Free Statement - District Court of Arizona - Arizona

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Christopher R. Kaup State Bar No. 014820
Third Floor Camelback Esplanade II 2525 East Camelback Road PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Counsel for Biltmore Associates, Trustee of the Visitalk Creditors' Trust UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, vs. PETER THIMMESCH and CYNTHIA THIMMESCH, husband and wife; MICHAEL O'DONNELL and MARSHA O'DONNELL, husband and wife; et al., Defendants.

Case No. 02-2405-PHX-HRH

DECLARATION OF CHRISTOPHER R. KAUP

(Assigned to the Honorable H. Russel Holland)

I, Christopher R. Kaup, do, hereby, state and declare as follows: 1. I am over the age of 18 years, and competent to testify to the facts

contained in this Declaration upon my own personal knowledge, information and belief formed after a review of documents produced and transcripts of depositions of witnesses taken in the above captioned case; 2. On March 18, 2005 Plaintiff served on Peter Thimmesch ("Thimmisch")

its "First Requests For Admission Of Documents (sic) On Defendant Peter Thimmesch." (hereinafter "Requests for Admission"). Thimmesch failed to respond at any time with answers to the Requests for Admission in accordance with the rule. A true and correct

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copy of the Requests for Admission is attached hereto as Exhibit "A". All matters set forth therein are deemed admitted; 3. Attached hereto as Exhibit "B" is a true and correct copy of a document

produced by Defendant Snell & Wilmer, LLP in this litigation and which has been represented to be a letter from Michael Donahey at Snell & Wilmer to Steve Best at Visitalk, dated July 28, 1999; 4. Attached hereto as Exhibit "C" is a true and correct copy of a document

produced by Defendant Snell & Wilmer, LLP in this litigation and which has been represented to be a letter from Michael Donahey at Snell & Wilmer to Steve Best at Visitalk, dated July 15, 1999; 5. Attached hereto as Exhibit "D" is a true and correct copy of the Expert

Witness Report of Renee Jenkins prepared in connection with this litigation; 6. Attached hereto as Exhibit "E" is a true and correct copy of pages from the

transcript of deposition of Steve DelBianco, who I understand was an investor in Visitalk;
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7.

Attached hereto as Exhibit "F" is a true and correct copy of the Order

Clarifying Article XII of the Confirmed Plan, dated December 15, 2004, from the United States Bankruptcy Court, District of Arizona, entered in Visitalk's Bankruptcy Case; 8. Attached hereto as Exhibit "G" is a true and correct copy of pages from the

transcript of deposition of Ray Gaston, who I understand to have been the former Controller of Visitalk; 9. Attached hereto as Exhibit "H" is a true and correct copy of pages from the

transcript of deposition of James Fallon, who I understand to have been a former chief engineer of Visitalk; 10. Attached hereto as Exhibit "I" is a true and correct copy of pages from the

transcript of deposition of Debra Kuhns, who I understand to have been a former chief Vice President of Marketing at Visitalk;

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11.

Attached hereto as Exhibit "J" is a true and correct copy of a document

produced by Ray Gaston in this litigation and which has been represented to be a draft of a Rescission Offering relating to Visitalk's Series A, B & C Investors; I declare under penalty and perjury of the laws of the State of Arizona that the foregoing is true and correct and that this Declaration is executed by me on the 7th day of June, 2007.

___/s/ CRK #014820______________ Christopher R. Kaup

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