A This lease and Tenant's leasehold interest are and will be subject, subordinate, and inferior to: A This Jease and Tenant's leasehold interest are and will be subject, subordinate. and inferiorto: (1) any lien, encumbrance. or ground lease now or hereafter placed on the leased premises or the (1) any lien, encumbrance, or ground lease now or hereafter placed on the leased premises or the Properly that landlord authorizes: Property lhallandlord authorizes; (2) aI advances made under any such lien, encumbrance, or groond lease; (2) aI advances made under any such lien, encumbrance, or ground lease; (3) the interest payable on any such ften or encumbrance; (3) the interest payable on any such lien or encumbrance; (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease; (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease; (5) any restrictive covenant affecting the leased premises or the Property; and (5) any restrictive covenant aIfecIing the leased premises or the Property; and (6) the rights of any owners' association affecting the leased premises or Property. (6) the rights of any owners' association affecIing the leased premises or Property.

B. Tenant must, on demand, execute a subordination, attornment, and non-distUrbance agreement that B. Tenant must, on demand, execute a subordination, attornment, and non-disturbance agreement that Landlord may request that Tenant execute, provided that such agreement is made on the condition that landlord may request that Tenant execute, provided that such agreement is made on the condition that this lease and Tenant's rights under this lease are recognized by the 1iefl..hoIder. this lease and Tenant's rights under this Lease are recognized by the 1ien-hoIder.

27. ESTOPPEL CERTFICATES: Within 10 days after receipt of a written request from Landlord, Tenant will 'no ESTOPPEL CERTFICATES: Within 10 days after receipt of a wriUen request from landlonl, Tenant will execute and deliver to Landlord an estoppel certificate that identifies the tenns and conditions of this lease. execute and deliver to landford an estoppel certificate that identifies the terms and conditions of this lease.

28. CASUAL TV LOSS;

28. CASUAL TV LOSS: A Tenant must immediately notiIit landlord of any casualy loss ilthe leased premises. Wilhin 20 days A Tenant must immediately notify landlord of any casualy loss in the leased premises. VWhin 20 days

after receipt of T enanI's notice of a casually loss, landlord will notiIit Tenant K the leased premises are after receipt of Tenant's notice of a casualy loss, landlord will notify Tenant if the leased premises are less than or more than 50% unusable, on a per square foot basis, and if landlord can substantially less than or more than 50% unusable, on a per square foot baSis, and if landlord can substantially restore the leased premises within 120 days after Tenant notifies landlord of the casualty loss. restore the leased premises within 120 days after Tenant notifies Landlord of the casually loss.

a. If the leased premises are less than 50% unusable and landlord can substantially restore the leased B. If the leased premises are less than 50% unusable and landlord can substantially restore the leased

premises wilhin 120 days after Tenant_landlord of the casuaHy, landlord will reslore the leased premises wtilin 120 days after Tenant notifies landlord of the casualty, Landlord will restore the leased premises to substantialy the same condition as before the casualty. If Landlord fails to substantiallY premises to substantialy the same condition as before the casualty. rr Landlord fails to subslantially restore within the time required, Tenant may tenninate this lease. restore within the time required, Tenant may terminate this lease.

C. If the leased premises are more than 50% unusable and Landlord can substantially restore the ieased C. If the leased premises are more than 50% unusable and Landlord can substantially restore the leased

premises within 120 days after Tenant _ premises within 120 days after Tenant notifies landlord of the casualty, Landlord may: (1) tenninate Landlord of the casuaHy, landlonl may; (1) terminate this lease; or (2) restore the leased premises to substantially the same condition as before the casualty. this lease; or (2) restore the leased premises to substantialty the same condition as before the casualty. If landlord chooses to restore and does not substantiaRy restore the leased premises Within the time If landlortf chooses to restore and does not substantiaRy restore the leased premises within the time required, Tenant may terminate this lease. required, Tenant may terminate this lease. Tenant thai Landlord cannoI substantially reslore the leased prenises within 120

D. If landlord _ D. If landlord notifies Tenant that landlord cannot substantially restore the leased premises within 120 days after Tenant notifies landlord of the casualty loss, landlon:l may: (1) choose not to restore and days aIIer Tenant _ landlord of the casualy loss, landlord may: (1) choose not to reslore and Tenanllhe option \0 lenninale \his lease by ,?-landIord within ~u:!'!r' tenninate this lease; or (2) choose to restore, notify Tenant of the estimated time to restore, and give terminate this lease; or (2) choose to restore. notify Tenanf of the estimated time to restore, and give Tenant the option to terminate this lease by ~ landlord willin ~~. - - - ' andlandlon:f~___ Initialed for- Identification byTenant~ -----------' andlardoRf~ ~__

(TAR-2101)5-2600 (TAR-21m) 5-26-06 fnitialed forJdentificaIi:In by Tenant Page 110(14 Page 11 of 14

AR 000051

Commercial Lease concerning:: ______________________________ _ Commercial Lease concerning,, _______________________________ _ E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant notifies Landlord of the casualty loss to the date the leased premises are substantially restored by an notifies Landlord of the casualty loss to the date the leased premises are substantially restored by an amount proportionate to the extent the leased premises are unusable. amount proportionate to the extent the leased premises are unusable.

29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are 29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are totally unusable for the purposes stated in this lease, this lease will terminate. If after a condemnation or totally unusable for the purposes stated in this lease, this lease will terminate. If after a condemnation or purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the property of Landlord and Tenant has no claim to such proceeds or award. Tenant may seek compensation property of Landlord and Tenant has no claim to such proceeds or award. Tenant may seek compensation from the condemning authority for its moving expenses and damages to Tenant's personal property. from the condemning authority for its moving expenses and damages to Tenant's personal property.

30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or 30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable attorney's fees, and all other costs of litigation from the nonprevailing party. attorney's fees, and all other costs of litigation from the nonprevailing party.

31. REPRESENTATIONS:

31. REPRESENTATIONS: A. Tenant's statements in this lease and any application for rental are material representations relied upon A. Tenant's statements in this lease and any application for rental are material representations relied upon by Landlord. Each party signing this lease represents that he or she is of legal age to enter into a by Landlord. Each party signing this lease represents that he or she is of legal age to enter into a binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this lease or in any application for rental. Tenant is in default. lease or in any application for rental, Tenant is in default.

B. landlord is not aware of any material defect on the Property that would affect the health and safety of 8. landlord is not aware of any material defect on the Property that would affect the health and safety of an ordinary person or any environmental hazard on or affecting the Property that would affect the an ordinary person or any environmental hazard on or affecting the Property that would affect the health or safety of an ordinary person, except: ___________________ _ health or safety of an ordinary person, except: ____________________ _

C. Each party and each signatory to this lease represents that: (1) it is not a person named as a Specially C. Each party and each signatory to this lease represents that: (1) it is not a person named as a Specially Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not DeSignated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not acting, directly or indirectly, for or on behalf of a Specially Designated and Blocked Person; and (3) is acting, directly or indirectly, for or on behalf of a Specially Designated and Blocked Person; and (3) is not arranging or facilitating this lease or any transaction related to this lease for a Specially DeSignated not arranging or facilitating this lease or any transaction related to this lease for a Specially Designated and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and Blocked person will indemnify and hold harmless any other person who relies on this representation Blocked person will indemnify and hold harmless any other person who relies on this representation and who suffers any claim, damage, loss, liability or expense as a result of this representation. and who suffers any claim, damage. loss, liability or expense as a result of this representation.

32. BROKERS:

32. BROKERS: A The brokers to this lease are: A. The brokers to this lease are: NONE NONE Cooperating Broker Cooperating Broker License No. Principal Broker License No. Principal Broker License No. License No. Address Address Address Address Fax Phone Phone Fax Phone Phone E-mail E-mail E-mail E-mail Cooperating Broker represents Tenant. Principal Broker: (Check only one box) Cooperating Broker represents Tenant. Principal Broker: (Check only one box)

o represents Landlord only. (J represents Landlord only. o represents Tenant only. (J represents Tenant only. o is an in " '7 Landlord and Tenant. r::J is an intermedia~een Landlord and Tenant.

Inltialed ro, Iden1ilication byTena~ __ • and Landlo : / /0 - __ (TAR-2' 0') 5-2&00 (TAR-2101) 5-26-06 loltialed 10, Ideoli'catioo by Teoao,¥-__ . and land l0 (7__ Page 12 of 14 Page 12 of 14

AR 000052

Commercial Lease conceming:: _______________________________ _ Commercial lease conceming: __________________________________ _ 8. Fees: B. Fees: o (1) Principal Broker's fee will be paid according to: (Check on/yone box). a (1) Principal Broker's fee will be paid according to: (Check only one box).

a (a) a separate written commission agreement between Principal Broker and: r.J (a) a separate written commission agreement between Principal Broker and:

a Landlord a Tenant. o Landlord 0 Tenant. a (b) the attached Addendum for Broker's Fee. r.J (b) the attached Addendum for Broker's Fee.

a (2) Cooperating Broker's fee will be paid according to: (Check only one box). o (2) Cooperating Broker's fee will be paid according to: (Check only one box). o (a) a separate written commission agreement between Cooperating Broker and: a (a) a separate written commission agreement between Cooperating Broker and: a Principal Broker a Landlord o Plincipal Broker Q Landlord 0 Tenant. (J Tenant. a (b) the attached Addendum for Broker's Fee. o (b) the attached Addendum for Broker's Fee. 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the Addenda and Exhibit section of the Table of Contents. If Landlord's Rules and Regulations are made part Addenda and Exhibit section of the Table of Contents. If Landlord's Rules and Regulations are made part of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion, of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion, amend from time to time. amend from time to time.

34. NOTICES: All notices under this lease must be in writing and are effective when hand-delivered, sent by 34. NOTICES: All notices under this Jease must be in writing and are effective. when hand-delivered, sent by mail, or sent by facsimile transmission to: mail, or sent by facsimile transmission to: Tenant at the leased premises, Tenant at the leased premises, andacopyro:~~~~------------------------------------------------------­ andacopyro;~~------------------------------------------------------------

Address: Address: _______________________ ~~----------------------------- Phone: ------------------------~F~ax-:----------------------------- Phone: Fax:

tm Tenant also consents to rE;!ceive notices by e-mail at:...;;bg~a;.;;r;;;;n;...;:e;.:;:r.:.5;.:;:@;.:;:a.:.o.=.l.:. • .:;.co.;:;m:;:.... ________ __ _ ID Tenant also consents to receive notices bye-mail at-.bg .... a .. r .. n .. e .. rc: 5 .. @ .. a .. o .. 1-.. ... c .. om...-__________ _ ~--------------------------- Landlord at: Providian Holdings, Inc. Landlord at Providian Holdings, Inc.

Address: 2918 San Jacinto Street r Suite. :100, Houstbn,.Texas 77004 Address: 2918 San Jacinto Street I Suite. 100, Houston, .Texas 77004 Fax: ---------------------- Phone: 713 523-7847 Phone: 713 523-7847 Fax:

andacopyto:~~~------------------------------------------_-_-_- ___ -_-_-_-_-_-_-_-_-_- Address: ____________ -=,..-_______________ _

andacopyro:~~------------------------------------------------------------

Address: ________________________ ~~----------------------------- Phone: -,-,-__ ,...._c--, __ --c-,-....,..Fax: Phone: Fax:~ __ r_~~~~~~-~------­

C!I Landlord also consents to receive notices bye-mail at:khyati_undavia@sbcglobal.net !XI landlord also consents to receive notices by e-mail at:-"k~h~y~a~t~1c·~-~u"'n'::~d=~a::_v=~1=·~a=7c=@'::s~b'::c~g'!:"'::o'!:b'=a'="c::-.~n'::e':.t~_::._::._::._::._::._::._::._::._:: 35. SPECIAL PROVISIONS: 35. SPECIAL PROVISIONS: A. Landlord shall not be obligated to install any facilities at the Property or in A. Landlord shall not be obligated to install any facilities at the Property or in the premises~ including any ADA !American With Di~abilities) or related facilities the premises~ includinq any ADA ~American With Di$abilities) or related facilities requ~red by rederal, seate and c~ty laws, regulat~ons or ordinances. requlred by rederal, seate and Clty laws, regulatlons or ordinances.

B. Tenant will turn off thedliqh~s in the premises and lock the doors to the building B. Tenant will turn off thedliqhts in the premises and lock the doors to the building WLen prem~ses are vaca~e each even1ng. w~en premlses are vacate each evenlng. C. As a fixture as part of the premises, Tenant may place a sign on the exterior of C. As a fixture as part of the premises, Tenant may place a sign on.the exterior of the building at 1tS sole cost and expense, the size and location of such sign to the building at lts sole cost and expense, the size and location of such sign to be approved by Landlord before being erected. . be approved by Landlord before being erected.

D. Landlord shall not lease any space in the building to a chiropractor nOI lease any D. Landlord shall not lease any space in the building to ~ chiropr~ctor no~ lease any space in the building to any other medical profession In the palD management space in the building to any other medical profession in the pain management business. Dentists are not considered part of the medical profession. business. Dentists are not considered part of the medical profession.

Initialed for Identification by Tenant:~ __ • and l.arnllo .. ~ __ Initialed for Identification by Tenant:~ __ • and Landlmd~ __ (TAR-2101) 5-26-06 (TAR-2101) 5-26-06 Page 13 of 14 Page 13 of 14

AR 000053

Commercialleaseconceming. _______________________________ _ Commercial Lease conceming:, ______________________________ _

36. AGREEMENT OF PARTIES:

36. AGREEMENT OF PARTIES:

A. Entire Agreement: This lease contains the entire agreement between Landlord and Tenant and may A. Entire Agreement: This lease contains the entire agreement between Landlord and Tenant and may not be changed except by written agreement. not be changed except by written agreement. S. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective heirs, executors, administrators, successors, and permitted assigns. heirs, executors, administrators, successors, and permitted assigns. C. Joint and Several: All Tenants are jointly and severally liable for all provisions of this lease. Any act or C. Joint and Several: All Tenants are jointly and severally liable for all provisions of this lease. Any act or notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease, notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease, its renewal, or its termination is binding on all Tenants. its renewal. or its termination is binding on all Tenants.

D. Controlling Law: The laws of the State of Texas govem the interpretation, performance, and O. Controlling Law: The laws of the State of Texas govern the interpretation, performance, and enforcement of this lease. enforcement of this lease. E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the remainder of this lease will not be affected and all other provisions of this lease will remain valid and remainder of this lease will not be affected and all other provisions of this lease will remain valid and enforceable. enforceable.

F. Waiver: Landlord's delay, waiver, or non-enforcement of acceleration, contractual or statutory lien, F. Waiver: Landlord's delay, waiver, or non-enforcement of acceleration, contractual or statutory lien, rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by Tenant or any other term in this lease. Tenant or any other term in this lease.

G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant will enjoy possession and use of the leased premises free from material interference. will enjoy possession and use of the leased premises free from material interference. H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage of material, govemmental restriction, riot, flood, or any cause outside Landlord's control, the time for of material, governmental restriction, riot, flood, or any cause outside Landlord's control, the time for Landlord's performance will be abated until after the delay. Landlord's performance will be abated until after the delay.

I. Time: Time is of the essence. The parties require strict compliance with the times for performance. I. Time: Time is of the essence. The parties require strict compliance with the times for performance. Brokers are not qualified to render legal advice, property inspections, surveys, engineering studies, Brokers are not qualified to render legal advice, property inspections, surveys, engineering studies, environmental assessments, tax advice, or compliance inspections. The parties should seek experts environmental assessments, tax advice, or compliance inspections. The parties should seek experts to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this Lease, consult your attorney BEFORE signing. Lease, consult your attorney BEFORE signing.

PROVIDIAN HOLDINGS, INC.

PROVIDIAN HOLDINGS, INC.

NISAL CORPORATION

Tenant Tenant BY~CP/~ crP"dtl:.er..c:.. landlord/ (ffl~/L~ BY/ ____ -L~~~2~~~~~/~~ Date Date ;,J J1-b /~9' Printed Name'_-:t~~~'"----'~~~Gr~4,1t.~~{£;~::- <~kb/09

Printed Name

Printed Name,_~~'--"='~l-I--~:::..L.--'=::::...>,.;~-=...J~~ Printed Name ~ ) Title. _________________ _ Title, ____ b-!..::...~ ___ _______ _ Title' ________________ __ Trtle' _____ -i.6~cv'"''--''''------------------ Tenant Tenant Landlord Landlord By By/ ________________ ~- By By

Date Date Date Date Printed Name Printed Name' __ ____ _______ __ _ Printed Name Printed Name Title Title Title Title ,------------------------ (TAR-2101) 5-26-06 (TAR~2101) 5-26-06 Page 14 of 14 Page 14 of 14

AR 000054

~". ~

TEXAS ASSOCIATION OF REALTORS

TEXAS ASSOCIATION OF REALTORS

COMMERCIAL LEASE EXHIBIT

COMMERCIAL LEASE EXHIBIT USE OF THIS fOOM ElY PEFlSQtIS WHO ME NOT MEMBERS OF THE TEXAS I'SSOCI.I.TlON OF REALTOOS$IS NOT AUTHORIZE[.; USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOC",TlON OF REAI.TORS® IS NOT AUTHORIZEU OT.u. _",,""on of 1tEJ\l.l'1;lRS&.1noc:.:root OTe .... AoaoclaKon of REAl. T'OR.Se.lne. :zoIHI EXHIBIT_A ____________________ _ EXHIBIT-.::A ____________________ _

TO COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED TO COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street, Houston ( Texas PREMISES AT 2918 San Jacinto Street, Houston! Texas

o 1- Z U « -. z z < -< Vl ~

~~ Cl , ':t.... \J . , :1< v C'~

i'l , " ,,! o ". , L . r - ' - -..

:~.

NOT TO SCALE. DIMENSIONS AND SIZE SUBJECT TO MEASUREMENT.

NOT TO SCALE. DIMENSIONS AND SIZE SUBJECT TO MEASUREMENT.

PARTITIONS MAY NOT EXIST AS SHOWN.

PARTITIONS MAY NOT EXIST AS SHOWN.

AR 000055

~~

~~

TEXAS ASSOCIATION OF REALTORS" TEXAS ASSOCIATION Of REALTORS' COMMERCIAL LEASE ACCEPTANCE FORM COMMERCIAL LEASE ACCEPTANCE FORM us~ OF THIS FORM flY ?~RSONS WHO ARE NOT MEMBERS OF TIlE TEXAS ASSOCIATION OF REAl TOf!~ IS NOT AUTHORIZED, USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED. CT _ _ ofREALTORSlIII.I"".2006 <OT.lUIS Auoc:IatIon of REAl..1ORS!I!>. Inc. ^[2006]

ACCEPTANCE OF THE LEASED PREMISES AT 2918 San Jacinto Street, Houston, Texas. Suite 200 ACCEPTANCE OF THE LEASED PREMISES AT 2918 San Jacinto Street, Houston, Texas' Suite 200

REGARDING THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES.

REGARDING THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES. A. The parties have inspected the leased premises. The parties acknowledge that any improvements, A. The parties have inspected the leased premises. The parties acknowledge that any improvements,

construction, repairs, or other items required by the lease have been substantially completed. The construction, repairs, or other items required by the lease have been substantially completed. The condition of the leased premises is acceptable to Tenant for the purposes of the lease. On or before condition of the leased premises is acceptable to Tenant for the purposes of the lease. On or before __________ , 0 Landlord 0 Tenant will complete the following (punch list): __________ , 0 Landlord CI Tenant will complete the following (punch list):

B_ The parties ratify the lease and confirm the following: 8. The parties ratify the lease and confirm the following: (1) The term of the lease is for (1) The term of the lease is for 36 months and months and 0 days. days. 36 0 (2) The Commencement Date of the lease is "",M:;;;:a.=.rc.;;;.;h",-,l;;;;.L...! ...;:2;;...;0;...:0-"9 _____ __ _ _ (2) The Commencement Date of the lease is ;:Ma""'r"c"'h'-"'-f:,-;!'2"OO,,9":,,-_______ _ (3) The Expiration Date of the lease is (3) The Expiration Date of the lease is February 29, 2012 February 29! 2012

C. Special Provisions: c. Special Provisions: Tenant has inspected the premises and accepts the premises "AS IS". Tenant has inspected the premises and accepts the premises "AS IS". NISAL CORPORATI PROVIDIAN HOLDINGS, INC. PROVIDIAN HOLDINGS, INC.

Tenant Tenant By ___ ~~~-~~~ _________ ~~~~ B'-_L-'='--""'-"-=--= ___ .....:..L:rc,~

Date Date ~~ __ ----__ --____ --__ -2~/-~6Io1 ~~-------------------2~/~GI6r Tenant Tenant Landlord Landlord B" _______________ ~~

B'----__________ -.cc"" ~ ~ Date ------------------------=Da--:-te Date Date

(TAR-2113) 5-26-06 (TAR-2113) 5-26-06 Page 1 of 1 Page 1 of 1

AR 000056

~~ ~~ TEXAS ASSOCIATION OF REALTORS' TEXAS ASSOCIATION OF REALTORS" COMMERCIAL LEASE ADDENDUM FOR EXTENSION OPTION COMMERCIAL LEASE ADDENDUM FOR EXTENSION OPTION USE OF THiS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REI\lTORS®IS NOT AUTHORIZED USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED. Clnn_ Mooc:latlon ot REAL TORSCI. Inc. 2006 C>Tex .. AsSOClRIon of REAL TORS®, Inc:. 2006

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street, Houston, Texas Suite 200 THE LEASED PREMISES AT 2918 San Jacinto Street c Houston, Texas Suite 200 A. At Tenant's option, Tenant may extend the term of above-referenced lease for 1 A. At Tenant's option, Tenant may extend the term of above-referenced lease for 1 additional term(s) of additional term(s) of

36 months each. The first additional term commences upon the expiration of the term stated in the months each. The first additional term commences upon the expiration of the term stated in the 36.. lease and any subsequent additional term commences upon the expiration of the then applicable extended lease and any subsequent additional term commences upon the expiration of the then applicable extended term. term.

B. Tenant may exercise Tenant's option(s) to extend under Paragraph A only by providing written notice to B. Tenant may exercise Tenant's option(s) to extend under Paragraph A only by providing written notice to Landlord at least 90 Landlord at least 90 days before the end of the then current term of the lease. days before the end of the then current term of the lease. C. Tenant may not exercise Tenant's option(s) to extend under Paragraph A if the lease is terminated before C. Tenant may not exercise Tenant's option(s) to extend under Paragraph A if the lease is terminated before Tenant exercises its option to extend or Tenant is in breach of the lease at the time Tenant exercises its Tenant exercises its option to extend or Tenant is in breach of the lease at the time Tenant exercises its option to extend. option to extend.

D. During the additional term(s), all provisions of the lease will continue as in effect immediately before the D. During the additional term(s), all provisions of the lease will continue as in effect immediately before the extension(s) commences except the base monthly rent during the additional term(s) will be: extension(s) commences except the base monthly rent during the additional term(s) will be: III (1) $ 4,400_00 (1) $ 4,400.00 from March 1, 2012 to February 28, 2013 QI from March 1, 2012 10 February 28, 2013 $ 4,600.00 $ 4,600.00 from March 1, 2013 10 February 28, 2014 to February 28, 2014 from March 1, 2013 $ 4,800.00 $ 4,800.00 from March 1, 2014 to February 28, 2015 from March 1, 2014 10 February 28, 2015 $ from to to $ from to $ from from to $

o (2) adjusted to reflect increases in the Consumer Price Index for ~AII Urban Consumers, U.S. City Average, o (2) adjusted to reflect increases in the Consumer Price Index for "All Urban Consumers, U.S. City Average, All Items~, issued by the Bureau of Labor Statistics of the U.S. Department of Labor. The adjustment All Items", issued by the Bureau of Labor Statistics of the U.S. Department of Labor. The adjustment will be determined by multiplying the base monthly rent for the last month of the lease by the following will be determined by multiplying the base monthly rent for the last month of the lease by the following fraction: (i) the numerator will be the published index number for January in the year the additional term fraction: (i) the numerator will be the published index number for January in the year the additional term commences; and (il) the denominator will be the published index number for January in the year in commences; and (ii) the denominator will be the published index number for January in the year in which the original lease term commences. (Notice: This paragraph is appropriate for use only when the which the original lease term commences. (Notice: This paragraph is appropriate for use only when the rent in the lease remained constant through the term of the lease.) rent in the lease remained constant through the term of the lease.)

o (3) the prevailing rental rate on the 45 th day before the additional term commences for premises of o (3) the prevailing rental rate on the 45 th day before the additional term commences for premises of comparable size, quality, condition, improvements, utility, location, and length of term for tenant's of comparable size, quality, condition, improvements, utility, location, and length of term for tenant's of similar credit standing as Tenant. similar credit standing as Tenant

E. E. If Paragraph 0(3) applies and the parties do not agree on the amount of the prevailing rental rate for the If Paragraph 0(3) applies and the parties do not agree on the amount of the prevailing rental rate for the additional term before the 30 th day before the additional term commences, each party will employ a state additional term before the 30 th day before the additional term commences, each party will employ a state certified appraiser and deliver the appraiser's written opinion of the prevailing rental rate to the other party certified appraiser and deliver the appraiser's written opinion of the prevailing rental rate to the other party not later than the 1S ttl day before the additional term commences. If the appraisers' opinions do not vary not later than the 15 th day before the additional term commences. If the appraisers' opinions do not vary by more than 10 0/0, the prevailing rental rate will be the average of the two opinions. by more than 10%, the prevailing rental rate will be the average of the two opinions. If the appraisers' If the appraisers' opinions vary by more than 10%, the appraisers will jointly select a t~praiser whose fees will be opinions vary by more than 10%, the appraisers will jointly select a t~praiser whose fees will be

Initialed for Identification by Tenant:!J/'.-, ~~, and land!Or<i~, __ lornaled (0< Ide_Do by Tenaot~ __ , and landlorc{@-, _ _ (TAR-2104) 5-26-06 Page 1 of 2 Page 1 of 2 (TAR-2104) 5-26-06

AR 000057

Addendum for Extension Option concerning __________________________ _ Addendum for Extension Option concerning ___________________________ _ shared equally by the parties. If a third appraiser is engaged, the prevailing rental rate will be the average shared equally by the parties. If a third appraiser is engaged, the prevailing rental rate will be the average of the two opinions that are closest in amount. If either party fails to employ or timely deliver an appraiser's of the two opinions that are closest in amount. If either party fails to employ or timely deliver an appraiser's opinion as required by this paragraph, the opinion rendered by the appraiser employed by the other party opinion as required by this paragraph, the opinion rendered by the appraiser employed by the other party will determine the prevailing rental rate. will determine the prevailing rental rate.

F. Special Provisions: F. Special Provisions: NISAL ORPORATION PROVIDIAN HOLDINGS, INC. PROVIDIAN HOLDINGS, INC. Tenant Tenant Tenant Landlord Landlord By __________________________________ __ By ________________________________ __ By ______ _ ___ _ _ __ ~~

By ' - - - -______________ ~=c Date Date Date Date (TAR-2104) 5--26-06 (TAR-2104) 5-26-06 Page 2 af2 Page 2 of2

AR 000058

~.., ~~

~ TEXAS ASSOCIATION OF REALTORS' TEXAS ASSOCIATION OF REALTORS· COMMERCIAL LEASE RIGHT OF FIRST REFUSAL ADDENDUM COMMERCIAL LEASE RIGHT OF FIRST REFUSAL ADDENDUM USE OF THIS FORM 8Y PERSONS WIiOAAE N(lTMEMBERS Of T!iE T8(ASASSOCIATIONOF REAl-TORseIS NOT AUTHORIZED USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REAL TORS® IS NOT AUTHORIZED. <QT . . . . _a.uon Of R£ALl'ORS*, Inc. 20IMI q:)Texas _lallon of REAL TORS4!>.lnc. 2006

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT THE LEASED PREMISES AT 2918 San Jacinto street, Houston, Texas Suite 200 2918 San Jacinto Street, Houston, Texas Suite 200 A "Additional space" means all or part of the following areas along with all its improvements; A. "Additional space" means all or part of the following areas along with all its improvements: o (1) the following floors in the Property: _______________________ . CJ (1) the following floors in the Property: ______________________ _ !XI (2) the following suites in the Property, presently identified, as: the first floor vacant off ice space ~ (2) the following suites in the Property, presently identified, as: the first floor vacant office space o (3) __________________________________________________ ___ CJ (3) ________________________________________________________ ___

The parties agree that the rentable area of the additional space may not equal the actual or useable area The parties agree that the rentable area of the additional space may not equal the actual or useable area within the additional space and may include an allocation of common areas in the Property. within the additional space and may include an allocation of common areas in the Property.

B. If Landlord receives an acceptable written offer from another person to lease the additional space at a time B. If Landlord receives an acceptable written offer from another person to lease the additional space at a time when the above-referenced lease is in effect, Landlord will notify Tenant of the offer. Not later than 7 days when the above-referenced lease is in effect, Landlord will notify Tenant of the offer. Not later than 7 days after T enanl receives Landlord's notice of the offer, Tenant may notify Landlord that Tenant will lease the after Tenant receives Landlord's notice of the offer, Tenant may notify Landlord that Tenant will lease the additional space identified in the offer under the same terms and conditions in the offer. If Tenant notifies additional space identified in the offer under the same terms and conditions in the offer. If Tenant notifies Landlord that Tenant will lease the additional space identified in the after, Tenant must execute a written Landlord that Tenant will lease the additional space identified in the offer, Tenant must execute a written lease for the additional space identified in the offer or amend the above-referenced lease, as Landlord may lease for the additional space identified in the offer or amend the above-referenced lease, as Landlord may require, not later than 10 days after Tenant receives Landlord's notice. If Tenant fails to timely days after Tenant receives Landlord's notice. If Tenant fails to timely require, not later than 10 comply with this paragraph, Landlord may lease the additional space identified in the offer to the person comply with this paragraph, Landlord may lease the additional space identified in the offer to the person who made the offer. If Tenant does not exercise its right to lease the additional space identified in the offer who made the offer. If Tenant does not exercise its right to lease the additional space identified in the offer and Landlord does not lease the additional space identified in the offer to the person who made the offer, and Landlord does not lease the additional space identified in the offer to the person who made the offer, Tenant 0 does 0 does not Tenant [J does [J does not relain the right of refusal under this addendum for any subsequent offers retain the right of refusal under this addendum for any subsequent offers Landlord receives for the additional space identified in the offer. Landlord receives for the additional space identified in the offer.

C. An offer for part of the additional space affects the parties' rights and obligations only to the part of the C. An offer for part of the additional space affects the parties' rights and obligations only to the part of the additional space identified in the offer. Rights and obligations to parts of the additional space not identified additional space identified in the offer. Rights and obligations to parts of the additional space not identified in the offer are not affected. An offer to renew a lease for the additional space from a tenant occupying the in the offer are not affected. An offer to renew a lease for the additional space from a tenant occupying the additional space is not an offer to lease the additional space for the purposes of this addendum. additional space is not an offer to lease the additional space for the purposes of this addendum.

D. Special Provisions: D. Special Provisions: Vacant space occupied or used by Landlord is excluded from the provisions Vacant space occupied or used by Landlord is excluded from the provisions of this Addendum. of this Addendum.

NISAL CORPORATION NISAL CORPORATION PROVIDIAN HOLDINGS, INC. PROVIDIAN HOLDINGS, INC.

,4' 4 Tenant Tenant Landlord Landlord By ________________________________ ~ By ________________________________ ~~ By __________________________________ ___ By, ______________________________ ~~

Date Date Date Date (TAR-2i05) 5-26-06 (TAR-2105) 5-26-06 Page 1 of 1 Page 1 of 1

AR 000059

~~ ~~ TEXAS ASSOCIATION OF REALTORS' TEXAS ASSOCIATION OF REALTORS" COMMERCIAL LEASEHOLD CONSTRUCTION ADDENDUM COMMERCIAL LEASEHOLD CONSTRUCTION ADDENDUM (Tenant to Complete Construction) (Tenant to Complete Construction) USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED. USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS@ISNOTAUTHORIZED cre ... AssocIatIon tlfREALTOR$IP, Inc. _ QT . . . ~_tlan<>fREAL~ Inc. 2ODOI

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street« Houston, Texas 511; te 200 THE LEASED PREMISES AT 2918 San Jacinto Street r Houston. Texas Sui te 700 A. Execution and License to Enter: A Execution and License to Enter: o (1) This addendum is executed after the above-referenced lease commenced. Landlord authorizes Tenant o (1) This addendum is executed after the above~referenced lease commenced. Landlord authorizes Tenant

to construct the improvements described in this addendum provided that Tenant complies with all of the to construct the improvements described in this addendum provided that Tenant complies with all of the terms of this addendum terms of this addendum

129 (2) This addendum is executed before the above-referenced lease commences. Effective February 20, IZI (2) This addendum is executed before the above-referenced lease commences. Effective February 20, 2009 , Landlord grants Tenant a license to enter into the Property and the leased , Landlord grants Tenant a license to enter into the Property and the leased 2009 premises for the purposes of preparing the leased premises for occupancy and constructing the premises for the purposes of preparing the leased premises for occupancy and constructing the improvements described under this addendum and in accordance with this addendum. This license is improvements described under this addendum and in accordance with this addendum. This license is made under all the terms and provisions in the lease, except as to the covenant to pay rent. made under all the terms and provisions in the lease, except as to the covenant to pay rent.

B. Construction Costs: Tenant will pay the full cost to construct the improvements that Tenant is to construct B. Construction Costs: Tenant will pay the full cost to construct the improvements that Tenant is to construct under this addendum, including but not limited to the cost of material, engineering studies, environmental under this addendum, including but not limited to the cost of material, engineering studies, environmental studies, contractors, permits, plans, architects, inspectors, subcontractors, and materialmen. Not later than studies, contractors, permits, plans, architects, inspectors, subcontractors, and materialmen. Not later than 10 days after the construction is complete and Tenant has satisfied al\ of Tenant's obligations under this 10 days after the construction is complete and Tenant has satisfied all of Tenant's obligations under this addendum, Landlord will reimburse Tenant the cost of the improvements in an amount that does not addendum, Landlord will reimburse Tenant the cost of the improvements in an amount that does not exceed __________________________________________________________________ __ exceed

C. Approval of Plans: c. Approval of Plans: (1) Not later than (1) Not later than ,Tenant will submit to Landlord plans and specifications ,Tenant will submit to Landlord plans and speCifications detailing the improvements Tenant desires to complete to the leased premises. The plans must detail detailing the improvements Tenant desires to complete to the leased premises. The plans must detail all architectural, mechanical, electrical, and plumbing requirements for the improvements and must all arChitectural, mechanical, electrical, and plumbing requirements for the improvements and must describe the proposed improvements along with the materials to be used and the interior floor plan of describe the proposed improvements along with the materials to be used and the interior floor plan of the leased premises. The plans must be drawn by a professional architect in accordance with generally the leased premises. The plans must be drawn by a professional architect in accordance with generally accepted architectural standards and must be sufficient for a contractor to use to construct the desired accepted architectural standards and must be suffiCient for a contractor to use to construct the desired improvements. improvements.

(2) Within (2) Within days after Landlord receives the plans in accordance with Paragraph C(1), Landlord will days after Landlord receives the plans in accordance with Paragraph C(1), Landlord will notify Tenant whether the plans are "approved" or "disapproved" by marking such on the plans and notify Tenant whether the plans are "approved" or "disapproved" by marking such on the plans and delivering the plans back to Tenant. Landlord will not unreasonably withhold approval of the plans. If delivering the plans back to Tenant. Landlord will not unreasonably withhold approval of the plans. If Landlord does not notify Tenant of a disapproval within the time specified, the plans will be deemed Landlord does not notify Tenant of a disapproval within the time specified, the plans will be deemed approved. approved.

(3) If the plans are disapproved, Landlord will detail the reasons for the disapproval either on the plans or (3) If the plans are disapproved, Landlord will detail the reasons for the disapproval either on the plans or in a separate notice to Tenant. Ifthe plans are disapproved, Tenant will, within __ days after receipt in a separate notice to Tenant. If the plans are disapproved, Tenant will, within __ days after receipt of the disapproval notice from Landlord, submit amended plans to Landlord that incorporate revisions of the disapproval notice from Landlord, submit amended plans to Landlord that incorporate revisions necessary to satisfy Landlord's reasons for the disapproval. Landlord will not unreasonably withhold necessary to satisfy Landlord's reasons for the disapproval. Landlord will not unreasonably withhold

by Tena ... ,-¥ ~ and Landlo,(@2 __ Initialed for Identification by Tenant~ _ , and Landlo~, __ (TAR-2112) 5-26-00 Inmaled for _ Page 1 of 4 (TAR-2112) 5-26-06 Page 1 of 4

AR 000060

Leasehold Construction Addendum concerning __________________________ _ Leasehold Construction Addendum concerning ________________________ _ approval of any amended plans. approval of any amended plans. If Tenant is unable or unwilling to satisfy Landlord's reasons for If Tenant is unable or unwilling to satisfy Landlord's reasons for disapproval by disapproval by , and: , and: (a) jf this addendum is executed after the lease commenced, then Tenant will not construct the (a) if this addendum is executed after the lease commenced, then Tenant will not construct the

improvements and this Addendum will have no further effect; or improvements and this Addendum will have no further effect; or (b) if this addendum is executed before the lease commences the lease will terminate and Landlord will (b) if this addendum is executed before the lease commences the lease will terminate and Landlord will refund any security deposit and advanced rent paid by Tenant. refund any security deposit and advanced rent paid by Tenant. (4) ~Final plans" means the plans that Landlord approves under this Paragraph C. (4) "Final plans" means the plans that Landlord approves under this Paragraph C. D. Change Orders: Tenant must obtain Landlord's advanced written approval of any proposed changes to the D. Change Orders: Tenant must obtain Landlord's advanced written approval of any proposed changes to the final plans. Landlord will approve or disapprove any proposed change within final plans. Landlord will approve or disapprove any proposed change within days after Landlord days after Landlord receives a copy of the proposed change order from Tenant. Landlord will not unreasonably withhold receives a copy of the proposed change order from Tenant. Landlord will not unreasonably withhold approval of any proposed change order. If Landlord does not notify Tenant of a disapproval of a proposed approval of any proposed change order. If Landlord does not notify Tenant of a disapproval of a proposed change order within the time specified, the proposed change order is deemed approved. change order within the time specified, the proposed change order is deemed approved.

E. Contractor: Before construction begins Tenant will enter into a written construction contract with a E. Contractor: Before construction begins Tenant will enter into a written construction contract with a contractor(s} acceptable to Landlord to construct the improvements in accordance with the final plans. Any contractor(s) acceptable to Landlord to construct the improvements in accordance with the final plans. Any subcontractors employed by Tenant or Tenant's contractors must be acceptable to Landlord. Landlord will subcontractors employed by Tenant or Tenant's contractors must be acceptable to Landlord. Landlord will not unreasonably withhold approval of contractors and subcontractors. not unreasonably withhold approval of contractors and subcontractors.

F. Construction: F. Construction: (1 ) Tenant will diligently complete the improvements in accordance with the final plans and will satisfy any (1 ) Tenant will diligently complete the improvements in accordance with the final plans and will satisfy any requirements of any governmental authorities having jurisdiction over the improvements. The requirements of any governmental authorities having jurisdiction over the improvements. The construction of the improvements must be performed in a good workmanlike manner and must comply construction of the improvements must be performed in a good workmanlike manner and must comply with all applicable laws, ordinances, rules, and governmental orders and regulations. Construction of with all applicable laws, ordinances, rules, and governmental orders and regulations. Construction of the improvements may not: the improvements may not: (a) damage the Property except as specifically permitted by the final plans, including but not limited to (a) damage the Property except as specifically permitted by the final plans, including but not limited to

damage to or interference with any structural component, system, or part of the Property; damage to or interference with any structural component, system, or part of the Property; (b) interfere with the rights or operations of any other tenant in the Property or with Landlord's (b) interfere with the rights or operations of any other tenant in the Property or with Landlord's management of the Property; and management of the Property; and (c) not obstruct any common area, walk, or drive except as Landlord permits. (c) not obstruct any common area, walk, or drive except as Landlord permits. (2) Landlord and Landlord's designees may inspect the construction of the improvements from time to (2) Landlord and Landlord's designees may inspect the construction of the improvements from time to time. If Landlord notifies Tenant of any construction defect or non-compliance with the final plans, time. If Landlord notifies Tenant of any construction defect or non-compliance with the final plans, Tenant must promptly correct the defect or non·compliance. Tenant must promptly correct the defect or non-compliance.

G. Completion: G. Completion: (1) Tenant must substantially complete the construction of the improvements to the leased premises in (1) Tenant must substantially complete the construction of the improvements to the leased premises in accordance with this addendum on or before accordance with this addendum on or before . Except . Except as provided in this paragraph, the failure to complete construction of the improvements by the date as provided in this paragraph, the failure to complete construction of the improvements by the date specified does not relieve Tenant of Tenant's obligations to pay rent or satisfy other terms and specified does not relieve Tenant of Tenant's obligations to pay rent or satisfy other terms and conditions of the lease. The time by which Tenant must complete construction may be extended only if: conditions of the lease. The time by which Tenant must complete construction may be extended only if: (a) Landlord causes the delay; (b) Landlord delays in granting any applicable license under Paragraph (a) Landlord causes the delay; (b) Landlord delays in granting any applicable license under Paragraph A(2); or (c) a construction delay is caused by strike, lock-out, shortage of material, governmental A(2); or (c) a construction delay is caused by strike, lock-out, shortage of material, governmental restriction, riot, flood, or a cause outside Tenant's control. Any extension under this paragraph may be restriction, riot, flood, or a cause outside Tenant's control. Any extension under this paragraph may be exercised by Tenant only if Tenant promptly notifies Landlord in writing of the extension after Tenant exercised by Tenant only if Tenant promptly notifies Landlord in writing of the extension after Tenant knows or has reason to know of any applicable delay which is cause for an extension. Any extension knows or has reason to know of any applicable delay which is cause for an extension. Any extension under this paragraph may not exceed the lesser of: the number of days of the delay caused by the under this paragraph may not exceed the lesser of: the number of days of the delay caused by the specified cause for the delay or specified cause for the delay or days. days. If Paragraph A(2) applies and a delay If Paragraph A(2) applies and a delay authorized by this Paragraph applies, the Commencement Date and Expiration Date of the lease shall authorized by this Paragraph applies, the Commencement Date and Expiration Date of the lease shall likewise be extended along with an appropriate adjustment in the rent due dates. If a delay is caused likewise be extended along with an appropriate adjustment in the rent due dates. If a delay is caused by Landlord and the delay exceeds the time for which an extension is permitted under this paragraph, by Landlord and the delay exceeds the time for which an extension is permitted under this paragraph, Tenant may exercise its remedies under the default provision of the lea~, Tenant may exercise its remedies under the default provision of the lea~,

Inffialed "ddentification by Tenant~ __ , and Land lo r@ . ,__page2of4 (TAR-2112J 5-26-06 'o"'.'ed ro, Ideo'mcatiao by Teo.ot-¥ __ . and land lo@ .__pag e2of4 (TAR""2) 5-26-06

AR 000061

Leasehold Construction Addendum concerning _________________________ _ leasehold Construction Addendum conceming __________________________ _ (2) Construction is complete when all the improvements are constructed in accofda~c~ with t~e final plans (2) Construction is complete when all the improvements are constructed in accordance with the final plans and Tenant provides Landlord with: (a) a final certificate executed by the supervIsing archItect; and (b) and Tenant provides Landlord with: (a) a final certificate executed by the supervising architect; and (b) if required by a governmental body, a certificate of occupancy permitting Tenant to occupy the leased if required by a governmental body, a certificate of occupancy permitting Tenant to occupy the leased premises for the purposes set forth in the lease. premises for the purposes set forth in the lease.

(3) ",,--=---,.--;-c-;:-:---,-,===::-:===-====:===:;-;;;::::;:< is the supervising architect. (3) is the supervising architect.

The certificate of the supervising architect is conclusive in any dispute involving the construction The certificate of the supervising architect is conclusive in any dispute involving the construction performed or required to be performed under this addendum. performed or required to be performed under this addendum. H. No Liens:

H. No Liens: (1) Tenant guarantees that Tenant will pay all costs of any liability related to the construction of the (1) Tenant guarantees that Tenant will pay all costs of any liability related to the construction of the improvements described in this addendum and further guarantees the lien-free completion of the improvements described in this addendum and further guarantees the lien-free completion of the improvements against the leased premises and Property. Tenant may not create or place any lien or improvements against the leased premises and Property. Tenant may not create or place any lien or encumbrance, of any kind, upon the leased premises or Property that encumbers Landlord's interest in encumbrance, of any kind, upon the leased premises or Property that encumbers Landlord's interest in the leased premises or Property. the leased premises or Property.

(2) Before Landlord reimburses Tenant for the cost of the improvements, Tenant must deliver to Landlord a (2) Before Landlord reimburses Tenant for the cost of the improvements, Tenant must deliver to Landlord a waiver of liens in recordable form acceptable to Landlord from each contractor, subcontractor, and waiver of liens in recordable form acceptable to Landlord from each contractor, subcontractor, and materialman, The waivers must specify that: (a) the contractor, subcontractor, Of materialman waive materialman. The waivers must specify that: (a) the contractor, subcontractor, or materialman waive any and all claims against Landlord and waive any and all lien rights against Landlord's interest in the any and all claims against Landlord and waive any and all lien rights against Landlord's interest in the leased premises and Property; and (b) the contractor or subcontractor agree to hold Landlord harmless leased premises and Property; and (b) the contractor or subcontractor agree to hold Landlord harmless from any and all claims arising from or in connection with its work or materials. from any and aI/ claims arising from or in connection with its work or materials.

(3) If any lien is filed or asserted against any portion of the leased premises or Property as a result of the (3) If any lien is filed or asserted against any portion of the leased premises or Property as a result of the acts of Tenant or Tenant's contractors, subcontractors, Of materialmen, Tenant must remove any such acts of Tenant or Tenant's contractors, subcontractors, or materialmen, Tenant must remove any such lien or lien claim within 20 days after receipt of notice from Landlord. lien or lien claim within 20 days after receipt of notice from Landlord.

(4) Tenant will indemnify and keep Landlord harmless from all damages, costs, expenses, and attorney's (4) Tenant will indemnify and keep Landlord harmless from all damages. costs. expenses, and attorney's fees that may arise from any lien or claim that may be filed or threatened as a result of the fees that may arise from any lien or claim that may be filed or threatened as a result of the improvements to be constructed under this addendum. improvements to be constructed under this addendum.

I. Bonds: Before commencement of any construction, Tenant and Tenant's contractors, at no cost to I. Bonds: Before commencement of any construction, Tenant and Tenant's contractors, at no cost to Landlord, must post the following bonds in favor of the Landlord in the amounts specified: _____ _ Landlord, must post the following bonds in favor of the Landlord in the amounts specified: ~ ____ _ J. Insurance: J. Insurance: (1) Before any construction commences, Tenant must deliver to Landlord evidence that the insurance (1) Before any construction commences, Tenant must deliver to Landlord evidence that the insurance required by Paragraph 8A ofthe lease will be in effect not later than the day construction begins. required by Paragraph 8A of the lease will be in effect not later than the day construction begins. (2) Before any construction commences, Tenant must deliver to Landlord certificates of insurance, from (2) Before any construction commences, Tenant must deliver to Landlord certificates of insurance from insurers acceptable to Landlord, evidencing that any contractor maintains insurance to protect insurers acceptable to Landlord, evidencing that any contractor maintains insurance to protect Landlord, Tenant, and the contractor from: Landlord, Tenant, and the contractor from:

o (a) workman compensation claims and other employee benefit acts in an amount not less than o (a) workman compensation claims and other employee benefit acts in an amount not less than $ $ per occurrence; per occurrence; o (b) claims for damages from bodily injury or death to employees and others in an amount not less than o (b) claims for damages from bodily injury or death to employees and others in an amount not less than

$ $ per person and $ per person and $ per occurrence; and per occurrence; and o (c) property damage in an amount not less than $ ___________ per occurrence. o (c) property damage in an amount not less than $, ___________ per occurrence. Initialed for Identification by Tenant4.. __ • and Umd~ __ Initialed for Identification by Tenant~ __ , aod LandlO"'~' __ (TAR-2112) 5-26-06 (T AR-2112) 5-26..Q6 Page 3 of4 Page 3 of4

AR 000062

Leasehold Construction Addendum concerning _________________________ _ Leasehold Construction Addendum concerning __________________________ _ (3) The insurance required by this Paragraph J must cover any and all claims that may arise out of or as a (3) The insurance required by this Paragraph J must cover any and all claims that may arise out of or as a result of the operations of the contractor or the contractor's subcontracor(s). result of the operations of the contractor or the contractor's subcontracor(s). (4) The coverage required by this Paragraph J must be maintained by Tenant or Tenant's contractors, at (4) The coverage required by this Paragraph J must be maintained by Tenant or Tenant's contractors, at Tenant's or the contractors' sole expense, during all times of any construction period. If Tenant fails or Tenant's or the contractors' sole expense, during all times of any construction period. If Tenant fails or if any of Tenant's contractors fail to maintain the required insurance in full force and effect at all if any of Tenant's contractors fail to maintain the required insurance in full force and effect at all required times, Landlord may: required times, Landlord may: (a) purchase such insurance on behalf of Tenant or the contractor(s) and Tenant must immediately (a) purchase such insurance on behalf of Tenant or the contractor(s) and Tenant must immediately

reimburse Landlord for such expense; or reimburse Landlord for such expense; or (b) exercise Landlord's remedies for Tenant's default under the lease. (b) exercise Landlord's remedies for Tenant's default under the lease. K Tenant's Assumption of Liability: Tenant must promptly pay and discharge all costs, expenses, claims for K. Tenant's Assumption of Liability; Tenant must promptly pay and discharge all costs, expenses, claims for damages, liens, lien claims, and any other liabilities which may arise from or in connection with the damages, liens, lien claims, and any other liabilities which may arise from or in connection with the construction of the improvements described in this addendum. Tenant agrees to hold Landlord harmless construction of the improvements described in this addendum. Tenant agrees to hold Landlord harmless from all costs, expenses, damages, liens, lien claims, and any other liabilities, which may arise from or in from all costs, expenses, damages, liens, lien claims, and any other liabilities, which may arise from or in connection with the construction of the improvements described in this addendum. connection with the construction of the improvements described in this addendum. L. Special Provisions: (If applicable, include any business details, factual statements, or any requirements

L. Special Provisions: (If applicable, include any business details, factual statements, or any requirements the parties must satisfy [for example, Landlord's obligation to complete shell construction by a certain dale the parties must satisfy [for example, Landlord's obligation to complete shell construction by a certain date or by the time the license under Paragraph A(2) commences].) or by the time the license under Paragraph A(2) commences].)

NISAL CORPORATION

NISAL CORPORATION

PRQVIDIAN HOLDINGS, INC.

PROVIDIAN HOLDINGS, INC. ...,.,< 2 Tenant Tenant landlord L / ~ JI #J / __ .~2 By-_~_~ __ -· _ _¥_~ __ =_+_.::_-..r..t.t1BY d~~~ ;Z/z-£/07 -;(/ ; Date ~ Date Tenant Tenant Landlord landlord By _______________________________ _ By, ____________________________ ~~

By _____________________________ ~---- By, ________________________ ~~- Date Date Date Date

(TAR-2112) 5-26-06

(TAR-2112) 5-26-06 Page 4 of4 Page 4 of 4

AR 000063

~~ ~ TEXAS ASSOCIATION Of REALTORS" TEXAS ASSOCIATION OF REALTORS* COMMERCIAL LEASE PARKING ADDENDUM COMMERCIAL LEASE PARKING ADDENDUM USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORSe IS NOT AUTHORIZEO. USE OF THIS FORM BY PERSONS WHO ARE NOT "'EMBERS OFTHE TEXilS ASSOCIATIONOF REALTORS®IS NOT AUTHORIZED. ~ __ _ of !!£AI. TQRSeI, '"".lOO8 <m."". AHoCtMIOn of REAL TORse. Inc. 1006 ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street, HOllston, Texas Suite 200 THE LEASED PREMISES AT 2918 San Jacinto Street, Houston, Texas Suite 200 A Parking Type: A. Parking Tvpe:

c:J (1) Common Parking: Tenant and Tenant's employees may park no more than ____ vehicles on o (1) Common Parking: Tenant and Tenant's employees may park no more than _____ vehicles on the Property in the common parking areas located on the Property. the Property in the common parking areas located on the Property. c:J (2) Restricted Common Parking for Tenants: Tenant and Tenant's employees may park no more than. Ll (2) Restricted Common Parking for Tenants: Tenant and Tenant's employees may park no more than. ____ vehicles on the Property in the areas restricted for use by tenants of the Property. ____ vehicles on the Property in the areas restricted for use by tenants of the Property. c:J (3) Assigned Parking: Tenant's assigned parking areas are identified as follows: o (3) Assigned Parking: Tenant's assigned parking areas are identified as follows: o (a) ______________________________________________________ __ o (a) ____________________________________________________ ___ o (b) as shown on the attached Exhibit __________ __ c:J (b) as shown on the attached Exhibit _ -________ _

B. In addition to any other rent, Tenant will pay, on or before the first day of each month during the term of the B. In addition to any other rent, Tenant will pay, on or before the first day of each month during the term of the above~referenced lease, $ NONE above-referenced lease, $ NONE as rent for the parking areas. as rent for the parking areas. C. Tenant may not assign, sublet, or trade any parking space or parking area. C. Tenant may not assign, sublet, or trade any parking space or parking area. D. Tenant may not use any parking spaces or areas on the Property to store any vehicle, boats, trailers, or D. Tenant may not use any parking spaces or areas on the Property to store any vehicle, boats, trailers, or

any other personal property. any other personal property. E. Tenant's guests, patrons, or invitees may park only in those areas designated by Landlord for Tenant's E. Tenant's guests, patrons, or invitees may park only in those areas designated by Landlord for Tenant's guests, patrons, or invitees. guests, patrons. or invitees. F. Landlord may, but is not obligated to, institute controlfed¥access systems to the parking areas, including F. Landlord may, but is not obligated to, institute controlled-access systems to the parking areas, including but not limited to systems such as vehicle identification stickers, license numbers, or controlled~access but not limited to systems such as vehicle identification stickers, license numbers, or control/ed-access devices. At the time the [ease ends, Tenant must return all access devices to Landlord and pay the devices. At the time the lease ends, Tenant must return all access devices to Landlord and pay the amounts in (2) and (3) below if Tenant fails to return an access device. If Landlord issues controlled amounts in (2) and (3) below if Tenant fails to return an access device. If Landlord issues controlled access devices to Tenant, Tenant will: access devices to Tenant, Tenant will: (1) promptly report any lost device to landlord; (1) promptly report any lost device to Landlord; (2) reimburse landlord its cost to replace the lost access device; and (2) reimburse Landlord its cost to replace the lost access device; and (3) pay Landlord a service fee of $ (3) pay Landlord a service fee of $ for each lost access device. for each lost access device.

Initialed to.- ldent_ byTenant~ ~ and La_@ ___ Initialed for Identification by Tenant~, ___ . and landlOCd@ __ __

(TAR-2107) 5-26-06

(TAR-2107) 5-26-06 Page 1 of 2 Page 1 of2

AR 000064

Parking Addendum conceming _______________________________ _ Parking Addendum conceming _________________________________ _ G. If Tenant fails to timely pay the rent stated in Paragraph B, Landlord may: (i) exercise Landlord's remedies G. If Tenant fails to timely pay the rent stated in Paragraph B, Landlord may: (i) exercise Landlord's remedies

under the default provisions of the lease; or Oi) terminate Tenant's access to the restricted or assigned under the default provisions of the lease; or (ii) terminate Tenant's access to the restricted or assigned parking areas by providing Tenant with not less than 5 days written notice of Landlord's intent to terminate parking areas by providing Tenant with not less than 5 days written notice of Landlord's intent to terminate Tenant's access. If Landlord terminates Tenant's access to the parking areas under this paragraph, the Tenant's access. If Landlord terminates Tenant's access to the parking areas under this paragraph. the parking areas will be deemed to be released by Tenant for all purposes and Landlord may assign or lease parking areas will be deemed to be released by Tenant for all purposes and Landlord may assign or lease the parking areas to others. the parking areas to others.

H. Special Provisions: H. Special Provisions: 1. Parking is currently on a first~come fi~st-serve basis. 1. Parking is currently on a first-come first-serve basis. 2. Employees of Landlord and Tenant are requested to park in the employee parking 2. Employees of Landlord and Tenant are requested to park in the employee parking

lot across Anita street from the building. lot across Anita street from the building. 3. Landlord reserves the right to establish parking rules to accommodate I,andlord 3. Landlord reserves the right to establish parking rules to accommodate Landlord and Tenant and their customers and guests if the current first-come first-serve and Tenant and their customers and guests if the current first-come first-serve method is not working as deemed by Landlord. method is not working as deemed by Landlord.

NISALt;RPORAT~N NISAL ££)RPORAT~ #. i ,,,dlo", / . ~ .z PROVIDIAN BOLDINGS, INC . PROVIDIAN. HOLDINGS, INC. Tenant Tenant _ / l By __ / __ ....-?_L_.-..:-. ___ -.:::..:d.~~e::6_.)i'd~:ndIOrdLdi~ ij~

~6d:ay ~ Lt£v7!d<.~ / By ' ~ Date Dal4 Date Oat' f '2/ Z6 /£/J L/Z6/Df

Tenant Tenant landlord Landlord By __________________________________ __ By __________________________________ _ By ___ ___________ ~~ By _____ _ ___ _ __ __ ~_

Date Date Date Date (TAR-21 07) 5-26-06 (TAR-2107) 5-26-06 Page 2of2 Page 2 of2

AR 000065

~~ ~~ TEXAS ASSOCIATION OF REALTORS' TEXAS AsSOCIATION OF REALTORS" COMMERCIAL LANDLORD'S RULES AND REGULATIONS COMMERCIAL LANDLORD'S RULES AND REGULATIONS USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORSe IS NOT AUTHORIZEO. USE OF THIS FORM BY PERSONS WHO ARE NOT M~MB€RSOF THE TEXAS ASSOCIATION OF REJlLTORS® IS NOT AIJlHORIZED.

err."". AssocIatIOn til REALTORS®, lAC. 200G OT."" ......... __ of REALTORS&>, inc. 2GOII

REGARDING THE COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT _____ _ REGARDING THE COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT _____ _ 2918 San Jacinto Street. Houston, Texas, Suite 200 2918 San Jacinto Street. Houston, Texas. Suite 200 NOTICE: These rules and regulations are adopted to maintain and enhance the safety and appearance of the NOTICE: These rules and regulations are adopted to maintain and enhance the safety and appearance of the Property. From time to time Landlord, at its discretion, may amend these rules and regulations for the Property. From time to time Landlord, at its discretion, may amend these rules and regulations for the purposes for which they were adopted. Under the above.-referenced lease, Tenant agrees to comply with purposes for which they were adopted. Under the above-referenced lease, Tenant agrees to comply with these rules and regulations as they may be amended. Exceptions or waivers must be authorized by Landlord these rules and regulations as they may be amended. Exceptions or waivers must be authorized by Landlord in writing. "Property" means the building or complex in which the leased premises are located, inclusive of any in writing. "Property" means the building or complex in which the leased premises are located, inclusive of any common areas, drives, parking areas, and walks. common areas, drives, parking areas, and walks. A. Goods, merchandise, equipment, or any personal property may not be stored on the Property, except for A. Goods, merchandise, equipment, or any personal property may not be stored on the Property, except for

inventory within the leased premises necessary for Tenant's normal business operations. inventory within the leased premises necessary for Tenanfs normal business operations. 8. Food is not permitted on the Property, except as inventory for sale and for a small amount of food for B. Food is not permitted on the Property, except as inventory for sale and for a small amount of food for Tenant's personal consumption. Tenant's personal consumption. c. Other than those provided by Landlord or specifically authorized by Landlord, no vending machines are C. Other than those provided by Landlord or specifically authorized by Landlord, no vending machines are permitted on the Property. permitted on the Property. D. The Property may not be used for lodging or sleeping quarters in any manner. D. The Property may not be used for lodging or sleeping quarters in any manner. E. Unless authorized by law or the lease, no animals may be brought or kept on the Property. E. Unless authorized by law or the lease, no animals may be brought or kept on the Property. F. No obstruction or interference that impedes use of the common areas, walks, drives, loading areas, parking F. No obstruction or interference that impedes use of the common areas, walks, drives, loading areas, parking

areas, corridors, hallways, vestibules, and stairs is permitted on the Property. areas, corridors, hallways, vestibules, and stairs is permitted on the Property. G. Persons parking on the Property must comply with all posted signs and directions regulating the parking G. Persons parking on the Property must comply with all posted signs and directions regulating the parking areas. areas. H. No flammable, toxic, noxious, or hazardous materials may be kept on'the Property except for over-the H. No flammable, toxic, noxious, or hazardous materials may be kept on the Property except for over-the counter cleaning materials kept in enclosed storage closets or cabinets. counter cleaning materials kept in enclosed storage closets or cabinets. I. Tenants moving in or out of the Property must use only the service entrances and service elevators during I. Tenants moving in or out of the Property must use only the service entrances and service elevators during the move. All moves must be made at times that do not cause inconvenience in the normal use of the the move. All moves must be made at times that do not cause inconvenience in the normal use of the Property. Property.

J. Deliveries and shipping of goods and merchandise in or out of the Property must be made only through the J. Deliveries and shipping of goods and merchandise in or out of the Property must be made only through the service entrances, service elevators, loading docks, or other designated shipping and receiving areas. service entrances, service elevators, loading docks, or other deSignated shipping and receiving areas. Shipments and deliveries must be made at times that do not cause inconvenience to tenants or patrons on Shipments and deliveries must be made at times that do not cause inconvenience to tenants or patrons on the Property. the Property.

K. Leased premises must be kept clean and free of debris. Trash must be deposited into appropriate K. Leased premises must be kept clean and free of debris. Trash must be deposited into appropriate receptacles. receptacles. Initialed for Identification by Tenant: K--. and LardIard:Q __ Initialed for Identification by Tenant: B-_, and Landlord:(@? __

(TAR-210B) 5-26.06

(TAR-2108) 5-26-06 Page 1 of2 Page 1 of2

AR 000066

landlord's Rules and Regulations concerning __________________________ _ landlord's Rules and Regulations concerning __________________________ _ L. Repair requests must be submitted to Landlord in writing in compliance with the lease. L. Repair requests must be submitted to Landlord in writing in compliance with the lease. M. No modification to the Property and leased premises may be made unless authorized by Landlord, in M. No modification to the Property and leased premises may be made unless authorized by Landlord, in

writing, or permitted by the lease. writing, or permitted by the lease. N. No illegal or offensive activity is permitted on the Property nor is any activity that constitutes a nuisance or N. No illegal or offensive activity is permitted on the Property nor is any activity that constitutes a nuisance or interferes with the rights of other tenants. interferes with the rights of other tenants. O. Unless specifically authorized by Landlord, no solicitation or business operations are permitted in the O. Unless specifically authorized by Landlord, no solicitation or business operations are permitted in the common areas. common areas. P. Other: Initialed for Identification by Tenant ~ __ • and Landlo", ~ _ _ Initialed for Identification by Tenant ~ __ . "d L"dlo"" ~ __

(TAR-2108) 5-26-06

(TAR-21 08) 5-26-06 Page 20f2 Page 2 of 2

AR 000067

~.., ~~

~ TEXAS ASSOCIATION OF REALTORS" TEXAS ASSOCIATION OF REALTORS" COMMERCIAL LEASE GUARANTY COMMERCIAL LEASE GUARANTY

USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED. USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REAlTOR&!lO IS NOT AUTl-f()RIZED. or •• n _ .. of R£AL TORs., Inc. ZOO8 ItlTex •• Association Of REAl. TORS®, Inc. 2006

GUARANTY TO COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT ___ -;===_

GUARANTY TO COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT ______ _

~2~9~1~8~S~a~n~J2a~c~illn~tO~Set~r~e~e~t~,~H~o~u~s~t~o~nw,~T~e~x~a~s~,~Su~it~e~2~O~O~ __________________ ~--~betHeen -"2~9~1~8~S~a~n~J~a~c~i~n~t~o-"S~t~r~ee~t~,~H~o~u~s~t~o~n~,~T~e~x~a~s~.-"s~u~i~t~e~2~Q~Q"- __________________ ~~~bebNeen ~P~r~o~y~i~d~i~a~n~H~o~l~dAilln~g£s.!~In~c~. _____________________________________________ (Landlord) and (Landlord) and

Proyidian Holdings « Inc. _______________________________ (Tenant). _____________________________ (Tenant). A. In consideration for Landlord leasing the leased premises to Tenant, the undersigned Guarantors A. In consideration for Landlord leasing the leased premises to Tenant, the undersigned Guarantors

guarantee Tenant's performance under the above-referenced lease. guarantee Tenant's performance under the above-referenced lease. B. If Tenant fails to timely make any payment under the lease, Guarantors will promptly make such payment B. If Tenant fails to timely make any payment under the lease, Guarantors will promptly make such payment to Landlord at the place of payment specified in the lease. Guarantor is also responsible for any property to Landlord at the place of payment specified in the lease. Guarantor is also responsible for any property damage to the leased premises or Property (as defined in the lease) for which Tenant is responsible under damage to the leased premises or Property (as defined in the lease) for which Tenant is responsible under the lease. If Tenant breaches the lease, Guarantor will: (i) cure the breach as may be required of Tenant the lease. If Tenant breaches the lease, Guarantor will; (i) cure the breach as may be required of Tenant by the lease; or (ii) compensate Landlord for Landlord's loss resulting from the breach. by the lease; or (ii) compensate Landlord for Landlord's loss resulting from the breach.

C. Guarantors guarantee Tenant's obligations under the lease regardless of any modification, amendment. C. Guarantors guarantee Tenant's obligations under the lease regardless of any modification, amendment, renewal, extension, or breach of the lease. Guarantors waive any rights to notices of acceptance, renewal, extension, or breach of the lease. Guarantors waive any rights to notices of acceptance, modification, amendment, extension, or breach of the lease. All Guarantors are jointly and severally liable modification, amendment, extension, or breach of the lease. All Guarantors are jointly and severally liable for all provisions of this guaranty. Filing for bankruptcy by Tenant will not diminish GUarantors obligations for all provisions of this guaranty. Filing for bankruptcy by Tenant will not diminish Guarantors obligations under this guaranty. under this guaranty.

D. The laws of the State of Texas govern the interpretation, validity, performance, and enforcement of this D. The laws of the State of Texas govern the interpretation, validity, performance, and enforcement of this guaranty. Any person who is a prevailing party in any legal proceeding brought under or related to this guaranty. Any person who is a prevailing party in any legal proceeding brought under or related to this guaranty is entitled to recover attorney's fees from the nonprevailing party. guaranty is entitled to recover attorney's fees from the nonprevailing party.

E. Guarantors authorize Landlord to obtain a copy of any consumer or credit report of Guarantors from any E. Guarantors authorize Landlord to obtain a copy of any consumer or credit report of Guarantors from any consumer reporting agency and to verify relevant information related to Guarantors' creditworthiness from consumer reporting agency and to verify relevant information related to Guarantors' creditworthiness from other persons such as banks, creditors, employers, existing and previous landlords, and other persons. other persons such as banks, creditors, employers, existing and previous landlords, and other persons.

F. Special Provisions; F. Special Provisions: ~(¢-1p101 Guarantor's Signature Guarantor's Signature Date Guarantor's Signature Date Date Brett L. Garner Brett L. Garner Guarantor's Name Printed Guarantor's Name Printed

Guarantor's Name Printed Guarantor's Name Printed Guarantor's Address Guarantor's Address Guarantor's Address Guarantor's Address Phone Phone SS#orTaxID# SS#orTaxID# Phone Phone SS#orTaxID# SS # or Tax 10 #

(TAR-2109) 5-26-06

(TAR-2109) 5-26-06 Page 1 of 1 Page 1 of 1

AR 000068

RIGHT OF FIRST REFUSAL TO PURCHASE ADDENDUM RIGHT OF FIRST REFUSAL TO PURCHASE ADDENDUM Provided that both at the date of exercising the right of first refusal to A. A. Provided that both at the date of exercising the right of first refusal to purchase set out below and at the date of closing of the agreement of purchase purchase set out below and at the date of closing of the agreement of purchase and sale constituted by the exercise of soch right, Tenant bas duly and and sale constituted by the exercise of such right, T eoant bas duly and punctually performed each and every of its obligations under the Lease and punctua1ly performed each and every of its obligations under· the Lease and has not made an assignment fOT the benefit of creditors and bas oot taken the has not made an assignment for the benefit of creditors and bas not taken the benefit of any statute in force for bankrupt or insolvent debtors and if a benefit of any statute in force fur bankrupt or insolvent debtors and if a receiving order has not been made against the Tenant, and if no receiver or receiving order bas not been made against the Tenant, and if no receiver or other similar person has taken control of the assets or business of the Tenant other similar person bas taken control of the assets or business of the Tenant or a substantial portion thereo( and if the Tenant bas not assigned the lease or or a sobstantial portion thereo~ and if the T enan! bas not assigned the lease or soblet or parted or shared possession of all or any sobstantial part of tbe sublet or parted or shared possession of all or any substantial part of the premises, Tenant shall have a right of first refusal to purchase the Building premises, Tenant shall have a right of first refusal to purchase the Building including the premises in accordance with the following procedure. If at any including the premises in accordance with the following procedure. If at any time during the tenn or extended term of the lease Landlord receives a bona time during the term or extended term of the lease Landlord receives a bona fide arm's length offer to purchase the Building (whether alone or together fide arm~s length offer to purchase the Building (whether alone or together with the parking lot tract; but not the patking lot tract alone), which Landlord with the parlOng lot tract; but not the parlring lot tract alone), which Landlord is willing to accept ("Third Party Offer") then Landlord shall give Tenant is willing to accept ("Third Party Offer") then Landlord shall give Tenant written notice ("Landlord's Notice") of receipt of such Third Party Offer written notice ("Landlord'. Notice") of receipt of soch Third Party Offer accompanied by a 1rue copy of same. Tenant shall thereupon have the right accompanied by a true copy of same. Tenant shall thereupon have the right either: either: L to elect to purchase the Building (together with the patking lot tract if L to elect to purchase the Building (together with the parking lot tract if

included in the Third Party Offer in addition to the Building) for the included in the Third Party Offer in addition to the Building) for the purchase price~ with the deposit and upon all of the exact other terms and purchase price, with the deposit and upon all of the exact other tenus and conditions contained in the Third Party Offer. Such right must be conditions contained in the Third Party Offer. Such right must be exercised by Tenant within ten (10) days after receipt from Landlord of exercised by Tenant within ten (10) days after receipt from Landlord of Landlord's Notice and eopy of the Third Party Offer, by delivery to Landlord's Notice and copy of the Third Party Offer, by delivery to Landlord of written notice (the "First Right Acceptance Notice") electing Landlord of written notice (the "First Right Aceeptance Notice") electing to purchase the Building on the same such terms and conditions, together to purchase the Building on the same soch terms and conditions, together with a deposit in the amount set out in the Third Party Offer. IfTenan! so with a deposit in the amount set out in the Third Party Offer. If Tenant so elects to purchase the premises, such election shall constitute a binding elects to purchase the premises, such election shall constitute a binding agreement of purchase and sale between Landlord as vendor and Tenant as agreement of purchase and sale between Landlord as vendor and Tenant as purchaser antomatically sobstinrting Tenant in place of the Third Party purchaser automatically substituting Tenant in place of the Third Party Offeror and the transaction of purchase and sale shaD be completed in Offeror and the transaction of purchase and sale shall be completed in accordance with the said terms and conditions~ or accordance with the said terms and conditions; or

2. to elect not to purchase the Building by not responding within ten (10) 2. to elect not to purchase the Building by not responding within ten (10) days of receipt of Landlord's Notice, in which event Tenant's rights to days of receipt of Landlord's Notice, in which event Tenant's rights to purchase expire and Landlord may proceed without Tenant under tbe purchase expire and Landlord may proceed without Tenant under the Third Party Offer. Third Party Offer.

B. B. Provided however, that this right of first refusal to purchase shall not apply to Provided however, that this right offirst refusal to purchase shall not apply to any sale of the Building and parlOng lot tract by Landlord to any person, any sale of the Building and parking lot tract by Landlord to any person, corporation or legal entity which is affiliated with, controlled by, or otherwise corporation or legal entity which is affiliated with, controlled by, or otherwise not at arm's length with, Landlord, Khyati Undavia, her husband, children, oot at arm'. length with, Landlord, Khyati Undavia, her hnshand, children,

AR 000069

father. mother, former spouse or any other family member, provided that any futhe<, mothe.-, former spouse or any other family member, provided that any such purchaser sbaD be bound by the provisions of this right of first refusal in such purchaser shall be bound by the provisions of this right of lim refusal in respect of any subsequent Third Party Offer received by it; and provided respect of any subsequent Third Party Offer received by it; and provided fiuther, that this right of lim refusal shall not apply to any deed in lieu of further. that this right of first refusal sbaJJ not apply to any deed in lieu of foreclosw-e or any foreclosure proceedings or trustees' deeds or other action foreclosure or any foreclosure proceedinwt or trustees' deeds or other action by any creditor of Landlord; and provided further that, this right of first by any creditor of Landlord; and provided fiuther that, this right of first refusal shall not apply in the event that the owner of the Building or parking refusal shall not apply in the event that the owner of the Building or parking lot tract is acting pursuant to a comt order or judgment. This right of first lot tract is acting pursuant: to a court order or judgment_ This right of first refusal to purchase sball not apply to the parking lot tract alone. refusal to porcbase shall not apply to the parking lot tract alone. If Tenant fails to exercise the aforesaid first right of refusal within the time

C. C. If Tenant fails to exercise the afuresaid first right of refusal within the time and in the manner as set out above then Landlord shall he entitled to accept and in the manner as set out above then Landlord shall be entitled to accept: the Third Party OtTer and complete the sale of the premises pursuant thereto, the Third Party 0Irer and complete the sale of the premises porsuant tbereto, provided that ifsuch sale is not completed, Tenant's first right of refusal shall provided that if such sale is not completed, Tenant's first right of refusal sball continue to apply in respect of any subsequent Third Party Offer to continue to apply in respect of any subsequent Third Party Offer in accordance with the preceding provisions of this right of first refusal accordance with the preceding provisions of this right of first refusal. The right offirst refusal is a right of Tenant only during the time of the lease The right offirst refusal is a right of Tenant only during the time oftbe lease

D. D. while not in default,. bankruptcy or receivership and is not severable from the while oot in default, bankruptcy or receivership and is not severable :from the lease and it is not assignable. lease and it is not assignable.

NISAL

CORPORATION PROVIDIAN HOLDING, INC. PROVIDIAN HOLDING, INC. By:

AR 000070

4~ ~. . ~~

. TEXAS ASSOCIATION Of REALTORS£ TEXAS ASSOCIATION OF REALTORS' COMMERCIAL LEASE COMMERCIAL LEASE USE OF THIS FORM BY PERSONS WHO ARE NOT M~M8ERS OF THE TEMS ASSOCIATION OF REA~TORS® IS NOT AUTHORIZED USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF R.EALTORS® IS NOT AUTHORIZED. ©Texa.s Association of REAL TORS®,lnc.2006 ©T""a. Ao3""iallon of REAl.. mRS®, Ine. ^[2006] Table of Contents Table of Contents Paragraph Description No. No. Paragraph Description Pg. e!l No. Paragraph Description No. Paragraph Description e!l Pg. 1. 1. 22. Holdover 10 Parties Parties 2 2 22. Holdover 10 2. 2. 23. Landlord's Lien & Security Interest 23. Landlord's Lien & Security Interest 10 Leased Premises Leased Premises 2 2 10 3. 3. 24. Assignment and Subletting 24. Assignment and Subletting 10 Term Term 2 2 10

A. Term 25. Relocation 25. Relocation 11 11 A. Term 's. Delay of Occupancy 26. Subordination 26. Subordination 11 11 B. Delay of Occupancy Rent and Expenses

4. 27, Estoppel Certificates 4. Rent and Expenses 3 3 27. Estoppel Certificates 11 11 A. Base Monthly Rent A. Base Monthly Rent 28. Casualty Loss 28. Casualty Loss 11 11 8. First Full Month's Rent B. First Full Month's Rent 29. Condemnation 29. Condemnation 12 12 C. Prorated Rent 30. Attorney's Fees C. Prorated Rent 30. Attorney's Fees 12 12 31. Representations D. Additional Rent D. Additional Rent 31. Representations 12 12 E. Place of Payment E. Place of Payment 32. Brokers 32. Brokers 12 12 F. Method of Payment F .. Method of Payment 33. Addenda 33. Addenda 13 13 34. Notices G. Late Charges G. Late Charges 34. Notices 13 13 35. Special Provisions H. Returned Checks H. Returned Checks 35. Special Provisions 13 13

5. 5. Security Deposit Security Deposit 4 36. Agreement of the Patties 36. Agreement of the Patties 14 14 4 6. 6. Taxes Taxes 4 4 7. 7. UtiJities Utilities 4 4 8. 8. Insurance Insurance 5 5 ADDENDA & EXHIBITS {check all that aeel:tl ADDENDA & EXHIBITS {check all that a~~I~} 9. 9. Use and Hours Use and Hours 5 5 10. 10. Legal Compliance Legal Compliance 6 6 0 Exhibit 0 Exhibit 11. 11. Signs Signs 6 6 0 Exhibit. 0 Exhibit 12. 12. Access By Landlord Access By Landlord 7 7 0 Commercial Lease Addendum for Broker's Fee 0 Commercial Lease Addendum for Broker's Fee 13. 13. Move'-In Condition Move-In Condition 7 7 0 CommerCial Lease Expense Reimbursement 0 Commercial Lease Exp'ense Reimbursement 14. 14. Move-Out Condition Move-Out Condition 7 7 Addendum Addendum 15. 15. Maintenance and Repairs Maintenance and Repairs 7 7 0 Commercial Lease Addendum for Extension 0 Commercial Lease Addendum for Extension

A. Cleaning A. Cleaning Option Option . B. Conditions Caused by a Party B. Conditions Caused by a Party 0 Commercial Lease Addendum for Percentage 0 Commercial Lease Addendum for Percentage C. Repair & Maintenance Responsibility C. Repair & Maintenance Responsibility

Rent Rent D. Repair Persons D. Repair Persons 0 Commercial Lease Parking Addendum 0 Commercial Lease Parking Addendum E. HVAC Service Contract E. HVAC Service Contract 0 Commercial Landlord's Rules and Regulations 0 Commercia! Landlord's Rules and Regulations F. Common Areas F. Common Areas 0 Commercial Lease Guaranty 0 Commercial Lease Guaranty G. Notice of Repairs G. Notice of Repairs 0 Commercial Lease RigHt of First Refusal 0 Commercial Lease Right of First Refusal H. Failure to Repair H. Failure to Repair Addendum Addendum

16. 16. Alterations 9 Alterations 9 0 Commercial Lease Addendum for Optional 0 Commercial Lease Addendum for Optional 17. 17. Liens Liens '9 9 Space Space liability 18. 18. Liability 9 9 0 Commercial Leasehold Construction Addendum 0 Commercial Leasehold Construction Addendum 19. 19. Indemnity Indemnity 9 9 0 0 20. 20. Default Default 9 9 0 0 21. 21. Abandonment, Interruption of Utilities, Abandonment, Interruption of Utilities,

Removal of Property & Lockout Removal of Property & Lockout 10 10 (TAR-2101) 5-26-06 (TAR-21 01) 5-26-06 Initialed for Identification by Tenant __ , __ , and Landlord: __ , __ Initialed for Identification by Tenant __ . __ , and Landlord: __ . __ Page 1 of 14 Page 1 of 14 AR 000071 EXHIBIT B ~~ ~~

TEXAS ASSOCIATION OF REALTORS"

TEXAS ASSOCIATION OF REALTORS«· COMMERCIAL LEASE COMMERCIAL LEASE USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT .AUTHORIZED. USE OF THIS FORM BY PERSONS WHO AilE NOT MEMa~RS OF THE TEXAS ASSOCIATION OF REALTORS®IS NOT AIJTHORIZED. ©Texas Association of REAL TORS®, Inc. 2006 ©T@.u ~&<>CI~llon of REAl.TOR$II!I,lno. ^[2006] 1. PARTIES: The parties to this lease are: 1. PARTIES: The parties to this lease are: Sterling Practice Management LLC Sterling Practice Management LLC Tenant Tenant:

__________________________________________ ~ ____________ ;and ------------------------------------------ ; and

Landlord: Providian Holdings f Inc. Landlord: Providian Holdings, Inc. 2. LEASED PREMISES: 2. LEASED PREMISES: A. Landlord leases to Tenant the following described real property, known as the "·leased premises," along A. Landlord leases to Tenant the following described real property, known as the "leased premises," along with all its improvements (Check only one box): with all its improvements (Check only one box): aa (1) Multiple-Tenant Property: Suite or Unit Number ~ (1 ) Multiple-Tenant Property: Suite or Unit Number containing approximately __ -:-__ --:- containing approximately ;-:-:::-;-:-,.,.---,c:c:-:

square feet of rentable area in Memorial Compounding Pharrnacy13uilding (project name) (project name) square feet of rentable area in Memorial Compounding Pharmacy Bun di nq at 2918 San Jacinto street at 2918 San Jacinto Street (address) in Houston (address) in Houston 77024 (city), Hard s (city), Harris (county), (county), 77024 Texas, which is legally described on attached Exhibit A Texas, which is legally described on attached Exhibit A or as follows: or as follows: The premises are being leased "AS IS". Tenant has inspected the premises The premises are being leased "AS IS". Tenant has inspected the premises and accepts the premises "AS IS". and accepts the premises "AS IS".

o (2) Single-Tenant Property: The real property at: __________ -'-__________ _ o (2) Single-Tenant Property; The real property at ______________ -===~ _________ ~ _____________________________________ (addres~ in (address) in _______________ (city), __________ .-., (county), Texas, which (city), (county), Texas, which is legally described on attached Exhibit __________________ or Gis follows: _____ _ is legaJly described on attached Exhibit ____________ or as follows: ____ _ B. If Paragraph 2A(1) applies: B. If Paragraph 2A(1) applies: (1) "Property" means the building or complex in which the leased premises are located, inclusive of any (1) "Property" means the building or complex in which the leased premises are located, inclusive of any common areas, drives, parking areas, and walks; and common areas, drives, parking areas, and walks; and (2) the parties agree that the rentable area of the leased premises may not equal the actual or useable (2) the parties agree that the rentable area of the leased premises may not equal the actual or useable area within the leased premises and may include an allocation of common areas in the Property. area within the leased premises and may include an allocation of common areas in the Property.

3. TERM:

3. TERM: A. Term: The term of this lease is ___ 7 ___ months and __ 0 __ days, commencing on: A. Term: The term of this lease is ___ 7 __ months and _.::0 __ days, commencing on: _J_U_n_e_l_,'-2_0'-O'-9 __ ___ ____ (Commencement Date) and ending on _J_u_n_e-.-.;.1_,_2_0_0_9 _________ (Commencement Date) and ending on _J_a_n_u_a_r_y_3 __ 1_,_2_0_1_0 _______ (Expiration Date). _J_a_n_u_a_r-'y'-3_1-',_2_0_1_0 _______ (Expiration Date).

(TAR·2101) 5-26-06 Initialed for Identification by Tenant __ , __ , and Landlord: __ , __ Initialed for Identification by Tenant __ , __ , and Landlord: __ , __ Page 2 of 14 Page 2 of 14 (TAR-2101) 5-26-06

AR 000072

Commercial Lease conceming:. _____________________ ----,.... ________ _ Commercial lease conceming:.~ ______________________________ _ B. Deiay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date 8. Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Landlord w'ill not be liable to Tenant complete or a prior tenant's holding over of the leased premises, Landlord will not be liable to Tenant for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement Date will automatically be extended to the date Tenant is able to occupy the Property and the Date will automatically be extended to the date Tenant is able to occupy the Property and the Expiration Date will also be extended by a like number of days, so that the length of this lease remains Expiration Date will also be extended by a like number of days, so that the length of this lease remains unchanged. If Tenant is unable to occupy the leased premises after the 90 th day after the unchanged. If Tenant is unable to occupy the leased premises after the 90 th day after the Commencement Date because of construction on the leased premises to be completed by Landlord Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may terminate this lease by giving written notice to Landlord before the leased premises become available terminate this lease by giving written notice to Landlord before the leased premises become available to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. This Paragraph 3B does not appiy to any deiay in occupancy caused by c!eaning or repairs, This Paragraph 38 does not apply to any delay in occupancy caused by cleaning or repairs.

C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for the leased premises if required by a governmental body. the leased premises if required by a governmental body. 4. RENT AND EXPENSES: 4. RENT AND EXPENSES: A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay Landlord base monthly rent as described on attached Exhibit Landlord base monthly rent as described on attached Exhibit > - - or as follows: or as follows: to June 30, 2009 to January 31 ! 2010 to to to from from June 1, 2009 June l[ 2009 to June 30[ 2009 $0.00 $0.00 from from July 1, 2009 to January 31[ 2010 $ 2 ,000 .OO/month $2 [OOO.OO/month July: l[ 2009 from from to $ $ from from to $ $ from from to $ $

B. First Full Month's Rent: The first full base monthly rent is due on or before July I, 2009 B. First Full Month's Rent: The first full base monthly rent is due on or before July 1, 2009 C. Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will C. Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will

pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following fraction: the number of days from the Commencement Date to the first day of the following month fraction: the number of days from the Commencement Date to the first day of the following month divided by the number of days in the month in which this lease commences. The prorated rent is due divided by the number of days in the month in which this lease commences. The prorated rent is due on or before the Commencement Date. on or before the Commencement Date.

D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all other amounts, as provided by the attached (Check all that apply.): other amounts, as provided by the attached (Check aI/ that apply.): o (1) Commercial Expense Reimbursement Addendum o (1) Commercial Expense Reimbursement Addendum o (2) Commercial Percentage Rent Addendum o (2) Commercial Percentage Rent Addendum o (3) Commercial Parking Addendum o (3) Commercial Parking Addendum o (4}~~--~--~~--~~--~~--~----~~--~~--------~ o (4)~~~~~~~~~~~~~~~~~~~~~~~~~~~ All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this All amounts payable under the applicable addenda are deemed to be "rent"for the purposes of this lease. lease.

E. Place of Payment: Tenant will remit aU amounts due Landlord under this lease to the following person E. Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person at the place stated or to such other person or place as Landlord may later designate in writing: at the place stated or to such other person or place as Landlord may later deSignate in writing: Name: Providian Holdings, Inc. Name: Providian Holdings, . Inc. Address: 2918 San Jacinto Street, Suite 100 Address: 2918 San Jacinto Street, Suite 100

Houston, Texas 77004 Houston [ Texas 77004 F. Method of Payment Tenant must pay all rent timely without demand, deduction, or offset, except as F. Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as permitted by law or this lease. If Tenant fails to timely pay any amounts due under this lease or if any permitted by law or this lease. If Tenant fails to timely pay any amounts due under this lease or if any check of Tenant is returned to Landlord by the institution on which it was drawn, Landlord after check of Tenant is returned to Landlord by the institution on which it was drawn, Landlord after

(TAR·2101) 5·26·06 (TAR-2101 ) 5-26-06 Initialed for Identification by Tenant __ , __ , and Landlord: __ , __ Initialed for Identification by Tenant-, __ , and landlord: __ . __ Page 3 of 14 Page 3 of 14

AR 000073

Commercial lease conceming: ____________________________ _ Commercial Lease conceming: _______________________________ _ providing written notice to Tenant may require Tenant to pay subsequent arrtounts that become due providing written notice to Tenant may require Tenant to pay subsequent amounts that become due under this lease in certified funds. This paragraph does not limit landlord from seeking other remedies under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies under this lease for Tenant's failure to make timely payments with good funds. under this lease for Tenant's failure to make timely payments with good funds.

G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment G. late Charges: If landlord does not actually receive a rent payment at the designated place of payment within 5 days after the date it is due, Tenant will pay Landlord a late charge equal to 5% of the amount within 5 days after the date it is due, Tenant will pay landlord a late charge equal to 5% of the amount due. In this paragraph, the mailbox is not the agent for receipt for Landlord. The late charge is a cost due. In this paragraph, the mailbox is not the agent for receipt for landlord. The late charge is a cost associated with the collection of rent and Landlord's acceptance of a late charge does not waive associated with the collection of rent and landlord's acceptance of a late charge does not waive landlord's right to exercise remedies under Paragraph 20. Landlord's right to exercise remedies under Paragraph 20.

H. Returned Checks: Tenant will pay $ 25.00 (not to exceed $25) for each check Tenant tenders to H. Returned Checks: Tenant will pay $ 25.00 (not to exceed $25) for each check Tenant tenders to Landlord which is returned by the institution on which it is drawn for any reason, plus any late charges landlord which is returned by the institution on which it is drawn for any reason, plus any late charges until Landlord receives payment. until landlord receives payment.

5. SECURITY DEPOSIT:

5. SECURITY DEPOSIT: A. Upon execution of this lease, Tenant wilt pay $'---___________ 10 Landlord as a security A. Upon execution ofthis lease, Tenant will pay $~ __________ to landlord as a security deposit. deposit. B. Landlord may apply the security deposit to any amounts owed by Tenant under this lease. If Landlord B. landlord may apply the security deposit to any amounts owed by Tenant under this lease. If landlord applies any part of the security deposit during any time this lease is in effect to amounts owed by applies any part of the security deposit during any time this lease is in effect to amounts owed by Tenant, Tenant must, within 10 days after receipt of notice from landlord, restore the security deposit Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit to the amount stated. to the amount stated.

c. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of C. Within 60 days after Tenant surrenders the leased premises and provides l~ndlord written notice of Tenant's forwarding address, Landlord will refund the security deposit less any amounts applied toward Tenant's forwarding address, landlord will refund the security deposit less any amounts applied toward amounts owed by Tenant or other charges authorized by this lease. amounts owed by Tenant or other charges authorized by this lease.

6. TAXES: Unless otherwise agreed by the parties, landlord will pay all real property ad valorem taxes 6, TAXES: Unless otherwise agreed by the parties, Landlord will pay all real property ad valorem taxes assessed against the leased premises. assessed against the leased premises.

7. UTILITIES:

7. UTILITIES: A. The party designated below will pay for the following utility charges to the leased premises and any A. The party designated below will pay for the following utility charges to the leased premises and any connection charges for the utilities. (Check all that apply.) connection charges for the utilities. (Check all that apply.) N/A landlord Landlord Tenant Tenant N/A o

o

121

(1) Water 0 III 0 (1) Water o

lit

(2) Sewer (2) Sewer 0 CJ III 0 o (3) Electric CJ 0 QJ III 0 (3) Electric o

'[21

(4) Gas For HVAC only (4) Gas For HVAC only 0 CJ I.!I 0 at (5) Telephone (5) Telephone 0 CJ 0 CJ III o (6) Trash, Cleaning q.nclud.:!-ng ~ommon area (6) Trash, Cleaning (including common area 0 at CJ 0 III if desired) o (7) Cable ~f des~red) CJ III GI (7) Cable 0 0 (8) ___________ _ o o o o 0 0 0 (8)

o III GI (9) All other utilities (9) All other utilities 0 0 B. The party responsible for the charges under Paragraph 7 A will pay the charges directly to the utility B. The party responsible for the charges under Paragraph 7A will pay the charges directly to the utility service provider. The responsible party may select the utility service provider, except that if Tenant service provider. The responsible party may select the utility service provider, except that if Tenant selects the provider, any access or alterations to the Property or leased premises necessary for the selects the provider, any access or alterations to the Property or leased premises necessary for the utifities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold. utilities may be made only with landlord's prior consent, which landlord will not unreasonably withhold. If landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse and landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse Landlord such amount. landlord such amount. Initialed for Identification by Tenant __ , __ , and Landlord: __ , __

(TAR-21 01) 5-26-06 (TAR-2101) 5-26-06 Initialed for Identification by Tenant __ • __ , and Landlord: __ . __ Page 4 of 14 Page 4 of14

AR 000074

Commercial Lease conceming: _______________________________ _ Commercial Lease conceming: _______________________________ _ C. Notice: Tenant should determine if all necessary utilities are available to the leased premises C Notice: Tenant should determine if all necessary utilities are available to the leased premises and are adequate for Tenant's intended use. and are adequate for Tenant's intended use. O. After-Hours HVAC Charges: "HVAC services" mean heating, ventilating, and air conditioning of the D. After-Hours HVAC Charges: "HVAC services" mean heating, ventilating, and air conditioning of the leased premises. (Check one box only.) leased premises. (Check one box only.) 1» (1) Landlord is obligated to provide the HVAC services to the leased premises only during the 1:81 (1) Landlord is obligated to provide the HV AC services to the leased premises only during the Property's operating hours specified under Paragraph 9C. Property's operating hours specified under Paragraph 9C. I» (2) Landlord will provide the HVAC services to the leased premises durIng the operating hours I» (2) Landlord will provide the HVAC services to the leased premises during the operating hours specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC services to the leased premises during other hours for an additional charge of $ 20.00 services to the leased premises during other hours for an additional charge of $ 20.00 per per hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services under this paragraph. to provide the additional HVAC services under this paragraph.

o (3) Tenant wilt pay for the HVAC services under this lease. o (3) Tenant will pay for the HVAC services under this lease. 8. INSURANCE: 8. INSURANCE: A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and effect from an insurer authorized to operate in Texas: effect from an insurer authorized to operate in Texas: $2 ,000,000.00 $2,000 1000.00 (1) public liabifity insurance in an amount not less than $1,000,000.00.6n an oCcurrence basis naming (1) public liability insurance in an amount not less than $1,OOO,000.00.6n an oCcurrence basis naming Landlord as an additional insured; and

Landlord as an additional insured; and (2) personal property damage insurance for Tenant's business operations and contents on the leased (2) personal property damage insurance for Tenant's business operations and contents on the leased premises in an amount sufficient to replace such contents after a casualty loss. premises in an amount sufficient to replace such contents after a casualty loss. B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates evidencing the required coverage. If the insurance coverage is renewed or changes in any manner or evidencing the required coverage. If the insurance coverage is renewed or cMnges in any manner or degree at any time this lease is in effect, Tenant must, not later than 10 days after the renewal or degree at any time this lease is in effect, Tenant must, not later than 10 daYs after the renewal or change, provide Landlord a copy of an insurance certificate evidencing the renewal or change. change, provide Landlord a copy of an insurance certificate evidencing the renewal or change.

C. If Tenant fails to maintain the required insurance in full force and effect at all times this lease is in C. If Tenant fails to maintain the required insurance in full force and effect at ail times this lease is in effect, Landlord may: effect, Landlord may: (1) purchase insurance that will provide landlord the same coverage as the required insurance and (1) purchase insurance that will provide Landlord the same coverage as the required insurance and

Tenant must immediately reimburse Landlord for such expense; or Tenant must immediately reimburse Landlord for such expense; or (2) exercise Landlord's remedies under Paragraph 20. (2) exercise Landlord's remedies under Paragraph 20. D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for; (1) fire D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for: (1) fire and extended coverage in an amount to cover the reasonable replacement cost of the improvements of and extended coverage in an amount to cover the reasonable replacement cost of the improvements of the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable and appropriate. and appropriate.

E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its contents that is caused by Tenant, Tenant's use of the teased premises, or any improvements made by contents that is caused by Tenant, Tenant's use of the leased premises, or any improvements made by or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph BE wilt be after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph 8E will be equal to the actual amount of the increase in landlord's insurance premium. equal to the actual amount of the increase in Landlord's insurance premium.

9. USE AND HOURS: 9. USE AND HOURS: A. Tenant may use the leased premises for the following purpose and no other: general office use A. Tenant may use the leased premises for the following purpose and no other: general off ice use (T AR-21 01) 5-26-06 Initialed for Identification by Tenant: __ , __ , and Landlord: __ , __ (TAR·2101) 5-26-06 Initraled for Identification by Tenant: __ . __ , and Landlord: __ . __ Page 5 of 14 Page 5 of 14

AR 000075

Commercial Lease conceming:. ______________________ -<-________ _ Commerda! lease concerning:~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

B, Unless othePNise specified in this lease, Tenant will operate and conduct its business in the leased B. Unless otherwise specified in this lease, Tenant will operate and conduct its, business in the leased premises during business hours that are typical of the industry in which Tenant represents it operates. premises during business hours that are typical of the industry in which Tenant represents it operates. C. The Property maintains operating hours of (specify hours, days of week, and if inclusive or exclusive of C. The Property maintains operating hours of (specify hours, days of week, and if inclusive or exclusive of weekends and holidays): 8;30am - 7 ;OOpm, Monday thru Friday exclusive of weekends and holidays): 8:30am - 7:00pm, Monday thru Friday exclusive of holidays which includes Memorial Day, Independence pay. Labor Day. Thanksgjvi ng holidays which includes MemQrial Day. Independence Day. Labor Day, Tbanksgjyjng Day. Christmas Day and New Year's Day. Also Saturday 8:30am..,..2:00pm except hol;i.days. Pay. Christmas Day and New Year's Day. Also Saturday 8:30am 2;OOpm except holidays.

10. LEGAL COMPLIANCE: 10. LEGAL COMPLIANCE: A. Tenant may not use or permit any part of the leased premises or the Property to :be used for: A. Tenant may not use or permit any part of the leased premises or the Property to 'be used for: (1) any activity which is a nuisance or is offenSive, noisy, or dangerous; (1) any activity which is a nuisance or is offensive, noisy, or dangerous; (2) any activity that interferes with any other tenant's normal business operations or Landlord's (2) any activity that interferes with any other tenant's normal business operations or landlord's

management of the Property; management of the Property; (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, governmental order, owners' association rules, tenants' association rules, Landlord's rules or governmental order, owners' association rules, tenants' association rul~s, landlord's rules or regulations, or this lease; regulations, or this lease;

(4) any hazardous activity that would require any insurance premium on the Property or leased (4) any hazardous activity that would require any insurance premium on the Property or leased premises to increase or that would void any such insurance; premises to increase or that would void any such insurance; (5) any activity that violates any applicable federal, state, or local law, including but not limited to those (5) any activity that violates any applicable federal, state, or local law, including but not limited to those laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air emissions, or other environmental matters; emissions, or other environmental matters;

(6) the permanent or temporary storage of any hazardous material; or (6) the permanent or temporary storage of any hazardous material; or (7) ____________________________________________________ ~ (7) __________________________________________ ~ __________ ___

B. "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, B. "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent, or oil as defined by any federal, state, or loca! environmental law, hazardous substance, solvent, or oil as defined by any federal, state, or loCal environmental law, regulation, ordinance, or rule existing as of the date of this lease or later enacted. regulation, ordinance, or rule existing as of the date of this lease or later enacted.

C. Landlord does not represent or warrant that the leased premises or Property conform to applicable C. landlord does not represent or warrant that the leased premises or Property conform to applicable restrictions, zoning ordinances, setback tines, parking requirements, impervious ground cover ratio restrictions, zoning ordinances. setback lines, parking requirements, impervious ground cover ratio requirements, and other matters that may relate to Tenant's intended use. Tenant must satisfy itself requirements, and other matters that may relate to Tenant's intended use. Tenant must satisfy itself that the leased premises may be used as Tenant intends by independently investigating all matters that the leased premises may be used as Tenant intends by independently ~nvestigating all matters related to the use of the leased premises or Property. Tenant agrees that it is not relying on any related to the use of the leased premises or Property. Tenant agrees that it is not relying on any warranty or representation made by Landlord, Landlord's agent. or any broker concerning the use of warranty or representation made by landlord, landlord's agent. or any broker concerning the use of the leased premises or Property. the leased premises or Property.

11. SIGNS: 11. SIGNS: A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without Landlord's written consent. Landlord may remove any unauthorized sign, and Tenant will promptly landlord's written consent. landlord may remove any unauthorized sign, aOd Tenant will promptly reimburse Landlord for its cost to remove any unauthorized sign. reimburse landlord for its cost to remove any unauthorized sign.

8. Any authorized sign must comply with all laws, restrictions, zoning ordinances, and any governmental B. Any authorized sign must comply with aI/laws, restrictions, zoning ordinancesj and any governmental order relating to signs on the leased premises or Property. order relating to signs on the leased premises or Property. Landlord may temporarily remove any landlord may temporarily remove any authorized sign to complete repairs or alterations to the leased premises or the Property. authorized sign to complete repairs or alterations to the leased premises or the Property.

C. By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move C. By providing written notice to Tenant before this lease ends, landlord may require Tenant, upon move out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs that Landlord does not require Tenant to remove and that are fixtures, becotne the property of the that landlord does not require Tenant to remove and that are fixtures, become the property of the Landlord and must be surrendered to Landlord at the time this lease ends. landlord and must be surrendered to landlord at the time this lease ends.

(TAR·2101) 5-26·06 (TAR-2101) 5-26-06 Initialed for Identification by Tenant __ , __ , and landlord: __ , __ Initialed for Identification by T enant:~~. ~_, and landlord' ~~. ~_ Page 6 of 14 Page Gof 14

AR 000076

Commercial Lease conceming: ______________________ ~ ________ _ Commercial lease conceming: _______________________________ _ 12. ACCESS BY LANDLORD: 12. ACCESS BY LANDLORD:

A During Tenant's normal business hours Landlord may enter the leased prel'nises for any reasonable A. During Tenant's normal business hours Landlord may enter the leased premises for any reasonable purpose, including but not limited to purposes for repairs, maintenance, alterations, and showing the purpose, including but not limited to purposes for repairs, maintenance, alterations, and showing the leased premises to prospective tenants or purchasers. Landlord may access the leased premises after leased premises to prospective tenants or purchasers. Landlord may access the leased premises after Tenant's normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary Tenant's normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary to complete emergency repairs. Landlord will not unreasonably interfere with Tenant's business to complete emergency repairs. Landlord will not unreasonably interfere with Tenant's business operations when accessing the leased premises. operations when accessing the leased premises.

8. During the last 90 days of this lease, Landlord may place a "For Lease" or similarly worded sign in B. During the last 90 days of this lease, Landlord may place a "For Lease" or similarly worded sign in the leased premises. the leased premises. 13. MOVE-IN CONDITION: Tenant has inspected the leased premises and accepts it in its present (as-is) 13. MOVE.IN CONDITION: Tenant has inspected the leased premises and accepts it in its present (as-is) condition unless expressly noted otherwise in this lease. Landlord and any agent have made no express condition unless expressly noted otherwise in this lease. Landlord and any agent have made no express or implied warranties as to the condition or permitted use of the leased premises or Property. or implied warranties as to the condition or permitted use of the leased premises or Property.

14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT"S PERSONAL PROPERTY: 14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT'S PERSONAL PROPE:RTY: A. At the time this lease ends, Tenant will surrender the leased premises in the same condition as when A. At the time this lease ends, Tenant will surrender the leased premises in the same condition as when received, except for normal wear and tear. Tenant will leave the leased premises in a clean condition received, except for normal wear and tear. Tenant will leave the leased premises in a clean condition free of all trash, debris, personal property, hazardous materials, and environmental contaminants. free of all trash, debris, personal property, hazardous materials, and environmental contaminants.

8. If Tenant leaves any personal property in the leased premises after Tenant surrenders possession of B. If Tenant leaves any personal property in the leased premises after Tenant surrenders possession of the leased premises, Landlord may: (1) require Tenant, at Tenant's expense, to remove the personal the leased premises, Landlord may: (1) require Tenant, at Tenant's expense, to remove the personal property by providing written notice to Tenant; or (2) retain such personal property as forfeited property property by providing written notice to Tenant; or (2) retain such personal property as forfeited property to Landlord. to Landlord.

C. "Surrender" means vacating the leased premises and returning all keys and access devices to C. "Surrender" means vacating the leased premises and returning all keys and access devices to Landlord. "Nonnal wear and tear" means deterioration that occurs without negligence, carelessness, Landlord. "Normal wear and tear" means deterioration that occurs without negligence, carelessness, accident, or abuse. accident, or abuse.

D. By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move D. By providing written notice to Tenant before this lease ends, Landlord may re~uire Tenant, upon move out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all fixtures that were placed on the Property or leased premises by or at the request of Tenant. Any fixtures that were placed on the Property or leased premises by or at the request of Tenant. Any fixtures that Landlord does not require Tenant to remove become the property of the Landlord and must fixtures that Landlord does not require Tenant to remove become the property of the Landlord and must be surrendered to Landlord at the time this lease ends. be surrendered to Landlord at the time this lease ends.

15. MAINTENANCE AND REPAIRS: 15. MAINTENANCE AND REPAIRS: A. Cleaning: Tenant must keep the leased premises clean and sanitary and promptly dispose of all A. Cleaning: Tenant must keep the leased premises clean and sanitary and promptly dispose of all garbage in appropriate receptacles. CI Landlord CI Tenant will provide, at its expense, janitorial garbage in appropriate receptacles. 0 Landlord 0 Tenant will provide, at its expense, janitorial services to the leased premises that are customary and ordinary for the property type. Tenant will services to the leased premises that are customary and ordinary for the property type. Tenant will maintain any grease trap on the Property which Tenant uses, including but not limited to periodic maintain any grease trap on the Property which Tenant uses, including bot not limited to periodic emptying and cleaning, as well as making any modification to the grease trap that may be necessary to emptying and cleaning, as well as making any modification to the grease trap that may be necessary to comoly; with any aoolicable law. Tenant $hall be respoI].sible for all cle<il-ning and janitorial com DIy, with any al2Dlicable law. Tenant $hall be respol)sible for a1l cle9-ning and j ani torial worR lQ dt~e prernlses. Landlord lS not responslble for any cleanlng of any part of whorRb~l)ltdt~e prem~ses. Landlord lS not responslble for any cleanlng of any part at the ~ull lng .or proper~y. t e U~ ~ng or property.

B. Repairs of Conditions CauseCfby a Party: Each party must promptly repair a condition in need of repair B. Repairs of Conditions Causecrby a Party: Each party must promptly repair a condition in need of repair that is caused, either intentionally or negligently, by that party or that party's guests, patrons, invitees, that is caused, either intentionally or negligently, by that party or that party's guests, patrons, invitees, contractors or permitted subtenants. contractors or permitted SUbtenants.

C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party designated below, at its expense, is responsible to maintain and repair the following specified items in deSignated below, at its expense, is responsible to maintain and repair the following specified items in the leased premises (if any). The specified items must be maintained in clean and good operable the leased premises (if any). The specified items must be maintained in clean and good operable condition. If a governmental regulation or order requires a modification to any of the specified items, the condition. If a governmental regulation or order requires a modification to any of the specified items, the party designated to maintain the item must complete and pay the expense of the modification. The party designated to maintain the item must complete and pay the expense of the modification. The

(TAR-2101) 5-26-06 (TAR-2101) 5-26-06 Initialed for Identification by Tenant __ , __ , and Landlord: __ , __ Initialed for Identification by Tenant __ , __ , and landlord: __ . __ Page 7 of 14 Page 7 of 14

AR 000077

Commercial Lease concerning: _______________________________ _ Commercial Lease concerning: ____________________________ ~-- specified items include and relate only to real property in the leased premises. r enant is responsible for specified items include and relate only to real property in the leased premises. Tenant is responsible for the repair and maintenance of its personal property. (Check all that apply.) the repair and maintenance of its personal property. (Check afl that apply.) Tenant Tenant

Landlord Landlord o

o

III (5) (1) Foundation, exterior walts, roof, and other structural components (1) Foundation, exterior walls, roof, and other structural components o o o Kl KI (2) Glass and windows (2) Glass and windows o o o o o (3) Fire protection equipment and fire sprinkler systems (3) Fire protection equipment and fire sprinkler systems o o (4) Exterior & overhead doors, including closure devices, molding, (4) Exterior & overhead doors, including closure devices, molding, locks, and hardware locks, and hardware o o o

o

(5) Grounds maintenance, (5) Grounds maintenance, including including landscaping and landscaping and irrigation irrigation systems systems o o o (6) (6) Interior doors, including closure devices, frames, molding, locks, Interior doors, including closure devices, frames, molding, locks, and hardware and hardware o o o o o (7) Parking areas and walks (7) Parking areas and walks o o o (8) Plumbing systems, drainage systems, electrical systems, and (8) Plumbing systems, drainage systems, electrical systems, and mechanical systems, except systems or mechanical systems, except systems or items specifically items specifically designated othelWise designated otherwise

o o tJ (9) Ballast and lamp replacement (9) Ballast and lamp replacement Xl XJ o o o Cl (10) Heating, Ventilation and Air Conditioning (HVAC) systems (10) Heating, Ventilation and Air Conditioning (HVAC) systems III (11) Signs and lighting: (11) Signs and lighting:

o o o o (a) Pylon (a) Pylon o o o o o (b) Facia (b) Facia o o o o

(c) Monument (c) Monument o o o (d) Door/Suite (d) Door/Suite o o o o o (12) Extermination and pest control, excluding wood-destroying insects (12) Extermination and pest control, excluding wood~destroyin9 insects o

o o

o o o o (13) Fences and Gates (13) Fences and Gates o o o (14) Storage yards and storage buildings (14) Storage yards and storage buildings o o (15) Wood-destroying insect treatment and repairs (15) Wood-destroying insect treatment and repairs o o o (16) Cranes and related systems (16) Cranes and related systems o o o o o (17) (17) o

o

o o (18) (18) o o o (19) All other items and systems (19) All other items and systems D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons. D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons.

E.

E.

o is 0 is not [J is [J is not required to maintain, at its expense, a regularly scheduled required to maintain, at its expense, a regularly scheduled ce and selVice contract for the HVAC system. The maintenance and servic ust be purchased from a HVAC contract for the HVAC system. The maintenance and servi ust be purchased from a HVAC maintenance company that regularly provo maintenance company that regularly provo contracts to similar properties. If Tenant fails to contracts to similar properties. If Tenant fails to maintain a required HVA . nce and service contract in effect at ali times during this lease, maintain a required HVA nee and service contract in effect at aU times during this lease, Landlord and charge Tenant the expense of such a maintenance and service contract or Landlord and charge Tenant the expense of such a maintenance and service contract or

F. Common Areas: Landlord will maintain any common areas in the Property in a manner as Landlord F. Common Areas: Landlord will maintain any common areas in the Property in a manner as Landlord determines to be in the best interest of the Property. Landlord will maintain any elevator and signs in determines to be in the best interest of the Property. Landlord will maintain any elevator and signs in the common area. Landlord may change the size, dimension, and location of any common areas, the common area. Landlord may change the size, dimension, and location of any common areas, provided that such change does not materially impair Tenant's use and access to the leased premises. provided that such change does not materially impair Tenant's use and access to the leased premises. Tenant has the non-exclusive license to use the common areas in compliance with Landlord's rules and Tenant has the non-exclusive license to use the common areas in compliance with Landlord's rules and restrictions. Tenant may not solicit any business in the common areas or interfere with any other restrictions. Tenant may not solicit any business in the common areas or interfere with any other person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2) applies. person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2) applies.

(TAR-2101) 5-26{J6 (TAR-2101) 5-26-06 Initialed for Identification by Tenant:~_. ~_, and Landlord: ~_.~_ Initialed for Identification by Tenant __ , __ , and Landlord: __ , _ '_ Page 8 of 14 Page 8 of 14

AR 000078

Commercial lease conceming: _______________________________ _ Commercial lease conceming: _________________________________ _ G. Notice of Repairs: Tenant must promptly notify Landlord of any item that is in need of repair and that is G. Notice of Repairs: Tenant must promptly notify landlord of any item that is in need of repair and that is Landlord's responsibility to repair. All requests for repairs to Landlord must be in writing. landlord's responsibility to repair. All requests for repairs to Landlord must be' in writing. H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable If Tenant fails to period of time after Tenant provides Landlord written notice of the needed repair. period of time after Tenant provides Landlord written notice of the needed repair. If Tenant fails to repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides Tenant written notice of the needed repair or maintenance, Landlord may: (1) repair or maintain the Tenant written notice of the needed repair or maintenance, landlord may: (1) repair or maintain the item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse Landlord for the cost to repair or maintain; or (2) exercise Landlord's remedies under Paragraph 20. Landlord for the cost to repair or maintain; or (2) exercise Landlord's remedies under Paragraph 20.

16. ALTERATIONS; 16. ALTERATIONS: A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written consent. Landlord will not unreasonably withhold consent for the Tenant t6 make reasonable non~ landlord will not unreasonably withhold consent for the Tenant t6 make reasonable non consent. structural alterations, modifications, or improvements to the leased premises. structural alterations, modifications, or improvements to the leased premises.

B. Tenant may not alter any locks or any security devices on the Property or the leased premises without B. Tenant may not alter any locks or any security devices on the Property or the leased premises without Landlord's consent. If Landlord authorizes the changing. addition, or rekeying of any locks or other Landlord's consent. If Landlord authorizes the changing, addition, or rekeying of any locks or other security devices, Tenant must immediately deliver the new keys and access devices to Landlord. security devices, Tenant must immediately deliver the new keys and access devices to Landlord.

c. If a governmental order requires alteration or modlfication to the leased premises, the party obligated to C. If a governmental order requires alteration or modification to the leased premises, the party obligated to

maintain and repair the item to be modified or altered as designated in Paragraph 15 will, at its maintain and repair the item to be modified or altered as designated in Paragraph 15 will, at its expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A and 17. Tenant must obtain at its expense all permits required for any improvements. and 17. Tenant must obtain at its expense all permits required for any improvements.

D. Any alterations, improvements, fixtures or additions to the Property or leased premises installed by D. Any alterations, improvements. fixtures or additions to the Property or leased premises installed by either party during the term of this lease will become Landlord's property and must be surrendered to either party during the term of this lease will become Landlord's property and must be surrendered to Landlord at the time this lease ends, except for those fixtures Landlord requires Tenant to remove Landlord at the time this lease ends, except for those fixtures Landlord reQ.uires Tenant to remove under Paragraph 11 or 14 or if the parties agree otherwise in writing. under Paragraph 11 or 14 or if the parties agree otherwise in writing.

17. LIENS: Tenant may not do anything that will cause the title of the Property 01" leased premises to be 17. LIENS: Tenant may not do anything thai will cause the title of the Property or leased premises to be encumbered in any way. [fTenant causes a lien to be filed against the Property or leased premises, Tenant encumbered in any way. If Tenant causes a lien to be filed against the Property or leased premises, Tenant will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; or (2) take action to discharge the lien. Tenant will provide Landlord a copy of any release Tenant obtains or (2) take action to discharge the lien. Tenant will provide Landlord a copy of any release Tenant obtains pursuant to this paragraph. pursuant to this paragraph .

. ~t all times Jl.t all times . . . . 18. LlABILlTY;.tJQ ·!tle extent permitted by law, Landlord is NOT responsible to Tenant or Tenant's employees, 18. LlABILlTYi'!o··the·extenl' permitted by law. Landlord IS NOT responsible to Tenant or Tenant's employees. patrons, guests. or invitees for any damages, injuries, or losses to person or property caused by: patrons. guests. or invitees for any damages. injuries. or losses to person or property caused by: A. an act, omission, or neglect of: Tenant: Tenant's agent; Tenant's guest: Tenanrs employees: Tenant's A. an act omission. or neglect of: Tenant; Tenant's agent: Tenant's guest: Tenanfs employees; Tenant's

patrons; Tenant's invitees; or any other tenant on the Property; patrons; Tenant's invitees; or any other tenant on the Property; B. fire, flood, water leaks. ice, snow, hail, winds, explosion, smoke, riot, strike, interruption of utilities, theft, B. fire. flood. water leaks. ice, snow. hail. winds. explosion. smoke. riot. strike, interruption of utilities. theft, burglary, robbery, assault, vandalism, other persons, environmental contaminants, or other occurrences burglary, robbery, assault. vandalism, other persons, environmental contaminanfs, or other occurrences or casualty losses. or casualtv losses.

19. INDEMNITY: Each party will indemnify and hold the other Darty harmless from any property damage, 19. INDEMNITY: Each party will indemnify and hold the other party harmless from any property damage. personal injury, suits, actions, liabilities, damages, cost of repairs or service to the leased premises or personal injury. suits, actions, liabilities, damages. cost of repairs or service to ttie leased premises or Property, or any other loss caused, negligently or otherwise, by that party or that party's employees, Property. or any other loss caused, negligently or otherwise, by that party or that party's employees, patrons, guests, or invitees. patrons, guests. or invitees.

20. DEFAULT: 20. DEFAULT: A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If, failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If, however, Landlord's non-compliance reasonably requires more than 30 days td cure, Landlord will not however, Landlord's non-compliance reasonably requires more than 30 days td cure, Landlord will not be in default if the cure is commenced within the 30-day period and is diligently pursued. be in default if the cure is commenced within the 30-day period and is diligently pursued.

(TAR-2101) 5-26-06 Initialed for Identification by T enant: __ , __ , and Landlord: __ , __ (TAR-2101) 5-26-06 Initialed for Identification by Tenant: __ • - ' and Landlord: __ , __ Page 9 of 14 Page 9 of 14

AR 000079

Commercial Lease concerning:.~ ____________________ -,--_______ _ Commercial Lease concerning: _______________________________ ~ B. If Landlord does not actually receive at the place designated for payment any rent due under this lease B. If Landlord does not actually receive at the place designated for payment any rent due under this lease within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in default. default

C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable during the remainder of this lease or any renewal period without notice dr demand. Landlord will during the remainder of this lease or any renewal period without notice Or demand. Landlord will attempt to mitigate any damage or loss caused by Tenant's breach by using commercially reasonable attempt to mitigate any damage or loss caused by Tenant's breach by using commercially reasonable means. If Tenant is in default, Tenant will be liable for: means. If Tenant is in default, Tenant wit1 be liable for: (1 ) any lost rent; (1) any lost rent; (2) Landlord's cost of reletting the leased premises, including brokerage fe~s, advertising fees, and (2) Landlord's cost of reletting the leased premises, including brokerage fe.es, advertising fees, and

other fees necessary to relet the leased premises; other fees necessary to relet the leased premises; (3) repairs to the leased premises for use beyond normal wear and tear; repairs to the leased premises for use beyond normal wear and tear; (3) (4) aI/ Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and (4) all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and

prejudgment interest; . prejudgment interest; (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and returned check charges; returned check charges; (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property: (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property; (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental

contaminants left by Tenant or Tenant's employees, patrons, guests, dr invitees in the leased contaminants left by Tenant or Tenant's employees, patrons, guests, or invitees in the leased premises or Property; premises or Property;

(9) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or (9) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or Property; Property; (10) any other recovery to which Landlord may be entitled under this lease or under law_ (10) any other recovery to which Landlord may be entitled under this lease or under law.

21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND LOCKOUT:

21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's property; and (d) abandonment of the leased premises; (b) interruption of utilities; (c) removal of T~nant's property; and (d) "lock-out" of Tenant. "lock-out" of Tenant.

22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ehds, Tenant will become 22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ends, Tenant will become a tenant-at-will and must vacate the leased premises immediately upon receipt of demand from Landlord a tenant-at-will and must vacate the leased premises immediately upon receipt of demand from Landlord. No holding over by Tenant, with or without the consent of Landlord, will extend this lease. Tenant will No holding over by Tenant, with or without the consent of Landlord, will extend'this lease. Tenant will indemnify Landlord and any prospective tenants for any and aU damages caused by the holdover. Rent for indemnify Landlord and any prospective tenants for any and all damages caused by the holdover. Rent for any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily basis and will be immediately due and payable daily without notice or demand. basis and will be immediately due and payable daily without notice or demand.

23.l.ANDLORO'S LIEN AND SECURITY INTEREST: To secure Tenant's performance under this lease, 23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's perforrJlance under this lease, Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property that is in the leased premises or Property. This lease is a security agreement for the purposes of the that is in the leased premises or Property. This lease is a security agreement for the purposes of the Uniform Commercial Code. Landlord may file a copy of this lease as a financing sta·tement. Uniform Commercial Code. Landlord may file a copy of this lease as a financing statement.

24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent owner of the 24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any st,lbsequent owner of the Property. Tenant may not assign this lease or sublet any part of the leased prernises without Landlord's Property. Tenant may not assign this lease or sublet any part of the leased prerhises without Landlord's written consent. An assignment of this lease or subletting of the leased premises without Landlord's written written consent. An assignment of this lease or subletting of the leased premises without Landlord's written consent is voidable by Landlord. If Tenant assigns this lease or sublets any part of the leased premises, consent is voidable by Landlord. If Tenant assigns this lease or sublets any part of the leased premises, Tenant will remain liable for all of Tenant's obligations under this lease regardless if the assignment or Tenant wiU remain liable for aI/ of Tenant's obligations under this lease regardless if the assignment or sublease is made with or without the consent of Landlord Tenant may not sublease or assign this sublease is made with or without the consent of Landlord Tenant may not sublease or assign this. lease without the consent of Landlorawh1ch'consent may be subject to terms and lease without the consent of Landlorawh1cn'consent may be subject to terms and condition~ imposed· by L~ndlord regarding any such sublease or assignment and the conditions imposed- by Lqndlord regarding any such sublease or assignment and the payment ot rent ther~under. payment of rent ther~uncter. Initialed for Identification by Tenant __ , __ , and Landlord: __ , __

(TAR-2101) 5-26-06 (TAR-2101) 5-26-06 Initialed for Identificalion by T enant:_~, __ , and Land!ord: __ . _~ Page 10 of 14 Page 10 of 14 AR 000080 ~I~~------------------------------------------------------- ~I~~----------------------------------------------------------- 25. RELOCATION: 25. RELOCA noN:

to relocate to another location in the Property, provided that the other location is equal in to relocate to another location in the Property, provided that the other location is equal in rger rger than the leased premises then occupied by Tenant and contains similar than the leased premises then occupied by Tenant and contains similar mprovements. improvements. Landklrd will pay Tenant's reasonable out-of-pocket moving expen landlord will pay Tenant's reasonable out-of-pocket moving e ving to the other kJcation. ving to the other location.

ssionaJ movers, utility companies for "Moving expenses" means reasonabte expenses paya "Moving expenses'" means reasonable expenses paya ssionaJ movers, utility companes for connection and disconnection fees, wiring co . for connecting and discOnnecting Tenant's office tor connecting and discOnnecting Tenant's office connection and disconnection fees, wiring co - equipment required by the re . , nd printing companies for reprinting Tenant's stationary and equipment required by the re • nd printing companies for reprinting Tenant's stationary and Tenant will not change or affect any other provision of this lease that is business cards. A business cards. A . Tenant will not change or affect any other proVision of this lease that is JOg rent and reimbursement amounts, except that the descOption of the su;te or unit log rent and reimbursement amounts, except that the desdiption of the suite or unit then in then in

\ \ ' m-8&~~mm~~am~~ >Oil B. Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior >til B. Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior consent consent. 26. SUBORDINA lION: 26. SUBORDINA noN: A This lease and Tenant's leasehold interest are and will be subject, subordinate, and inreriorto: A This lease and Tenant's JeasehoJd interest are and will be subject, subordinate, and inferior to: (1) any lien. encumbrance, or ground lease now or hereafter placed on the leased premises or the (1) any lien, encumbrance, or ground lease now or hereafter placed on the leased premises or the Property thai Landlord authorizes: Property that landlord authorizes; (2) al advances made under any such )ten, encumbrance, or ground lease; (2) al advances made under any such lien, encumbrance, or ground lease; (3) the interest payable on any such fien or encumbrance; (3) the interest payable on any such lien Of encumbrance; (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease; (4) any and all renewals and extensions of any such lien, encumbrance, or ground Jease; (5) any restrictive covenant affecting the leased premises or the Properly; and (5) any restrictive covenant affecting the leased premises or the Property; and (6) the rights of any owners' association affecting the leased premises or Property. (6) the rights of any owners' association affecting the leased premises or Property.

8_ Tenant must, on demand, execute a subordination, attornment, and non--diSturbance agreement that 8. Tenant must, on demand, execute a subordination, attornment, and non-di$turbance agreement that Landlord may request that Tenant execute, provided that such agreement is made on the condition that Landlord may request that Tenant execute, provided that such agreement is made on the condition that th~ lease and Tenant's rights under this lease are recognized by the lien-hokler. this lease and Tenant's rights under this 'ease are recognized by the lien-holOOr.

27. ESTOPPEL CERTIFICATES: Within 10 days after receipt of a written request 1lom Landlord, Tenant w~1 27. ESTOPPEL CERTIFICATES: Within 10 days after receipt of a written request from Landlord, T enant w~1 execute and delrver to Landlord an estoppel certificate that identifies the teons and conditions of this lease. execute and deliver to landlord an estoppel certificate that identifies the terms and conditions of this lease. 28. CASUAL TV lOSS: 28. CASUALlY lOSS: A Tenant must immediatety notify Landlord of any casuaky k>ss in the 5eased premises_ Within 20 days A Tenant must immediatety notify landlord of any casualty loss in the leased premises. Within 20 days after receipt of Tenant's notice of a casualty toss, landlord will notify Tenant if the ~ased premises are after receipt of TefI8nfs notice of a casualty loss, Landlord wit notify Tenantil the leased premises are Jess than or more than 50% unusabte, on a per square foot basis, and if landlord can substantialfy less than or more than 50% unusable, on a per square foot basis, and if landlord can substantially restore the leased premises within 120 days after Tenant notifies landlord of the casualty Joss. restore the leased premises within 120 days after Tenant notifies Landlord of the casualty k>ss.

B. If the leased premises are less than 50% unusable and Landlord can substantially restore the leased B. If the leased premises are less than 50% unusable and Landlord can substantially restore the leased premises within 120 days after Tenant notifies landlord of the casuatty, LandkKti will restore the teased premises within 120 days after Tenant notifies landlord of the casualty, Landlord will restore the leased premises to substantiaRy the same condition as before the casuafty. If landlord fails to subslantialty premises to substantially the same condition as before the casualty. ff landlord faits to substantialty restore within the time required, Tenant may terminate this lease. restore within the time required, Tenant may terminate this lease.

C. If the leased premises are more than 50% unusable and Landlord can substantialty restore the leased C. If the leased premises are more than 50% unusable and landlord can substantialty restore the leased premises within 120 days after Tenant notifies Landlord of the casuaHy, landlord may: (1) terminate premises within 120 days after Tenant notifies landlord of the casualty, landlord may: (1) terminate this tease; or (2) restore the leased premises to substantially the same condition as before the casualty. this lease; or (2) restore the leased premises to substantialty the same condition as before the casualty. If Landlord chooses to restore and does nol subsiantiaRy restore the leased premiseS within the lime If landlord chooses to restore and does not substantially restore the leased premises within the time required, Tenant may terminate this lease. required, Tenant may terminate this lease.

D. If landlord notifies Tenant that landlord cannot substantially restore the leased premises wiIlin 120 D. If Landlon;l notifies Tenanlthat Landlord cannot substantially restore the leased premises within 120 days after Tenant notifies landlord of the casualty toss, landlord may: (1) choose notto restore and days after Tenant notifies Landtord of the casually loss, landlord may: (1) choose not to restore and terminate this tease; or (2) choose to restore, notify Tenant of the estimated time to restore, and give terminate this lease; or (2) choose to restore, notify Tenant of the estimated time to restore, and give Tenant the option to terminate this lease by notifying Landlord within 10 dayS. Tenant the option to terminate this lease by notifying landlord within 10 dayS.

,----, Initialed for Identification by Tenant----> __ , and lancIord: __ , __ (T AR-21 01 ) 5-26--06 (T AR-21 01 ) 5-26-06 Initialed for kJentification b Tenant and landk:m:J' Page 11 of 14 . - - - ' - - Page 11 of 14

AR 000081

Commercial Lease concerning. _______________________________ _ Commercial Lease concerning:: ______________________ ---' ________ _ E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant notifies landlord of the casualty loss to the date the leased premises are subst~ntially restored by an notifies Landlord of the casualty loss to the date the leased premises are substantially restored by an amount proportionate to the extent the leased premises are unusable. amount proportionate to the extent the leased premises are unusable.

29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are 29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are totally unusable for the purposes stated in this lease, this lease will terminate. If after a condemnation or totally unusable for the purposes stated in this lease, this tease will terminate. If after a condemnation or purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the property of landlord and Tenant has no claim to such proceeds or award. Tenant rriay seek compensation property of Landlord and Tenant has no claim to such proceeds or award. Tenant n'lay seek compensation from the condemning authority for its moving expenses and damages to Tenant's personal property. from the condemning authority for its moving expenses and damages to Tenant's personal property.

30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or 30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable attorney's fees, and all other costs of litigation from the non prevailing party. attorney's fees, and all other costs of litigation from the nonprevailing party.

31. REPRESENTATIONS: 31. REPRESENTATIONS: A. Tenant's statements in this lease and any application for rental are material representations relied upon A. Tenant's statements in this lease and any application for rental are material representations relied upon by landlord. Each party signing this lease represents that he or she is of legal age to enter into a by Landlord. Each party signing this lease represents that he or she is of legal age to enter into a binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this lease or in any application for rental, Tenant is in default. lease or in any application for rental, Tenant is in default.

B. Landlord is not aware of any material defect on the Property that would affect the health and safety of B. Landlord is not aware of any material defect on the Property that would affect the health and safety of an ordinary person or any environmental hazard on or affecting the Property that would affect the an ordinary person or any environmental hazard on or affecting the Property that would affect the health or safety of an ordinary person, except: ____________________ _ health or safety of an ordinary person, except: ____________________ _

C Each party and each signatory to this tease represents that: (1) it is not a perso·n named as a Specially C. Each party and each signatory to this lease represents that: (1) it is not a person named as a Specially Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not acting, directly or indirectly, for or on behalf of a Specia1!y Designated and Blocked Person; and (3) is acting. directly or indirectly. for or on behalf of a Specially Designated and Blocked Person; and (3) is not arranging or facilitating this lease or any transaction related to this lease for a Specially Designated not arranging or facilitating this lease or any transaction related to this lease for' a Specially Designated and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and Blocked person will indemnify and hold harmless any other person who relies on this representation Blocked person will indemnify and hold harmless any other person who relies on this representation and who suffers any claim, damage, loss, liability or expense as a result of this representation. and who suffers any claim, damage, loss, liability or expense as a result of this representation.

32. BROKERS: 32. BROKERS: A. The brokers to this lease are: A The brokers to this lease are: NONE NONE Cooperating Broker Cooperating Broker License No. Principal Broker License No. Principal Broker License No. License No Address Address Address Address Phone Phone Fax Phone Phone Fax E-mail E-mail E-mail E-mail Cooperating Broker represents Tenant. Cooperating Broker represents Tenant. Principal Broker: (Check only one box) Principal Broker: (Check only one box)

o represents landlord only. o represents Tenant only. o represents Landlord only. o represents Tenant only. o is an intermediary between Landlord and Tenant. o is an intermediary between Landlord and Tenant. Initialed for Identification by Tenant: __ , __ . and Landlord: __ , __

(TAR-2101) 5-26-06 Initialed for Identification by Tenant __ , __ , and landlord: __ ,_~ Page 12 of 14 Page 12 of 14 (TAR-2101) 5-26-06

AR 000082

Commercial Lease concerning: _________________________________ _ Commerdallease concerning: _________________________________ _ B_ Fees: B. Fees: o (1) Principal Broker's fee will be paid according to: (Check only one box). D (1) Principal Broker's fee will be paid according to: (Check only one box).

o (a) a separate written commission agreement between Principal Broker and: o (a) a separate written commission agreement between Principal Broker and: o Landlord D Tenant. [J Landlord 0 T enan!.

o (b) the attached Addendum for Broker's Fee. D (b) the attached Addendum for Broker's Fee.

D (2) Cooperating Broker's fee will be paid according to: (Check only one box). D (2) Cooperating Broker'S fee will be paid according to: (Check only one box). D (a) a separate written commission agreement between Cooperating Broker and: [) (a) a separate written commission agreement between Cooperating Broker and: o Principal Broker 0 Landlord 0 Tenant. o Principal Broker 0 Landlord 0 Tenant. o (b) the attached Addendum for Broker's Fee. o (b) the attached Addendum for Broker's Fee. 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the Addenda and Exhibit section of the Table of Contents. If landlord's Rules and Regulations are made part Addenda and Exhibit section of the Table of Contents. If Landlord's Rules and Regulations are made part of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion, of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion. amend from time to time. amend from time to time.

34. NOTICES: All notices under this lease must be in writing and are effective when hand-delivered, sent by 34. NOTICES: All notices under this lease must be in writing and are effective when hand-delivered, sent by mail, or sent by facsimile transmission to: mail, or sent by facsimile transmission to: Tenant at the leased premises, Tenant at the leased premises, and a copy to: Sterling Practice Management LLC

and a copy to: Sterling Practice Management LLC

Address: 5718 Bellaire Blvd., Houston, Texas 77081 Address: 5718 Bellaire Blvd., Houston, Texas 77081 Phone: Fax: --,,-_ _ ___ .....:.-_____ _ _ _

Fax: =c:-;-::=----------

Phone:

f.3I Tenant also consents to receive notices by e-mail at:_b~g'-a_r_n_e_r_5_@_a_o_l_._c_o_m __ __"_ _ __ _____ _ III Tenant also consents to receive notices by e-mail at:"b~g~a~r~n~e~r~5~@~a~o""'~. ~c~om"'- ___________ _ Landlord at: Providian Holdings, Inc. Landlord at: Providian Holdings I Inc.

Address: 2918 San Jacinto Street I Address: 2918 San Jacinto Street I Suite 100 r Houston, . Texas 77004 Suite lOa, Houston, Texas 77004 -------------------- Phone: 713 523-7847 Phone: 713 523-7847 Fax: Fax: andacopyto: ______________________________________ ~ _________ __ -----------~------------ Address: ______________________________ ~ _________ ___ andaCOpYto:~~""'===========================;=================================

~ddress:

Phone: Fax: Phone: Fax:

I]l Landlord also conseccn~ls~l~o,..,.re~c~e~iv~e::-:n~o~li~c~e~s~b~y-e~-~m~a.",iI~a~t-;::k'h ya ti '--;;u~n~d~a~v"i~a"@"5~b~c~gtl~o~b~a;c,r. n""e·t----- ail landlord also consents to receive notices bye-mail at: khyat~-' -u-n-d-:;-a-v-~.,...· a-C@r.I""s='b L c':"'"g-7"'l'o='b L a--l;--.n--e -:::-i:"t------ 35. SPECIAL PROVISIONS: 35. SPECIAL PROVISIONS: A_ Landlord shall not be obligated to install any facilities at the Property or in A. Landlord shall not be obligated to install any facilities at the Property or in the premises,. includinq any ADA (American With Disabilities) ,or related facilities the premises~ includinq any ADA SAmerican With Di$abilities) ,or related facilities requ~red by Iederal, st:ate and c~ty laws, regulatlons or ordl.nances. requ~red by ~ederal, seate and city laws, regulations or ordinances_

B_ Tenant will turn off the liqhts in the premises and lock the doors to the building B. Tenant will turn off the liqhts in the premises and lock the doors to the building w~en prem~ses are vacated each evenlng. wt.en pre~l.ses are vacat:ed eacfi ev en l ng . . . . . C. Landlord shall have access at all times to the utility close·t in the premises. c. Landlord shall have access at all times to the utility closet in the premises. D. Landlord may but shall not be obligated to perform any cleaning for Tenant in D. Landlord may hut shall not be obligated to perform any cleaning for Tenant in

the premises, common area, interior or exterior of the building. the premises, cornmon area, interior or exterior of the building. Initialed for Identification by Tenant __ • __ , and Landlord: __ , __ Initialed for Identification by Tenant __ , __ > and Landlord' __ , __ Page 13 of 14 Page 13 of 14 (TAR-2101) 5-26-06 (TAR-2101) 5-26-06

AR 000083

Commercial Lease conceming: __________________________________ _ Commercial Lease conceming: _______________________________ _

36. AGREEMENT OF PARTIES:

36. AGREEMENT OF PARTIES: A. Entire Agreement This lease contains the entire agreement between Landlord and Tenant and may

A. Entire Agreement: This lease contains the entire agreement between Landlord and Tenant and may not be changed except by written agreement. not be changed except by written agreement. B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective S. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective heirs, executors, administrators, successors, and permitted assigns. heirs, executors, administrators, successors, and permitted assigns. C. Joint and Several: All Tenants are jointly and severally liable for all provisions of this lease. Any act or C. Joint and Several: All Tenants are jointly and severally liable for all provision$ of this lease. Any act or notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease, notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease, its renewal, or its termination is binding on aU Tenants. its renewal, or its termination is binding on all Tenants.

D. Controlling Law: The laws of the State of Texas govern the interpretation, performance, and D. Controlling Law: The laws of the State of Texas govern the interpretation, performance, and enforcement of this lease. enforcement of this lease. E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the remainder of this lease will not be affected and all other provisions of this lease will remain valid and remainder of this lease will not be affected and all other provisions of this lease will remain valid and enforceable. enforceable.

F. Waiver: Landlord's delay, waiver, or non~enforcement of acceleration, contractual or statutory lien, F. Waiver: Landlord's delay, waiver, or non-enforcement of acceleration, contractual or statutory lien, rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by Tenant or any other term in this lease. Tenant or any other term in this lease.

G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant will enjoy possession and use of the leased premises free from material interference. will enjoy possession and use of the leased premises free from material interference. H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage of material, governmental restriction, riot, flood, or any cause outside Landlord's control, the time for of material, governmental restriction, riot, flood, or any cause outside Landlord's control, the time for Landlord's performance will be abated until after the delay. Landlord's performance will be abated until after the delay.

I. Time: Time is of the essence. The parties require strict compliance with the times for performance. \. Time: Time is of the essence. The parties require strict compliance with the times for performance. Brokers are not qualified to render legal advice, property inspections, surveys, engineering studies, Brokers are not qualified to render legal advice, property inspections, surveys, engineering stUdies, environmental assessments, tax advice, or compliance inspections. The parti~s should seek experts environmental assessments, tax advice, or compliance inspections. The parti~s should seek experts to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this Lease, consult your attorney BEFORE signing. Lease, consult your attorney BEFORE signing.

S'l'ERLING PRACTICE MANAGEMENT LLC s'r-ERLING PRACTICE MANAGEMENT LLC PROVIDIAN HOLDINGS, INC. PROVIDIAN HOLDINGS, INC. Tenant Tenant Landlord landlord By By By By

Date Date Date Date Printed Name Bxett Garner Printed Name BX'ett Garner Printed Name Khyati Und~via Printed Name Khyati Undavia Title Title Title Title Tenant By _ ___ ___________ __ ,,= By ~L'::""d"lo="';---------~--------- Tenant Landlord By By ______________ -------_~~

------------------O"'''',.-e

Date

Date Date

Printed Name William Hicks Printed Name William Hicks Printed Name _______________ _ Printed Name, ______ ->-________ _ Title ________________ _ Title ____________________ _ Title _________ .:.-________ _ Title __________________ _

(TAR-2101) 5-26-06

(TAR-21 01) 5-26-06

Page 14 of 14 Page 14 of 14

AR 000084

Exhibit A Exhibit A The contiguous vacant space on the ground floor of the building, identified by and The contiguous vacant space on the ground floor of the building, identi"fied by and agreed to between Landlord and Tenant. agreed to between Landlord and Tenant.

AR 000085

MUTUAL RELEASE MUTUAL RELEASE THE STATE OF TEXAS THE STATE OF TEXAS . COUNTY OF HARRIS . COUNTY OF HARRIS WHEREAS, certain disputes, claims and causes of action existed by and between WHEREAS, certain disputes, claims and causes of action existed by and between STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners, STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners, successors, agents, assigns, employees, servants and attorneys (hereinafter STERLING) and successors, agents, assigns, employees, servants and <attorneys (hereinafter STERLING) and PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents, PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees, servants and attorneys (hereinafter PROVIDrAN), arising from a assigns, heirs, employees, servants and attorneys (hereinafter PROVIDlAN), arising from a commercial lease; and commercial lease; and

WHEREAS, certain disputes, claims and causes of action existed by and between WHEREAS, certain disputes, claims and causes of action existed by and between NISAL CORPORATION, its officers, directors, shareholders, partners, successors, agents, NISAL CORPORATION, its officers, directors, shareholders, partners, successors, agents, assigns, employees, servants and attorneys (hereinafter NlSAL) and PROVIDIAN HOLDINGS, assigns, employees, servants and attorneys (hereinafter NISAL) and PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees, INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees, servants and attomeys (hereinafter PROVIDIAN), arising from a commercial lease; and servants and attorneys (hereinafter PROVIDIAN), arising from a commercial lease; and

WHEREAS, STERLING and NISAL filed suit against PROVIDIAN, No. 1036848, WHEREAS, STERLING and NISAL filed suit against PROVIDIAN, No. 1036848, County Civil Court at Law No.4, Harris County, Texas; and County Civil Court at Law No.4, Harris County, Texas; and WHEREAS, the parties desire to compromise, settle and provide for the full and final WHEREAS, the parties desire to compromise, settle and provide for the full and final tenmnation of all of the said claims, demands, causes of action and disputes between them arising termination of all of the said claims, demands, causes of action and disputes between them arising out of or related to such claims which either party may now have or have had against each other, all out of or related to such claims which either party may now have or have had against each other, all without admitting any of the allegations set forth; without admitting any of the allegations set forth;

NOW, THEREFORE, for and in consideration of a check written by PROVlDIAN to NOW, THEREFORE, for and in consideration of a check written by PROVIDIAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in the amount of $7600.00, the STERLING AND NlSAL and Phillip Brantley and Associates, PC in the amount of$7600.00, the mutual releases contained herein, and other good and valuable consideration, the receipt and mutual releases contained herein, and other good and valuable consideration, the receipt and

AR 000086 EXHIBIT C sufficiency ofwbich is hereby acknowledged, STERLING AND NISAL, their officers, directors, sufficiency of which is hereby acknowledged, STERLING AND NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE PROVIDIAN, its officers, hereby RELEASE, ACQUIT and FOREVER DISCHARGE PROVIDIAN, its officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens, attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which STERLING AND NISAL have ever had or liabilities or potential claims or causes of action which STERLING AND NISAL have ever had or could have had, whether now known or unknown, which have arisen or may arise from the could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release, including, without limitation; beginning of time to the date of this release, including, without limitation;

NOW, THEREFORE, for and in consideration of the acceptance of the aforesaid check NOW, THEREFORE, for and in consideration of the acceptance of the aforesaid check written by PROVIDIAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in written by PROVIDIAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in the amount of $7600.00, the mutual releases contained herein, and other good and valuable the amount of $7600.00, the mutual releases contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, PROVIDlAN, its consideration, the receipt and sufficiency of which is hereby acknowledged, PROVIDIAN, its officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE STERLING AND and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE STERLING AND NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants, NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action, partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which PROVIDAN has ever had judgments, liens, liabilities or potential claims or causes of action which PROVIDAN has ever had or could have had, whether now known or unknown, which have arisen or may arise from the or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release, including, without limitation. beginning of time to the date of this release, including, without limitation.

Upon signature of all parties, STERLING AND NISAL shall file a nonsuit with prejudice. Upon signature of all parties, STERLING AND NISAL shall file a nonsuit with prejudice. The parties hereto represent and warrant that the persons executing this Mutual Release on The parties hereto represent and warrant that the persons executing this Mutual Release on

their behalf as shown on this instrument is authorized to bind same. their behalf as shown on this instrument is authorized to bind same.

AR 000087

It is understood and agreed that this is a final Mutual Release, that no further consideration It is understood and agreed that this is a fmal Mutual Release, that no further consideration is to be paid by any of the parnes, and that this settlement is in compromise of disputed claims and is to be paid by any of the parties, and that this settlement is in compromise of disputed claims and is not to be construed as an admission of liability. is not to be construed as an admission ofliability.

STERLING PRACTICE MANAGEMENT, LLC STERLING PRACTICE MANAGEMENT, LLC BY·._~-", ....... BY:

-----~ N~: ______ ~~~~~~ __ ~~ ________ __ TITLE:_~---,,~~~~t-.~~~~ __

THE STATE OF TEXAS THE STATE OF TEXAS COUNTY OF HARRIS' COUNTY OF HARRIS'

BEFORE ME, on this day personally appeared, WI' /Ila t11 thL-l91,

BEFORE ME, on this day personally appeared,

of STERLING PRACTICE MANAGEMENT, LLC, whose name is subscribed to the foregoing of STERLING PRACTICE MANAGEMENT, LLC, whose name is subscribed to the foregoing Mutual Release, and who. acknowledged to me that he/she executed the Mutual Release as the act Mutual Release, and who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said entity, for the purposes and consideration therein expressed, and in the capacity and deed of said entity, for the purposes and consideration therein expressed, and in the capacity therein stated. therein stated.

3Jp{ day of 0 c..-in b&t, 2013. GNEN under my hand and seal of office GIVEN under my hand and seal of office NOTARY P LIC IN AND FOR NOTARYP LICINANDFOR THE STATE OF TEXAS THE STATE OF TEXAS

MARIA PATRICIA MUNIZ

MARIA PATRICIA MUNIZ My CommlsslDn Expires My Commission expires

May 14,2016 May 14.2016

AR 000088

NISAL CORPORATION NISAL CORPORATION NOTARY P L AND FOR NOTARYP LANDFOR THE STATE OF TEXAS THE STATE OF TEXAS

MARIA PATRICIA MUNIZ

MARIA PATRICIA MUNIZ My Commission Expires My Commission Expires

May 14, 2016 May 14. 2016 AR 000089 PROVIDIAN HOLDINGS, INC. PROVIDIAN HOLDINGS, INC. BY: L~'~ NAME: # ~ f/ (...JN1)/bir'/!}

D (.A.!) I'JtZ,..,..., TITLE: THE STATE OF TEXAS THE STATE OF TEXAS

COUNTY OF HARRIS

COUNTY OF HARRIS

# , E!If( ,

BEFORE ME, on this day personally appeared, BEFORE ME, on this day personally appeared, of PROVIDIAN HOLDINGS, INC., whose name is subscn to the foregoin Mutual Release, of PROVIDIAN HOLDINGS, INC., whose name is subscn to the foregoin Mutual Release, and who, acknowledged to me that helshe executed the Mutual Release as the act and deed of said and who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said entity, for the purposes and consideration therein expressed, and in the capacity therein stated. entity, for the purposes and consideration therein expressed, and in the capacity therein stated.

Oc.r~ Oc.r~ GIVEN under my hand and seal of office, thi. GIVEN under my hand and seal of office, thi, day o' ,2013. ,2013. I NOTARY NOTARY IC IN AND FOR IC IN AND FOR

THE STATE

OF TEXAS THE STATE OF TEXAS

KEIlH CHUNN, JR. KEmlCHUNN, JR.

MY COMMISSION

EXPIRES MY COMMISSION EXPIRES __ 14,2016 November 14. 2016

'i: ~,,..~-_~--?o- ___ •. '-. ,.,' '~" i • :. :" . r -. ;'; :. f ~ -~,-' - .-: ~!1·/· ,,...;:..\'" ", ~'.' .' \'" 9W(; 'v~ I';· ,w'"" ";>,1 -)1 9Wt: 'v~ Fi,:W(:V, "j'J " ',' /;:~~;~;;;\ _' ;, ; I" S3!:lJdX3 NOIS<;I\\V,it\') 'f. ,,,.~,, S3tHdX3 N01S~;!tl\j!i!in:) }.;t; ~-iJ:t':,>-:--- ',_: ~! 'l:lf' 'NNnH') 'HIT; "l;lr 'NNllH'J '~!J3~': , ~ ~--,- --,,='-;C; -.'-:"'c~-"

AR 000090

", ,-" ~ -:'.->'. U

~,

,.,--, c·'{:t .{)Sr~tl, ~<;. ........ .

:"

... ~

Q'J NO. 1036848 NO. 1036848 Q STERLING PRACTICE MANAGEMENT, llC () IN COUNTY COURT AT LAW IN COUNTY COURT AT LAW NISAL CORPORATION I" ;, Plaintiff Plaintiff ;--:, vs. NO.4 NO.4 VS.

PROVIDIAN HOLDINGS, INC.

PROVIDIAN HOLDINGS, INC. Defendant Defendant HAJUUSCOUNTY,TEXAS HARRIS COUNTY, TEXAS : 1:

PLAINTIFFS' NONSUIT PLAINTIFFS' NONSUIT

Sterling Practice Management, LLC and Nisal Corporation appear and file Plaintiffs' Sterling Practice Management, LLC and Nisal Corporation appear and file Plaintiffs' Nonsuit, requesting that the Court dismiss this case with prejudice. Nonsuit, requesting that the Court dismiss this case with prejudice.

Respectfully submitted, Respectfully submitted, PHILLIP BRANTLEY AND ASSOC., P.c. PHilLIP BRANTLEY AND ASSOC., P.e. " "". c;, D'Jkbu..~

$YJLk~

1'"

::>.:: ~iJilip ~nl1ltle~O

"-

r- SBN 02899727

I

Arena Tower II 0- '-'

7324 Southwest Freeway, Suite 1020 0 "., ~ Houston, Texas 77074 = ~

(713) 270-4053 phone (713) 270-0682 facsimile ATTORNEYFORPLNNTffP

'.

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE facsimile transmission on October 3, 2013. tls& ~ I certify that this pleading was served on Keith ChUIUl, Jr., attorney for Defendant, by I certify that this pleading was served on Keith Chunn, Jr., attorney for Defendant, by facsimile transmission on October 3, 2013. ~R~',,~"'F'-~=_~I,- ______ _

~P-hi~ll~~~fFr-an--tle-~~Yr--------------- PhilI;{?rantlefe,

AR 000091 EXHIBIT D III @ ,e:: ...

NO. 1036848

NO. 1036848 STERIlNG PRACTICE MANAGEMENT, lLC IN COUNTY COURT AT LAW STERLING PRACTICE MANAGEMENT, LLC IN COUNTY COURT AT LAW .. ~

NISAL CORPORATION

NISAL CORPORATION Plaintiff Plaintiff ., () f] vs. vs. NO.4 NO.4 If. :::~ . .• ~ . .Ji

PROVIDIAN HOLDINGS, INC.

PROVIDIAN HOLDINGS, INC. Defendant Defendant HARRIS COUNTY, TEXAS HARRIS COUNTY, TEXAS () ; ;

ORDER

ORDER Pending before the Court is Plaintiffs' Nonsuit. This case is dismissed with prejudice. Pending before the Court is Plaintiffs' Nonsuit. This case is dismissed with prejudice. Signed lhis -b-- day of -+-~~-\r-~;£.--~~--J. Signed this $- day of -+~;JL~~~~~~':;:=l

APPROVED AS TO FORM AND SUBSTANCE

APPROVED AS TO FORM AND SUBSTANCE

AND ENTRY URGED:

AND ENTRY URGED: PHIlLIP BRANTLEY AND ASSOCIATES, P.c. PHILLIP BRANTLEY AND ASSOCIATES, P.C. Phillip Brantley Phillip Brantley

SBN 02899727

SBN 02899727 Arena Tower II Arena Tower II 7324 Southwest Freeway, Suite 1020 7324 Southwest Freeway, Suite 1020 Houston, Texas 77074 Houston, Texas 77074 (713) 270-4053 phone (713) 270-4053 phone (713) 270-0682 facsimile (713) 270-0682 facsimile

ATTORNEY FOR PLAINTIFFS

ATTORNEY FOR PLAINTIFFS

AR 000092

• at

CAUSE NO. 2014-22186

CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A. AVANT MEDICAL GROUP, P.A. § § IN THE DISTRICT COOOT OF IN THE DISTRICT COURT OF § § d/b/a ALLIED MEDICAL CENTERS d/b/a ALLIED MEDICAL CENTERS and INTERVENTIONAL SPINE § § and INTERVENTIONAL SPINE § § ASSOCIATES, ASSOCIATES,

§ § Plaintiffs Plaintiffs § § VS. § § VS. HARRIS COUNTY, TEXAS HARRIS COUNTY, TEXAS § § KHYATIlTNDAVIA, MINlT RX, LTD., § KHYATI UNDAVIA, MIND RX, LTD., § and MINlT GP, L.L.C. and MIND GP, L.L.C. § §

152 ND JUDICIAL DISTRICT § 152"" JUDICIAL DISTRICT § Defendallls Defendants

DECLARATION OF KHYA TI UNOA VIA

DECLARATION OF KBYATI UNDAVIA 1. My name is Khyati Undavia. My date of birth is October 4, 1965, and my address is 1. My name is Khyati Undavia. My date of birth is October 4, 196.5, and my address is 2918 San Jacit1to, Houston) Texas 77004. I swear under penaltY of perjury that the 2918 San Jacinto, Houston, Texas 77004. I swear under penalty of perjury that the below facts are within my personal knowledge and are true and correct. below facts arc within my personal knowledge and are true and correct.

2. Providiwt Holdings, Inc. ("Providian") is a holding company. Its only asset is 2918 2. Providian Holdings, Inc. ("Providian") is a holding company. Its only asset is 2918 San Jacinto St., Houston. Texas 77004 (the "Building"). Providian bas no San Jacinto St., Houston, Texas 77004 (the "Building"). Provulian has no employees, and it has no operations aside fi'om leasillg out the building to tenants. I employees, and it ba.s no operatioll.'!r aside from leasi~~g out the building to tenants. I am the owner and president of Providian. am the owner and president of Providian.

3. J am also the owner and president of:\1inu Rx, Ltd, d/b/a Memorial Cornpound1ng 3. I am also the owner and president of Minu Rx, Ltd. d/b/a Memorial Compounding Phannacy ("Minu"), Minll is a pharmacy that operates on the ftrst floor of the Pharmacy ("Minu"). Minu is a pharmacy that operates on the first floor of the Building, Minu has an approximately 12-person staff that includes pharmacists, Building. Minu has an approximately 12-person staff that includes pharmacists, ph.nnacy technicians, clerks, and bookkeepers. pharmacy technicians, clerks, and bookkeepers.

4. Because Minu has a physical presence in the building, and because Mum has a 4. Because Minu has a physical presence in the building, and because Minu has a tum-key staff available, Providian bas used Minu as its property manager since tum-key staff available, Providian has used Minu as its propeliy manager since 2004. In tbis role, Minu provides Providial1 with operational management, risk 2004. In this role, Minu provit-les Providial1 with operational management) risk management, and administrative services. management, and administrative services.

5. Regarding operational management, Minu manages and maintains the BUilding. It 5, Regarding operational management, Minu manages and maintains the Building. It 1 1 AR 000093 EXHIBIT E interviews and hires security, janitoriaJ j and facilities maintenance personneL It interviews and hires security, janitorial, and facilities maintenance personneL It also pays for items like elevator maintenance, repairs for the Building. and also pays for items like elevator maintenance, repairs for the Building, and security equipment. security equipment.

6. Regarding risk management, Minu procures and maintains insurance policies on 6, Regarding risk management, Miml procures and maintams. insw-ance policies on Providian's behalf. Providian's behalf. 7. Regarding administrative services, Minu collects rent from the Building's tenants, 7. Regarding administrative services, Minu collects rent from the Building's tenants, pays for the Building's utilities and conunon area l)1aintenance, and oversees pays for the Building's utilities and common area !l1aintenance, and oversees Providian's compliance with accounting standards, as well as federal and state Providian's compliance with accounting standards, as well as federal and state reporting requirements. reporting requirements.

8. Attached as Exhibit G to Defendants' motion for summary judgment is a true and 8. Attached as Exhibit G to Defendants' motion for summary judgment is a true and correct copy of a portion of Minu's Quickbooks for the time period of 2012 correct copy of a portion of Minu's Quickbooks for the time period of 2012 through 2013. These records demonstrate that Minu paid numerous expenses on through 2013. These records demonstrate that Minu paid numerous expenses on Providian's behalf. Providian's behalf.

9. For example, in April 2012, a break-in occurred overnight at the Building, causing 9. For example, in April 2012, a break-in occurred overnight at the Building, causing significant damage to the BUilding. Minu paid a total of $17,524.89 to repair the significant damage to the Building. Minu paid a total of $17,524.89 to repair the damage caused to the Building. These payments were made on April 18,2012, damage caused to the Building. These payments were made on April 18,2012, June 8, 2012 j and July 25. 2012, as indicated on the Quickbooks statement. June 8, 2012, and July 25, 2012, as indicated on the Quickbooks statement.

10. Similarly, Millu made periodiC payments to "ABC Pest Pool & Lawn" throughout 10. Similarly, MimI made periodic payments to "ABC Pest Pool & Lawn" throughout 2012 and 2013. These charges represented compensation that Minu paid to ABC 2012 and 2013. These charges represented compensation that Millu paid to ABC Pest Pool & Lawn for the Building's grollnds maintenance, Pest Pool & Lawn for the Building's grounds maintenance.

11. Among other things, these Quickbooks records also demonstrate the Minu paid for 11. Among other things, these QUlckbooks records also demonstrate the Minu paid for the Buildings' elevator maintenance (via payments dated July 31, 2012 and the Buildings' elevator maintenance (vi. payments dated July 31, 2012 and December 15, 2013) and for repairs to the Building', front door (via a payment December 15, 2013) and for repairs to the Building's front door (via a payment dated March 27, 2012). Also attached as Exhibit F to Defendants' Motion for dated March 27, 2012). Also attached as Exhibit F to Derendants' Motion for Summary Judgment are true and correct copies of invoices received by Minu that Summary Judgment are nue and correct copies of invoices received by Minu that demonstrate that Minu dJb/a Memorial Compounding Pharmacy was billed demonstrate that Minu d'b/a Memorial Compounding Phannacy was billed directly for these expenses by the servic.e provid<:L directly for these expenses by the service provider.

12. In additional the above, Minu also paid for the Building's security systems and 12.In additional the above, 'Minu also paid for the Building's security systems and personnel. 111 2012 alone, Minu paid $49,415.73 to provide security personnel, personnel. In 2012 alone, Minu paid $49,415.73 to provide security personnel, 2 2.

AR 000094

alarm systems, and security cameras to the Building. alann systems, and security cameras to the Building, 13, With regard to Providian's leases with Nisal Corp. and Sterling Practice 13, With regard to Providian's leases with Nisal COl]), and Sterling Practice Management, those entities did not have any ac,mal operations in the office space Managementl those entities did not have any actual operations in the office space they leased, Instead, Allied Medical Centers and Avant Medical Group were the they leased. Instead, Allied Medical Centers and Avant Medical Group were the entities that had operations in the leased space. Brett Garner is a doctor of entities that had operations in the leased space. Brett Gamer is a doctor of chiropractic and was a chiropractor for· both entities, For all matters concerning chiropractic and was a chjropractor for· both entities. For all matters concerning the lease, I communicated with Brett Garner in his capacity has a representative of the lease, I communicated with Brett Gamer in his capacity has a representative of not only Sterling and Nisal, but also Avant and Allied, not only Sterling and Nisal, but also Avant and Allied.

14, In fact, as a condition of leasing office space to Nisal and Sterling, I required those 14.ln fact, as a condition of leasing office space to Nisal and Sterling, I required those entities to provide Ine with proof that they had obtained CGL insurance policies, entities to provide lUe with proof that they had obtained COL insurance policies. Garner provided a proof-Of-coverage document naming "Avant Medical Group, Gamer provided a proof-of-coverage document naming "Avant Medical Group, P,A, d/b/a Allied Medical Centers" as the insured, Exhibit J to Defendants' P.A. d/b/a Allied Medical CenterS" as the insured. Exhibit J to Defendants' Motion for Summary Judgment is a true and correct copy of the proof-of-coverage Motion for Summary Judgment is a true and correct copy of the proof-of-coverage document Avant provided to me, document Avant provided to me.

15, Additionally, Avant paid for Sterling's rent out of its own bank account. Attached 15. Add.ition~lly, Avant paid for Sterlillg l s rent out of its own bank account Attached as Exhibit K to Defendants' Motion for Summary Judgment is a true and correct as Exhibit K to Defendants' Motion for Summary Judgment is a true and correct copy of a rental check that Avant sent Providian with respect to Providian's lease copy of a rental check that Avant sent Providian with respect to Providian's lease with Sterling. with Sterling.

16, The Commercial Leases attached as Exhibits A and B to Defendants' Motion tor 16. The Commercial Leases attached as Exhibits A and B to Defendants' Motion for Summary Judgment are true and correct copies of the leases that Providian entered Summary Judgment are t:I"Ue and correct copies of the leases that Providiuo entered into with Nisal Corp, and Sterling Practice Management. into with Nisal Corp. and Sterling Practice Managen1ent.

17. I am the person ill charge of records for Providian and Minu_ Exhibits A, B, F, G, 17, I am the person ill charge of records for Providian and Minu. Exhibits A, B, F, G, J, and K to Defendants' Motion for Summary Judgment are kept by me in the J, and K to Defendants' Motion for Summary Judgment are kept by me in the regular course of business, and it was in the regular course of business of regular course of business, and it waS in the regular course of business of Providiall and Minu that the information contained in this exhibits was transmitted Providian and Minu that the infonnat1on contained in this exhibits was transmitted to me by an employee or agent of Providian or Minu who had knowledge of the to me by an employee or agent of Providian or Minu who had knowledge of the act, event, condition, opinion, or diagnosis recorded to make the records 01' to act, event, condition, opinion, or diagnosis recorded to make the ree-ords Dr to transmit information thereof to be included in such records; and the records were transmit information thereof to be included in such records; and the records were made at or near the time or reasonably soon after the time that the servic.e was mad~ at or near the time or reasonably soon after the time that the service was provided. The recordg are the oligjnal or an exact duplicate of the original provided, The records are the 0l1ginal or all exact dtlplicate of the original.

3 3

AR 000095

Executed in Harris County, Texas, on this the 11th day of January, 2015. Executed in Harris County, Texas, on this thezt;th day of January, 2015. 4 4

AR 000096

.. , . .. , ..

...,,,,,

at 're

I!ATIi PATh' rM)Q;NO, INItDICe NO • 1_",.,08 "110 -cUJ/::a:J/U ~8/22/11 MHI)~II!;jI!'l'U ~~oa'~l 'dD" .... ·0IiII.1oo AMOUJIIT cUE eN SER\IIt8 c:or.I'1'MCr ....... nc:mta _ ' I l l ..... '1, . , ' .3.0 - 11.111.1.1 ... 11,1 ... 1"11.11" .. 1,,1 .. 11;1,,,1 .. ,111 l'lul.h\".1I.1 ... 1"IIII1I1 I1 ".lulhlm11J'Ui ""-'" M'1'IC':I!: m.B'o'A't'CII.,:Mm\'lCSC ~ ~ 'ttIfIIIKAg' ~~~ ...... - '.0, IIOX ,;,un" MI!ICII 1JLlIY,II.1:'CIIl.IIIlP.V:t<:Illl 29~. _ J.ilCJ;III:'O I1It

29l'f lAW a.c;t1TO er ....... ""

'.0. BOX 131MI)1

~~ 't'O""""" . , m..w.NI '" 'fl[ """""'" TX 1'1110. '''tlo-t 71)1)·0431 M'UI"OQ1

LOCAI.~MI

~..,., ¢Mon"Wlh Yw I'WItIIri- JIIn!BCIJ ~ 5BaV:!CZS IoIakeC/'ltC:llf'llY;ilh'tlx"

·· .. '······ .. ""'·····'··'···"··· .. ·'···"·····ViTAi:H-~~~jii~~.,··~ ... , ............. ,., ......... ., .... ''' ..

~EU;VA_8_

INVOICE INVOICE • ~ CONfRAC1"CIIA_- DUPLlGATli IIIJPLICATB

. 08/aZ/11 0./22/11

S1lR\'%CI!I: POR 0'/0-1/).1 ro 02/"'/U ~CI ~ O"01/~1 ~ o2/~J/ll - . c:i\UIIIIIOo!f aIIMIIIIIl !lUll ~ ~ CIIMI\iW DUB

"';. :" ~!UVire aedit ( "i,CO ~ service credit ( (174.56) (174.$) ~ serviM era1ft / _ ..,..;'" ered!t / (174.$) (174.$) ~ ....-vlceered!t / ~ service credit / '

{174.55) ~174.55)

REVISED INVOICE AMOUNT NOW PUE, $523.65 REVISED INVOICE AMOUNT NOW DUE: $523.65 JOR Mft' QWji'l'WllS O!'JIIJCBRllJlIQ -mza nMllel. ~ ~ ~I 1-11~-n3-'2Iil

B

3.-1J1' IIf .os-:r 0fU[ ,9'l';l 3.QQ ~ 'CI: 1'Josg. (Ill '*-f.m NfnOI BJ.InA"rOa. I'MI:IIIBIlIl" 1lO2I vr(ai' UCS1H AR 000097 EXHIBIT F AMTECH ELEVATOR SERVICES AMTECH ELEVATOR SERVICES 1 F ;:lrm Springs Rd 1 Farm Springs Rd Farmington, cr 06032 Farmington, cr 06032 AmQI,mtOue Amount Due CUstomer NO. customer NO. Statement Date Statentli!nt Date 1,047.30 1,047.30 21712012 2/7/2012

553362 ,55336,2 STATEMENT STATEMENT Mail payment tQ: Mail payment to: Amtech Elevatrlr 5~rvices Memorial Compounding Pharmacy Memorial Compounding Pharmacy Amtech Elevator Services PO Box 730437 PO Box 730437 2918 San Jacinto 5t 2918 San Jacinto St Oallas, TX 75373-0437 Dallas, TX 75373-0437 HOU5TON,TX 77004 HOUSTON, T)( 71004 PI;;!ase provlde your name.. phone number and/or ern~il address Ple •• e provide your name. phone number andlor ernaij·~ddress SMull:! we have any questions on how \(J applyyour payment: $hOuld we have any questions on how to apply your payment: STATEMENT STATEMENT For any questions cam:ef'nirg lilts stat9rJW,nt, plea~ 0011t$Cl: Page 1 of 1 For any questions concerning this statement. please contact: Page 1 of 1 404-605-8421 or Ollrlil.mllrvirl@otis.com

404-605-842.1 or danil.marvin@otis.com IfIQr No. Statement Date ArnountDu0 ArnountDu0 Building Reference: 2918 san Jacinto St Buldlng Refemn.:e: :2918 SaO Jacinto $t Statement Date CU "".

"..,

553362 21712012 217'2012 1,047.30 , ,047.30 , 2/2011 J Invoice Number Open Amount InVOice Number Documem Type Document Type Gross Amount Gl'oSS Amount Open ArnOlJm Irrv~oate Invoice DTH062£)2 911 DTH06ZQ2911 Invoice 1,047.30 1,047.30 1.047.30 1.047.30 / . 2/2011 /

.

.I / / / , /

Abffile, please find your Ja!e!;t,)lamment or accoum. Tills statement dOBS not Inclide invoicm turned over to a third party for coIIect1on. Above, please ftnd your Iate!!t matement of account. Thl. statement does not Inc.i.Jde in\IQiCllS turned over to • tllir<:l part)' fOr collect1on. Chargebackll are disputes under Investigation, PI •• s. remit payment ID the addr ... aDov.. If you have already paid. lIl.nk you. ChargebackS a~e dlspuleS under InvestigatIOn, Plell5e remit ~menl to the address l'l1lQve. If you have already paid. Ihank you, Colklctlon data ;$ reported to Dun & Bradstreet. Colloctlon d~ta 1$ reported 10 Dun &: Bredstteet.

AR 000098

,~ , - ~

INVOICE NO.

CUSTOMER NO. DArE AMI_::::' 02/20/12 DTH06202312 553362 I AMOUNT Due ON S~RVICE CONTRACT;

INVOICE

1289 N Post OakSte 100 1289 N·P""I Oak SIO 100 1,099.74 HvUl!itOfI TX 71055 Houston TX 77055 ~1DIl'" This Oaupon Wit'"' Your p .. ~ment. ~ncl08e Thi!S caupon WIth Yollr payment. Mak~ CMo<: PllyabJo;> Tf): Make CheCk payable To:

AMTECH ELEVA TOR SERVICES

AMTECHELEV A TOR. SERVICES Masl plJyomint to: AT 01 006604 340578 26 A u 3DGT AT 01 006604 340576 26 A"SOOT HEMORlAL COMPOUNOING PHARMACY H.EMORIAl COMPOUNOING PHARMACY

.I,lillll'IIII"III" '111.11 ••• 11 '11' 11.111,1/1.111"" 11111'11'11 ,.1.111111111111,1111-,1111111111'1111"111,111"11"11111,1_11'II 2g18 SAN JACINTO ST 2918 SAN JACINTO ST AHTECH ELEVATOR SERVICES HOUSTON HOUSTON TX 77004-2708 TX 77004-2708

AMTECH ELEVATOR SERVICES

P.O. BOX 730437 .

P.O. BOX 730437

DALlAS DALLAS TX TX 75373·0437 75373·0437 PLEASE SEND CQRm!$PONDENCE TO YOuR L.OCAL. OFFICI! AS -SMOWN BIlLOW ~l..EA$E $ENO eORRI!$POjr,lIJENCE TO YOUA. LOCAL OFFiCe AS $HOWN ilEt.OW

IlDTHDb2D2312 OOll0109974 1 ODTHOb202312 0000109974 1 .~ ____ _______ _ ~ ___ w ______ ~_~_~"M*~_~"-W~*_";"'~~ __ ~~~M""'~_ ..... ___________________ ...... ~ __ ... _*~~~~~~~_~~_~~ __ ~ ___ ~~ __ ~_~--~-----~ . . .... DETACH RETURN DOCUMENT ALONG PERFORATION .. ... DETACH RETURN DOCUMENT ALONG PERFORATION .. AMTECH ELEVATOR SERVICES AMTECH E;LE;VATOR SERVICES INVOICE INVOICE ... SERVICE CONTRACT CHARGES .. ~ SERVICE CONTRACT CHARGES - INVOICENQ, INYOICENO. CUSTOMER NO. CUSTOMEA NO, l!AIIi .MIIi: DTH06202312 02/20/12 02/20/12 DTH06202312 553362 553362 BUILDING DTH800681 MEMORIAL CONPOONDZHG P.KAR BUILDING DTK8006S1 MEMORIAL COMPOUNDING PHAR co»rRACT DTB06202 coir.rRACT D'rH06202 1,099.74 1,099,74 SERVICE FROM 03/01./12 TO 08/31/12 SERVICE FROM 03/01/12 TOOa/31/12

1,099.74 1,099.74 'l'O'.l'AL CORIU3l!I'l' ClIAMES PtJE 'l'O'l'AL CORRmI'l' CHARGES! DOE PRICE AOJUSTMllN'l' • • • PRICE ADJUSTMENT • - • IN ACCORDANCE WlrR THE FROVISION FOR ~HE ADJUSTMENT OF PRICE AS SET FORTH IN THE CONTRAC~ IN ACCORDANCE WIrE THE FROV~SlON Faa rH! ADJUSTMENT OP PRICE AS SET PORTH IN THE CONTRACT 1!NiTERlll:l INTO BETWEEN US FOR THE SERVICE OF ELEVATOR J!:QtlnMl!:m': BNTERBD INTO BETWEEN US FOR Tm: SERVICE OF ELEVATOR }!:QtJII?~: THli FORMER PRICE. O!i' 174.55 HAS BEEN ADJUSTED AS INDICATED BELoW BASED UPON THlil CIIJU\I(>IilS THliI FORMER Pft~CE Of' 174.55 11M Sl!l~ ADJUl':TED AS INDICATED BELOW BASED UP@ Tat CIUUilGl!:S - THAT RAVE OCCURED IN THE ELBVATOR EXAMlNERS' COS1 ~ IN ~1E~I~ INDEX BBTWEEN THAT HAvE OCCORED IN THE ELBVATOR EXAMINERS' COS~ ~ iN ~~ER"~ INDEX BETWEEN J~Aay,201" JANUAaY, 2011 AND JAMUAaY,2012. ~HE Anj~ST~D ~R!eE ~ECdMES EPFECTIVE ~ 01, 2012 AND SHAL~ EEMAIN .!\NIl JANUARY,2012. 'l,'H,g AlJJUSTl!:O PRICE BECOMES I!:FFEC'TIVE ~ 01, 2012: AND SHAI.!. ~'[N IN EFFECT UNTIL IN EFPIi:CT UNTIL 1'I!;BRUAaY ~8, 20·13 WHEN IT HILL 8l!: SUBJECT TO ADJUSTMEN.l'. lIlBRUARl!' ~8, 201a WHEN l'l' WU.L BlI: SUBJlI:CT TO ADJUSTMENT. GI,'APSE j - BASED ON CHANGES IN PRODUC'ER METALS AND :METALI ;ElROD1;JC'l'S COD@fOot't'Y IMtlElX: CLAUSE 1 - BASED ON CHANGES IN PRODUCER METALjj1 AND Mi:l'#U.< ;E>ROVUCTS c~Dtl''t rblDEjt: (e) "'6/14 Ie) ='S/A (D) (E: "'c"'o IE) =C*D

IA) IA) (6) (Ii) (0) FORMllR INDEX I!'ORWER INDEX CURRENI' INDIIX CURREN'!' INDEX ltA'I'IO OF CRANGE !\ATIO OF CllANGE FORMER lI.IATERIA!. FOIlDiIER MATERIAL CURREN!' lI.IA'l'liRIAL CURREN'!' MATERIAL 215.0000 212.7000 103.58140 nJ.7000 lO~ • .5aliO

21~.OOOO

CLAUSE 2 - BASED ON CBANGES !N ELtVATOR t~a6t HOURLY oosr: CLAUSE 2 • !'llIS!!lP Olq CIUl1ilG~$ Ilq ELEVAtOR tll:At>llHlillt$' 1I0!lRl.Y CO$~, (9) (B) (C)"'B/A Ic)mB/A ID) (D) (E)=C·D (JI,.) (E)=C"D (~) C!ll<R·~IIl'll-.-";_. RATIO 0&. ,., .. c." .... ,,,~RMEIL ._. _. -p'ORMP.a,"~ .. _. ___ . (,~RIilN!r.-__ :ijATIO 0&. , .• " .. _; . .c1Jll.l.UW1' •. .;p..0RMJi)!t.~_ ..... _ .... _. . ....• ...:, . .GllR;IlIilJlIT EXAMINERS' COST EXAMINERS' COST CHANGE LABOR EXAMINERS' COST EXAMINERS' COST CllANGE I..i\BOR LIoBOR 65.9524 105.00988 174.65 183 •• 9 l6l.29 183 •• 9 PER NO 163.29 ;PER NO 1l2.S0.!!!!, 65.9524 105.00988 ~2.a059

YOUR NEW INVOICE ANT 1,099.74 TOTAL YOUR NnW INVOICE AKT l,09~.74 TOTAL FOR ANY QUESTIONS CONCERNING !!'HIS INVOICE, PLEASE TELEPHONE 1"713-923-7251 FOR ANY QUESTIONS CONCERNING THIS INVOrCE r PLEASE TELEPHONE 1~?13-923-7251

OR WRITE AMTECH EL~~ATCR OR WRITE AMTECH ELEVATOR 1289 R POST OAK STE 100 HOUSTON 1289 'N POST OAK STE 100 HOUSTON TX 77055 TX 77055 PAY.NBNT DUB UPON RECEIPT-PLEASB PAY PROMPTLY Ii'AYMmI'I' DUB UPON RBCEIP'l'-PLBl\$B PAY PROMPTLY ~J!g~ A1!¥.'lii"1IJ.~&lIb~ 11IfJ1iF~?J/iWo~'i~Ja M~""%l ~~.wM.~A8&crs~~~D MtWg~1::li8~ m\'e~I§:.LAaOR ~f~~A~lsnll.,~~mf~~~~~~Ja m~~i W'~mFo~~£~~Dt·MCfMNWc~~~aoR f?Xfe~~'b&tXW~E8/1A\~h~MtH~'lf~ .l1lIMfdk0¥.tEM~~8t'fl\.~~rFB.1]J.WPtll:lt,f!R9~U'tl" 01' THe I~OICE AT THE RXfrlWOC~XMWHE8~p~~tA'H~'E'il~~~E~~~~'ycKP~~MAVf.vMYfllWR9¥'Jitlf Of THe J~OJCEATTHE

AR 000099

Fago) 1 of 1 Pagel of 1 CUSTOMER ORIGINAL CUSTOMER ORIGINAL

Elevator

CUSTOMER NO.

CUSTOMEFINO. DATE DATE INVOICE NO. INVOICE NO. SeI1lice!NVOICE 553362 553362 02/28/11 DTH36570( 02/28/11 DTH36;570(;

BILL TO

BILL TO r- MEMORIAL COMPOUNDING PHAR SHIP TO SHIP TO r- MEMORIAL CDMPOUNDING PHARMACY~ r- MEMORIAL COMPOUNDING PHARMACY~ r- MEMORIAL COMPOUNDING PHAR 2918 SAN JACU1TO ST 2918 SAN JACINTO ST 2918 SAN JAC1NTO 2918 SAN JACINTO HOUSTON HOUSTON TX TX HOUSTON HOUSTON TX TX

.J -.J L L. L L 77004 77004 77004 77004 - - IF PAYING BY CREDIT CARD, PLEASE COMPLETE THE FOLLOWING AND MAIL TO IF PAYING BY CREDIT CARD,PLEASE COMPLETE'rHE FOLLOWING AND MAIL TO THE ADDRESS BELOW OR FAX TO TREASURY SERVICES AT (860) 676-645Cl. THE ADDRESS BELOW OR FAX TO TREASURY SERVICES AT (860) 676-6450. PLEASE CHARGE MYt PLEASE CHARGE MY: ( ( ) AMERICAN EXPRESS ) . AMERICAN EXPRESS ( ) MASTER CARD MASTER CARD ( ) VISA ) VlSA CARD NUI11lER _____________________________ EXPIRATION DATE

CARD

NUI'1BER

EXPIRATION DATE

SIGNATURE SIGNATURE PHONE # PHONE ~ FURNISH LABOR AND t1ATERIALS TO MAKE CODE FURNISH LABOR AND t1ATERIALS TO MAKE CODE

REMEDIATION REPAIRS IN ACCORDANCE WITH QUOTE

REMEDIATION REPAIRS IN ACCORDANCE WITH QUOTE DATED OCTOBER 4, 2010. DATED OCTOBER 4, 2010. ANY QUESTIONS REGARDING THIS INVOICE, PLEASE ANY QUESTIONS REGARDING THIS INVOICE, P~EASE CONTACT YOUR ACCOUNT REPRESENTATIVE, NELSON F. CONTACT YOUR ACCOUNT REPRESENTATIVE, NELSON F. BELLE;:SHEIM. JR. AT 713-923-7251. BELL~SHEIM~ JR. AT 713-923-7251. PRICE AS QUOTED $5,81:'2.26 PRIC'E 'AS QUOTED $5~812.26 LESS 10% DISCOUNT LESS 10% DISCOUNT 581.23 581.23 ADJUSTED AMOUNT INCLUDING TAX ADJUSTED AMOUNT INCLUDING TAX $5,231.03

$5,231. 0::' LESS PREVIOUSLY BILLED LESS PREVIOUSLY BILLED 2,615.52 2~615.52 PAGE PAGE 1 i WE CERTIFY THAT THE GOOOS WE:RE PROOUCED IN COMPUANCE INITH AU APPUOABl_~ FI~UIREWlENl'S OF SECl10NS 6, 1 AND ^[12] OF THE FAIR: STANDAROS ACT, AS AMENDED. AND OF' RE:QUl.AnONS AND ORDERS OF THE UNITS) STATES DEPARTMENT OF l.AElQR ISSUED UNDER SECTION 14 HEREOF. PAYME'NTS NOT !'IEl"':EIVEO WITHIN "THIRTY ((3{I) DAYS OF 'THE DATe: OF INVOICE. SHALl.. a'S DEEME:O OVERDUE 'AND St1ALL BEAR AN INTEREST CHARGE 0 OVERDUE AMOUNT,._ CALCULATED fROM THE DAlE OF INVOtC~ AT THE RATE OF ONE AND ONE HALF PERCE~Ui%1 PER t.10NTH OR. THE MAXIMU/J AI.L.OWED BY APPLtt,;ASLE LAW INHICH R IS lESS.. HOUI.O II BE. NEOESSARY TO COMMENCE COL.U::CTION P EED NGS A I S1 YOU F R ANY OVi PAYMENTS, WE SHAL.L. ALSQ B~ENl1T~O FlEIMBY~EMENT FROtuI YOU FOR THE COST OF SUCH PROCEEDINGS, I CLUDING A~~EY'S Ffi.lR.

QUESTIONS CONCERNING THIS INVOICE, CONTACT AMTECH ELEVATOR AT: QUESTIONS CONCERNING THIS INVOICE, CONTACT AMTECH ELEVATOR AT; (713-923- (713-923- r- AMTECH E~EVATOR SERVICES r- AMTECH ELEVATOR SERVlCES ~

. I ' TERMS-NET CASH UPON PRESENTATIO TERMS-NET CASH UPON PRESENTATIO p. Q. BPX 730437 . 1".0. SOX 7304;>7 MAKE ALL CHECKS PAYABLE TO MAKE ALL CHECKS PAYABLE TO DALL0S, TX~ 75~73-0437 DALLflS, TX. 75::;'73-0437 AMTECH ELEVATOR SERVICES AMTECH ELEVATOR SERVICES .J L AR 000100 01 C:I\~C en, n /l.lI.ln cnc'MAon TUE: D=ltjITT4h.1r-~ ('nCV\AJIT~ DAVl.llCI\.Ii' Tn TI-I~ 4nn~~~~ ARn\/I= FOAM~AMT ! CU5TOMiOR NO. DATE Il"IIvt,.ln ... t;, I ' ...... AiR=:; AU, .. WlrYfSltIIMttH 02-21/11 - - 02121/11 nUI06102311 55.1362 DTH0620231! ARP..;-=01 ~ AMOIJNT DUE ON SERV(CE C:ONl'RACT:

INVOICE

INVOICE 1289 N P~t Dall S1e 100 1289N POI;lt Oak StI! 100 1,(147.30 WoustonTX 17055 Houston TX 77055 Em::IO;;/1 Tills c.oupDf1 With '{t)~r ~t1)IfIlerTi, EnclO&~ This coupon With YO\.lT I'llIYrnerrt, M8l\'e Cl'teok ~ysOI~ TO: Ma~ Check: P~yablij To:

AMl'ECH ELE\' A TOR SERVICES AM:rECH llLEV A TOR SERVICES AT 01 006201 '196236 26 A"'"$bGT AT 01 00620179623826 A"SDGT M~MORIAL CO"POUHDING PHARMACY MEMORIAL COMPOUNDING PHARHACY

'1111 II '1111111 1111111'11,11111' ,IIII' 1111111111111'111111111,111 'l"III'IIIIIIIIII"II'II'''"HIII'iIlI''I''IIII'I'IIIIIII''111

2918 SAN JACINTO 5T 2918 SAN JACINtO ST AMTECH ELEVATOR SERVICES HOIlSTON HOUSTON IX 77004-2108 TX 77004-2108 AMTECH ELEVATOR SERVICfS P,O. BOX 730437 P.O. BOX 7304'31 ,,11111,111111'111111111"111,1111,,111'111'11,1111"11111'1,11,1 DALLAS TX TX DALlAS 15373"0437 75373-0431 PL.EA,SE S(;lHP COMREIiPONOENCE 10 YOUR.LOCAL OFFICE A$ $HOWN BEI.OW

ODTH062D2311 0000104730 5 DDTHOb202311 0000104730 S ____ .~:-_ .... -~:__r. ___ ,..~ _____ .. -:-..,;..,..""':-"':,..,"' ... -_-:'.,.~.:-."' .. _-, ... ~"!"_,:" .. i:--":" __ .,,,,',,,!,""~_~~':'."""-''''-'''!!''.''';~~:-'''':!'.'':'-:':"--~'''-''-'': -"",,,,-,,!-,~--:-:':"--,..-r:,,,."!':-,":."7"!'''''''.'':"''!'.--":'--------- ........... "':'~ -: ~ ... -,:"::",~~!",..;.:,,, i"" ........ -: ... "'!'''" -:0" ~!-r -:":' "'!'.:"!'!'!'''' -,~":"",!"""~ .+,'~'.';"':";':".~ ":'!'.;";r.".":,,,,:,~;''J'. ,:",.':",~'r:".";'~~,':".~-. ":"".tI"e~;":':"~":",!"::~ ~ ~~ ~~ ~':"! "'f":~ ~ ~ l'!' ~ ~ -~ ~;': .. ~ ~ ~ ~ :"",- -t-:-: :-::-:,-: ,--;.-:~:-: :~:.,,:".~ ... ,~ , ...... ~ ,'" ,'" ..... ~.~ ... DETACH RETUrlN DOCUMENT ALONG PERFORATION ... .... DETACH RETURN DOCUMENT AlONG PERf/oRATION .. AMTECH ELEVATOR SERVICES AMTECH ELEVATO~ SERVICES I NVOIC E INVOICE .. SERVICE CONTRACT CHARGES ," ~ SERVICE CONTFtACT CHARGES , •• INVOICE NO, ~"COMER NO, . WYQICENO. ~TOMeRNO,

02121/11 DTEl062023I J DTH062023) 1 553362 553362 02/21111 aUIwIN(l D'rHII00681 BUIWm¢ DTHS()0681 MBMoRI}!.L COMPOtJm)l:NG PJiAR. MEMORIAL COMPO'l.TN'Di:NG PHAR CONTRACT DTB06202 ·COl'l'l'RAC'r ~H06202 SERVICE FROM 03/01/11 TO 08/31/11 1,047,30 SERVICE FROM 03/01/11 TO 08/31/11 1.047.30 TOTAL CORRE.N'l' CHARGBS DUB 1,047.30 TOTAL COltR:EN1' CllARQB.S DUB 1,047.30

I/RI Clil lIDJUSTMEN'l' - • - IN ACCORPANCE MITIl 1'1IE PItOVISION FOI! THE JillJOSTf>iENT OF PRleE AS SET FORTH IN THE CON'rRACr IN ACCORPANCE WITH THE PROVISION FOF- THE JillJOSTMEll."'l: OF F'R;tC.E AS SET FORTH IN THE CONTRACT EN'rERED IN'rO BE~WEEN O. FOR THE SERVIC~ OF ELEVATOR EQOIPMEN'r, ENTj;:R~D INtO BE'rWEEN OS POR THE SERVICE OF ELEVATOR EQOIPMEm:': THE FORMER PRICE 01' THE WRM&R PRICE OF 165.77 aAS E~EN ADJOST~b AS I~ICATEb BELOW ~SED UPON THE C~ES US. 77 If AS B:EmN ADU'OST,"ED AS U®ICA"l'E:tJ BELOW 'B~D U;<'ON Tll-},: CE"~ES THAT ffAVE OCC~ IN THE ELEVATOR EXANI~S' COST AND I~ MATERtAL ~NDEX BETWEEN J~AAY,2010 TIIAT !lAVE OCCv:R.ED IN TIIE ELEVATOR l1iXAI<IImlRS' COST AND II>1 JI1ATBRXAL II>1DEX BETWEBW JWU"AftY,2010 AND JANUARY • .<l01:l.. JANUARY,J011. THE JillJU8TED PRICE BECOMES EFFECTIVE MARCH 01, 2011 AND SRALL RE~N AND THE ADJU8TED PRIGJ: BECoMES IWFEC'l'.IVE ~CB 01, :;:Oli AND Sf!l\LL REM.UN IN EFFECT UNTIL P~B~UAR1 28, 2012 ~N IT WILL $E SUBJECT TO ADJUST~NT. ;tN EFUOCT urJ'l'IL FEBRUARY 2!!, 2012 '1Iltlrn IT WILL $!!: BUl\!J1i:CT oro AD.;rtJST'Io]i':NT. c:..AUSE 1 - BA$ED ON CHANGES ;W i'ROpUCEIi. MJ!:TAJ.,S AND METAl> PRODOC'.I'8 GOMMODlT't INPEX; ct.APSEl 1 M BASED ON CHANGES ll'if PROPUCER. M.J:!lTALS AND METAJ... PRODO'C ^[1] .1le COI!4MODlT"i INP'ltX;

(A) (AI IS) (Il) (C)=:f,I(A (C)=li/A ()JJ (P) (E)=C"D (E)=C*D FORMER'INJ;lEX CURlUl1NT I!ilDElX RATIO OF~GI!: .FoRMER JI1ATEl\IIIL CURRENT MATERIIIL PQ~ lNOEX CURll$NT INIlEX RATIO OF CW<NGE FOPNER Mr!.TElUAL cm'RBWI' MATElUAL 215.0000 109.6-9388 1$06.0000 1~6, 0000 215.0000 109.693'5a cLAUSE '2 - -iiAsEri"o~fcmJGES IN EL.gVA'l'01{-·EXAM~8 i"nOtmt'rCOS'l': ci'.lli!SE '2 - -aASElf-ON"ciOOidESINELgVAT~El\'M1~Sr 116Dm;rcOST' (E) """e 1t D (3}"'C WIl \Al IA) (9) IE) (C) =a./A ICI ",B/A (!J) (n) PORMER RATIO OF FORMBR FORMER CuRRENT CURR=. RATIO OF CURRJ;lNT FORMER CllRRE'"

""'OR

EXAMINERS' COST EXAMtNERS' COST L1C9OR EXAUIMERS' COS'T EXAM1;MERS' COST CH.i\.NGE C~GE LAl30R L~OR 59,6479 62.8059 174.55 114.55 PSI!. 110 ~2 .8059 10S:.29440 165.17 ~65 .77 174.55 174.55 FIRw) 59.647~ 10S,2~440 YOUR mil INVOICE AM'l' 1,047.30 TOT~ 1,047.30 TOTAl. FOR ANY QUEST.IONS CONCERNING THIS INVOICE, PLEASE TELEPHONE 1·713·923·7251 FOR ANY QUESTTONS CONCERNING THIS INVOICE, PLEASE TELEPHONE 1-713-923-7251 OR WRIT£ ~CH ELEVATOR OR WRITE AMTECH ELEVATOR 12Sg N POST OAK STE 100 HOUSTON 128~ N POST OAR STE 100 HOUSTON TX 77055 TX 77055 PAYMENT DUI UPON RECEIPT'PLBASE PAY PROMPTL~ PAYMENT DUS UPON RBCEIPT-PLBASB PAY ~OMPTL~ .'C,Rr''''""" no, 0000 . . . . . ""'DO"'" IN cOMPllA""' W'llI Ale AP'LI",",CO ..... ,."""'" OF """0" .' .... 0" oF TH' FAIR LABOR WE CERTIFY THAT tHE (\0005_ I'ItODUCED.1N COMPJJANCE WITH AL~ APPLIOABLE REQUIRE.!.mNTS OF sECTIONS G. l.11ND 12 OF THE FAIR !.AIlOR STANDARDS ACT, AS AMENDED. AND OF REGULATIONS ANIl. ORDERS OF THE UtllTED STATES DEPARTMENT OF LAIlOR ISSUED UNDER: seC110N 1. HEREOF, ST.r.NDAROS ACT, AS AMENDEP,Afm" OF ~ULATlON$ AND, ORI'IERS OF THE. UMTEO S'fA.TEl; DEJlAlUMSIIT OF LABOA: ISSUED UNOER 8&CT10H 1-4lfERf,Of. ~f~'lfol:fGlmrn:i'~,WcR~t~er~ '£~~Rq~HE"1Jlx.o:ilfrlk\ttt~affif~~Af~1V,'W'.tZI\r~R9~t8tJ:E OF TIE INVOIe!:. AT THIO !lXf~'I!'O~t~}lW~.,sIt.e'tP~NfWf%l)Rm ~,A.'lf8FP~HE~~~~'ltlt~eY~\f~M."1ifd&riW,'W',t,lM!\.~~9~tl:.r: OF THE INVOICE AT THE

, AR 000101 Pnge I Mt Page loft 006201"1 VI \If

MINU RX LTD

MINU RX LTD

1 :09 PM

1 :09 PM Account QuickReport Account QuickReport 01/21115 01121115 January through Dece mber 2012 January through December 2012 Accrua l Basis Accrua l Basis Date Num Memo Split Split Amount

Type Type Data Num Name Name Mem o Amount Security Services Securi ty Services Check. 01131112 7214 7214 Armadillo Security Service 99425 Armadillo Security Service 99425 AO COMPASS .. AO COMPASS .. 1,606.20 1,606.20 Check 01 /3111 2 Check Check 01131112 7217 1015 AOCOMPASS AO COMPASS .. 01131/12 7217 Security Nationwide Inc Security Nationwide Inc 1015 1,510.09 1,510.09 Check Check 02115112 02115/ 12 7245 7245 Armadillo Security Service 99445 Armadillo Security Service 99445 AO COMPASS .. AO COMPASS ... 1,314.90 1,314.90 Check Check. 02115/ 12 02/15112 7254 7254 Security Nationwic'e Inc Security Nationwide Inc 1016 1016 AO COMPASS .. AD COMPASS 1.510.09 1,510.09 Check Check 03101 /12 03101/12 7279 Security Nationwide Inc Security Nationwide Inc 1017 1017 AO COMPASS .. AO COMPASS .. 1,510.09 7279 1,510.09 Check 7305 Armadillo Security Service 99465 AO COMPASS .. AO COMPASS .. Check OJJ15/12 03115/12 7305 Armadil!o Security Service 99465 1,606. 20 1,606.20 Check. Check OJJ15/ 12 03115112 7309 7309 Security Nationwide Inc Security Nationwide Inc 1018 1018 AD COMPASS .. AO COMPASS .. 1,812. tl 1,812.11 Check Check 03129112 1021 1021 Security Nationwide Inc Security Nationwide Inc 1019 1019 Al COMPASS .. A1 COMPASS .. 1,661.10 1,661.10 03/29112 Credit Card Charge 04/02112 041012 Digital Alarm Systems AMEX 76008 Credit Card Charge 04102/12 041012 Digital Alarm Systems AMEX 76008 188.36 188.36 Check Check 04/1511 2 04115112 1047 1047 Armadillo Security Service 99526 Armadillo Security Service 99526 A1 COMPASS .. AI COMPASS 1,602.15 1,602.15 Check Check 04115112 1050 1050 Dig ital Alarm Systems Digital Alarm Systems 176860 176860 A1 COMPASS A1 COMPASS .. 138.02 138.02 04/ 15/ 12 Check Check 04115112 1054 1054 Security Nationwide Inc Security Nationwide Inc 1020 1020 AI COMPASS ... A1 COMPASS .. 1,929.56 1.929.56 04115112 Check 1021 • 1022 1021-1022 A1 COMPASS ... AI COMPASS .. Check 05115112 05115112 1126 1126 Security Nationwide Inc Security Nationwide Inc 3,171.19 3,171 .19 Check Check 05115112 0 5/15112 1123 1123 Armadillo Security Service Armadillo Security Service A1 COMPASS .. AI COMPASS ... 1,468.64 1,468.64 Check Check 05/31112 05/31112 1011 1011 Security Nationwide Inc Security Nationwide Inc 1023 1023 A1 COMPASS .. AI COMPASS ... 1,661.10 1,661 .10 Credit Card Charge Credit Card Charge 06104112 060812 Digital Alarm Systems 060812 Digital Alarm Systems AM EX 61001 AMEX 61001 321.51 321.51 06/04112 Check Check 06115/12 1041 1041 ArmadHio Security Service 99524 Armadillo Security Service 99524 A1 COMPASS .. Al COMPASS .. 06/15112 1,768.04 1.768.04 Check Check. 06115112 06115112 1045 1045 Security Nationwide Inc Security Nationwide Inc 1024 1024 A1 COMPASS .. Al COMPASS 1,661 .10 1,661.10 Credit Card Charge Credit Card Charge 07(02/ 12 07102112 071112 Digital Alarm Systems 071112 Digital Alarm Systems AMEX 76008 AM EX 76008 188.36 188.36 Check Check 07117(12 07/17112 1108 1108 Security Nationwide Inc Security Nationwide Inc 1025& 1026 1025&1026 A1 COMPASS .. Al COMPASS .. 3,171 .19 3,171.19 Credit Card Charge Credit Card Charge 07/26112 081012 Digital Alarm Systems AMEX 76008 AMEX 76008 07/26(12 081012 Digital Alarm Systems 238.16 238.16 Check Check. 08/15112 08115/12 1167 1167 Security Nationwide Inc Security Nationwide Inc 1027-1028 1027 · 1028 A1 COMPASS .. AI COMPASS .. 3,322.20 3,322.20 Credit Card Charge Credit Card Charge 10101112 10/01112 101112 Digital Alarm Systems 101112 Dig ital Alarm Systems AMEX 76008 AMEX 76008 188.36 188.36 Check 1267 Security Nationwide tnc Security Nationwide Inc 1029 & 1030 Al COMPASS .. Check 10/02/12 10102112 1267 1029&1030 A1 COMPASS .. 3,473.21 3,473.21 Check 10/02112 Check 10(02/ 12 1271 1271 Security Nationwide Inc Security Nationwide Inc 1031 1031 A1 COMPASS .. Al COMPASS .. 1,510.09 1,510.09 Check Check 10115/12 10115/12 1301 1301 Security Nationwide Inc Security Nationwide Inc 1032 1032 A1 COMPASS .. Al COMPASS 1,510.09 1,510.09 Check Check 11/01 /12 11101112 1346 1346 Security Nationwide Inc Security Nationwide Inc 1033 1033 Al COMPASS ... A1 COMPASS .. 1,661.10 1,661 .10 Check Check 11121/12 11/21 (12 Security Nationwide Inc 1034 & 1035 1034&1035 A1 COMPASS .. AI COMPASS ... 1388 1388 Security Nationwide Inc 3,473.21 3,473.21 Check 1468 1036 AI COMPASS .. Check 12/12112 12112112 1468 Security Nationwide In c Security Nationwide Inc 1036 A1 COMPASS .. 1,370.14 1,370.14 Check Check. 12/29112 12129112 1486 1486 Security Nationwide Inc Security Nationwide Inc 12103·1211 4 . 12103-12114. AI COMPASS .. A1 COMPASS .. 2,869.17 2,869.17

Total Security Services Total Security Services 49,415.73 49,415.73 TOTAL TOTA L 49,415.73 49,415.73 Page 1 Page 1 AR 000102 EXHIBIT G MINU RX LTD MINU RX LTD

1 :09 PM

1:09 PM Account QuickReport Account QuickReport 01121115 01/21/15 January through Dece mber 2013 January through December 2013 Accrual Bas is Acc r ual Basis Type Type Date Date Num N"m Nam e Name Memo Memo Split Sp lit Amount Amount Security Serv ices Security Services Credit Card Charge Credit Card Charge 01/01/13 011113 Digital Alarm Systems 01101/13 011113 Digital Alarm Systems AMEX 76008 AMEX 76008 188.36 188.36 Check Check 02115113 02/15/13 1583 1583 Security Nationwide Inc Security Nationwide Inc 1036,1038 ,L 1036,1038,1 .. A1 COMPASS .. A1 COMPASS .. 3,160.13 3,160.13 Check Check 03/01/13 03/01113 1615 1615 Security Nationwide Inc Security Nationwide Inc 1041 1041 A1 COMPASS .. A1 COMPASS .. 1,661.10 1,661 .10 Check Check 03119/13 03119113 1665 1665 Security Nationwide Inc Security Nationwide Inc 1042 1042 A1 COMPASS .. Al COMPASS 1,359.08 1,359.08 Check Check 04101113 1707 A1 COMPASS .. 04/01113 1707 Security Nationwide Inc Security Nationwide Inc 1043 1043 Al COMPASS .. 1,661 .10 1,661.10 Credit Card Charge Credit Card Charge 04/01113 04101113 041013 Digital Alarm Systems 041013 Digital Alarm Systems AMEX 76008 AM EX 76008 188.36 188.36 Check Check 04115113 04/15/13 1744 1744 Security Nationwide Inc Security Nationwide Inc Iny 1044 Inv 1044 A1 COMPASS .. At COMPASS 1,510.09 1,510.09 Check Check 04130/13 04130113 1771 1771 Security Nationwide Inc Security Nationwide Inc Iny. 1045 Inv.1045 Al COMPASS .. A1 COMPASS .. 1,661.10 1,661 .10 Check Check 05/20113 OS/20/13 1806 1806 Security Nationwide Inc Security Nationwide Inc 1046 1046 A1 COMPASS .. AI COMPASS 1,661 .10 1,661.10 Check Security Nationwide Inc Check 05130/13 05130113 1820 1820 Security Nationwide Inc 1047 1047 AI COMPASS., . A1 COMPASS .. 1,661.40 1,661.40 Check Check 06115113 06115113 1853 1853 Security Nationwide Inc Security Nationwide Inc 1048 1048 A1 COMPASS .. AI COMPASS .. 1,661.10 1,661 .10 Credit Card Charge Credit Card Charge 07/01113 07101113 071113 Digital Alarm Systems 071113 Digital Alarm Systems AMEX 76008 AMEX 76008 188.36 188.36 Check Check 07/15/13 07115113 1883 Security Nationwide Inc 1049,1050 Al COMPASS .. A1 COMPASS .. 1883 Security Nationwide Inc 1049,1050 3,020.18 3,020.18 Credit Card Charge Credit Card Charge 07122113 07/22/13 080913 Digital Alarm Systems 080913 Digital Alarm Sys tems AM EX 61001 AMEX 61001 92 .01 92.01 Check Check 07131113 07131/13 1904 1904 Security Nationwide Inc Security Nationwide Inc Iny 1051 Inv 1051 Al COMPASS._ A1 COMPASS .. 1,661.10 1,661.10 Check Check 08/15t13 1937 1937 Security Nationwide Inc Inyl0S2 Inv 1052 AI COMPASS .. 08115113 Security Nationwide Inc A1 COMPASS .. 1,812.11 1,812.11 Check Check Iny 1053 08131/13 08131113 1955 1955 Security Nationwide Inc Security Nationwide Inc Inv 1053 A1 COMPASS .. A1 COMPASS .. 1,661 .10 1,661.10 Check Check 09/15/ 13 09115113 1976 1976 Security Nationwide Inc Security Nationwide Inc Iny 1054 Inv 1054 A1 COMPASS .. A1 COMPASS ... 1,661 .10 1,661 .10 Credit Card Charge Credit Card Charge 09t30/13 09130113 100913 Digital Alarm Systems 100913 Digital Alarm Systems AMEX 61001 AM EX 61001 188.36 188.36 Check Check 10t01f13 10101113 1989 1989 Security Nationwide Inc Iny 1055 A1 COMPASS .. At COMPASS .. Security Nationwide Inc Inv 1055 1,510 .09 1,5tO.09 Check Check 2012 Iny. 1056 Al COMPASS ... 10fl5113 10115113 2012 Security Nationwide Inc Security Nationwide Inc Inv.1056 A1 COMPASS .. 1,661.10 1,561 .10 Check Iny 1057 Check 10131113 10/31f13 2037 2037 Security Nationwide Inc Security Nationwide Inc Inv 1057 A1 COMPASS .. AI COMPASS .. 1,812.11 1,812. tl Check Check 11117113 11117/13 2058 2058 Security Nationwide Inc Security Nationwide Inc tny. 1058 Inv. 1058 A1 COMPASS .. At COMPASS ... 1,627.54 1,627 .54 Check Check lt/30113 11130113 2080 Security Nationwide Inc Iny. 1059 Inv. 1059 Al COMPASS .. A1 COMPASS .. 2080 Security Nationwide Inc 1,661.10 1,661.10 Check Check 12f15/13 12115113 2116 2116 Security Nationwide Inc Security Nationwide Inc 1060,1061 1060,1061 A1 COMPASS .. AI COMPASS 2,718.16 2,718.16

Total Security Services Total Security Services 37,647.34 37,647.34 TOTAL TOTAL 37 ,647.34 37,647. 34 Page 1 Page 1 AR 000103 MINU RX LTD MINU RX LTD 1 ;08 PM 1:08 PM Account Quick Report Account QuickReport 01/21/15 01 /2 1t15 January through December 2012 January through Dece mber 201 2 Accrual Basis Accrua l Basis Type Num Memo Memo Spli t Split Amount Amou nt Type Date Date N"m Name Name Malnt & Repairs/Bl dg & G rounds Maint & Repairs/B ldg & Grounds Bering Home Center Bering Home Center AM EX 340061.. AMEX 34006/ ... 202.89 202.89 Credit Ca rd Charge Credit Card Charge 01115/12 01/15/12 020512 020512 supplies supplies AO COMPASS .. AO COMPASS ... Check Check 01126112 7213 7213 Sam's Club Sam's Club 204.87 204.87 01/26/12 AO COMPASS .. Check Check WD WD AO COMPASS ... 1,500.00 1,500.00 01/27/12 01/27112 Credit Card Charge 030712 Home Depot AMEX 34006J... AMEX 34006/ .. . 228.12 228.12 Credit Card Charge 02/05/12 02/05112 030712 Home Depot Credit Card Charge OEC'NAE SAQU ISITIONC OEC"NAESAQUISITIONC AM EX 76008 AMEX 76008 523.65 Credit Card Charge 02115112 02/15/12 031112 031112 523.65 WD AO COMPASS .. AO COMPASS Check Check 02129/12 02/29/12 WD 1,000.00 1,000.00 AM EX 76008 AMEX 76008 Credit Card Charge Credit Card Charge 031112 031112 ABC Pest Pool & Lawn ABC Pest Pool & Lawn 146.35 146.35 02/29/12 02129/12 Credit Card Charge 02129/12 Credit Card Charge 031112 ABC Pest Pool & Lawn ABC Pest Pool & Lawn AM EX 76008 AMEX 76008 77.93 02/29/12 031112 77.93 Check 7283 Sam's Club maint supps maint supps AO COMPASS .. AO COMPASS ... 189.34 189.34 Check 03/01/12 03101 / 12 7283 Sam's Club Credit Card Charge 040612 Wal-Mart AMEX 340061.. AMEX 3 40061 .. 173.45 Credit Card Charge 03110/12 03/10/12 040612 Wal·Mart 173.45 AO COMPASS .. AO COMPASS ... Check Check 03114f12 03/14/12 7304 7304 Cash Cash 1,000.00 1,000.00 building door repair AM EX 76008 CrOOit Card Charge Credit Card Charge 041012 04101 2 Crown Overhead Door Crown Overhead Door building door repair AMEX 76008 1,036.00 1,036.00 03/27/12 03127112 Credit Card Charge Credit Card Charge 041012 OEC"NAESAQUISITIONC OEC'NAESAQUISITIONC Main! Maint AM EX 76008 AMEX 76008 1,099.74 1,099.74 03/30/12 03/30112 041012 A1 COMPASS .. A1 COMPASS .. Check Check 04/04/12 04f04lt2 WD WD 2,000.00 2,000.00 Robbie's Lock & Key Shop Robbie 's lock & Key Shop Al COMPASS .. Check Check 04/15112 04/ 15/12 1051 1051 A1 COMPASS .. 234 .36 234.36 Check Check 04/15112 1053 1053 Willowbrook AC Willowbrook AC 3323 3323 A1 COMPASS .. A1 COMPASS .. 1,627.00 1,627.00 04/15/12 1070 Zeva Home Construction Break-in repairs Break-in repairs A1 COMPASS .. Al COMPASS ... 1,681.31 Check Check 04118/12 04/18/12 1070 Zeva Home Construction 1,681.31 break-in repairs break-in repairs Al COMPASS .. A1 COMPASS .. Check Check 04118/12 04/18/12 1071 1071 Zeva Home Construction Zeva Home Construction 2,844.56 2,844.56 Check Check 04/25/12 1080 1080 Sam's Club Sam's Club A1 COMPASS .. Al COMPASS ... 199.43 199.43 04/25/12 Credit Card Charge Credit Card Charge 050712 050712 Parata Systems LLC Parata Systems LLC AMEX 34006/ ... AM EX 34006/ ... 1,338.71 1,338.71 04/26/12 04/26/12 Credit Card Charge 051112 ABC Pest Pool & Lawn ABC Pes! Pool & Lawn AMEX 76008 AMEX 76008 Credit Card Charge 04/30/12 04/30112 051112 77.93 77.93 A1 COMPASS ... Check Check 05/05112 05/05/12 1106 1106 Cash Cash Al COMPASS ... 2,000.00 2,000.00 Credit Card Charge Credit Card Charge 05128112 060612 060612 Parata Systems lLC Parata Systems LLC AMEX 34006/ .. AMEX 34006/ ... 1,338.71 1,338.71 05/28/12 Credit Card Charge Credit Card Charge 060812 060812 Bering Home Center Bering Home Cen ter AMEX 61001 AMEX 61001 44.83 44.83 05/28/12 05/28112 Check 1012 Willowbrook AC Al COMPASS .. A1 COMPASS .. 349.50 Check 05131112 05/3 1/12 1012 Willowbrook AC 349.50 Credit Card Charge ABC Pest Pool & Lawn AMEX 76008 AMEX 76008 Credit Card Charge 05131/12 05/31/12 061012 061012 ABC Pest Pool & Lawn 146.35 146.35 A1 COMPASS .. Check Check 06108112 06/08/12 1023 1023 Zeva Home Constructlon Zeva Home Construction Repairs due to Rob .. AI COMPASS .. Repairs due to Rob .. 9,321.22 9,321.22 Credit Card Charge CrOOi! Card Charge 071112 071112 ABC Pest Pool & Lawn ABC Pest Pool & lawn AMEX 76008 AMEX 76008 77.93 06/29/12 06J29/12 77.93 Check WD A1 COMPASS .. Al COMPASS .. 1,500.00 Check 07102/12 07/02/12 WD 1,500.00 Check Check 07/10/12 07/10112 1097 1097 Willowbrook AC Willowbrook AC 4067 4067 A1 COMPASS .. Al COMPASS .. 2,920.00 2,920.00 Check Check 07/17112 1109 1109 Rueben Alejandro Rueben Alejandro A1 COMPASS .. Al COMPASS .. 495.00 495.00 07/17/12 Check Zeva Home Construction Zeva Home Construction Robbery Repairs Robbery Repairs Al COMPASS .. A1 COMPASS .. Check 07/25/12 07/25/12 1128 1128 3,677.80 3,677.80 Elevator Technical Service Al COMPASS ... Check Check 07/31/12 07/31/12 1143 1143 Elevator Technical Service A1 COMPASS .. 145.00 145.00 CrOOit Card Charge Credit Card Charge 08130112 08/30/12 091012 091012 ABC Pest Pool & Lawn ABC Pest Pool & Lawn AMEX 76008 A M EX 76008 146.35 146.35 Credit Card Charge Credit Card Charge 08130/12 091012 091012 ABC Pest Pool & Lawn ABC Pest Pool & Lawn AMEX 76008 AM EX 76008 77.93 08/30/12 77.93 Check A1 COMPASS .. A1 COMPASS .. Check 09/15/12 09115/12 1225 1225 Cash Cash 1,000.00 t ,OOO.OO Deposit Deposit 09/30112 09/30112 DEP DEP SEPT. 2012 DEPO .. SEPT. 2012 DEPO .. Al COMPASS ... A1 COMPASS .. -321.51 -321.51 Credit Card Charge Credit Card Charge 11120112 120912 120912 Crown Door LTD Crown Door LTD specially retail specialty retail AMEX 61001 AMEX 61001 175.00 175.00 11/20/12 Check Check 12112112 1466 1466 Robbie's Lock & Key Shop Robbie's Lock & Key Shop 097518 097518 A1 COMPASS .. A1 COMPASS .. 125.74 12/12/12 125.74 Check Check 1467 Rueben Alejandro 07/09/12- 1211 0112 AI COMPASS .. A1 COMPASS .. 12/12/12 12/12/12 1467 Rueben Alejandro 07/09/12-12/10/12 540.00 540.00

Total Main! & Repa irs/Bldg & Grounds Total Maint & Repairs/Bldg & Grounds 41 ,1 45.49 41 ,145.49 TOTAL TOTAL 41,145.49 41 ,145.49 Page 1 Page 1 AR 000104 MINU RXLTD MINU RX LTD

1 :08 PM

1:08 PM Account QuickReport Account QuickReport 01 /2 1/15 0112111 5 Ja nuary t hrough December 201 3 January through December 2013 Accrual Bas is A cc rual Basi s Type Type Date Date Nom Num Name Nam e Memo Mem o Split Split Amount Am ount Malnt & Repairs/Bldg & Grounds Ma int & Repairs/Bldg & Ground s Credit Card Charge 01/18113 Credit Card Charge 01/18/13 020913 020913 AMEX 61001 AMEX 61001 2,155.26 2,155.26 Check Check 01/31113 01/31113 1550 Robbie's Lock & Key Shop Robbie's Lock & Key Shop 098090 098090 A1 COMPASS .. AI COMPASS .. 233.45 1550 233.45 Credit Card Charge Credit Card Charge AMEX 76008 AMEX 76008 02/28/13 02128113 031113 031113 ABC Pest Pool & Lawn ABC Pest Pool & Lawn 150.75 150.75 AMEX 61001 Cred it Card Charge Credit Card Charge 03/25/13 03125/13 040813 040813 Air Clean Systems Air Clean Systems AMEX 61001 1,380.00 1,380.00 Credit Card Charge Credit Card Cha rge 04/20/13 050913 Wal-Man 050913 Wal·Mart SUPLLlES SUPLLl ES AMEX 61001 AMEX 61001 208.04 208.04 04/20/13 Credit Card Charge 05/03/13 051013 ABC Pest Pool & Lawn ABC Pest Pool & Lawn AMEX 76008 AMEX 76008 150.75 Credit Card Charge 05/03/13 051013 150.75 Ughllng Inc Plumbing & H .. Repairs A1 COMPASS .. At COMPASS ... Check Check 05115113 05/15/13 1795 1795 Lighting Inc Plumbing & H .. Repairs 152.63 152.63 A 1 CO MPASS .. Check Check 05/20/13 05/20113 1807 1807 United Helping Hand United Help ing Hand F!ourescen t Ught T ... AI COMPASS ... Flourescent light T .. 518.96 518.96 Credit Card Charge Credit Card Charge 05/22/13 060713 060713 Crown Door LTD Crown Door L TO AM EX 6100 1 AMEX 61001 195.00 195.00 05122113 Check 07/15/13 A1 COMPASS .. AI COMPASS ... 1,500.00 Check 07115113 WD WD 1,500.00 Inv 36977, 37094 In ... 36977, 37094 A1 COMPASS .. AI COMPASS ... Check Check 08/06/13 08/06/13 1913 1913 Strutton Plumbing co., Inc. Strutton Plumbing co., Inc. 350.00 350.00 Check Check 08/13/13 08/13113 1925 1925 Rueben Alejandro Rueben Alejandro A1 COMPASS .. AI COMPASS .. 830.00 830.00 Check Check 08/23/13 08123113 194 1 1941 Cash Cash AI COMPASS .. A1 COMPASS .. 1,500.00 1,500.00 Credit Card Charge Credit Card Charge 08/29/13 091013 ABC Pest Pool & Lawn AM EX 76008 AMEX 76008 150.75 08129f13 091013 ABC Pest Pool & Lawn 150.75 WD AI COMPASS .. A1 COMPASS .. Check Check 08130113 08/30/13 WD 1,500.00 1,500.00 Check Check 08/31/13 08131113 1956 1956 Willowbrook AC Willowbrook AC Inv 4570 Inv 4570 AI COMPASS .. A1 COMPASS .. 362.00 362.00 Credit Card Charge Credit Card Charge 10101/13 10/01113 100913 Home Oepot AMEX 61001 AMEX 61001 52.39 100913 Home Depot 52.39 Check 10/14/13 Nelson Suarez, Sr. . Exp. Light Bulbs AI COMPASS ... A1 COMPASS .. Check 10114113 2005 2005 Nelson Suarez, Sr. - Exp. Ligh t Bulbs 18.34 18.34 Rueben Alejandro A1 COMPASS .. Check Check 10/15113 10/15/13 2013 2013 Rueben Alejandro AI COMPASS •.. 265.00 265.00 Check Check 11/01/13 2028 2028 Willowbrook AC Willowbrook AC In ... 4483 Inv 4483 AI COMPASS .. A1 COMPASS .. 330.00 330.00 11101/13 Credit Card Charge 120913 120913 Bering Home Center AMEX 6100t AMEX 6 100 1 526.95 Credit Card Charge 11/24/13 11124/13 Bering Home Center 526.95 Check A1 CO MPASS .. Check 11/25/13 11125/13 2072 2072 Mauncio Vega Mauncio Veg a Contract Yardman Contract Yardman AI COMPASS .. 40.00 40.00 ABC Home & Commercial AMEX 76008 Credit Card Charge Credit Card Charge 11/27/13 121113 121113 ABC Home & Commercial AMEX 76008 150.75 150.75 11127113 Check Check 12/15/13 2112 2112 Elevator Technical Service Elevator Technical Service 23510 23510 At COMPASS .. A1 COMPASS .. 250.00 250.00 12/15113 Check Check 12/15/13 2114 2114 Willowb rook AC Willowbrook AC Inv 4715 Inv 4715 At COMPASS .. A1 COMPASS .. 1,090.00 1,090.00 12/15113 Credit Card Charge AM EX 61001 Credit Card Charge 12/19/13 12/19/13 010914 010914 Crown Door LTD Crown Door LTD AMEX 61001 145.00 145.00 Credit Card Ch arge Credit Card Charge 12/19/13 12/19/13 010914 01091 4 Crown Door L TO Crown Door LTD AM EX 61001 AMEX 61001 2, 400.00 2,400.00 WD Check Check 12/20/13 WD A1 COMPASS .. AI COMPASS .. 1,213.47 1,213.47 12120/13

Total Maint & Repairs/Bldg & Grounds Total Maint & Repairs/Bldg & Grounds 17,819.49 17,819. 49 TOTAL TOTAL 17,819.49 17,819.49 Pag o 1 Page 1

AR 000105

Franchise Tax Account Status - Officers and Directors 1/1212015 Franchise Tax Account Status - Officers and Directors 1/1212015 «» \Xij ndow on S ta (c Govern mcm Taxable Entity Search Results Taxable Entity Search Results Taxable Entity Search Taxable Entity Search Officers and Directors Officers and Directors NISAL CORPORA nON NISAL CORPORATION Report Year: 2014 Report Year: 2014 Return to: Taxable Entity Search Results Return to: Taxable Entity Search Results Officer and director infonnation on this site is obtained from the most recent Public lnfonnation Report (PIR) Officer and director information on this site is obtained from the most recent Public Information Report (PIR) processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are fonvarded to the SOS. processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded to the SOS. After processing, the SOS sends the Comptroller an electronic copy of the infonnation, which is displayed on After processing, the SOS sends the Comptroller an electronic copy of the information, which is displayed on this web site. The infonnation will be updated as changes are received from the 50S. this web site. The information will be updated as changes are received from the SOS. You may order a copy ofa Public Infonnation RcpOit from open.records{a;cpa.statc.tx.us or Comptroller of You may order a copy of a Public Information Report from open.records@cpa.state.tx.us or Comptroller of Public Accounts, Open Government Division, PO Box 13528, Austin, Texas 78711. Public Accounts, Open Government Division, PO Box 13528, Austin, Texas 78711.

Title Title N arne and Address N arne and Address PRESIDENT PRESiDENT BRETT L GARNER BRETT L GARNER

5718 BELLAIRE BLVD

5718 BELLAIRE BLVD

HOUSTON, TX 7708 I

HOUSTON, TX 77081

DIRECTOR

DIRECTOR BRETT L GARNER BRETT L GARNER

5718 BELLAIRE BLVD

5718 BELLAIRE BLVD

HOUSTON, TX 77081

HOUSTON, TX 77081

CIlIEFOPER CHIEFOPER WILLIAM H HICKS WILLIAM H HICKS

5718 BELLAIRE BLVD

5718 BELLAIRE BLVD

HOUSTON, TX 77081

HOUSTON, TX 77081

DIRECTOR

DIRECTOR WILLIAM H HICKS WILLIAM H HICKS

5718 BELLAIRE BLVD

5718 BELLAIRE BLVD

HOUSTON, TX 77081

HOUSTON, TX 77081

texas.gov i Statewide Search from the Texas State Library i State Link Policy Texas Homeland texas.gov Statewide Search from the Texas State Library State Link Policy Texas Homeland

Security Security Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us Privacy and Security Policy ! Accessibility Policy I Link Policy I Public Information Act I Compact Privacy and Security Policy Accessibility Policy ~ Link Policy ! Public Information Act i Compact

with Texans with Texans

AR 000106

https://mycpa.cpa.state.tx.us/coalservlet/cpa.app.coa.CoaOfficer https:llmycpa.cpa.state.tx.us/coaiservleVcpa.app.coa.CoaOfficer

EXHIBIT H

Franchise Tax Account Status· Officers and Directors 1/30/2015 1/3012015 Franchise Tax Account Status - Officers and Directors ndijOWOnStateGovernment ' . \Vindowon Stal:cGovcrnmcnr G.llinnHagaf Taxable Entity Search Results Taxable Entity Search Results Taxable Entity Search Taxable Entity Search Officers and Directors Officers and Directors

PROVIDIAN HOLDINGS, INC.

PROVIDIAN HOLDINGS, INC. Report Year: 2014 Report Year: 2014 Return to: Taxable Entity Search Results Return to: Taxable Entity Search Results Officer and director information on this site is obtained from the most recent Public Information Report (pIR) Officer and director information on this site is obtained from the most recent Puhlic Information Report (PIR) processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded to the SOS. processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are fonvarded to the SOS. After processing, the SOS sends the Comptroller an electronic copy of the information, which is displayed on After processing, the SOS sends the Comptroller an electronic copy ofthe information, which is displayed on this web site. The information will be updated as chang(!s are received from the SOS. this web site. The information will be updated as changes are received from the SOS. You may order a copy ora Public Infonnation Report fTOm open.rceordsr(1!cpa.state.tx.us or Comptroller of You may order a copy of a Public Information Report from open.records@cpa.state.tx.us or Comptroller of Public Accounts, Open Government Division, PO Box 13528, Austin, Texas 78711. Public Accounts, Open Government Division, PO Box 13528, Austin, Texas 78711.

Title Title Name and Address Name and Address

PRESIDENT

PRESIDENT KHYATIUNDAVIA KHYATI UN DAVIA

2918 SAN JACINTO

2918 SAN JACINTO

HOUSTON, TX 77004

HOUSTON, TX 77004

texas.gov I Statewide Search from the Texas State Library! State Link Policy Texas Homeland texas.gov I Statewide Search from the Texas State Library I State Link Policy I Texas Homeland Security Security Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us Privacy and Security Policy i Accessibility Policy i Link Policy I Public Information Act I Compact Privacy and Security Policy Accessibility Policy : Link Policy Public Information Act: Compact

with Texans with Texans

AR 000107

https:llmycpa.cpa.state.tx.us/coa/servlet/cpa.app.coa.CoaOfficer '" https :I/mycpa.cpa.state.tx.uslcoa/servlet'cpa.app.coa.CoaOfficer ^[111]

EXHIBIT I

I DATE (MMJDDIYYYY} CERTIFICATE OF LIABILITY INSURANCE CERTIFICATE OF LIABILITY INSURANCE ACORQ,. ACORQ

08/06/2009

FAX 713.529.4957 PRODUCER 713.528.1616 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION

ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE

John S. Dunn & Son Inc John S. Dunn & Son Inc

HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR

2200 W Alabama #200 2200 W Alabama #200

ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.

POBox 980608 POBox 980608 NArc # Houston. TX 77098 Houston, TX 77098 INSURERS AFFORDING COVERAGE INSURERS AFFORDING COVERAGE

- - ---- -- --.---- INSURED Avaiit 'Medical -Graii-ii, PA INSURW Avant 'M'ed-fCil GrOl.ip;---PA-- INSURERA: Assurance Company of America dba Allied Medical Centers dba Allied Medical Centers INSURER II: 5718 Bellaire Blvd. 5718 Bellaire Blvd.

INSURERC:

Houston, TX 77081 Houston, TX 77081

WStIRERO: INSURERS: ;

COVERAGES

THE POLICIES OF INSURANCE LISTED BelOW HAVE BEEN ISSUED TO THE INSURED NAMEDABOVE FOR THE POlICY PERIOD INDICATED. NOlWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TOWHlCH THIS CERTlFlCATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POlICIES DesCRIBED HERSN IS SUBJECT TO All THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH

POLICIES.

AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.

T-__ UASUn -- •.. _-----------.

INSR~~ • &JMf"EFFECTIVE ~ POUCY NUMBER TYPE OF INSURANCE UMI'IS

LTR NS

PPS4082S216 07/08/2009 07/08/2010 I<ACH OOOtIRREHCE 1.OOO.OO( GENEIlAL llAlllUTY GENERAL LlASlUTY $ X1 COMMERCIAl GENERAlllA31UTY

.~T?ea~) $

1,OOO,OO~

I CI AJMS MAIlE [~J OCCUR ~_- ' _- ' ] CtAIMS WillE [K] OCCUR lO,OOe MED exP (My _person) t $

A A [--1- ---- .-1 PEftSONAL & ADV INJURY $ 1,OOO,OO~ ___ 1 ______ GENERALAGGReGATE $ 2.fOOO.OO~ --- .--._----_._-- 2.000.00(] '" PRODUCTS -COMPlOP AGG $ GE.'N'L AGG~r~E LIMIT AP{!:,~s PER 1

PRO - '

! lOC POLICY JECT ,

.-.~

~TOMOBll.e UASIUTY COMfIINEO SINGlE LIMIT COMBINED SINGLE LIMIT $ (fa accident) (Sa aedd""lj foNfAUTO NNAlflO

I--

• All OWNED AUTOS AU OWNED AUTOS

BODILY INJURY

$ (Per person) I SCIi~OWLEO AUTOS SCl-Il:OUlEO AUTOS - -- IiIREDAIHOS HIREOAUrOS

BOO!l.. Y INJURY BODIlY INJURY $ (P...- ao:ci<!ent) (Per aa:I!IenI) NON·OWNFO AUTOS NON·OWNFfl AUTOS -_o- • - .- ------ ._._------_._---- PROPERTY DAMAGE

j $; (Pet accident} =j foNf AUTO AUTO ONL V - EAACClDENT S GARAGE LIABIlITY Nl'{AUTO EAACC $ OlHERTHAN

AUTO ONLY:

AGG $ ! 1O)(C(551 U"'!lRELtA LIABILITY EXCESS I UMBRELLA UASllllY EACH OCCURRI:NCE $; f'- J CIAlMS MADIC n PFOUCTI8LE -I OCCUR [J ClAIMS MADE 1 OCCUR AGGREGATE $ $ $ S

RETENTION $ i

WORKERS COMPENSATION

·l~~"W~T I~- AHD eMPLOYERS' UABlUTY foNf PROPRIEroRIPARTNERlEXeCUT~

EL. EACH ACCIOEI'IT S OFfICER./MEMBER EXCLUDED? (Mandalory In Nltl_ E.l. tl\S£ASE -EA EMPI.O"tEE S : " yes. do.crib£> under

-_ ... _._. E.L. DISEASE -POlICY UMIT $; SPECIAl. PROVISIONS below OrnER DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDEO BY EfftJORSe/lENT I SPECIAL PROVISIONS Sterling Practice Management Inc. is Named Additional Insured as respects General liability. as respects General liability. CANCELLATION CERTIFICATE HOLDER ,

SIIQlJl..O ANY OFnIE A8OWOESCRl8ED POlICIES BE CANCELLED tmFORE THE ~PlRATIOH 011. TE THEReOF, TIlE ISSUING INSURER WILL ENDEAOJOR TO MAIL ~ DAYS WRITTEN DATE THEREOF. THEtsSUlNG INSURER WIlL ENDeAVOR TO MAll ~ DAYS WRITTEN NOTICE TO THE CERTIRCATE 1I0LOER NAMED TO TilE LEFT. BUTFAILURE TO 00 so SHALL NonCE TO THE GERT1FtCi\TE HOLOER NMlEO TO THE LEFT, BUT FAlLURI'; TO 00 SO SHALL UAPOS£tlOOBUQAltOK OR UABIUTV OF /IN{ KIND UPON TtlE INSURER. ITS AGENTS OR IMPOSE. NO OBLIGATION OR UA81UTY OF fJN( KINO UPON THE INSURER. ITS AGENTS OR

Sterling Practice Management Inc. Sterling Practice Management Inc. REPRESENTATIVES. 5718 Bellaire Blvd., Suite 100 AI1fKORIZED REPRESENTAtIVE 5718 Bellaire Blvd •• Suite 100

~11Lu./ Ho~ston, TX 77004 TX 77004 20-1B/SUSANA @ 198'S-ZOGe ACORD CORPORATION. All rfgl1ts reserved. ACORD 26 (2009/01) The ACORD name and logo are registered marks of ACORD The ACORD name ~nd logo are registered martls of ACORD AR 000108 EXHIBIT J AR 000109 . AVANT MEDICAL GROUP ,P .A. WHITNEY NATIONAL BANK HOUSTON, TEXAS .114301·10 EAST FREEWAY '6(3/01 ~ 35·96·1130 HOUSTON, TX 77029 I .0 i5 $f;l.poo. £:<) !

~~YD~6~E eIlDid100tlv.w~I'~C-·

tw ~ . I" \5t .. Vif\..O/ m . D -tb 0 \1M /~., tU - ck"d X <l.JlA.:=.. . _ - . C'-----~ - I o~-' DOLLARS %' II en

I

t i

. . / Iil I MEMO ~ ~ A!'u# L rfj'a-. .

..

I &", .... '"''".~~_. _ •• ~~_. ..• • • I E X H I B I T K -;Om~~ bll·~;:-;''"i3o 0 0 g ~;t50 "3 ",BB~~-·· .. _ .. _ .... ~ .... ~~~.- .. _ ... -... ~~~..,-, J .• . . • • . • ... . .•. . .•. . •. .. . "IT"","", " " " ' ' ' ' ' '

C.C.C.I...# 4

I . I v.- I \ '- rr;:' .' i;( ,~, . ' NO ______ _ NO. ______________ _

I

i " ' \ ' . " ( • \ ... J ••• •• ( ..... ~_ STERLING PRACTICE MANAGEMENT, u.c STERLING PRACTICE MANAGEMENT, LLC IN COUNTY COURT AT LAW IN COUNTY COURT AT LAW NISAL CORPORATION NISAL CORPORATION

Plaintiff Plaintiff NO· ________ -tlh~- _ ...., NO. ----._-+t;tr\- vs.

VB.

_ iV\ c:::t - ~ NO = 'l: 0; :::0 ::0 ~ '\~ ~ ,m

PROVIDIAN HOlDINGS, INC. PROVIDIAN HOLDINGS, INC. ,;In t'.I\ ;1n f:I\ f(4 m

~

HARRIS COUNTY, TJ5KAs HARRIS COUNTY, TExAs Defendant Defendant .." (") ()

;'·,V\

m I en I :;:, :: ", \ :~,;:~"V\ m

UI

-~ .. ~ < -"">«-- ,- -, " t . PLAINTIFFS' ORIGINAL PETITION ," , -- \ . < PLAINTIFFS' ORIGINAL PETITION :J: - - -' - ." .. -, ..... »0 " . :z - - - .'" ." ,.;,~ /.~ m m . ';-. ~" .'., .... r "" .. ;:; t

0 0 TO THE HONORABLE JUDGE: TO THE HONORABLE JUDGE: ~: ~; ~. ~. r· o Sterling Practice Managemen~ u.c (hereinafter Sterling) and Nisal Corporation'l' Sterling Practice Management. ILC (hereinafter Sterling) and Nisal Corporation\' (hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian (hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian Holdings, Inc., and in support would show the court the following: Holdings. Inc., and in support would show the court the following: 1. This is a level One Discovery Control Plan case. 1. This is a Level One Discovery Control Plan case. 2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian 2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian

Holdings, Inc. is a corporation doing business in Ibe State of Texas and can be served Holdings. Inc. is a corporation doing business in the State of Texas and can be served 1hrougb its agent for service of process, Khyati Undavia, 2918 San Jaeinto, Houston. through its agent for service of process, Khyati Undavia, 2918 San Jacinto, Houston, Texas 77004. Plaintiffs seek damages wilhin the jurisdietional limits of the Court The Texas 77004. Plaintiffs seek: damages within the jurisdictional limits of the Court. The Court has subject matter jurisdiction and venue is proper. Court has subject matter jurisdiction and venue is proper.

FACTUAL BACKGROUND FACfUALBACKGROUND 3. Sterling entered into a lease agreement with Defendant. Pursuant to the tenns of the 3. Sterling entered into a lease agreement wilb Defendant. Pursuant to the tenns of the lease, Sterling made a security deposit in the amount of $2000.00. Upon tennination of lease. Sterling made a security deposit in the amount of$2000.oo. Upon tennination of Ibe lease and sixty days after Sterling provided a forwarding address. Defendant bas the lease and sixty days after Sterling provided a fOlwarding address. Defendant has refused to refund the seeutity deposit to Sterling. Defendant has acted in bad failb. refused to refund the security deposit to Sterling. Defendant has acted in bad faith. Defendant is liable to Srerling for the full seeutity deposit of $2000.00, plus a statutory Defendant is liable to Sterling for the full security deposit of $2000.00, plus a statutory

AR 000110 EXHIBIT L penalty of $100.00, plus an additional statutory penalty of $4000.00, plus reasonable penalty of $100.00, plus an additional statutory penalty of$4OOO.oo, plus reasonable attorney's fees. Defendant has acted in bad faith by not providing a written description attorney's fees. Defendant bas acted in bad faith by not providing a written description and itemized list of damages and charges, if any, and thus has forfeited its right to and itemized list of damages and charges. if any, and thus has forfeited its right to withhold a portion of the security deposit for such damages and charges. withhold a portion of the security deposit for such damages and charges.

4. Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease, 4. Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease, Sterling made a security deposit in the amount of $3600.00. Upon tennination of the Sterling made a security deposit in the amount of $3600.00. UpOn termination of the lease and sixty daya _ Nisal provided a forwarding address, Defendaot bas refused to lease and sixty days after Nisal provided a forwarding address, Defendant has refused to refund the security deposit toNisaI. Defendant has acted in bad faith. Defendant is refund the security deposit to Nisal. Defendant bas acted in bad faith. Defendant is liable to Sterling for the mn security deposit of $3600.00. plus a statutory penalty of liable to Sterling for the full security deposit of $3600.00, plus a statntory penalty of $100.00, plus an additional statutory penalty of $7200.00. plus reasonable attomey's $100.00, plus an additional statntory penalty of $7200.00, plus reasonable attoruey's fees. Defendant bas acted in bad faith by not providing a written description and fees. Defendant has acted in bad faith by not providing a written description and itemized list of damages and charges. if any, and thus has forfeited its right to withhold itemized list of damages and charges, if aoy, and thus has forfeited its right to withhold a portion of the security deposit for such damages and charges. a portion of the security deposit for.ncb damages and charges.

WHBREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Providian WHEREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Proviclian Holdings, Inc. be cited to appear and that judgment be taken against it for all damages Holdings, Inc. be cited to appear and that judgment be taken against it for all damages soffered by Sterling in the amount of$6loo.oo (consisting of the security deposit dne and suffered by Sterling in the amount of$6100.00 (consisting of the security deposit due and owing and all statutory penalties), plus reasonable attorney's fees, and that judgment be owing and all statutory penalties). plus reasonable attomey's fees, and that judgment be taken against it for all damages soffered by Nisal in the amount of $10,900.00 (consisting of taken against it for all damages suffered by Nisal in the amount of $10,900.00 (consisting of the security deposit due and owing and all statutory penalties), plus reasonable attoruey's the security deposit due and. owing and all statutory penalties), plus reasonable attorney's fees, plus all costs of court, plus and any all further relief Plaintiffs may be entitled to. fees, plus all costs of court, plus and any all further relief Plaintiffs may be eotitled to.

AR 000111

Respectfully submitted, Respectfully submitted, PHIT.LIP BRANTIEY AND ASSOC., P.C. PHILLIP BRANTLEY AND ASSOC., P.C. (}·jjbe~

~.~~%

ill; rantley Al'illiP ~rantley--o SBN 00899727 SBN 02899727 Arena Tower n

Arena Tower II

7324 Southwest Freeway, Suite 1020 7324 Southwest Freeway, Suite 1020 Houston, Texas 77074 Houston, Texas 77074 (713) 270-4053 pbone (713) 270-4053 phone (713) 270-0682 facsimile (713) 270-0682 facsimile ATTORNEY FOR PLAINTIFF ATIORNEYFOR PLAlNTlFF

AR 000112

1/30/2015 Franchise Tax Account Status - Officers and Directors Franchise Tax Account Status - Officers and Directors 1/30/2015 Wmdow on State Government Taxable Entity Search Results Taxable Entity Search Results Taxable Entity Search Taxa ble Entity Sea rch Officers and Directors Officers and Directors STERLING PRACTICE MANAGEMENT, L.L.C. STERLING PRACTICE MANAGEMENT, L.L.C. Report Year: 2014 Report Year: 2014 Retum to: Taxable Entity Search Results Return to: Taxable Entity Search Results Officer and director infonnation on this site is obtained from the most recent Public Infonnation Report (PIR) Officer and director information on this site is obtained from the most recent Public Information Report (PIR) processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded to the SOS. processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded to the SOS. After processing, the SOS sends the Comptroller an electronic copy of the infonnation, which is displayed on After processing, the SOS sends the Comptroller an electronic copy of the information, which is displayed on this web site. The infonnation will be updated as changes are received from the SOS. this web site. The information will be updated as changes are received from the SOS. You may order a copy ofa Public Infonnation Report from open.recordsca),cpa.state.tx.us or Comptroller of You may order a copy of a Public Information Report from open.recordsCakpa.state.tx.us or Comptroller of Public Accounts, Open Govemment Division, PO Box 13528, Austin, Texas 78711. Public Accounts, Open Government Division, PO Box 13528, Austin, Texas 78711. N arne and Address

Title Title Name and Address

MANAGER

MANAGER BRETT L GARNER BRETT L GARNER

5903 SOLAR POINT LN

5903 SOLAR POINT LN

HOUSTON, TX 77041

HOUSTON, TX 77041

MEMBER

MEMBER SHAHID H SYED SHAHID H SYED

MANAGER

MANAGER WILLIAM H HICKS WILLIAM H HICKS

5718 BELLAIRE BLVD

5718 BELLAIRE BLVD

HOUSTON, TX 77081

HOUSTON, TX 77081

texas.gov I Statewide Search from the Texas State Library I State Link Policy I Texas Homeland texas.gov I Statewide Search from the Texas State Library State Link Policy Texas Homeland Security Security Glenn Hegar, Texas Comptroller ^[0111] Window on State Government ^[0111] Contact Us Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us Privacy and Security Policy Accessibility Policy I Link Policy I Public Information Act I Compact Privacy and Security Policy I Accessibility Policy I Link Policy I Public Information Act I Compact with Texans with Texans

AR 000113

https:!lmycpa.cpa.state.tx.us/coalservleVcpa.app.coa.CoaOfficer https:llmycpa.cpa.state.tx.us/coaiservleVcpa.app.coa.CoaOfficer

EXHIBIT M

KEITH CHUNN, JR. KEITH CHUNN, JR. Attorney at Law Attorney at Law 1535 West Loop South, Suite 365 1535 West Loop South, Suite 365 Houston, Texas 77027 Houston, Texas 77027 Tel: 713-621-6616 Tel: 713-621-6616 Fax: 713-621-5553 Fax: 713-621-5553 Cell: 713-824-6860 Cell: 713-824-6860

Email: kchunn@msn.com Email: kchunn@msn.com

SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED

SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED February 25, 2013 February 25,2013

., Nisal Corporation Nisal Corporation 2918 San Jacinto St., Suite 200 2918 San Jacinto St., Suite 200 Houston, Texas 77004 Houston, Texas 77004 Attention: Brett Garner: bgarner5@aol.com Attention: Brett Garner: bgarner5@aol.com RE: Lease of Suite 200 containing 4,700 rentable square feet in the building as 2918 RE: Lease of Suite 200 containing 4,700 rentable square feet in the building as 2918

San Jacinto Street in Houston, Texas, which expired February 29, 2012; and Lease San Jacinto Street in Houston, Texas, which expired February 29, 2012; and Lease of Suite 200A containing 2,154 rentable square feet in the building at 2918 San Jacinto of Suite 200A containing 2,154 rentable square feet in the building at 2918 San Jacinto Street in Houston, Texas, which expired January 31, 2012 Street in Houston, Texas, which expired January 31,2012

Gentlemen: Gentlemen: Your lease of Suite 200 referred to above expired on February 29,2012 and your lease of Suite Your lease of Suite 200 referred to above expired on February 29,2012 and your lease of Suite 200A referred to above expired on January 31,2012. Since the leases expired, the rental of the spaces 200A referred to above expired on January 31,2012. Since the leases expired, the rental of the spaces known as "Suite 200" and "Suite 200A" have been on a month to month basis and cancelable by you or known as "Suite 200" and "Suite 200A:.' have been on a month to month basis and cancelable by you or the landlord on thirty (30) days notice: the landlord on thirty (30) days notice:

NOTICE is hereby given that Providian Holdings, Inc., your landlord, and Lessor of both Suite NOTICE is hereby given that Providian Holdings, Inc., your landlord, and Lessor of both Suite

200 and Suite 200A in the building at 2918 San Jacinto Street in Houston, Texas, has elected to 200 and Suite 200A in the building at 2918 San Jacinto Street in Houston, Texas, has elected to terminate both the lease of Suite 200 and the lease of Suite 200A effective March 31,2013. terminate both the lease of Suite 200 and the lease of Suite 200A effective March 31,2013. . , . .

. ' - . , , DEMAND is hereby made that, on or before midnight March 31,2013, you vacate the premises DEMAND is hereby made that, on or before midnight March 31,2013, you vacate the premises known as Suite 200 and Suite 200A in the building at 2918 San Jacinto Street, Houston, Texas, and also known as Suite 200 and Suite 200A in the building at 2918 San Jacinto S~t, Houston, Texas, and also all other parts of the building and parking lot where you may have stored property or used on an all other parts of the building and parking lot where you may have stored property or used on an occasional basis. The Landlord wants the premises for its own use and benefit. occasional basis. The Landlord wants the premises for its own use and benefit. Sincerely, (f JJi/"",n Sincerely, fI JI/.-n If!!~~'''(f' I If!f~,;,'''rr I

AR 000114 EXHIBIT N SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY A. Signature , • Complete items 1, 2, and 3. Also complete • Complete Items 1, 2, and 3. Also complete X x [J Agent Item 4 If Restricted Delivery Is desired. Item 4 if Restricted Delivery is desired. 0 Agent , • Print your name and address on the reverse 0 Addressee ' • Print your name and address on the reverse IIC. Dato of Dollvory ii' so that we can retum the card to you. so that we can retum the card to you. B. Received by (Printed Name) B. Received by ( Printed Name) , • Attach this card to the back of the mallplece, • Attach this card to the back of the mailplece. I----------....... --=-~--l or on the front if space permits. , or on the front if space permits. Yes ~-------~--------I O. /s delivery address different from Item 11 DYes O. Is delivery address different from Item 17

1. Article Addressed to: If YES. enter delivery address below: D No : 1. Article Addressed to: oNo If YES. enter delivery address below: JY'e1T G-o.r he (' J:ye:tr (;.-0."1) e (' t' . .' Ni ;,;,cd C.:CI ·fC"'ro.. IU h Ni::"'C\ I (::C\'rC-,ro,,+/ch 2- q \ '3 So. V\ .:k,c I Iff 0 ) 2- q \ ~~ S>CI. V'\ .J;,,(: I Iff 0 J

$t.t.'Te 20CJ 5L\' Te. 2,00 3. ~iceType 3. i3~ce Type ,HDU '?>,(Cr1 ,Ix 77i.~'o(f Hau~' r el, ,Ix 77i"t)(( 1fCertified Mall 0 Express Mail KCertlfled Mall [J Express Mall o Registered o Insured Mail D Registered 0 Retum Receipt for Merchandise 0 Return Receipt for Merchandise o Insured Mail

0 C.O.D. 0 C.O.D. 0 Yes 4. Restricted Delivery? (Extra Fee) 4. Restricted Delivery? (Extra Fee) [J Yes r l 0 n , 2. Article Number "".>. . ..:J 4 0 0 ooD'1 ~2g7 .5'/27 I C j.., (Ttansfer flOm service labe~ , OQ. c",""" ~A11 l:"'h ......... I11"0# I)l'\nA , • Complete Items 1, 2, and 3. Also complete • Complete items 1, 2. and 3. Also complete Item 41f Restricted Delivery Is desired. item 4 if Restricted Delivery Is desired. • Print your name and address on the reverse • Print your name and address on the reverse a. Received by (PrInted Name) 8. Received by (PrInted Name) so that we can retum the card to you. so that we can return the card to you. D. Is delivery address dlffetent from Item 11 0-:: . • Attach this card to the back of the mallplece, .. Attach this card to the back of the mallplece, , 'or on the front If space permits. . D. Is delivery address different from Item 17 or on the front if space permits.

If YES, enter delivery address below: If YES. enter delivery address below: 1. Article Addressed to: ~~Elr L: Gr.'H?I'H:t::, t\e<;.~

+e(e.A

Aqe~ tV/sal CC?,pora.+ 'O V\

51 / g1?)e no-w- e ~\"A 3. Service Type 3. $elVlce Type o Express Mall }I( CertIfied Mall J( Certlfled Mall o Return Receipt for Merchandise o Registered o Registered HO~lSION I IX. 'T1 0<.6\ o C.O.D. o Insured MatI o Insured Mall 116 4 IJOQ3 ~, 7 (Transfer from service labeO 70D7 3020 fJ003 7007 3020 . 2. ArtIcle Number 2. Article Number (Transfer from service labeQ 102595·02·M·1540 .

AR 000115

nomestlc Return ReceIpt Onmestlc Return Receipt nn ..... r_Lo._. __ ' nnnA EXHIBIT N CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, §

§ Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD., §

§ 152 ND JUDICIAL DISTRICT Defendants §

DECLARATION OF ASHISH MAHENDRU

IN SUPPORT OF ATTORNEY'S FEES

1. I, Ashish Mahendru, am of sound mind and am over the age of twenty-one. My date of birth is September 1, 1971, and my address is 639 Heights Blvd., Houston, Texas. I declare under penalty of perjury that the foregoing is within my personal knowledge and is true and correct.

2. I am one of the attorneys of record for Defendants and Counter-Plaintiffs. 3. I am licensed to practice in the State of Texas and Commonwealth of

Massachusetts. I am admitted to practice before the Western District of Texas, Southern District of Texas, and the United States District Court for the District of Massachusetts along with the state courts of Texas and Massachusetts.

4. I am a 1996 graduate from the University of Texas School of Law. I am 1993 graduate from the University of Texas at Austin with a major in Plan II, the Honors Liberal Arts Program.

5. I currently practice law in Houston, Texas where I founded my firm in 2001. Prior to the establishment of Mahendru, PC, I was an associate trial attorney in Boston, Massachusetts with the law firm of Lucash, Gesmer & Updegrove. Prior to my time in Boston, I was an associate trial attorney

1 AR 000116 EXHIBIT O with the firms of Thompson, Coe, Cousins & Irons and Davis & Wilkerson (1996-2000), which are both located in Austin, Texas.

6. I have previously been qualified as an attorney's fees expert and have testified on the subject in jury trial multiple times. 7. My opinions on the fees incurred by Defendants and Counter-Plaintiffs by the work performed by members of my firm is based on the relevant case law and on the eight factors courts look to in determining the appropriate amount of fee:

a. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

b. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

c. the fee customarily charged in the locality for similar legal services; d. the amount involved and the results obtained; e. the time limitations imposed by the client or by the circumstances; f. the nature and length of the professional relationship with the client; g. the experience, reputation, and ability of the lawyer or lawyers

performing the services; and h. whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

8. Members of my firm and I have performed legal services in preparing a Motion for Summary Judgment on Plaintiffs’ affirmative claims and Counter-Plaintiffs Counter-Claims. This includes researching, drafting, conferring with the client, and time to attend the hearing on the motion.

9. The billing rate for members of my firm is as follows: 2

AR 000117

a. Ashish Mahendru $450/hr b. Darren Braun $225/hr c. Susan Farer $175/hr

Based on the education, experience, and background of these individuals and my experience and knowledge of the rates charged by professionals in the Houston, Harris County, Texas geographic region, the rates charged by members of my firm are reasonable and customary in the Houston, Harris County, Texas region.

10. Darren Braun received his bachelor of arts degree from Pennsylvania State University in 2008. In 2010, he began law school at South Texas College of Law where he attained a ranking within the top 5% of the class. In 2011, he transferred to University of Houston Law School, where he finished with a 3.73 GPA (top 4%) and received the Houston Real Estate Bar Scholarship award for outstanding academic achievement in real estate law coursework. He received dean’s list honors every semester of law school. He has been a licensed attorney in Texas since 2013. His practice includes, but it not limited to, commercial litigation matters, temporary restraining orders, injunctions, trade secrets, breach of contract, fraud, fiduciary duty, and related practice areas.

11. Susan Farber is a legal assistant that worked on this matter for my firm. She is an experienced legal assistant with over seventeen years of practice in her field of commercial litigation matters.

12. The following is time associated with each attorney and legal assistant working on this matter in preparing the motion for summary judgment: a. Ashish Mahendru 6.70 hours $3,015.00 b. Darren Braun 32.90 hours $7,402.50 c. Susan Farber 4.80 hours $840.00

13. The total attorney's fees incurred in responding, therefore, are $11,257.50. 14. Based on the factors courts consider in awarding fees, my experience

litigating similar cases, and my knowledge of the usual and customary rates charged by other attorneys and legal professionals in Houston, Harris County, Texas, it is my opinion that my firm's attorney's fees in the amount of $11,257.50 are reasonable and necessary.

3

AR 000118

Signed on this 30th day of January, 2015, in Harris County, Texas. Ashish Mahendru 4

AR 000119

Franchise Tax Account Status Franchise Tax Account Status 1/30/2015 1/30/2015 Franchise Tax Account Status Franchise Tax Account Status As of: 01130/2015 04:20:01 PM As of: 01130/2015 04:20:01 PM This Page is Not Sufficient for Filings with the Secretary of State This Page is Not Sufficient for Filings with the Secretary of State

AVANT MEDICAL GROUP, P.A. AVANT MEDICAL GROUP, P.A.

"<;"-iiWW7W',~XMN<j;'»~;hN,.W'i~;:'~.~""'4_ =m$'-~'.;o;~=~r~~,".,,_·_i!F$Wliii"Miiiiii'~§iil:\~ i Texas Taxpayer Numbe. "''''''''7616516 Mailing Address 1120 DENNIS ST 1120 DENNIS ST

HOUSTON, TX 77004-1102

HOUSTON, TX 77004-1102 Right to Transact Business ACTIVE in Texas State ofFo State of Formation TX X Effective SOS Registration 0711412006 Effective SOS Registration 0711412006 Date Date I Texas SOS File Number 0800680964 i Registered Agent Name STERLING PRACTICE MANAGEMENT, L.L.C.

Registered Office Street 1120 DENNIS ST Address HOUSTON, TX 77004

EXHIBIT P

AR 000120 https:llmycpa.cpa.state.tx.us/coalservletlcpa.app.coa.CoaGetTp?Po"'tpid&Search N m=avant%20mAriir.,,) %?Onrt'llln O /" ?()R.R, IIt"n=.,"''' .... hJ1.QMMh In_""n'>'7"< https:llmycpa.cpa.state.tx.us/coa/servl eVcpa.app.coa. CoaGetT p?PCl'=tpi d&Search N m ==avant%?Omp.ri;",,1 OJ,, ?Onrn, ,nOlo ?OR.R, ,tlnn= CM.~hJ1."'~~.~h 11"\- """"7".

CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, §

§ HARRIS COUNTY, TEXAS Plaintiffs § § VS. § § KHY ATI MOHAMED UNDA VIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL CORP. d/b/a QUALCARE REHABILITATION ("Plaintiffs"), and file this Response to Defendant's Motion for Summary Judgment, and in support thereof would respectfully show the Court as follows:

I. PARTIES

Plaintiffs are AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL CORP. d/b/a QUALCARE REHABILITATIO.

1. Defendants are KHY ATI MOHAMED UNDA VIA, MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 1 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000121 II. FACTUAL BACKGROUND 2. PlaintiffNisal Corp. ("Nisal") entered into a commercial lease agreement with Providian Holdings, LLC (Providian) to rent the top floor of a building owned by Providian. The commercial lease was in effect from 2009 through March 2013. See Exhibit 1.

3. While Plaintiffs were occupants of the Building, all mail was delivered to the Building's main address, where it would be collected by Defendant KHY A TI MOHAMED UNDA VIA ("Undavia") and distributed by her to the other tenants. See Exhibit 1. Defendant Undavia prohibited the Plaintiffs from keeping their own mailboxes at the building. See Exhibit 1. Because the checks were delivered to Plaintiffs' mailing address, Plaintiffs were in possession of the checks and have a possessory interest in them. See Exhibit 1.

4. In 2013, Providian Holdings, LLC terminated the lease with Nisal. Nisal and Sterling then sued Providian for failing to return a security deposit in Cause No. 1036848, Sterling Practice Management, LLC and Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No.4, Harris County, Texas (the "Prior Lawsuit"), filed on September 5, 2013. See Exhibit 4. That lawsuit ended in a settlement release pertaining to the claims asserted in the Prior Lawsuit by Nisal and Sterling (the "Release"). See Exhibit 5. The only parties to the settlement agreement were Nisal, Sterling, and Providian. See Exhibit 5.

5. Plaintiffs recently discovered that during their occupancy at the building, Defendant Undavia would frequently open the Plaintiffs' mail, take checks made payable to the Plaintiffs, endorse the checks with the name and Compass Bank account information for MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY, (Minu RX) and deposit them into at least two bank accounts at Compass Bank belonging to Minu RX. See Exhibits 1 & 3. Plaintiffs were only able to discover this in July 2012 because Plaintiffs frequently provide medical services to

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 2 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000122

personal injury victims and often have agreements to suspend collection efforts for extended periods of time while the patients attempt to obtain compensation for the third parties responsible for their injuries. See Exhibit 1. Thus far, Plaintiffs have identified over $40,000.00 in checks that were stolen by the Defendants in the above-described manner, and expects to discover more as investigation and discovery in this case progresses. See Exhibit 3. It is uncertain at this time if additional checks were endorsed and deposited or cashed by other entities.

III. OBJECTION TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

6. Plaintiffs object to Exhibit B to Defendants' Motion for Summary Judgment on the basis that the lease agreement is unsigned, and is therefore not relevant and is not evidence that Sterling actually entered into the agreement. Alternatively, Plaintiffs object on the basis that the lease is not the best evidence of any lease agreement that may have existed between Providian and Sterling.

7. Plaintiffs object to Exhibits F, J, and K to Defendants' Motion for Summary Judgment because they contain hearsay. Although Defendant Undavia attempts to lay the predicate for these documents under the business records exception, these documents are clearly not created by Defendant Undavia or her employees or representatives, and are therefore not based on the employees or representatives' knowledge of the statements contained therein. See In re EAK, 192 S.W.3d 133, 142 (Tex. App.-Houston[14 1h Dist.] 2006). Under Texas law, a document authored or created by a third party may be admissible as business records of a different business if: (a) the document is incorporated and kept in the course of the testifying witness's business; (b) that business typically relies upon the accuracy of the contents of the document; and (c) the circumstances otherwise indicate the trustworthiness of the document. Simien v. Unifund CCR Partners, 321 S.W.3d 235,240-41 (Tex. App.-Houston[lst Dist.] 2010, no pet.) (citing Bell v.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 3 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000123

State, 176 S.W.3d 90, 92 (Tex. App.-Houston[1st Dist.] 2004, no pet.)). Defendant Undavia failed to include such testimony, and as such Defendant Undavia's predicate with respect to Exhibits F, J, and K to Defendants' Motion for Summary Judgment in defective and not sufficient to prove the documents fall under the business records exception of Tex. R. Evid. 803(6). For this reason, Exhibits F, J, and K to Defendants' Motion for Summary Judgment should be struck.

8. Plaintiffs object to Exhibit E to Defendants' Motion for Summary Judgment. The court should deny Defendants' Motion for Summary Judgment because the Declaration of Khayati Undavia attached as Exhibit E to Defendants' Motion is defective and does not present competent summary judgment evidence. Tex. R. Civ. P. 166a(f). More specifically, Plaintiffs object to the Declaration of Khayati Undavia on the following bases:

9. The Declaration of Khayati Undavia contains statements that are not based on personal knowledge. Tex. R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); see Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex. 1988); Rizkallah v. Conner, 952 S.W.2d 580, 584-85 (Tex. App. -Houston[1st Dist.] 1997, no writ). In paragraph 13 of the Declaration of Khayati Undavia, she states that Plaintiffs Nisal Corp. and Sterling Practice Management, LLC "did not have any actual operations in the office space," and that "Allied Medical Centers and Avant Medical Group were the entities that had operations in the leased space." She does not any factual bases for this conclusion. Defendant Undavia does not claim that she was involved in the operation of or has any familiarity with the operations of those entities. Because Defendant Undavia does not offer any support for these statements, they are merely factual conclusions with no underlying facts to support the conclusions and unsubstantiated opinions of the affiant. Haynes v. City of Beaumont, 35 S.W.3d 166, 178

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 4 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000124 (Tex. App. -Texarkana 2000, no pet.); Rizkallah v. Conner, 952 S.W.2d 580,587 (Tex. App.- Houston[lst Dist.] 1997, no writ); Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 216 (Tex. App. -Houston[ 14th Dist.] 1986, no writ). Because those statements are not competent summary judgment evidence, paragraph 13 of the Declaration of Khayati Undavia should be struck.

10. The Declaration of Khayati Undavia contains statements that are merely legal conclusions. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App. -Houston[lst Dist.] 1997, no writ). Defendant Undavia states in paragraph 14 of her Declaration that "[f]or all matters concerning the lease, I communicated with Brett Gamer in his capacity has [sic] a representative of not only Sterling and Nisal, but also Avant and Allied." The capacity in which Dr. Gamer was acting at any specific time is a legal conclusion, and Defendant Undavia does not state any facts which would support this conclusion. Because Defendant Undavia does not offer any facts to support these conclusions, the statements are also merely unsubstantiated opinions of the affiant. See Rizkallah v. Conner, 952 S.W.2d 580, 586 (Tex. App. -Houston[lst Dist.] 1997, no writ); Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 216 (Tex. App. -Houston[14th Dist.] 1986, no writ). Because those statements are not competent summary judgment evidence, paragraph 14 of the Declaration of Khayati Undavia should be struck.

11. The Declaration of Khayati Undavia contains statements that are based on hearsay. Fidelity & Cas. Co. v. Burts Bros., 744 S.W.2d 219,224 (Tex. App.-Houston[lst Dist.] 1987, writ denied); see In re JA.M, 945 S.W.2d 320, 322 (Tex. App.-San Antonio 1997, no writ). Paragraphs 11 and 14 contain statements about the contents of documents which are inadmissible hearsay because Defendant Undavia has failed to prove the documents fall under the business PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGES

AR 000125

records exception of Tex. R. Evid. 803(6). Because those statements are not competent summary judgment evidence, paragraphs 11 and 14 of the Declaration of Khayati Undavia should be struck.

IV. SUMMARY JUDGMENT EVIDENCE

12. Plaintiffs provide all parties with the notice to use and attach the following summary judgment evidence and incorporate all such evidence herein for all purposes in accordance with Tex. R. Civ. P. 166a(d):

a. Affidavit of Brett Gamer, attached hereto as Exhibit 1; b. Affidavit of Carmen Manzo, attached hereto as Exhibit 2; c. Cancelled Checks, attached hereto as Exhibit 3; d. Original Petition from Cause No. 1036848, Sterling Practice Management, LLC and

Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No. 4, Harris County, Texas, attached hereto as Exhibit 4;

e. Mutual Release, attached hereto as Exhibit 5; f. Assumed name filing for Allied Medical Centers, attached hereto as Exhibit 6; and g. Public Information Report for Avant Medical group, P.A., attached hereto as Exhibit

7.

V. STANDARD

OF REVIEW 13. Defendants have asserted a motion for summary judgment under Tex. R. Civ. P. 166a. Under Tex. R. Civ. P. 166a, a summary judgment is only proper for a defendant if its summary judgment proof establishes, as a matter of law, there is no genuine issue of material fact concerning one or more of the essential elements of the plaintiff s cause of action. See Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex. App.-Houston [1 st Dist.] 1989, writ denied). A defendant is entitled to summary judgment on a plaintiffs cause of action only if the defendant can disprove at least one element of the cause of action as a matter of law. Sw. Elec.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 6 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000126

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v. Bank One, NA., 218 S.W.3d 109, 113 (Tex. App.-Houston [14th Dist.] 2007, no pet.). In reviewing the granting of a motion for summary judgment, the court should consider that all proof which is favorable to the non- movant is true. SeeMMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); see also Goldberg, 775 S.W.2d at 752.

VI. SUMMARY OF THE ARGUMENT

14. Defendants are not entitled to summary judgment for the following reasons: a. The Release cited by Defendants does not concern the subject matter or claims asserted in this lawsuit and therefore does not serve to bar Plaintiffs' claims (see pgs. 8-10);

b. The parties to the Release are not the same as the parties to this action, and Defendants' "agency" theory lacks legal basis and factual support (see pgs. 11-16); c. As the claims and parties to this lawsuit are different than in the previous lawsuit, the doctrine of res judicata does not apply and does not bar Plaintiffs' claims (see pgs. 16-17);

d. Plaintiffs have pled a viable cause of action for conversion (see pg. 18); e. Plaintiffs' claims are not barred by the applicable statutes of limitations or,

alternatively, Plaintiffs' inability to discover the Defendants' wrongful actions tolls any applicable statute of limitations and because Defendants' fraudulent actions concealed the wrongful actions from the Plaintiffs (see pgs. 18-20);

f. Defendants are not entitled to an award of attorney's fees (see pgs. 20-21). 15. For the above reasons, the Court must deny Defendants' Motion for Summary Judgment.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 7 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000127 VII. ARGUMENTS & AUTHORITIES A. THE PLAINTIFFS' CLAIMS ARE NOT WITHIN THE SUBJECT MATTER OF THE RELEASE 16. Because the scope of the claims covered by the Release is a threshold issue-i.e. if the claims in the present case were not subject to the Release then the identity of the parties is irrelevant-Plaintiffs address this issue first.

i. Texas law requires narrow construction of the Release. 17. "In order to effectively release a claim in Texas, the releasing instrument must 'mention'

the claim to be released. Even if the claims exist when the release is executed, any claims not clearly within the subject matter of the release are not discharged." Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931 (Tex. 1991) (emphasis added); see also Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 697-98 (Tex. 2000); Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 850 n.7 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). Further, the Texas Supreme Court has explicitly stated that "general categorical release clauses are narrowly construed." Brady, 811 S.W.2d at 938; Duncan v. Cessna Aircraft Co., 665 S.W.2d 414,422 (Tex. 1984).

ii. The Release does not mention Plaintiffs' claims. 18. The Release which Defendants seek protection under reads, in relevant part:

WHEREAS, S'rnRLINO and NfSAL ff1ed IImt agltinllf. PROVIOlAN, No, 1036848, CQUl'l.ty Civil CQUrt,.t Lftw No.4. HIn'iIJ County. 'l~ lind WHEUM. tbt partlt$ dNire to eompromillO. Jfttk! And provide for the full and final termluatiou of all of the !lAid eJalm4. deman4s. CA\*S 01 aet10n and di.putoI between (hem .risiui out of or rolatod to Illwh claims wmfolh either Pllrty IllII)' Ilt'W have or lmve bad qainlJt oaob other, III without admittinl any of the aUeptionll set forth;

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGES

AR 000128

19. The Release clearly states that its subject matter is the Prior Lawsuit, and that the parties to the Release intended to discharge "said claims"-the claims asserted in the Prior Lawsuit, which pertained only to the security deposit under the commercial lease. See Exhibit 5. This unquestionably shows that when the parties entered into the Release, they were contemplating discharge of the claims asserted in the Prior Lawsuit. The Release has no mention of tort claims, conversion, fraud, or any of the other claims asserted in the present lawsuit. See Exhibit 5. The Release, therefore, does not "mention" the claims in the present lawsuit, and therefore the Release did not discharge the Plaintiffs' claims.

20. The Texas Supreme Court has held that releases are to be construes in light of the facts and circumstances surrounding the release. Brady, 811 S.W.2d at 939. The Prior Lawsuit did not depend on the same set of facts as the present lawsuit, which was an action solely for the return of a security deposit. Narrowly construing the Release, as Texas law requires, demands that the claims in the present lawsuit not be held within the scope of the Release.

iii. Defendants have failed to meet their burden on summary judgment. 21. Defendants, for their part, claim that the Release "specifically mentions each claim in this

lawsuit." Negation of this claim requires no more than a quick look at any dictionary. "Specific" denotes something that is "precise; definite; [or] explicit." WEBSTER'S NEW WORLD COLLEGE DICTIONARY, 4 TH ED. 1376 (2001). Again, the release makes no reference to any claim based on tort, fraud, conversion, theft, breach of fiduciary duty, or any other claim contained in Plaintiffs' live pleading. See Exhibit 5. The pleadings in the Prior Lawsuit, which gave rise to the Release, do not contain any mention or reference to any of the factual or legal disputes which for the basis of the present lawsuit. See Exhibit 4. Even the case law quoted by the Defendants themselves states that for a claim to be discharged it must be mentioned, and that mentioning

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 9 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000129 requires "that the claim being released come within the express contemplation of the release provision when viewed in context of the contract in which the release provision is contained." Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5 th Cir. 2000) (emphasis added); Mem 'I Med. Ctr. Of E. Tex. v. Keszler, 943 S.W.2d 433,435 (Tex. 1997).

22. Defendants further attempt to support their argument by claiming that the commercial leases form the basis of all of the claims in the present lawsuit. This assertion seems to be based on nothing more than the fact that leases existed. None of the Defendants to this action were signatories to the lease. Additionally, and most importantly, none of Plaintiffs' claims require proof of the existence of a lease contract, of a landlord-tenant relationship between the parties, of a breach of the terms of any lease, or any other fact germane to the claims in the Prior Lawsuit. The subject matter of the present lawsuit and the Prior Lawsuit are wholly detached from one another. Plaintiffs' claims would require the same pleading and proof whether or not a landlord- tenant relationship existed. Because the Plaintiffs' claims in the present lawsuit do not concern the same subject matter as the Prior lawsuit, they are not encompassed by the Release and summary judgment must be denied.

iv. Defendants have failed to meet their burden for summary judgment. 23. Defendants' assertions that the parties "no doubt contemplated the claims in the present

lawsuit" is not supported either by a plain reading of the Release or any evidence presented in Defendants' Motion. Because the Release does not mention any of the claims in the present lawsuit, and because the Court must narrowly construe the Release, the Court must find that the Release is not binding on any of the parties with respect to the present lawsuit and summary judgment must be denied.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 10 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000130 B. PLAINTIFFS WHO ARE NOT SIGNATORIES TO THE RELEASE ARE NOT BOUND BY IT 24. Defendants' arguments as to why all parties to the present action are included in the release are somewhat convoluted. It seems, however, that the gist of the argument is as follows: 1) the Release includes a provision mutually discharging agents of the signatories; 2) various agency relationships exist between the parties; and therefore 3) all Plaintiffs have released all Defendants with respect to all claims in this lawsuit. Of course, as shown above, the claims in this lawsuit are not within the scope of the Release, so the question of what parties are bound by the Release does is effectively meaningless. However, even if this were not the case Defendants have failed to show as a matter of law that the parties to this action are all bound by the Release.

25. The only party to this action that was also a party to the Release is Nisal Corp. d/b/a Qua1care Rehabilitation. See Exhibit 5. However, because the claims in this action are not within the scope of the Release, and because the Defendants are not protected by the Release, Nisal is a proper party to this lawsuit and is not barred from asserting its claims. Even if any of Nisal's claims were within the scope of the Release, however, Defendants' wrongful concealment of material facts fraudulently induced Nisal into signing the Release. Defendants' only legal theories as to why the other parties to this action should be bound are based on agency, and based on these theories Defendants' Motion must fail.

i. Agents are not individually bound by the Release. 26. The first issue is to what extent agents of the signatories to the release are bound. The

general rule in Texas is that "signing a contract in a representative capacity does not bind the agent personally to the contract." Elgohary v. Herrera, 405 S.W.3d 785, 790-91 (Tex. App.- Houston[1 st Dist.] 2013); see RESTATEMENT (SECOND) OF AGENCY § 320 ("Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGEtt OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000131

principal does not become a party to the contract. "). Assuming an agency relationship exists, Plaintiffs would assert that agents of the signatories to the Release are only bound to its terms to the extent that 1) the claims asserted are within the scope of the release and 2) the claims are the signatory's claims asserted on behalf of the signatory. Defendants cite no authority to support their implicit position that the signatories to the Release had the authority to settle claims belonging to their alleged agents on their behalf. Undersigned counsel can find no authority in Texas law to suggest that a principal may release an agent's independent claims without being granted the authority to do so. Therefore, to the extent the claims in the present lawsuit 1) are not within the scope of the Release, and 2) do not belong to the signatories of the Release, the claims are not barred by the Release.

ii. Plaintiffs have not asserted claims against Defendants in their capacity as agents of Providian. 27. Similarly, Defendants claim they are protected by the Release because they are agents of Providian Holdings, LLC. However, the only claims against Defendants that could have possibly been released are those against the Defendants in their capacity as agents for Providian. Defendants seem to assert that by virtue of their supposed roles as agents for Providian, they should be free from all liability for of their wrongful actions, whether or not those actions are taken in their individual capacity or their capacity as an agent. In other words, under Defendants' theory the Release encompasses all claims any agent of a signatory may have had against any other agent of any other signatory, irrespective of whether the claims are connected to their duties as agents or the subject matter of the Release. This is contrary to the general rule in Texas that an agent is liable for his own torts. See, e.g., Williams v. Olivo, 912 S.W.2d 319 (Tex. App.-San Antonio 1995). Therefore, the Release cannot be said to offer protection to agents of the signatories for wrongful acts performed outside of their capacity as an agent.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 12 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000132 iii. Defendants have failed to prove all parties are bound by the Release. 28. Even the case law cited by Defendants betrays their own argument. Defendants concede

that "unless a party is named in a release, he is not released." McMillen v. Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971). Defendants further concede that "a tortfeasor can claim the protection of a release if he is referred to with such descriptive particularity that his connection with the tortious event is not in doubt." Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111, 113-14 (Tex. App.-Houston[14 th Dist.] 1991, writ denied). In spite of this, however, Defendants argue that the release applies to all parties to the present case, only one of which is actually named in the Release. See Exhibit 5. Again, Defendant tries to claim that all parties to the present lawsuit are "specifically named" in the Release, even though a plain reading of the release shows that this is not the case. See Exhibit 5. Thus, the Defendants are not "named with specific particularity," as is required before they can claim protection under the Release. Further, the Release concerns claims entirely different than the claims in the present lawsuit. See Exhibit2 4 & 5. For this reason, the Defendants fail the second prong of the test as well---even if they have a connection to the conduct which formed the basis of the Prior Lawsuit, this lawsuit alleges claims based on wholly different conduct. Similarly, Defendants cannot claim protection under the Release based on their allegation that all of the parties are "intimately connected" to the lease agreements (a legal standard for which Defendants offer no authority). As previously shown, the existence of a landlord-tenant relationship is not a prerequisite to any of Plaintiffs' claims in this lawsuit, and therefore not relevant to this analysis. For these reasons, Defendants may not claim protection under the Release.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 13 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000133 iv. Defendants have failed to prove that all of the alleged agency relationships exist. 29. The second hurdle Defendants have to clear is proving that the agency relationships they claim actually exist. Under Texas law, agency will not be presumed. Schultz v. Rural/Metro Corp., 956 S.W.2d 757, 760 (Tex. App.-Houston [14th Dist.] 1997, no writ). An agent is one authorized by another to transact some business for the principal; the relationship is a consensual one between two parties, by which one party acts on behalf of the other, subject to the other's control. Jamison v. Nat 'I Loan Investors, L.P., 4 S.W.3d 465, 468 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). Authorization to act and control of the action are the two essential elements of agency. Gonzales v. Am. Title Co., 104 S.W.3d 588, 593 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). A question of agency is one of fact. See Jorgensen v. Stuart Place Water Supply Corp., 676 S.W.2d 191, 194 (Tex. App.-Corpus Christi 1984, no writ). Therefore, Defendants have the burden to show as a matter of law that the claimed relationships exist. As will be shown, Defendants have failed to meet that burden.

30. With respect to the Plaintiffs, Defendants allege multiple, and sometimes conflicting, agency relationships. Defendants allege that Dr. Gamer is an agent ofNisal, Avant, and Sterling. Plaintiffs would remind the Court that, as previously shown, although an agent may bind the principal, the reverse is not necessarily true, and Defendants have failed to show that this has occurred as a matter of law in this case.

31. Next, Defendants allege that Avant is an agent of both Nisal and Sterling. Defendants base this assertion on what can only be described as a staggering feat of mental gymnastics. Defendants allege that Allied is a fictitious business name of Avant, Allied is also a fictitious business name of Dr. Gamer, so therefore Avant is a fictitious business name of Both Allied and Dr. Gamer, and is bound by the Release. Undersigned counsel is at a loss to understand how this conclusion is reached. Avant Medical Group, P.A. is a professional organization organized

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 14 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000134 under the laws of the state of Texas-a legal entity independent from the other parties to this lawsuit. See Exhibit 7. It cannot be a fictitious business name of its own fictitious business name. Dr. Garner owns the assumed name Allied Medical Centers, which he licenses to Avant Medical Group, P.A. See Exhibits 1 & 6. Further, even if Both Dr. Garner and Avant have done business under the name Allied Medical Centers, it does not follow that there is any kind of unity between the two entities. Defendants further allege that Avant paid Sterling's rent, that Avant procured an insurance policy for Avant. The offer no evidence for this other than a single check from 2009 and insurance certificate from 2009 as the basis for this theory. Whether or not these allegations are true, they do not address the two prongs of the agency test-whether Avant had authority to act on behalf of Sterling, and whether Sterling had the right to control Avant's actions. Gonzales, 104 S.W.3d at 593. Defendants do not cite any evidence to support their claim that Avant is an agent of Nisal-the claim appears only in a section heading of their Motion. In fact, Defendants also allege the opposite-that Sterling is the registered agent for Avant. Therefore, Defendants have failed to prove that Avant was an agent for either Sterling or Nisal.

iv. Whether Defendants are agents of Providian is not relevant. 32. Finally, the claim is made that Defendants Undavia and Minu RX, Ltd. are both agents of

Providian. So committed are the Defendants to this assertion that they admit that Providian is a sham corporation and nothing more than the alter-ego of Minu RX, Ltd. However, Plaintiffs cannot identify a reason why the existence of such a relationship is in any way relevant. Plaintiffs have not sued Defendants for their actions as agents of Providian. Similarly, Defendants have not pled or otherwise claimed that the wrongful acts at issue in this case were performed in the course of their duties as an agent for Providian. The checks were taken by

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 15 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000135

Defendant Undavia, at Minu's place of business, and deposited into accounts owned by Minu. See Exhibit 3. Therefore, even if Defendants are agents for Providian, they are not protected by the Release because the claims in this lawsuit are based on Defendants' independent conduct and not on the subject matter of the Release.

33. For the above reasons, Defendants have failed to show as a matter of law that all parties to this lawsuit are bound by the terms of the Release, and have failed to show that the claims in this lawsuit were discharged by the Release. Therefore, summary judgment must be denied.

C.

PLAINTIFFS' CLAIMS ARE NOT BARRED BY RES JUDICATA i. The present lawsuit does not include the same issues as the Prior Lawsuit. 34. Defendants also ask the Court to grant summary judgment on the basis that the Plaintiffs'

claims are barred by the doctrine of res judicata. The Texas Supreme Court has adopted a "transactional" approach to res judicata, under which a subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit. Barr v. Resolution trust Corp., 837 S.W.2d 627 (Tex. 1992). In Barr, the Supreme Court stated that this transactional test "is substantially similar to the [transaction or occurrence] rule of compulsory counterclaims." Id The main concern in the transactional test is whether the cases share the same nucleus of operative facts. Samuel v. Federal Home Loan Mortg. Corp., 434 SW 3d 230 (Tex. App.-Houston[l st Dist.] 2014). To determine whether a prior suit and one under review involve the same basic subject matter, we focus on the factual basis of the complaint. Espeche v. Ritzell, 123 SW 3d 657 (Tex. App.- Houston[14 th Dist.] 2003). In determining whether the facts arose out of a single transaction, courts consider whether the facts are related in time, space, origin, or motivation, and whether they form a convenient unit for trial. Federal Home Loan Mortg. Corp., 434 SW 3d at 230.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 16 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000136

That test is not satisfied here. The prior lawsuit concerned itself with one set of facts-the termination of the lease agreements and whether security deposits were improperly withheld. None of the facts necessary to prove the claims in the Prior Lawsuit are necessary to prove the claims in the present lawsuit. See Exhibit 4. The wrongful acts forming the basis of this suit occurred on multiple occasions, as opposed to the single event (refusal to return a security deposit) that formed the basis of the Prior lawsuit. See Exhibit 4. Therefore the two lawsuits do not share the same operative facts and res judicata does not apply. For this reason, summary judgment must be denied.

ii. The present lawsuit does not involve the same parties as the Prior Lawsuit. 35. The doctrine of res judicata also requires identity between the parties of the prior and

subsequent lawsuits. Espeche v. Ritzel!, 123 SW 3d at 665. A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity. Lesikar v. Moon, No. 14-05-01246-CV, 2014 Tex. App. LEXIS 10041 (Tex. App.-Houston[lst Dist.] Sept. 4, 2014). The only party to this action from the Prior lawsuit is Nisal Corp. All of the other parties, including the Defendants, were not named in the Prior Lawsuit. Further, Plaintiffs have not pleaded any claims which could have been brought against Providian in the Prior Lawsuit, and the Defendants cannot claim that the legal rights being asserted are the same between the two lawsuits. This lawsuit is clearly a different set of claims brought against a different set of Defendants, and res judicata cannot apply. Therefore, Defendants' Motion must be denied.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 17 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000137 D. PLAINTIFFS ARE ENTITLED TO BRING A CLAIM FOR CONVERSION 36. In the present case, various persons and entities wrote checks payable to Plaintiffs, sent the checks by mail to Plaintiffs, and the checks were actually delivered to Plaintiffs' mailing address. See Exhibit 1. Because the Defendants obtained the checks at the same location where they were mailed to Plaintiffs, the checks were stolen by the Defendants only after they had been delivered to Plaintiffs' business address by the US Postal Service. See Exhibit 3. Therefore, Plaintiffs received delivery of the checks and had, at the very least, constructive possession of the checks and were holders of the checks. Under Texas law, even constructive possession is sufficient to allow the Plaintiffs to prosecute their claim for conversion. See McAllen Hasp. v. State Farm Mut. Ins. Co., 433 S.W.2d 535 (Tex. 2014). Therefore, Plaintiffs are entitled to bring a claim for conversion of the checks.

37. Alternatively, because Plaintiffs were not allowed a separate mailbox, Defendant Undavia agreed to accept the mail and deliver it to the Plaintiffs. See Exhibit 1. This is not, as Defendant claims, a modification of the commercial lease, which is silent on the issue of mail collection. This was a separate agreement with Undavia individually and as a representative of Minu RX, which occupied the lower level of the building and received delivery of the mail on behalf of all of the occupants. See Exhibit 1. For this reason, Defendant Undavia acted as an agent of the Plaintiffs for the purpose of accepting the mail on their behalf. Thus, Defendants have failed to show that they are entitled to summary judgment as a matter of law, and a fact issue remains to be decided by the jury.

E. PLAINTIFFS' CLAIMS ARE NOT BARRED BY THE STATUTE OF LIMITATIONS 38. Under Texas law, an action for conversion does not accrue, and the statute does not begin to run, until 1) the return of the property has been demanded and refused, or 2) facts supporting

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 18 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000138 the cause of action are discovered. E.g. Burns v. Rochon, 190 S.W. 3d 263, 271 (Tex. App.- Houston[1 st Dist.] 2006, no pet.). This is because, as shown above, Defendants' possession was initially lawful; Defendants were charged with collecting the mail and delivering it to the Plaintiffs. Because Plaintiffs did not discover the facts supporting their cause of action until shortly before suit was filed, the statute did not begin to run until that time. Thus, summary judgment with respect to Plaintiffs' conversion claim must be denied.

39. Additionally, Plaintiffs frequently provide medical services to personal injury victims and often have agreements to suspend collection efforts for extended periods of time while the patients attempt to obtain compensation for the third parties responsible for their injuries. Plaintiffs are diligent in requesting status updates from their patients and patients' attorneys, however many such requests go unanswered. Therefore, despite their diligence Plaintiffs were not able to discover Defendants' theft until shortly before suit was filed in this case. Under the discovery rule, a plaintiff s cause of action is deferred until it knows, or by exercise of diligence should know, that of facts giving rise to the claim. See Barker v. Eckman, 213 S.W.3d 306, 311- Because Plaintiff exercised diligence and was not able to discover 312 (Tex. 2006). Defendants' wrongful acts until recently, the statute of limitations on Plaintiffs' claims is tolled and summary judgment should be denied.

40. Finally, the accrual of Plaintiffs' causes of action is deferred by the fact that Defendants fraudulently concealed their theft. Fraudulent concealment occurs when 1) the defendant has knowledge of the wrong, 2) the defendant conceals the wrong through misrepresentation or silence when there is a duty to speak, 3) the defendant has a fixed purpose to conceal the wrong, and 4) the plaintiff reasonably relied on the misrepresentation or silence. See Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). In the present case there is an obvious fact issue on all four of

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 19 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000139 these elements. The evidence clearly shows that Defendants received, stole, and deposited the checks into Minu RX bank accounts. Therefore Defendants had knowledge of the wrongful acts and their purpose was to conceal the theft. Defendants had a duty to speak based on their obligation to deliver all of Plaintiffs' mail to the Plaintiffs, yet the Defendants remained silent. Lastly, Plaintiffs relied on the silence because they were still receiving some checks and because their business practice often includes delayed payment for services. Thus, the statute of limitations is tolled by Defendants fraudulent concealment and summary judgment must be denied.

F. DEFENDANTS ARE NOT ENTITLED TO ATTORNEY'S FEES

41. Defendants have requested attorney's fees under Tex. Civ. Prac. & Rem. Code §§ 37.009 & 38.001. First, Texas law is clear that Chapter 38 does not provide for the recovery of attorney's fees by a defendant who only defends against a plaintiffs contract claim and presents no contract claim of its own. American Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex. 1986) (holding defendant could not recover attorney's fees under predecessor to section 38.001 when defendant presented no contract claim of its own); Garcia v. National Eligibility Exp., Inc., 4 S.W.3d 887, 889 (Tex. App.-Houston [1st Dist.] 1999, no pet.). ; Energen res. MAQ, Inc. v. Dalbosco, 23 S.W.3d 551, 558 (Tex. App.-Houston[lst Dist.] 2000). Therefore Defendants are not entitled to attorney's fees under Chapter 38.

42. Defendants are also not entitled to attorney's fees on their Chapter 37 claim. First and foremost, Defendants have not sought affirmative summary judgment on their declaratory claim. Further, because they have not pleaded a valid declaratory judgment claim. Release is an affirmative defense under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 94; Henry v. Mason 333 S.W.2d 825 (Tex. App.-Houston[l st Dist.] 2010). This amounts simply to a defense

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 20 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000140

to Plaintiffs' allegations, and are therefore already properly before the Court. When a counterclaim for declaratory relief presents issues that are already before the court as part of the plaintiffs case, the declaratory judgment claim is not properly brought and the plaintiff has an absolute right to a nonsuit. See BHP Petrol. Co., 800 S.W.2d at 838; General Land Office v. Oxy US.A., Inc., 789 S.W.2d 569, 570 (Tex.l990)(quoting Weaver v. Jock, 717 S.W.2d 654, 657 (Tex. App.-Waco 1986, writ refd n.r.e.); Newman Oil Co. v. Alkek,614 S.W.2d 653, 655 (Tex.App.-Corpus Christi 1981, writ refd n.r.e.). Because Defendant's claim for declaratory relief merely resists Plaintiffs' claims, Plaintiffs have an absolute right to nonsuit of this claim and Defendants are not entitled to an award of attorney's fees. For these reasons, the Court should deny Defendants' request for attorneys' fees.

VIII. CONCLUSION & PRAYER Defendants have not and cannot show that they are entitled to judgment as a matter of law. Further, Plaintiffs have easily shown that there is a genuine issue of material fact as to all of Plaintiffs' claims and Defendants' affirmative defenses. For these reasons, Plaintiffs respectfully request that the Court deny Defendants' Motion for Summary Judgment, and grant Plaintiffs such other and further relief as the Court deems appropriate.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 21 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000141 Respectfully submitted, ./ Matias J. Adrogue Attorney at Law State BarNo. 24012192 Robert Stephan Kaase State Bar No. 24083287 1629 West Alabama St. Houston, Texas 77006 713-425-7270 Telephone 713-425-7271 Facsimile service@mjalawyer.com ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been serv~ to all counsel of record in accordance with the Texas Rules of Civil Procedure, on this the ll.-~ay of February, 2015.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PAGE 22 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

AR 000142 CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, §

§ Plaintiffs § HARRIS COUNTY, TEXAS § VS. § § KHY ATI MOHAMED UNDA VIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

AFFIDAVIT OF BRETT

L. GARNER BEFORE ME, the undersigned authority, personally appeared Brett L. Gamer, known to me to be the person whose name is subscribed herein, and acknowledged to me that: 1. "My name is Brett L. Gamer. I am over 18 years of age, of sound mind, and capable of making this affidavit. I have never been convicted of a felony or crime involving moral turpitude. The facts stated in this affidavit are within my personal knowledge and are true and correct.

2. "I am a chiropractor licensed to practice in the State of Texas since 1997. I primarily practice as a chiropractor with Nisal Corp. d/b/a Qualcare Rehabilitation, a Texas Corporation which does business as Qualcare Rehabilitation. In 2006, I filed an assumed business name with the Harris County Clerk's office for Allied Medical Centers. The Allied Medical Centers name is licensed by me to Avant Medical Group, P.A. Avant Medical Group, P.A., is a Texas professional association which does business as Allied Medical Centers and Interventional Spine Associates. I am also one of the owners of Sterling Practice Management, LLC, a management service organization which manages the non-medical business dealings of Avant Medical Group, P.A. Avant Medical Group, P.A., d/b/a Allied Medical Centers and d/b/a Interventional Spine Associates provides medical doctor services and is separate from Nisal Corp. d/b/a Qualcare Rehabilitation, which provides chiropractic and rehabilitation services.

EXHI~IT

.1-1

1 AR 000143 3. "Avant Medical Group, P.A. was not a party to any lease agreement with Providian Holdings, LLC, was not a party to Cause No. 1036848, Sterling Practice Management, LLC and Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No.4, Harris County, Texas, and was not involved in the negotiation or execution of any settlement agreement in that case.

4. "From 2009 through March of2013, Nisal Corp. maintained its primary business location III a building owned by Providian Holdings, LLC and located at 2918 San Jacinto Street, Houston, Texas 77004 ("the Building"). Nisal Corp. occupied the upper level of the Building and Avant Medical Group, P.A. regularly provided medical services at the location. Sterling Practice Management, LLC performed the billing and collection functions for and Avant Medical Group, P.A. from its location at the Building. Memorial Compounding Pharmacy occupied the lower level. Khyati Undavia was the person with whom I interacted for matters concerning the space leased in the Building.

5. While the Nisal Corp. and Avant Medical Group, P.A. occupied the Building, Ms. Undavia informed me that Nisal Corp. and Avant Medical Group, P.A. were not permitted to have a separate mailbox in the Building. Instead, Ms. Undavia accepted all of the mail for all occupants of the building, separate Nisal Corp. and Avant Medical Group, P.A.'s mail from mail addressed to others in the Building, and deliver Nisal Corp. and Avant Medical Group, P .A. 's mail to the upper level. Nisal Corp. and Avant Medical Group, P.A. permitted Ms. Undavia to perform this function and allowed Ms. Undavia to receive and deliver the mail. Ms. Undavia expressly agreed to properly separate and deliver all ofthe mail.

6. "As part of my practice, I frequently treat patients who have been injured in accidents and who do not have health insurance. When treating these types of patients, I will often defer collection efforts until the patient is able to recover payment from the person or entity responsible for their injuries. For this reason, my practice will often receive payment from the patient or the patient's attorney several months or years after the patient has completed treatment and been discharged. When treating these types of patients, I send regular requests for status of payment to the patient or the patient's attorney.

2

AR 000144

7. "I was first infonned that checks addressed and made payable to Avant Medical Group, P.A. d/b/a Allied Medical Centers and d/b/a 1nterventional Spine Associates had been mailed to the Building and gone missing in July 2012 when I requested status from patients' attorneys and learned that payment had been issued but not received. The copies of checks attached as Exhibit 3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment were received from the attorneys for patients on Nisal Corp. and Avant Medical Group, P.A."

Further affiant sayeth not. Brett L. Gamer SUBSCRIBED AND SWORN to before me on this the 13th day of February, 2015, to certify which witness my hand and seal of office. ~ ' _\/

/

\". ~M~~--*c~oLCm~mt--UiS"-S~lO"'nl---e--'X-:-l-~-lsr:~o~~~~~~~~~~~L~~~~J JENNIFER RODRIGUEZ

,~~~"::t:".. ll~'" "'~t>\ Notary Public. State of Texas J.J My Commission Expires I !

2016 '~'. • .. 11 June 15, ";.~~''''<~''

"" .... 'v- 3 AR 000145 CAUSE NO. 2014-22186 § AVANT MEDICAL GROUP, P.A. d/b/a IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § § ASSOCIATES,

§ HARRIS COUNTY, TEXAS Plaintiffs § § VS. § § KHY ATI MOHAMED UNDA VIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

AFFIDAVIT OF CARMEN MANZO

BEFORE ME, the undersigned authority, personally appeared Carmen Manzo, known to me to be the person whose name is subscribed herein, and acknowledged to me that: 1. "My name is Carmen Manzo. I am over 18 years of age, of sound mind, and capable of making this affidavit. I have never been convicted of a felony or crime involving moral turpitude. The facts stated in this affidavit are within my personal knowledge and are true and correct.

2. I am the person in charge of maintaining billing and collection records for Sterling Practice Management, LLC. As part of my duties with Sterling Practice Management, LLC, I am the person in charge of maintaining billing and collection records for Avant Medical Group, P.A. d/b/a Allied Medical Centers and d/b/a Interventional Spine Associates. Exhibit 3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment are checks payable to Avant Medical Group, P.A. or to its assumed business names Allied Medical Centers and Interventional Spine Associates. Checks received from patients and their attorneys are incorporated into the records of Avant Medical Group, P.A. and kept in the course of Avant Medical Group, P.A.'s business, Avant Medical Group, P.A. typically relies upon the accuracy of the contents of such documents, and the documents were placed into Avant Medical Group, P.A.' s business records at or near the time or reasonably soon after the time that they were received. The checks attached as Exhibit 3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment are the originals or exact duplicates of the originals."

PLAINTIFF'S EXHIBIT I 2, AR 000146 Further affiant sayeth not. SUBSCRIBED AND SWORN to before me on this the 13th day of February, 2015, to

certify which witness my hand and seal of office. ~,'111",~ .l'''~~'!.: !:':~'Io'lo JENNIFER RODRIGUEZ '''':' Y'i Notary Public. State of Texas {~i My Commission Expires \~. June 15. 2016 ~'~;:'I~~"~

AR 000147

Page 1 of 1 --- CADENCE BANK

04/08/14 Account: Name: THE DUNK LAW FIRM PLLC

IOLTA 4505 CAROLINE

Address:

4505 CAROLINE

HOUSTON, TX 78701

The image shown below represents an official copy of the original document as processed by our institution 4970 THI!l OUIIK LAW FlAIl, IILI..C IOLTA 1CC0UIIf 4Ii06 tMoUNE sr.

9125flO13 ---J: • HOOIl'OIt, 1'X 77004 I ~D~~",--_Al_lIed_M_ed_Ica_I_Ce_nte_r ___ -..... ___ ~ _______ ............I1 $ ""182.50 Alied Medical CentBr 004970 10/17/13 91061040 162.50 ..... 20131016008593156221500 a ]I §rf tI~i 5pt !Q

t!0131 DtoorHiOO156221500

~ EXHIBIT .... !!I 3 ij ~

http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1040-91061040.htm 4/8/2014

AR 000148

Page 1 of 1 --- CADENCE BANK

04/08/14 Account: Name: THE DUNK LAW FIRM PLLC

IOLTA

4505 CAROLINE

Address: 4505 CAROLINE HOUSTON, TX 78701

The image shown below represents an official copy ofthe original document as processed by our institution - . - - 4973 912512013 =ll:f __ lnteJventlollal --..;...-- t

I

......... __ Spl_ne_As~s_oc ________ ~ __ ~---I1 $ ~,260.75 I

.

Five ThouI8lllf Two Hundred Sixty and 761100--·_·_ .. _ -_ · ... • .. "' ..... • ........ • ... · - InteMntionaI SpIne Assoc.

MEMO

• 004973 10/17/13 91061070 5260.75 0131016008593156521500

31016008593156521500

http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1070-91061070.htm 4/8/2014

AR 000149

Page 1 of 1 - - - CADENCE BANK

04/08114 Account: THE DUNK LAW FIRM PLLC Name:

IOLTA 4505 CAROLINE

Address: 4505 CAROLINE HOUSTON, TX 78701

The image shown below represents an official copy ofthe original document as processed by our institution - . - 4981

~'II/

THE au.( LAW fiRM, PLLC l1li

IOLTAACCOUIIT

~ CAilOLlNE$f.

9i25I2013 HDUtmlN, 1)( 71004 I Dlf.;.-. _Alfied_M_ed_'C8_,_Center _ ___ _ __________ ___ ---.ll $ "125.00

I

____ r -__________________________________ ~ ________ ~w: One HUnclred TWenty-FiVe and 00/100--· ................ ·."""_··_···_· _ .... _ ... _ ................. _ ... _ ............... _ ...... -... _ •• _. _. _ .. '_ ..... _-_.. A I

A1liod MedIcal Center I • j MEMO 004981 10117/13 91061030 125.00 -. v • • 0131016008593156121500

31016DD85931561219D

http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1030-91061030.htm 4/812014

AR 000150

Page 1 ofl - - - CADENCE BANK 04/08114 Account: THE DUNK LAW FIRM PLLC Name:

IOLTA 4505 CAROLINE

Address: 4505 CAROLINE HOUSTON, TX 78701

The image shown below represents an official copy of the original document as processed by our institution --.alII - 'I

4984

1ME DUNK LAW R .... PL.l.e

IOLTAACCOUNT

. . CMOUII! sr.

9I'.W.!Q13 - - - - J HOU8TOH, 1X 1'7OOt i PAYlOl11E __ Inb3_IVe_ntlona_I_SP_ine_A_ISSOO_. ____ __ __ - -__ __ -,J $ "5,816.89

ORDER

()F_._

FIVe lhoLlll8l1d Eight Hundred Sixteen and 891100"--...... -~ ...... •• .. ·..,;· .. ~ .. • ................ w-- (b r ------------------------------------------~--------~ . InterventioRal Sl*Ie As9oc. I ... IilEMO- --~--. -- - - - - - - - ---- 004984 10117/13 91061080 5816.89 0131016008593156621500

13t01~156621500

http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1080-91061080.htm 4/8/2014

AR 000151

914006

BRIAN LONCAR, P.C. ATTORNEY AT LAW P.I. TRUST ACCOUNT 8/30/2011 424 SOUTH CESAR CHAVEZ BOULEVARD

1

DALLAS, TEXAS 75201

(214) 747-0422 &

I

PAY TO THE Allied Medical Center **783 33 $ . Seven Hundred Eighty~ Three and 33/100 .... ****-.. ··· .. ····_-_·_-***-_·**·_-******· .... ·· ORDER OF J DOLLARS I

Allied Medical Center

2918 San Jacinto t?J

tt~DAVS

Ste#200

Houston, Tx 77004

MEMO AUTHORIZED SIGNATURE 9EG' If"i1I1='1' FPiT\lR&B UIQRQ PRII' leP.~.!'e:r=r~" ~.~ne~~~.~~k~RE8 P iFFEA" I ~eA8 Pfmrf 818ft iif'tfRE lIUE Bt:EES "'JIIRBt:J81'Ut;ll 11!11!~II,e ;,nSS!!'!! I't!!"l'tff\f! 114DDltiESA fOP' i CHECKAMT: 783.33 TRANSCODE:36L_ ACCOUNTNUM:~ TRROUTNUM: 11400009 SERIALNUM:914006 ITEMSEQNUM:91420607 CAPTURDATE:09/21/2011 ITEMID1 :808fe1 c2 SETID:00000000071 04041 d4ceOOOO ITI= P0110920215000200061

+- I 20110920215000200061 +-

CHECKAMT: 783.33

TRANSCODE:3fi4 - - - - - - -- ACCOUNTNUM TRROUTNUM:11400009 SERIALNUM:914006 ITEMSEQNUM:91420607 CAPTU RDATE:09/21/2011 ITEMID1 :808fe1 c2 SETID:0000000007104041d4ceOOOO

AR 000152

~ 913801 BRIAN LONCAR. P.C. ATTORNEY AT LAW P.1. TRUST ACCOUNT 424 SOUTH CESAR CHAVEZ BOULEVARD 8130/2011

1

DALLAS, TEXAS 75201

(214) 747-0422 Ii

I

$ -1,781.73 PAY TO THE Allied Medical Center ORDER or

J

DOLLARS I

One Thousand Seven Hundred Ei9ilty-one and 731100--.......... ·_ ... __ .... •• ... ••• .... ••• ..... • ..... • ............ •• ... · -

Allied Medical Center tn I).OOMYS 2070 FM 1960 W Houston, Tx 77090

..

MEMO . . . - - - - .

CHECKAMT: 1781.73 0Rii f FEAiUAES MiGRVPFUNi IOraBO' iQNi &JROeRSWlOREUMI lEAN NiCHCPFHiNi SklNAiUAEUN2 MEED • "ROUGh NOMSEAii4Q WS$riG FEAiURE.tcOiCAiESACOP, TRANSCODE:36.4. . - .... -- - - ACCOUNTNUM TRROUTNUM: 11400009 SERIALNUM:913801 ITEMSEQNUM:91420610 CAPTURDATE:09/21/2011 ITEMID1 :808fe2af SETID:00000000071 04041 d4ceOOOO ITEMVI EWI D:808fe2b 1 - ~0110920215000200064

20110920215000200064

-

CHECKAMT: 1781.73

TRANSCODE:364._ -- .-~­ ACCOUNTNUM TRROUTNUM: 11400009 SERIALNUM:913801 ITEMSEQNUM:91420610 CAPTURDATE:09/21/2011 ITEMID1 :808fe2af SETID:0000000007104041d4ceOOOO ITEMVI EWID:808fe2b 1

AR 000153 BRIAN LONCAR, P.C. AlTORNEY AT LAW P.1. TRUST ACCOUNT 424 SOUTH CESAR CHAVEZ BOULEVARD

813012011 1

DALLAS, TEXAS 75201

(214) 741-0422 ' I ! I

PAY TO THE $ "'821.75 ORDER OF Allied Medical Center

I I DOLLARS i : Eight Hundred Twenty-One and 151100 ..... ······*****1'*****''**_ .................. _**-**-******* .... **_· ............ ** .. * Allied Medical Center

IS}

2918 San Jacinto 8te200 Houston, Tx 77004

...

MEMO

CHECKAMT: 821. ;;et:lftff. Fe .. fUFlE8 MISRa PRltITlBP, 99"911 aeF1BEft8 9e1:E1f1Bi1 PJi."fl£Aft fueRS PFUUT8tetUiRtAE: I:I~IE IlU:EEQ 'RI~WEIII tlwrtB&AI .. a ,1IBs •• e fE#inme: ,U91Efl'tfE8A6e1 • TRANSCODE:36<l _ -_. ACCOUNTNUM: TRROUTNUM:11400009 SERIALNUM:913797 ITEMSEQNUM:91420608 CAPTURDATE:09/21/2011 ITEMID1 :808fe1 c5 SETID:00000000071 04041 d4ceOOOO ITEMVIEWID:808fe1c7

0110920215000200062 - 20110920215000200062 CHECKAMT: 821.75 TRANSCODE:364. _______ ~ ACCOUNTNUM: TRROUTNUM: 11400009 SERIALNUM:913797 ITEMSEQNUM:91420608 CAPTURDATE:09/21/2011 ITEMID1 :808fe1 c5 SETID:0000000007104041d4ceOOOO ITEMVIEWID:808fe1c7 L-~~~~~ ___ ___ __ ____ _ __ _ __ ___ _ __ _ ___ ___ ___ _ ___ ___ __ ___ __ ___ ___ _________ _ _

AR 000154

913766

BRIAN LONCAR, P.C. ATTORNEY AT LAW P.1. TRUST ACCOUNT

424 SOUTH CESAR CHAVEZ BOULEVARD

8/30/2011 DALLAS, TEXAS 75201 ~ (214) 747-0422 Ii

I

$ **982.50 PAY TO THE Allied Medical Centers ORDER OF

J DOLLARS I

Allied Medical Centers

la 5718 Bellaire Blvd. Houston, Tx 77061

..

MEMO

AUTHORlZEO SlBNATURE

CHECKAMT: 982.50

j TRANSCODE:3M ACCOUNTNUM: TRROUTNUM:11400009 SERIALNUM:913766 ITEMSEQNUM:91420609 CAPTURDATE:09/21/2011 ITEMID1 :808fe2ac SETlD:00000000071 04041 d4ceOOOO ITEMVIEWID:808fe2ae P0110920215000200063 - ^[0]

,. ~ 1l: .,,:0 am m :II>- -3:;: :!!l:i g

~

"V

.. , ~r z~ j; CJ ~ ^[0] ..

~

9.., 20110920215000200063 ~~ g •. ,-.;::o '-<"::08-1 ~ r- ~~ ~L l~~ ............ )f'l)m ~~ ~!-. '0 ~ ,...,- .l~ 2m c;'-t J • • :J ~ In

c'" zo~",!B ~ '< ^[0] ~~ Q :E ...... ~ - -< ^[0] ~ CHECKAMT: 982.50 TRANSCODE:364. ___ _ ACCOUNTNUM: TRROUTNUM:11400009 SERIALNUM:913766 ITEMSEQNUM:91420609 CAPTURDATE:09/21/2011 ITEMID1 :808fe2ac SETID:00000000071 04041 d4ceOOOO ITEMVIEWID:808fe2ae

AR 000155

".036848 e.C.C.l. # 4 o NO. ______________ _ "'J '1...1 [) STERLING PRACTICE MANAGEMENT, LLC IN COUNTY COURT AT LAW !:-) o c;

NISAL CORPORATION

u Plaintiff

NO. ________________ _

vs.

PROVIDIAN HOLDINGS, INC.

Defendant HAJUUSCOUNTY,TEXAS PLAINTIFFS' ORIGINAL PETITION TO THE HONORABLE JUDGE: Sterling Practice Management, LLC (hereinafter Sterling) and Nisal Corporation (hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian Holdings, Inc., and in support would show the court the following: 1. This is a Level One Discovery Control Plan case. 2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian

Holdings, Inc. is a corporation doing business in the State of Texas and can be served through its agent for service of process, Khyati Undavia, 2918 San Jacinto, Houston, Texas 77004. Plaintiffs seek damages within the jurisdictional limits of the Court. The Court has subject matter jurisdiction and venue is proper.

FACTUAL BACKGROUND

3. Sterling entered into a lease agreement with Defendant. Pursuant to the terms of the lease, Sterling made a security deposit in the amount of $2000.00. Upon termination of the lease and sixty days after Sterling provided a forwarding address, Defendant has refused to refund the security deposit to Sterling. Defendant has acted in bad faith. Defendant is liable to Sterling for the full security deposit of $2000.00, plus a statutory

~ PLAINTIFF'S ~ EXHIBIT ~ 4: ~

AR 000156 ..

-.

~-

C}

penalty of $100.00, plus an additional statutory penalty of $4000.00, plus reasonable ':l '1. .. .; ()

attorney's fees. Defendant has acted in bad faith by not providing a written description

D

0 E and itemized list of damages and charges, if any, and thus has forfeited its right to

I

withhold a portion of the security deposit for such damages and charges. "? ":{ \_~ C 4 . Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease, .. _i () Sterling made a security deposit in the amount of $3600.00. Upon termination of the C) if 4

lease and sixty days after Nisal provided a forwarding address, Defendant has refused to refund the security deposit to Nisal. Defendant has acted in bad faith. Defendant is liable to Sterling for the full security deposit of $3600.00, plus a statutory penalty of $100.00, plus an additional statutory penalty of $7200.00, plus reasonable attorney's fees. Defendant has acted in bad faith by not providing a written description and itemized list of damages and charges, if any, and thus has forfeited its right to withhold a portion of the security deposit for such damages and charges.

WHEREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Providian Holdings, Inc. be cited to appear and that judgment be taken against it for all damages suffered by Sterling in the amount of $6100.00 (consisting of the security deposit due and owing and all statutory penalties), plus reasonable attorney's fees, and that judgment be taken against it for all damages suffered by Nisal in the amount of $10,900.00 (consisting of the security deposit due and owing and all statutory penalties), plus reasonable attorney's fees, plus all costs of court, plus and any all further relief Plaintiffs may be entitled to.

AR 000157

, Respectfully submitted, PHILLIP BRANTLEY AND ASSOC., P.C.

o D'Jk~~ 6 ~iJilip ~raIltle~O

SBN 02899727

Arena Tower II 7324 Southwest Freeway, Suite 1020 Houston, Texas 77074

o o

(713) 270-4053 phone 4 (713) 270-0682 facsimile

ATTORNEYFORP~ITP

P'ii - - J~ ~IL 1 ~k

E

0 tIC w -' ./b~2'. I(

IJ') I

u..

G-

L&J en ~~ I

\ij AR 000158 Law Office of Phillip Brantley and Associates, P.C. Arena Tower II 7324 Southwest Freeway, Suite 1020 Tel (713) 270-4053 Houston, Texas 77074 Fax(713)270~2 phiUipbrantley.com September 3, 2013

Stan Stanart o o County Clerk Civil Courts Building 4 201 Caroline, Suite 300 ~ Houston, Texas 77002 '-'

RE: Sterling Practice Management, LLC, et al. vs. Providian Holdings, Inc. Dear Mr. Stanart: Enclosed are an original and two copies of Plaintiff's Original Petition. Please return one copy to me in the self-addressed stamped envelope and stamp the other copy and return it to me with the citation attached. Also enclosed is my check for $221.00.

htiUp rantley

AR 000159

:.- ~) L-d C> l:.~ ., 1 . .3'1 c..w ~\.1 ---""; ~ , en () iIi C) !~:; =.,-: ::':,; f\1 :~~~i,~~*~'j;~~'~~'~~~·~/~'~~:.~\~t~)i~:;Z~'!.!.;~\\~::'''~il~':i.\';J~ H :\\i~-,·f·) .... ; ~ ":.;:,:,, .. ~I ~y,i /~ \l'~.\\"f. ... ~-:-., ., 'f PHIlip Erantley ami Associates, PC Arera Tower II 7324 Sout!lwest Freeway, Suite 1020

. . tl~POS~- . fi1{t'/ di ,-

Houston, Texas 77074

•

~""""'_PlrN~

$001.06° ~ {~~ 1;> • (;:}GO~;3 :863 SEP 04 2;) i:3 r "'1'-- • ,....,..,I'~ ... , ..... ~-..,---. Mrd.E .. ) F".\."ni·l ~lP I.,.IOUt: I ! l).' '1" ?' Stan S~anarl .. -----~ County Gerl{ Ci-, il Courtft£.';iiding 20~ Caroline, Suite 300 Houston. TX 77002

t i

·77t:;tZi.'2$~caE2 ". Jj.JJ 'J!'!tIt1JbJ,#il.i4J.i.iNuJI1' III II '/III Il' IIi /I II J jl 1' /" .- ... AR 000160 MUTUAL RELEASE THE STA1E OF TEXAS . COUNTY OF HARRIS WHEREAS, certain disputes, claims and causes of action existed by and between STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners, successors, agents, assigns, employees, servants andattomeys (hereinafter STERLING) and PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees, servants and attorneys (hereinafter PROVIDlAN), arising from a commercial lease; and

WHEREAS, certain disputes, claims and causes of action existed by and between NISAL CORPORATION, its officers, directors, shareholders, partners, successors, agents, assigns, employees, servants and attorneys (hereinafter NISAL) and PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees, servants and attomeys (hereinafter PROVIDIAN), arising from a commercial lease; and

WHEREAS, STERLING and NISAL filed suit against PROVIDIAN, No. 1036848, County Civil Court at Law No.4, Harris County, Texas; and WHEREAS, the parties desire to compromise, settle and provide for the full and final termination of all of the said claims, demands. causes of action and disputes between them arising out of or related to such claims which either party may now have or have had against each other. all without admitting any of the allegations set forth;

NOW, THEREFORE, for and in consideration of a check written by PROVIDIAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in the amount of $7600.00, the mutual releases contained herein, and other good and valuable consideration, the receipt and

~ PLAINTIFF'S

EXHIBIT

...I ~ 5 ~

EXHIBIT C AR 000161 sufficiency ofwbich is hereby acknowledged, STERLING AND NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE PROVIDIAN, its officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys from any and all liabilities. claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which STERLING AND NISAL have ever had or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release, including, without limitation;

NOW, THEREFORE, for and in consideration of the acceptance of the aforesaid check written by PROVIDlAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in the amount of $7600.00, the mutual releases contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, PROVIDlAN, its officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE STERLING AND NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which PROVIDAN has ever had or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release, including, without limitation.

Upon signature of all parties, STERLING AND NISAL shall file a nonsuit with prejudice. The parties hereto represent and warrant that the persons executing this Mutual Release on

their behalf as shown on this instrument is authorized to bind same.

AR 000162

It is understood and agreed that this is a final Mutual Release, that no further consideration is to be paid by any of the parties. and that this settlement is in compromise of disputed claims and is not to be construed as an admission of liability.

STERLING PRACTICE MANAGEMENT, LLC THE STATE OF TEXAS

COUNTY

OF HARRIS'

BEFORE ME, on this day personally appeared, Wi { 1l {( m +h t.,,[S!, of STERLING PRACTICE MANAGEMENT, LLC, whose name is subscribed to the foregoing Mutual Release, and who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said entity, for the purposes and consideration therein expressed, and in the capacity therein stated.

D ~in hrA ,2013. GNEN W1der my hand and seal of office NOTARYP LICIN AND FOR THE STATE OF TEXAS

MARIA PATRICIA MUNIZ

My Commlssloll Expires

May 14.2016 AR 000163 NISAL CORPORATION MARIA PATRICIA MUNIZ My Commission Expires

May 14.2016 AR 000164 PROVIDIAN HOLDINGS, INC. THE STATE OF TEXAS COUNTY OF HARRIS

elf( ,

BEFORE ME, on this day personally appeared,

of PROVIDIAN HOLDINGS, INC., whose name is subscn to the foregoin Mutual Release, and who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said entity, for the purposes and consideration therein expressed, and in the capacity therein stated.

OG.r~ GIVEN under my hand and seal of office, thi. ,2013. NOTARY Ie IN AND FOR

THE STATE OF TEXAS

KEIl1i CHUNN. JR. . ~ . i MY COMMlSSION EXPIA'eS ~ .

November 14. 2016 \.~.:.'$J ~ .. .~--- .... - .. ---: .. ,-:~:;: .. ~ .~. ';" ( .. :' ~ :' ~', :l(;-.~·"':"'-:?:"'!~·~:-~::':'-~' <00;,-: ~'i· • . ": .:: ~~:: •• \ ) 9~O~ 'p~,!';.tt'iV_ ':~J ;~~~~,~ ":, ;,~ " -)! " ,;t S3~~~X~~I~~?:~':~;:~.·:.~~,~~~::}L',~~,;:! AR 000165 FILED omCEOFBEVERLYB KAUFMAN,COUNTYCLERK,HARRISCCUNTY,TEXA&,OOCHAR -2 AH 9: 50 P,O,BOXlS2S-HOUSTON,lEXAS772SJ-IS2S LOB 3948:13 ~ 03102/fJ6 600H36N $16.00 ;;'It", L Assuned Ilalle \~~ ASSUMED NAME RECORDS /1 I .11 (I Je,;;t ~ .1:541) ~

CERTIFICATE OF OWNERSHIP FOR

'Id'-" (j ~ UNINCORPORATED BUSINESS OR PROFESSION COUllTY CLERI{ Ht IlRI< rl'I'mY, TFXAS [A beginning cbaracterotber than a letter or a number, or the last portion ora name tbat exceeds 57 cbaracters, will not be reflected in tbe indices, Pleas. print legibly,) NAME IN WHICH BUSINESS IS OR WILL BE CONDUCTED: _______________ ___ __ __ _ ALLIED MEDICAL CENTERS BUSINESS ADDRESS 5718 BELLAIRE BLVD STATE_T_X _______ ZIP ^[77081] CITY HOUSTON PER(OD{~ot to exceed 10 years) DURING WHICH ASSUMED NAME WILL BE USED: _1_0 __ __ ___ ____ __ _ _ BUSINASS IS TO BE CONDUCTED AS (Check One): :KJ Sole Proprietorship 0 Sole Practitioner 0 Other __________ _ o Gen~ral Partnership

0 Joint Venture 0 Joint Stock Company 0 Real Eslate Investment Trust l!We, the underStgnc.J,.amlarc ih!JQW\ler(s) of the above business and my/ourname(s) and addressees) given is/are true and correct, and there is/are no ownership(s) in seid businew other than those listed below,

-NAMES OF OWNERS- SIGNATURE'lL~Lg~ NAME GARNER,BRETT LEWIS (prUtlD#'rypc1 ... 1\ Rllsidence Address 5903 SOLAR POfi\IT .. ... City: HOUSTON Zip: 77041 State: TX

NAME

SIGNATURE

(pri4lfJl''1P'J Residence Address City: State: Zip:

SIGNATURE

NAME

(pNtltWt;JIp'; Residence Address ••• Staie: City: Zip: ,. If this instrument is executed by an attorney-in-fact, the attorney-in-factlterebysllItes tbat slhe/they baslbave been duly authorized in writing by hislher principal to execute and acknowledge the same.

THE STATE

OF TEXAS

COUNTY OF

HARRIS

BEFORE ME, THE UNDERSIGNED AUTHORlTY, on this day persOl\UIIy JlPPClared __ _____ ____ ____ _

GARNER,BRETTLE~S

SHARON B, STEWART !. PLAINTIFF'S ~ EXHIBIT Is> ~ ~

AR 000166 FIL,EO

In ttl. OffIce of l1e SeCl'lt.ry of .... ofT.,., JUL 1 4 20lrfi Oofporationa 8e6IJ . . ......

Office of the

Corporations Section Secretary of State P.O. Box 13697 Form 204 Austin, Texas 78711-3697 (Revised 01/06) 512-463-5555 Fax: 512-463-5709 Filing Fee: $750 , , CERTIFICATE OF FORMATION PROFESSIONAL ASSOCIATION Artide-l- Entity Name and Type

The filing entity being fonned is a professional association. The name of the entity is Avant Medical Group. P .A.

Article 1 - Registered A&eat and Registered Office (Select and complete ~ A or B and complete C) The initial registered agent is an organization (cannot be entity named above) by the lID A. name of: Sterling Practice ManagemenL L.P. or o

B. The initial registered agcnt is an individual resident of the state whose name is set forth below: First Name MI Last Name SUffIX C. The business address of.the registered agent and the registered office address is: 5718 Bellaire Blvd Houston Texas 77081 City Slale Zip Street Address

Artiele 3 - Governing Penon. Select ~ A or B. (A minimum of 1 individual is required.) A. 00 The professional association is to be managed by a board of directors. The names and addresses of the members who are to serve as initial directors are set forth below: t ~ ii,; 1 ~ i I'

l' I " it ~d: ~ PLAINTIFF'S

RECEIVED

~ EXHIBIT ~ 7

~', " , . A /: :' . . , '::: '1' ,.

~ Secretary of State

AR 000167

/

OR

B. 0 The professional association is to be managed by an executive committee. The names and addresses of the members who are to serve on the executive committee are set forth below: T. Anteneh Roba First Name Last Name MI Sulfa 223 Westheimer Road

Houston 77006 Texas USA Strut Address City State COlin I')' Zip Article .of - Purpose . The type of professional service to be provided by the professional entity is (use space provided. below): Medical services.

.! SupplemeDtal ProvisioasllnformadoD Text Area: [The atfa(;hed addendum, ifany, ifineorporated herein by refctence.] Origblal Members A member of the association may not dissolve the association independently of other members of the association. The name and address of each . original J?1ember of the association is: T. Anten¢h Roba First Name MI Last Name Suffix 223 Westbeimer Road Houston Texas USA 77006 Street Address City State Country Zip

Efreedveness of FillDg (Select either A, S or C) A. £8J This document becomes effective when the document is tiled by the Secretary of State. '.' B. 0 This document becomes effective at a later date. which is not more than ninety (90) days

from the date of signing. The delayed.effective date is: _-::--____ ~--:----:-_"':' C. 0 This document takes effect upon the occurrence of the future event or fact, other than the passage of time. The 90 111 day after the day of signing is: ____ _______ _ The following event or fact will cause the docwnent to take effect in the manner descnbed below: .

AR 000168

Exeeution 'The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument. ~ Date: I 113} a

:2) ~R~~~~ofJo~n~~~~~I~m~em~N~r=:~---------- L AUS:2681595.i 53:124.1

AR 000169 CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, §

§ Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA, § MINU RX, LTD., and MINU GP, § L.L.C., §

152 ND JUDICIAL DISTRICT § Defendants

DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE ROBERT SCHAFFER:

Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu GP, L.L.C. file this Reply to Plaintiffs’ Response to Defendants’ Motion for Summary Judgment and would respectfully show the Court as follows:

I.

S UMMARY 1. Without doubt or dispute, Nisal and Garner released Defendants in the Mutual Release. They are out. So to retain any modicum of credibility, Plaintiffs should have jettisoned Nisal and Garner from this lawsuit. 2. Instead, Plaintiffs double down on their bet and contend that the “scope” of the release is controlling. Defendants’ readily agree. The scope of the Mutual Release is so

1

AR 000170

broad and all-encompassing that it covers any known or unknown claims, whether or not they were actually asserted in the underlying lawsuit. Nothing could be broader than that. All of Plaintiffs’ current claims are captured and released. 3.

Finally, Plaintiffs make minute, ticky-tack arguments to throw the kitchen sink at the Court. Yet Plaintiffs go to no pains to discuss or distinguish the insurmountable case law cited in Defendants’ motion for summary judgment. If ignoring the law is the approach Plaintiffs chose to defeat summary judgment, then the outcome for this Court is simple— Defendants are entitled to judgment as a matter of law.

II.

R EPLY A. T HE M UTUAL R ELEASE I NCLUDED “A LL ” C LAIMS , W HETHER “K NOWN O R U NKNOWN ,” A ND T HEREFORE S PECIFICALLY M ENTIONED P LAINTIFFS ’ C LAIMS I N T HIS L AWSUIT .

9. In paragraph 16 of their response, Plaintiffs contend that the scope of the release is a threshold issue. Defendants will take Plaintiffs' cue on that point and show this Court how that threshold issue is dispositive of all of Plaintiffs' claims in this current lawsuit. 10. As to scope, Plaintiffs argue that they executed the Mutual Release to resolve only the County Court Lawsuit. Therefore, only the claims in that lawsuit have been released. 11. This argument ignores the broad, all-encompassing language of the Mutual Release, which extends to “ any and all liabilities, claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which . . . [the parties and their agents] . . . have ever had or could have had, whether now known or unknown , which have arisen or may arise from the beginning of time to the date of this release[.]”

2

AR 000171

(See Mutual Release, p. 2) (emphasis added). This language is not limited by or tailored to the claims in the underlying County Court Lawsuit. No claims are reserved for future litigation. The Mutual Release extends to all claims, including those currently asserted by Plaintiffs in this lawsuit. 12. Plaintiffs rely heavily on Victoria Bank & Trust Co. v. Brady , 811 S.W.2d 931 (Tex. 1991) for the incorrect proposition that a release only extends to extant, pending claims in a lawsuit. However, Brady dealt with far different facts. There, the parties entered into a settlement agreement that released the bank “from any and all claims and causes of action . . . directly or indirectly attributable to the above described loan transaction .” Id . at 938 (emphasis added). The original plaintiffs then filed a new suit against the bank that did not involve the “above described loan transaction.” Id . The court held that the only claims the settlement agreement released were those dealing with the “above described loan transaction,” and thus, did not bar the plaintiffs’ current claims against the bank. Id . 13. The Texas Supreme Court acknowledges the narrow holding of Brady . In Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. , 20 S.W.3d 692, 698 (Tex. 2000), the court states:

[In Brady], we noted that the parties’ agreement plainly limited itself to the specific loan and thus did not cover [the] other transaction. The present release is clearly broader than the one in Brady . It is not expressly limited to a specific claim or transaction but rather purports to cover “all demands, claims, or causes of action of any kind whatsoever.” Nothing in Brady forbids such a broad-form release. . . . .

3

AR 000172

Although Releases often consider claims existing at the time of execution, a valid release may encompass unknown claims and damages that develop in the future .

Id . at 698 (emphasis added). 14. Unlike the release in Brady , and exactly like the release in Keck , the Mutual Release in this case is not limited to claims arising out of a particular transaction. Instead, the Mutual Release extends to “all” claims whether “known or unknown,” and without regard to whether they were actually asserted in the County Court Lawsuit. (See Mutual Release, p. 2). 15. Keck similarly disposes of Plaintiffs’ reliance on the Mutual Release’s recital paragraph. In Keck , the court held that the specific mention of a pending claim in a recital paragraph did not otherwise reduce or narrow the scope of the broad-form release language that followed. See Keck , 20 S.W.3d at 698. 16. When the parties signed the Mutual Release, the claims asserted in this lawsuit were existing claims. Thus, they were specifically mentioned by the Mutual Release and released. B. T HE M UTUAL R ELEASE P LAINLY E XTENDS T O T HE P ARTIES ’ “A GENTS ,” A ND

T HEREFORE I NCLUDES G ARNER , A VANT , A LLIED , U NDAVIA , AND M INU (i) Garner, Allied, and Avant, as agents of Sterling and Nisal, are bound by the plain language of the Mutual Release. 17. Plaintiffs argue that Sterling and Nisal had no authority to release claims belonging to their agents, Garner, Avant, and Allied. Unable to find any support for their untenable position, Plaintiffs simply point the finger back at Defendants: “Defendants cite no authority to support their implicit position that the signatories to the

4

AR 000173

Release had the authority to settle claims belonging to their alleged agents on their behalf.” (See Plaintiffs’ Response; ¶26). 18.

Defendants, however, rely on the plain, unequivocal language of the Mutual Release. This language provides that Sterling and Nisal’s agents are also releasing any claims they may have against Defendants. 19. Further, Plaintiffs contend that Sterling and Nisal lacked “authority” to release claims on behalf of the other Plaintiffs. Garner—the individual that signed the release— is a principal for each of the Plaintiffs. Broken down, Plaintiffs argue that Garner, in his capacity with Nisal, did not have authority to release claims belonging to Garner personally or to his other companies. That argument makes no factual or legal sense. Is Garner somehow divorced from the knowledge of the Mutual Release just because he signed the document in a corporate capacity? That he signed the document in any capacity eliminates any doubt that he is a party releasing Defendants. 20. Plaintiffs provide no support to counteract the plain language of the Mutual Release. Garner, Allied, and Avant—as agents of Nisal and Sterling—have released their claims against Defendants.

(ii) Defendants are agents of Providian and therefore fall under the protection of the Mutual Release. 21. Plaintiffs then argue that although they may have released Defendants in their capacity as agents of Providian, they did not release Defendants in their “individual capacity.” After all, Plaintiffs argue, “an agent is liable for his own torts.” Williams v. Olivo , 912 S.W.2d 319 (Tex. App.—San Antonio 1995).

5

AR 000174

22. Once again, this argument is disposed of by the plain language of the Mutual Release, which extends not simply to Providian but also to Undavia and Minu as Providian’s agents. Plaintiffs categorically released Undavia and Minu from “all claims,” regardless of whether those claims arose in their individual or agency capacities, or in tort or otherwise.

(iii) By specifically mentioning “agents,” the Mutual Release specifically mentioned Garner, Avant, Allied, Undavia, and Minu. 23. Plaintiffs next argue that Defendants belied their own argument by citing to McMillen v. Klingensmith , 467 S.W.2d 193, 197 (Tex. 1971) for the proposition that “unless a party is named in a release, his not released.” Plaintiffs argue that because they were not identified by name in the Mutual Release, they are not bound by it. 24. Once again, Plaintiffs ignore the plain terms of the Mutual Release, which extends to Sterling, Nisal, and Providian’s “ agents .” There is no requirement that a release specify a party by their legal name. Garner, Avant, and Allied are agents of Nisal and Sterling. Undavia and Minu are agents of Providian. Therefore, they were specifically mentioned by the Mutual Release. C. D EFENDANTS E STABLISHED , A S A M ATTER O F L AW , T HAT P LAINTIFFS

G ARNER , A LLIED , A ND A VANT A RE A GENTS O F S TERLING A ND N ISAL , A ND T HAT U NDAVIA A ND M INU A RE T HE A GENTS O F P ROVIDIAN

(i) Avant Is the agent of Sterling, and Garner and Allied are the agents of Nisal. 25. Plaintiffs next contend that Defendants failed to prove that Avant, Garner, and Allied are agents of either Nisal or Sterling.

6

AR 000175

26. First, Garner is plainly an agent of Nisal—he is Nisal’s director, president, and registered agent. Plaintiffs don’t even bother contesting this point. Second, Plaintiffs themselves admit in their pleadings that Allied is simply a d/b/a for Garner. In other words, Garner and Allied are legally the same. Allied is, therefore, also an agent of Nisal. 27. Regarding Avant, Defendants introduced evidence showing that although Sterling was the actual lessee, Avant paid Sterling’s rent and procured a rental insurance policy on Sterling’s behalf. (See Exhibits J and K to Defendants’ Motion for Summary Judgment). Defendants further testified that Avant was the entity that actually operated in the building. (See Declaration of Khyati Undavia, ¶13; Ex. E to Defendants’ Motion for Summary Judgment). Plaintiff Garner confirmed this fact, testifying in his affidavit that “Avant Medical Group, P.A. regularly provided medical services [in the Building].” (See Affidavit of Brett Garner, §4). Finally, there is no testimony to controvert Khyati Undavia’s clear, unequivocal testimony that Avant acted as Sterling and Nisal’s agent with respect to the lease. (See Declaration of Khyati Undavia; §13;Ex. E to Defendants’ Motion for Summary Judgment). 28. Finally, there is ample, uncontroverted evidence that Garner is also an agent of Avant. Garner himself testifies: “I am also one of the owners of Sterling Practice Management, LLC, a management service organization which manages the non-medical business dealings of Avant Medical Group, P.A.” (See Affidavit of Brett Garner; ¶2; Ex. 1 to Plaintiffs’ Response) (emphasis added). Undavia further testified that “For all matters concerning the lease, I communicated with Brett Garner in his capacity [as] a

7

AR 000176

representative of not only Sterling and Nisal, but also Avant and Allied.” (See Declaration of Khyati Undavia; ¶13; Ex. E to Defendants’ Motion for Summary Judgment). Undavia further testified that Garner is a chiropractor for Avant. Id . 29. As a matter of law, Defendants established that an agency relationship existed between Sterling and Nisal on one hand, and Garner, Allied, and Avant, on the other.

(ii) As a matter of law, Undavia and Minu are the agents of Providian 30. Unable to controvert Undavia and Minu's clear-cut agency relationship with Providian, Plaintiffs instead formulate an arbitrary and legally insignificant distinction: Plaintiffs have not sued Undavia and Minu in their capacities as Providian’s agents and thus, have not released them. 31. Once again, Plaintiffs’ argument ignores the plain language of the Mutual Release. Plaintiffs released Minu and Undavia from “all” claims, whether “known or unknown,” whether or not they arose out of their agency capacities with Providian. Further, there is simply no authority for Plaintiff’s proposition that an agent—when specifically identified in a release—is not released for claims arising in his or her individual capacity. 32. As a matter of law, Undavia and Minu are Providian’s agents and are protected by the Mutual Release. D. R ES J UDICATA A PPLIES B ECAUSE T HE P ARTIES A RE T HE S AME A S I N THE

O RIGINAL L AWSUIT A ND B ECAUSE T HE C LAIMS A RISE O UT O F T HE S AME N UCLEUS O F F ACTS

33. Plaintiffs argue that res judicata does not apply because their current claims and their previous claims “do not share the same operative facts,” and further, that the parties

8

AR 000177

in this lawsuit are nominally different than in the County Court Lawsuit. (See Plaintiffs’ Response; ¶ 34). Plaintiffs’ argument fails. 34. First, it is of no consequence that this lawsuit and the County Court Lawsuit do not involve precisely the same issues. Res judicata “prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Trust Corp ., 837 S.W.2d 627 (Tex. 1992) (emphasis added). Here, the same “nucleus of operative facts” between this lawsuit and the former lawsuit are in play: Garner and his companies are suing Undavia and her company for something that arose out of their landlord-tenant relationship. This landlord-tenant relationship forms the nucleus out of which all of Plaintiffs’ claims arose, whether in this lawsuit or in the County Court Lawsuit. Thus, Plaintiffs’ current claims are related to their former claims and are subject to res judicata. 35. As proof positive of this notion, consider the factors enunciated in Plaintiffs’ cited case, Samuel v. Federal Home Loan Mortg. Corp ., 434 S.W.3d 230 (Tex. App.— Houston [1 st Dist.] 2014, no pet.) (“In considering whether the facts arose out of a single transaction [thus giving rise to res judicata], courts consider whether the facts are related in time, space, origin, or motivation, and whether they form a convenient unit for trial.”). Here, Plaintiffs’ current claims arose around the same time as the claims in the County Court Lawsuit (between 2011-2013), they involved the same commercial office space, they arose out of the same landlord-tenant relationship and, because they involve all the

9

AR 000178

same parties and relationships, would have formed a convenient unit for trial. The factors weigh heavily in favor of res judicata. 36. Plaintiffs next argue that res judicata does not apply because the two lawsuits do not involve the same parties. Once again, Plaintiffs’ argument fails. 37.

“The doctrine of res judicata, or claim preclusion, bars a second action by parties, and those in privity with them , on matters actually litigated in a previous suit, as well as claims that could have been litigated in the prior suit through the exercise of diligence.” Samuel, 434 S.W.3d at 233 (emphasis added). “Privity connotes those who are so connected with a party to the judgment in the law such that the party to the judgment represented the same legal right.” Id . at 234. “ A party can be in privity in at least three ways: (1) it can control an action even if it is not a party to it; (2) its interests can be represented by a party to the action; or (3) it can be a successor-in-interest, deriving its claim through a party to the prior action. Id . at 234-35. 38. Plaintiffs cite to Lesikar v. Moon , 2014 WL 4374117 (Tex. App.—Houston [1 st Dist.] no pet.) as support for their argument that the parties in the two suits are nominally different, and thus, res judicata does not apply. Yet Lesikar holds:

[A] person’s appearance in a difference capacity does not dictate whether a prior judgment bars the subsequent suit. Comment (c) to section 36 [of the Restatement (Second) of Judgments] explains that the analysis focuses on shared interests, not nominal capacity [.]

Id . at 7 (emphasis added). 39. Here, as demonstrated above, Nisal, Sterling, Garner, Allied, and Avant are so interconnected that they are, as a matter of law, in privity with each other and shared a

10

AR 000179

common interest. All of these Plaintiffs occupied the Building, and are now suing Defendants based on this single fact. But for their tenancy, none of the Plaintiffs would have any claims against Defendants. Garner, as Nisal’s president, director, and registered agent, and as Sterling’s owners, clearly could have controlled the litigation. Further, were Avant's interests—as the real party in interest to the parties’ lease—not shared and represented by Garner, Sterling, and Nisal in the County Court Lawsuit? Even Plaintiff Garner admits that he owns Sterling and that Sterling manages the non-medical business dealings of Avant. 40. Although nominally different, the parties are the same as they were in the County Court Lawsuit. Res Judicata applies. E. P LAINTIFFS ’ C ONVERSION C LAIMS F AILS A S A M ATTER O F L AW . 41. Plaintiffs argue that Defendants had “constructive possession” of their checks and therefore, Plaintiffs can maintain a cause of action for conversion. 42. Plaintiffs’ argument completely ignores the issues raised in Defendants’ Motion for Summary Judgment. First, Plaintiffs ignore the fact that any “agency” relationship between Plaintiffs and Defendants necessarily terminated with the underlying lease, and thus did not exist when Defendants allegedly deposited at least a portion of the checks. 43. Second, Plaintiffs argue that their side-agreement with Defendants was not a modification to the lease; rather, it was a stand-alone agreement even though it was clearly within the scope of the parties landlord-tenant relationship . This puts the agreement squarely in conflict with the lease’s integration and no oral-modification clauses. Thus, evidence of this agreement is legally inadmissible.

11

AR 000180

F. P LAINTIFFS ’ A RGUMENTS F OR T OLLING T HE S TATUTE OF L IMITATIONS F AIL A S A M ATTER OF L AW . 44. Plaintiffs contend that none of their claims are barred by the statute of limitations. 45. First, Plaintiffs argue that their claims are barred by the discovery rule, which is wholly inapplicable in this case. “The discovery rule is a very limited exception to statutes of limitations, and applies only when the nature of the plaintiff's injury is inherently undiscoverable and the evidence of injury is objectively verifiable.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 65–66 (Tex. 2011); Computer Assoc. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455–56 (Tex. 1996). “An injury is inherently undiscoverable if, by its nature, it is unlikely to be discovered during the applicable limitation period despite the exercise of due diligence.” Marshall, 342 S.W.3d at 66; S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996). “The question is not whether the particular injury was actually discovered by the claimant within the limitation period, but whether “it was the type of injury that is generally discoverable by the exercise of reasonable diligence.”” HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998). 46. Thus, the relevant inquiry in this case is whether the taking and depositing of a check is, by its nature, “inherently undiscoverable.” For example, making a defamatory entry on a credit report is inherently undiscoverable because “a person will not ordinarily have any reason to suspect that he has been defamed by the publication of a false credit report to a credit agency until he makes application for credit.” Computer Associates Intern, Inc. v. Altai, Inc. , 918 S.W.2d 453, 456 (Tex. 1996). Nor can someone who undergoes a vasectomy “know that he is still fertile, if that be the case, until either his

12

AR 000181

wife becomes pregnant or he is shown to be fertile by further testing.” Id . Likewise, “it is a virtual certainty that [a] patient has no knowledge on the day following surgery—nor for a long time thereafter—that a foreign object was left in the incision.” Id . 47. Here, the alleged conversion of the checks is not inherently undiscoverable and is not subject to the discovery rule. In the exercise of due diligence, a business should discover, at or around the time that it is to receive payment—and not three years later— that payment has not been received. The fact that Plaintiffs may have had special terms with their payees that “suspended collection efforts” is irrelevant because the focus is objective and not subjective. Most problematic for Plaintiffs, though, is Garner's admission that he routinely checks on the status of his payments from the patients’ attorneys. (See Declaration of Brett Garner, ¶6; Ex. 1 to Plaintiffs’ Response). If Garner routinely checks on the status of payment from his patients’ attorneys, how did Defendants’ alleged wrongful acts go undiscovered for years? 48. As their second argument for why their claims are not barred, Plaintiffs argue that the limitations period was tolled due to Defendants’ “fraudulent concealment.” (See Plaintiffs’ Response, ¶ 39). However, “a party asserting fraudulent concealment as an affirmative defense to the statute of limitations has the burden to raise it in response to the summary judgment motion and to come forward with summary judgment evidence raising a fact issue on each element of the fraudulent concealment defense.” KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp. , 988 S.W.2d 746, 749 (Tex. 1999) (emphasis added). “A mere pleading does not satisfy either burden.” Id . at 749-50.

13

AR 000182

49. Here, Plaintiffs have neither pled fraudulent concealment nor adduced any evidence in support of their fraudulent inducement claim. Plaintiffs’ fraudulent concealment argument fails as a matter of law. G. D EFENDANTS A RE E NTITLED T O A TTORNEY ’ S F EES 50. Finally, Plaintiffs assert that Defendants are not entitled to their attorneys’ fees. First, they claim that Defendants are not entitled to attorney’s fees because they have not presented a breach of contract claim. However, Defendants pled a breach of contract claim in their second and third amended answers. 51. Second, Plaintiffs claim that Defendants have not moved for summary judgment on their declaratory judgment claim and thus are not entitled to fees. However, Defendants are not required to use magic words to move for summary judgment on their declaratory judgment claim. Defendants are seeking a judicial declaration, as a matter of law, of their rights, status, and other legal relations with respect to the release they entered into with Plaintiffs. “A release is a contract,” and is therefore subject to a judicial declaration. Schlumberger Technology Corp., v. Swanson , 959 S.W.2d 171, 178 (Tex. 1997). Defendants have, therefore, moved for summary judgment on their declaratory judgment claim. 52. Plaintiffs also claim that Defendants’ declaratory judgment claim is improper because it is simply a denial of Plaintiffs’ breach of contract claim. Nothing could be farther from the truth. “A counterclaim for declaratory judgment is improper if it is nothing more than a mere denial of the plaintiff’s claims and the counterclaim fails to have greater ramifications than the original suit.” Sanchez v. AmeriCredit Fin. Services,

14

AR 000183

Inc. , 308 S.W.3d 521, 524 (Tex. App.—Dallas 2010, no pet.). Here, Plaintiffs’ breach of contract claim is premised on an alleged oral contract between Undavia and Plaintiffs for the collection and distribution of mail. In contrast, Defendants seek a judicial declaration that Plaintiffs have categorically released Defendants from any and all claims, whether known or unknown, that existed when the Mutual Release was signed. If Defendants succeed, then all of Plaintiffs claims—not simply their breach of contract—are defeated. Accordingly, Defendants declaratory judgment counterclaim is not simply a “denial” of Plaintiffs’ breach of contract claim. It has greater ramifications than that claim, and is fair game for a declaratory judgment action. 53. Defendants are entitled to their attorney’s fees.

III.

C ONCLUSION 54. Defendants respectfully request that this Court grant them summary judgment, dismiss Plaintiffs’ claims with prejudice, grant them their reasonable attorney’s fees, and grant Defendants all further relief to which they are entitled at law or equity. Date: February 17, 2015 Respectfully submitted,

MAHENDRU, P.C.

By:

Ashish Mahendru Texas Bar No. 00796980 Darren A. Braun Texas Bar No. 24082267 639 Heights Boulevard Houston, Texas 77007

15

AR 000184

(713) 571-1519 (Telephone) (713) 651-0776 (Facsimile) amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 16 th day of February, 2015. Email:mja@mjalawyer.com Matias J. Adrogué

Email: rsk@mjalawyer.com Robert Stephan Kaase Facsimile: 713.425.7271 1629 West Alabama St. Houston, Texas 77006

Ashish Mahendru 16 AR 000185 CAUSE NO. 2014-22186 § IN THE DISTRICT COURT OF AVANT MEDICAL GROUP, P.A. d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, §

§ § Plaintiffs § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDA VIA, § MINU RX, LTD., and MINU GP, § L.L.C., §

§ 152 ND JUDICIAL DISTRICT Defendants DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE TO THE HONORABLE JUDGE ROBERT SCHAFFER: Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu OP, L.L.C. file this Response to Plaintiffs' Objections to Defendants' Summary Judgment Evidence and would respectfully show the Court as follows:

I. RESPONSE A. DEFENDANTS' EXHIBITS B, F, J, AND K ARE ADMISSmLE SUMMARY JUDGMENT

EVIDENCE.

1. Exhibit B-Sterling Practice Management's Lease With Providian. Plaintiffs object to this Lease because it is unsigned, and is thus (a) irrelevant and (b) violates the best evidence rule. However, Khyati Undavia testified that this lease was a true and correct copy of the lease that Providian entered into with Sterling. Whether signed or not, the document

1

AR 000186

is still relevant as to the terms of the lease between Sterling and Providian. Further, the best evidence rule does not apply when "the document and its contents are only collaterally related to the issues in the case[.]" White v. Bath, 825 S.W.2d 227, 331 (Tex. App. Houston [14th Dist.] 1992, writ denied). Here, Defendants are not presenting the lease to the Court in the motion for summary judgment to establish a breach of the lease. There is no dispute that Providian and Sterling actually entered into a lease agreement that contained the same terms and provisions as Exhibit B. Defendants simply attached Exhibit B to show that there as a written lease between the parties. Accordingly, it is not barred by the best evidence rule. 2. Exhibit F-Elevator Invoices. Defendant objects because the invoices are hearsay. However, these invoices are not hearsay. Defendants are not introducing them to prove the truth of a matter asserted therein-for example, the price on the invoices or the services performed. Instead, Defendants offer the invoices to show that they were addressed to Minu and not Providian. Accordingly, they are not hearsay and Defendants are not required to prove them up as business records. 3. Exhibit J-Proof of Insurance. Plaintiffs object because the Proof of Insurance is hearsay. However, the Proof of Insurance is not hearsay. Defendants are not offering it to show the truth of a matter asserted therein-for example, the amount of coverage or that Avant actually was insured by the insurance company. Instead, Defendants are offering the Proof of Insurance to show the agency relationship between Avant, who purportedly procured the policy, and Sterling, who was listed as an additional insured by Avant. Even if Defendants were offering the Exhibit .for the truth of the matter asserted, it is still not

2

AR 000187

hearsay: this document was given to Defendants by Plaintiffs and thus constitutes the admission of a party opponent. Accordingly, the Proof of Insurance is not hearsay and Defendants are not required to prove it up as a business record. 4. Exhibit K-Rent Check. Again, Plaintiffs object because the check is hearsay, when it is in fact not hearsay. Defendants are not offering the check to prove the truth of the matter asserted-for example, that rent was paid or what the amount of the payment was. Instead, Defendants offer the check to show the agency relationship that existed between Sterling, who was the actual lessee, and Avant, because Avant paid the rent on Sterling's behalf. Why else would Avant pay rent on behalf of Sterling? Finally, the check is not hearsay because it is the admission of a party opponent. B. EACH STATEMENT IN KHYATI UNDA VIA'S DECLARATION Is ADMISSIBLE 5. Plaintiffs make a variety of objections to Undavia's declaration. Defendants refute each of these objections below. 6. "The Declaration of Khyati Undavia contains statements that are not based on personal knowledge." Plaintiffs point to inadmissibility of Undavia's statements that Plaintiffs Nisal Corp. and Sterling Practice Management, LLC "did not have any actual operations in the office space," and that "Allied Medical Centers and Avant Medical Group were the entities that had operations in the leased space." (See Declaration of Khyati Undavia; ,-r 13; Ex. E to Defendants' Motion for Summary Judgment). Incredibly, Plaintiffs claim that Undavia couldn't possibly have personal knowledge of these facts. However, Undavia, as Providian's owner, was the Plaintiffs' landlord. Based on her ownership and execution of the lease, she has personal knowledge of what transpired on her property. She

3

AR 000188

also worked in the pharmacy directly below Plaintiffs' office space and regularly communicated with Garner. Undoubtedly, she has personal knowledge as to the entities that operated in her building. 7. Further, Plaintiffs readily admit that Avant operated in the office space: "Avant Medical Group, P.A. regularly provided medical services at the [leased premises]." (See Affidavit of Brett Garner, ~4; Ex. A to Plaintiffs' Response). Why then would Undavia not know this fact? 8. Accordingly, Undavia's statement as to which entity operated in the leased space is admissible summary judgment evidence. 9. "The Declaration of Khyati Undavia contains statements that are merely legal conclusions." Plaintiffs then complain of Undavia's statement that "for all matters concerning the lease, I communicated with Brett Garner in his capacity [as] a representative of not only Sterling and Nisal, but also Avant and Allied." (See Declaration of Khyati Undavia; ~13; Ex. E to Defendants' Motion for Summary Judgment). Plaintiffs argue that this statement is an unsubstantiated legal opinion and therefore inadmissible. 10. However, Defendants introduced evidence that Avant paid for Sterling's rent (and introduced a copy of such check), and introduced a Proof of Insurance document that was procured by Avant on behalf of Sterling. This is documentary support for Undavia's statement that she communicated with Garner in his capacity as Avant's agent. Further, Undavia testified that she was the Plaintiffs' landlord, that she owned the leased premises, that she worked in the pharmacy directly below Plaintiffs' office space, and that Garner was

4

AR 000189

Avant's employee and agent. Of course she knows the capacity of the individuals with which she is communicating with respect to the lease. 11. Further, Undavia's statement was easily controvertible yet remains uncontroverted. Plaintiffs could have simply testified, "No, Avant didn't pay Sterling's rent," or that "No, Avant did not procure an insurance policy on behalf of Sterling." They could have testified, "No, Gamer was not Avant's agent" or that "No, Garner never communicated with Undavia in his capacity as Avant's agent." By failing to controvert the agency relationship, Plaintiffs admit it, thereby sinking their position with this Court and only leaving themselves a threadbare attempt to object to Undavia's statement. That attempt, however, fails. 12. Instead of controverting Undavia's testimony, Plaintiffs corifirmed it. Garner testified that "I am also one of the owners for Sterling Practice Management, LLC, a management company which manages the non-medical business dealings of Avant Medical Group." (See Affidavit of Brett Garner, ~2; Ex. 2 to Plaintiffs' Response). This testimony clearly establishes Garner's agency relationship with Avant. Further, Garner testified that "Avant Medical Group, P.A. regularly provided medical services" in Undavia's building. Id. at ~4. What is there left to contest? 13. Accordingly, Undavia's statements regarding Garner's agency relationship with Avant are admissible. 14. "The Declaration of Khyati Undavia Undavia contains statements that are based on hearsay." Plaintiffs contend that because exhibits F, J, and K are hearsay, and because Undavia testified regarding those exhibits in paragraphs 11 and 14 of her declaration, then those statements are likewise inadmissible.

5

AR 000190

15. As discussed in Section A above, exhibits F, J, and K are not hearsay. Accordingly, Defendants' testimony regarding these exhibits is admissible.

II. CONCLUSION 9. Defendants respectfully request that this Court to overrule Plaintiffs' objections to Defendants' summary judgment evidence and grant Defendants all further relief to which they are entitled. Date: February 17, 2015 Respectfully submitted,

MAHENDRU, P.C. BY:~

Ashish Mahendru Texas Bar No. 00796980 Darren A. Braun Texas Bar No. 24082267 639 Heights Boulevard Houston, Texas 77007 (713) 571-1519 (Telephone) (713) 651-0776 (Facsimile) amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com

ATTORNEYS

FOR PLAINTIFFS

6 AR 000191 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 16 th day of February, 2015. Matias 1. Adrogue Email:mja@mjalawyer.com Robert Stephan Kaase Email: rsk@mjalawyer.com 1629 West Alabama St. Facsimile: 713.425.7271 Houston, Texas 77006

Ashish Mahendru 7 AR 000192 CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A., § IN THE DISTRICT COURT OF ET.AL. §

§ vs. HARRIS COUNTY, TEXAS § WLEJI) ~

KHYATI MOHAMED UNDAVIA ,

ET. AL. 152 nd JUDIC~~~M7!~k §

U MAR 032015 ORDER ON DEFENDANTS' MOTION~e: Harris County, Texas FOR SUMMARY JUDGMENT ~BY. __ ---=~ __ _ ¢ ~ Deputy On this day came on to be considered Defendants' Mot~r Summary Judgment and ~ this court, after considering the pleadings and arguments ~~Sel, finds that this motion should Q~ be granted in part and denied in part. It is, therefore, ordered that the Motion fOr~ary Judgment as to claims brought by ~ ~ Q

Plaintiff, Nisal Corp. is granted.

It is further ordered that the Moti~ ~r Summary Judgment as to claims brought by all other plaintiffs is denied. ~

0)

Signed March 3, 2015. ~ ~

~U

Presiding Judge ¢~ ~ ~© ~ ~\ AR 000193 CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, §

§ Plaintiffs § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD., §

152 ND JUDICIAL DISTRICT § Defendants

DEFENDANTS’

MOTION FOR PERMISSION TO APPEAL

INTERLOCUTORY

SUMMARY JUDGMENT ORDER,

MOTION

TO AMEND ORDER, AND REQUEST FOR STAY

TO THE HONORABLE JUDGE ROBERT SCHAFFER:

Defendants, Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC, file this Motion for Permission to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for Stay and would respectfully show the Court as follows:

I.

I NTRODUCTION 1. Based on a release and dismissal with prejudice between the parties arising out of a prior lawsuit, Defendants sought dismissal of this case by summary judgment, requesting this Court to apply the release to the parties in this lawsuit. Agreeing in part, this Court granted judgment as a matter of law only as to Plaintiff Nisal Corp. 2. Without doubt, the controlling question of law in this case is the applicability of the release as to all parties. If, as Defendants contend, the release applies to all parties and

1

AR 000194

all claims in this lawsuit, Defendants should not be subjected to a trial, having bargained for and bought peace. Without doubt an immediate appeal from the order denying judgment as a matter of law as to all Defendants advances the ultimate termination of the litigation. These two elemental requirements of a permissive appeal and front and center before this Court, and Defendants easily hurdle them to establish the need for an immediate appeal. 3. Defendants, therefore, request this Court to grant a permissive appeal of this Court's Order dated March 3, 2015, requesting this Court to amend its order, and in granting such relief, Defendants further request a stay of this lawsuit pending resolution of the appeal of the interlocutory order.

II.

M OTION FOR P ERMISSIVE A PPEAL 4. Texas Civil Practices and Remedies Code §51.014(d) establishes the standard for a permissive appeals:

On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. 5. In conjunction with this statute, the legislature enacted Texas Rules of Civil Procedure 168 as a new rule:

On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously

2

AR 000195

issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

a. The Order to be Appealed Involves a Controlling Question of Law 6. Texas courts have little guidance as to what constitutes a controlling legal issue about where there is a difference of opinion and the resolution of which disposes of the primary issues in the case. In Gulf Coast Asphalt Company, LLC v. Lloyd , the Houston Court of Appeals recently recognized this absence, and it cited to a Texas commentator's suggestion of looking to federal cases in interpreting the federal counterpart to section 51.014:

a controlling question of law is one that deeply affects the ongoing process of litigation. If resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case, the question is controlling. Generally, if the viability of a claim rests upon the court's determination of a question of law, the question is controlling.... Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling circuit law is doubtful, when controlling circuit law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely.... Generally, a district court will make [a finding that the appeal will facilitate final resolution of the case] when resolution of the legal question dramatically affects recovery in a lawsuit.

2015 WL 393407, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2015, no. pet. h.). 7. The commentator suggests three or four avenues for meeting this element for a permissive appeal. With the exception of disagreement between controlling circuits since that is not Defendants' contention, Defendants easily hurdle the standard set forth above. 8. First, is there any doubt that Defendants' legal postulation that the application of the release from the underlying lawsuit will "considerably shorten the time, effort and expense of litigating the case"? No, there is no doubt. The release controls the current

3

AR 000196

case, and if applicable to the claims asserted by Plaintiffs, then this case is over, as this Court partially found in dismissing Nisal Corp's claims. 9. Second, the viability of this lawsuit is fully dependant on the Court's interpretation of the release. That legal interpretation, therefore, is controlling. 10. Third, substantial disagreement exists when the question presented to the Court is novel or difficult. As evidenced by the lengthy and detailed presentation by Defendants and as evidenced by the numerous questions propounded by the Court during the summary judgment hearing, the issues confronting this Court are difficult, novel, and outcome determinative. Defendants, therefore, meet this requirement. 11. Fourth, there is little authority for this Court to rely on in deciding the novel and difficult issues. A prime example of that is based on the Court's contention that an agent in one context may not necessarily release a claim brought in the future or different context if not cloaked in the original agency. Specifically, as discussed with the Court during the hearing, a committed tort by an agent that was unknown at the time of the release is still captured by the very terms releasing the parties. This Court was unsure of that application of the release in such a broad context. However, neither Plaintiffs nor Defendants provided this Court with any controlling law on the subject of the scope of the agency and/or the underlying scope of the release when applying that release in a future series of claims that still refer back and relate to the underlying dispute engendering the release in the first place. 12. Additionally, Plaintiffs contended that the principal-agent relationship is a question of fact for the jury. Defendants' vociferously argued that there is simply no

4

AR 000197

space for a principal-agent analysis in the construction of a release. Principal-agent delves into actual and apparent authority, i.e. , whether a third party has the right to charge the principal based on the agent's conduct vis-a-vis the third party. 13. In the context of a release, however, the word "agent" as a releasing or released party does not require any interpretation of the principal-agent relationship in the context of actual or apparent authority. There is no authority that Plaintiffs cited this Court for this proposition that the Court must labor into questions of fact based on principal-agent analysis, and certainly there is no case law Defendants put forth for the Court's counter- consideration. With little or no binding or persuasive authority, this issue is controlling, necessitating a permissive appeal.

b. An Immediate Appeal from the Order Shall Materially Advance the Ultimate Termination of the Litigation

14. Defendants' summary judgment sought complete and total dismissal of all claims Plaintiffs asserted against Defendants Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC. That is, the granting of Defendants ’ motion would dispose of all of Plaintiffs ’ claims against Defendants. When this Court granted judgment in favor of Defendants as to Plaintiff Nisal Corp., this Court fully acknowledged that this case is subject to immediate termination--at least as to one party. 15. It can be no other way. If the release applies to all Plaintiffs, then they have no claims against Defendants. The case is over and terminated. The second element of a permissive appeal is readily present.

III.

M OTION TO A MEND O RDER 5

AR 000198

16. Under Rule 168, there is a requirement that the permission to appeal the interlocutory order be granted in the order to appealed and not in a separate order.

On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

17. Therefore, Defendants respectfully request this Court to enter the attached amended order, granting Defendants permission to appeal.

IV.

R EQUEST FOR S TAY 18. Defendants also request a stay of further proceedings in this Court pending the resolution of a permissive appeal. Tex. Civ. Prac. & Rem. Code §51.014(e)(2). Such a stay is warranted because, until the controlling issues are resolved by the court of appeals, any further trial in this Court may be for naught and result in a tremendous waste of judicial resources, the parties' time, energy, attorney's fees.

V.

C ONCLUSION 19. Defendants request this Court to (i) grant them permission to appeal this Court's interlocutory summary judgment order dated March 3, 2015, (ii) amend the Court’s Order dated March 3, 2015, and (iii) request this Court to stay the proceedings pending appellate outcome. 20. Defendants further pray for any such other and further relief to which they are

6

AR 000199

entitled to at law or in equity. Dated: March 13, 2015 Respectfully submitted,

MAHENDRU, P.C.

By:

Ashish Mahendru State Bar No. 00796980 Darren A. Braun State Bar No. 24082267 639 Heights Blvd. Houston, Texas 77007 Telephone: 713-571-1519 Facsimile: 713-651-0776 amahendru@thelitigationgroup.com dbraun @thelitigationgroup.com ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 13th day of March, 2015. Matias J. Adrogué Email:mja@mjalawyer.com Robert Stephan Kaase Email: rsk@mjalawyer.com 1629 West Alabama St. Houston, Texas 77006 William P. Huttenbach Email: phuttenbach@hirschwest.com Hirsch & Westheimer, PC 1415 Louisiana, 36th Floor Houston, Texas 77002

7

AR 000200

Ashish Mahendru 8 AR 000201 CAUSE NO. 2014-22186 AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, §

§ Plaintiffs § HARRIS COUNTY, TEXAS § VS. § § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO

APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER,

MOTION TO AMEND ORDER, AND REQUEST FOR STAY

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS (hereinafter referred to as “Plaintiffs”) and files this response to Defendants’ Motion for Permission to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for Stay and in support thereof would respectfully show the Court as follows:

I. INTRODUCTION

1. Plaintiffs are AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL CORP. d/b/a QUALCARE REHABILITATION.

2. Defendants are KHYATI MOHAMED UNDAVIA, MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK. 3. On January 30, 2015 the Defendants in this case filed a Motion for Summary Judgment based on a release signed relating to a security deposit of a commercial lease. Plaintiffs filed P LAINTIFFS ’ R ESPONSE TO D EFENDANTS ’ M OTION FOR P ERMISSION TO A PPEAL I NTERLOCUTORY S UMMARY J UDGMENT O RDER , M OTION TO A MEND O RDER , AND R EQUEST FOR S TAY P AGE 1

AR 000202

their Response on February 13, 2015 and the Court heard oral argument on the Motion on February 20, 2015. After taking the matter under consideration, the Court signed an order granting the Defendant’s Motion for Summary Judgment as to Plaintiff Nisal Corp. and denying the Defendants’ Motion as to all other parties.

4. Defendant now seeks to appeal the Court’s interlocutory summary judgment order. Plaintiffs ask the Court to deny Defendants’ Motion because Defendants have not met the burden for a permissive appeal and because an appeal from the interlocutory summary judgment is unnecessary at this time.

I. ARGUMENT & AUTHORITIES 5. Tex. Civ. Prac. & rem. Code § 54.014(d) provides that “On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if: (1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Further, Texas courts have ruled that permissive appeal is “premised on the trial court having first made a substantive ruling on the controlling legal issue being appealed.” See, e.g. Gulley v. State Farm Lloyds , 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.).

6. The Court’s March 3, 2015 Order does not contain an explicit ruling on the Question presented by Defendants in their Motion. Defendants now ask the Court not only to amend its Order to permit appeal, but to also provide an explicit ruling on a specific question of law. The Court was not required to make specific conclusions of law on the issue, and did not opt to do so in this case. Therefore, the Court’s interlocutory order is not a candidate for permissive appeal. P LAINTIFFS ’ R ESPONSE TO D EFENDANTS ’ M OTION FOR P ERMISSION TO A PPEAL I NTERLOCUTORY S UMMARY J UDGMENT O RDER , M OTION TO A MEND O RDER , AND R EQUEST FOR S TAY P AGE 2

AR 000203

7. Plaintiffs additionally contend that this case does not present a controlling question of law “as to which there is a substantial ground for difference of opinion.” In their Motion for Summary Judgment, Defendants claimed that Nisal Corp.’s signing of the release bound all of its agents to the terms of the release, regardless of in what capacity a future suit might be brought. Plaintiffs contended that agents of the signatory are not bound to the release because a principal does not have authority to act on the agent’s behalf. However, at oral hearing Plaintiffs cited case law which clearly states that “An agent acts on behalf of its principal rather than the principal acting on behalf of the agent, and no Texas case has held that a principal owes a fiduciary duty to an agent.” Casteel v. Crown Life Ins. Co. , 3 S.W.3d 582, 590 (Tex. App— Austin 1999), rev’d in part on other grounds 22 S.W. 3d 378 (Tex. 2000). Defendants admit in their Motion that they have no authority to support their claim that the nonsignatory Plaintiffs are bound by the release from asserting claims against other nonsignatories for actions not related to either’s alleged role as an agent for any signatory. Because Defendants’ legal claims have no basis in law, they seem to abandon their agency theory altogether and claim that the nonsignatory Plaintiffs should be bound because they are “intimately related” to the signatories. As far as Plaintiffs’ counsel can determine, this “intimately related” standard for determining who is bound to a contract is heretofore unseen in Texas contract jurisprudence. Further, Defendants’ faulty assertion that Plaintiffs did not bring sufficient legal authority to support their claims is irrelevant—is it Defendants who must prove their entitlement to judgment as a matter of law. Therefore, the question of law on which Defendants seek review is not one for which there is a substantial ground for difference of opinion, and Defendants’ Motion should be denied.

8. Defendants further assert that the Court may not inquire into questions of fact as to whether the agency relationships alleged by the Defendants themselves actually exist. P LAINTIFFS ’ R ESPONSE TO D EFENDANTS ’ M OTION FOR P ERMISSION TO A PPEAL I NTERLOCUTORY S UMMARY J UDGMENT O RDER , M OTION TO A MEND O RDER , AND R EQUEST FOR S TAY P AGE 3

AR 000204

Defendants’ entire theory surrounding the release rests on the existence of agency relationships. Plaintiffs’ counsel can only assume that Defendants believe the Court must take on faith that the relationships exist based on nothing more than the argument of Defense counsel. This is simply an attempt by Defendant to paint the issues in this case as issues of law only. However, even if an appellate court were to decide that in some cases nonsignatories could be bound to a release by an agency relationship, a factual inquiry would still be necessary to determine whether such relationships exist in this case, and to what extent the parties are bound by virtue of those relationships. Therefore, a ruling from the court of appeals would not immediately terminate the litigation as Defendants claim. Because the Defendants cannot show that a permissive appeal would materially advance termination of the litigation, and because their claims in the Motion for Permissive Appeal are so inconsistent with Texas law, the Defendants’ Motion should be denied.

9. In essence, Defendants claim that because they have no legal authority to support their Motion for Summary Judgment, there must be a controlling question of law as to which there is a substantial ground for difference of opinion. As shown above, there is no reasonable ground for difference of opinion in this case. Defendants have attempted to craft new legal standards out of whole cloth and sell them to the Court as a reasonable interpretation of nonexistent law. The Court has already determined, when it signed the March 3, 2015 Order, that the facts of the case, and the law as applied to those facts, is sufficient to allow this lawsuit to proceed to trial. Therefore, Defendants have not shown adequate grounds for a permissive appeal of the Court’s interlocutory order. For this reason, the Defendants’ Motion should be denied. P LAINTIFFS ’ R ESPONSE TO D EFENDANTS ’ M OTION FOR P ERMISSION TO A PPEAL I NTERLOCUTORY S UMMARY J UDGMENT O RDER , M OTION TO A MEND O RDER , AND R EQUEST FOR S TAY P AGE 4

AR 000205 III. PRAYER For the above reasons, Plaintiffs ask the court to deny Defendants’ Motion for Permission to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for Stay.

Respectfully submitted,

MATÍAS

J. ADROGUÉ P ROFESSIONAL L IMITED L IABILITY C OMPANY

By: Matías J. Adrogué Attorney at Law State Bar No. 24012192 Robert Stephan Kaase State Bar No. 24083287 1629 West Alabama St. Houston, Texas 77006 713-425-7270 Telephone 713-425-7271 Facsimile service@mjalawyer.com ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been served to all counsel of record in accordance with the Texas Rules of Civil Procedure, on this the 17th day of March, 2015.

Matías J. Adrogué P LAINTIFFS ’ R ESPONSE TO D EFENDANTS ’ M OTION FOR P ERMISSION TO A PPEAL I NTERLOCUTORY S UMMARY J UDGMENT O RDER , M OTION TO A MEND O RDER , AND R EQUEST FOR S TAY P AGE 5

AR 000206 CAUSE NO. 2014-22186 IN THE DIFIJ<E CEUJJ' OF AVANT MEDICAL GROUP, P.A. § d/b/a ALLIED MEDICAL CENTERS §

Chris Daniel District CIerI< and INTERVENTIONAL SPINE § ASSOCIATES, § MAR 20 ,2015

§

nm~, __ ~~~~~~_ Harris County. Texas Plaintiffs § ~------~D~ep~ut~y------- § § VS. HARRIS CO~, TEXAS § ~ (J KHYATIMOHAMEDUNDAVIA, § MINURX,LTD., § 152 ND TT~IAL DISTRICT

§ ~I~ . Defendants § o;;) ART DEFENDANTS' TING DEFENDANTS'

REQUEST FOR STAY o~ On this day the Court considered De~t Khyati Undavia and Minu Rx, Ltd.'s Motion for Permission to Appeal Inter~~ry Summary Judgment Order, Motion to g Amend Order, and Request for Stay. ~er considering the pleadings and the arguments of -~Q~' counsel, the Court ORDERS as ~s: IT IS THEREFORE ~ERED, ADJUDGED, AND DECREED that the Original rg~U)I Order Granting and De~g Defendants' Motion for Summary Judgment dated March 3, o~l#;j 2015 is supersede&t ~ replaced by this Order. IT IS ~ ORDERED, ADnIDGED, AND DECREED fuat Defendants' Motion for~ary Judgment as to PlaintiffNisal Corp. is granted. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants' Motion for Summary Judgment as to the claims brought by all other Plaintiffs is denied. 1

RECORDER'S MEMORANDUM

ThiS instrument is of poor quality

at the time of Imaging

AR 000207

;- IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants Undavia and Minu Rx, Ltd. have this Court's permission to file an interlocutory appeal with the Texas Court of Appeals. This Court finds that the controlling question of law to be determined on appeal is whether the release (a) signed in a prior lawsuit between (b) parties intimately related to parties in the current lawsuit is sufficient to release the claims asserted between the current Plaintiffs and Defendants Khyati Undavia, Minu RX,~, and MINU

~(fjj GP, LLC in this lawsuit. The legal interpretation of the release, the~re, is controlling. ~ Imbedded in that controlling question is the effect of the ag~ relationship between o@j signatories of the release when applying that release in a ~ series of claims that still ~ refer back and relate to the underlying dispute engen~~ the release in the ftrst place. Further, the controlling question involves the e~«©{o which principal-agent analysis applies in the construction of a release. "

IT IS FURTHER ORDERED, AD~~D, AND DECREED that an appeal of this g Order will materially advance the <>~~ate termination of the litigation because if the controlling issue. of law is res~ in the Defendants' favor, then Defendants Khyati Undavia, Minu RX, Ltd., an..1~TTT GP, LLC will be granted final summary judgment and

~~U

Plaintiffs claims againS~ will be dismissed. o@p l'f I~ fi~ QiW,li1l,li1ii, JrliJJUf)B~, 1'ft IB '8Pi~ aas case Is stay;s<1 ~eneiH~ 6atcm~ff5ettiIdMlts' dwell:. ~

MAR 2 0

2015 SIGNED this __ day of ,2015. HO~ER~ JUDGE PRESIDING

2

AR 000208

Case Details

Case Name: Khyati Undavia, Minu RX LTF and Minu GP, LLC v. Avant Medical Group, P.A., D/B/A Interventional Spine Associates, and Brett L. Garner, D/B/A Allied Medical Centers

Court Name: Court of Appeals of Texas

Date Published: Apr 3, 2015

Docket Number: 14-15-00295-CV

Court Abbreviation: Tex. App.