Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
09255
RESOLUTION NO. 9255 A RESOLUTION APPROVING A SETTLEMENT AGREEMENT AND RELEASE BETWEEN THE CITY OF PUEBLO, COUNTRYWIDE TELECOMMUNICATIONS, LLC., AND STEVE KIPUROS RELATING TO THE REPAYMENT OF FUNDS ADVANCED BY THE CITY TO COUNTRYWIDE TELECOMMUNICATIONS, LLC, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Settlement Agreement and Release dated April 2, 2001 between the City of Pueblo, Countrywide Telecommunications, LLC., and Steve Kipuros relating to repayment of City funds advanced to Countrywide Telecommunications, LLC., copies of which were distributed to the City Council at this meeting, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of the City Council is authorized to execute in the name of the City the Settlement Agreement and Release and all such further and additional documents approved by the City Attorney as to form as shall be reasonable, convenient, necessary and desirable to carry out the provisions of the Settlement Agreement and Release. INTRODUCED: April 2, 2001 By Corinne Koehler COUNCILPE SON r n ATTESTED BY: AFIPROVED: tCLERK �P 1 ENT OF THtCIT OUNCIL r D [: D ° City of Pueblo OFFICE OF THE CITY ATTORNEY MEMORANDUM 127 Thatcher Building PUEBLO, COLORADO 81003 TO: Members of the City Council FROM: City Attorney RE: Countrywide Telecommunications, LLC DATE: April 2, 2001 The Settlement Agreement And Release ( "Agreement ") dated April 2, 2001 between the City, Countrywide Telecommunications, LLC. ( "Countrywide "), and Steve Kipuros ( "Kipuros ") relating to the repayment of the $802,209 advanced by the City to Countrywide, distributed to the City Council at the special meeting held on April 2, 2001, provides: (a) Kipuros and Countrywide will pay to the City $842,209 plus interest at 8% per annum in the following manner: 1. $50,000 check from Haddon Morgan & Foreman, P.C., the law firm representing Kipuros upon execution of the Agreement. Kipuros and Countrywide have executed the Agreement and the City is in receipt of the $50,000 check. 2. $12,000 per month starting May 1, 2001. 3. An additional $150,000 in 12 months and $45,000 in 18 months evidenced by Kipuros' $195,000 promissory note secured by a mortgage on the equity in his residence in Massachusetts. The City has received the executed promissory note, mortgage, and loan title insurance policy insuring the $195,000 mortgage subject to a first mortgage on the residence. The City has also received an appraisal of the residence stating that the value of the residence is $725,000 together with a statement from the mortgage company showing the first mortgage has a principal balance of $528,926. 4. City's security interest in the equipment purchased with City funds will remain in effect. Countrywide and Kipuros will attempt to sell the equipment in 6 months with all sale proceeds to be paid to the City. If not sold within 6 months, the City will sell the equipment. 5. The $12,000 monthly payments will continue until the full amount of $842,209 plus accrued interest is paid in full. 6. If default is made in any payment or other provision of the Agreement, the Court will enter judgment in favor of the City and against Kipuros and Countrywide for the balance of the $842,209 and accrued interest. (c) The pending lawsuit to the extent brought against Kipuros and Countrywide will be dismissed without prejudice to City's security interest in the equipment and the City's rights and remedies under the Uniform Commercial Code. (d) As long as Kipuros and Countrywide do not default in payments or other provisions of the Agreement, the City will not enforce any judgment obtained against the other guarantors, Susan A. Pappalardo and Oliver Shatz. Very truly yours, Thomas E. ar" sm HADDON MORGAN & FOREMAN, P.C. 150 EAST 10th AVENUE DENVER, COLORADO 80203 303 - 831 -7364 NORWEST BANK COLORADO, N.A. NoBWE9T RANI( 02356 1740 Broadway 02 Denver, Colorado 80274 23- 7/1020 DATE NUMBER AMOUNT 4/2/01 2356 $50,000.00 PAY Fifty Thousand and no /100 Dollars--------------------------------- - - - - -- TO THE ORDEROF CITY OF PUEBLO 11 8 00235611 3 1:1020000761: 10 X0909 9511' HADDON MORGAN & FOREMAN, P.C. PAY TO 02356 DATE TRUST NAME DESCRIPTION AMOUNT 4/2/01 Kipuros, #334.0001 City of Pueblo $50,000.00 Settlement proceeds CHECK DATE CHECK NO. CHECK AMOUNT 4/2/01 2356 $50,000.00 G. F. "Gus" Sandstrom, Jr. District Attorney 10" Judicial District James S. Whitmire Assistant District Attorney Scott B. Epstein Chief Trial Deputy Robert R. Case Supervising Deputy Pearl Chavez Office Manager Sallie Rae Donley Fiscal Specialist Sandra K. Wells Chief Investigator Pueblo City Council c/o Thomas Jagger, City Attorney Thatcher Building Pueblo, CO 81003 Members of the City Council: April 2, 2001 I have completed a review of the evidence related to the possible theft of City funds by Countrywide Telecommunications, LLC. I have, as discussed with the City Attorney, concluded that the interests of justice do not warrant the filing of criminal charges. Steve Kipuros has presented documentation that mitigates the question of intent to permanently deprive the City of its funds and has accepted full responsibility for repayment of the money you invested pursuant to contact. My investigation will now be closed. Juvenile Diversion Program (719) 583 -6145 H 0 Sincerely, G. F. SANDSTROM District Attorney GF S /tar 201 West 8th Street — Suite 801 • Pueblo, CO 81003 -3050 • (719) 583 -6030 • Fax (719) 583 -6666 MAR -28 -2001 WED 05:29 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 03 SETTLEMENT AGREEMENT AND RELEASE r r This Settlement Agreement and' Release [hereinafter "Settlement Agreement" or "Agreement "] is entered into effective 8pril 2, 2001, by and between the following Parties to this Agreement: the City of Pueblo, a Municipal Corporation [hereinafter "the City "]; Steve Kipuros [hereinafter "Kipuros "]; Countrywide Telecommunications, LLC [hereinafter "Countrywide "]. The foregoing Parties shall be collectively referred to as "the Parties." Recitals Whereas, Countrywide, a Colopado limited liability company, entered into a contract with the City under which the City provided $802,209 [hereinafter "City Funds "] to Countrywide for the purchase of equipment; Whereas, Countrywide entered:into a Security Agreement [hereinafter "the Countrywide Security Agreement," attached as Exhibit A to this Agreement] with the City under which the repayment of City,Fun.ds was secured by equipment [hereinafter "Countrywide Equipment "] described iii the Countrywide Security Agreement; Whereas, Kipuros among other executed a Continuing Guaranty unconditionally guaranteeing and promising to pay CityFunds; Whereas, the City in June 2000 filed a Complaint commencing an action in Pueblo County District Court, Case NoJ OOCV559, which names Countrywide and Kipuros, among others, as defendants; Whereas, Kipuros is the president and CEO of PTM Telecommunications, Inc. MAR -28 -2001 WED 05:29 PM HADDON, MORGAN & FOREMAN FAX NO, 3038322628 P. 04 4 [hereinafter "PTM" j, which is a member; and manager of Countrywide and authorized to act for and on the behalf of Countrywide:; Whereas, Kipuros and Countrywide have agreed to enter into this Settlement Agreement with the City under which Kpuros and Countrywide will pay $842,209 [hereinafter "the Settlement Amount"] plus interest at 8% per annum on the unpaid balance accruing as of the date of the Cify's execution of this Agreement; Whereas, Kipuros on January 8 9, 2001, confidentially provided to the City a f letter (dated January 9, 2001) from PTM,"s accountant, PTM's Balance Sheet, and PTM's Profit/Loss Statement on the condition that all these documents [hereinafter "PTM Confidential Financial Documents"] be geturned to Kipuros or his attorneys; Whereas, Kipuros and Countrywide have agreed to pay the Settlement Amount by means of a partial cash payment; a pr.bmissory note subject to payment secured by equity in Kipuros' residence; proceeds ftom the sale of the Countrywide Equipment; and monthly installment payments. Terms 'of the Agreement Now, therefore, for and in consideration of the foregoing recitals and the agreements, promises, covenants and releases set forth herein and for other good and valuable consideration, the receipt and shfficiency of which are hereby acknowledged, the Parties agree as follows: 1. Authority. The undersigned represent they are properly authorized to 2 MAR -28 -2001 WED 05;30 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 05 execute, deliver and perform this Agreerient. The Parties agree and represent they have not previously assigned, transferred or gxanted any of the claims released by this Agreement and that no other person or e0tity has any interest in the claims released. 2. Settlement Monies. Pursuant to this Agreement Kipuros and Countrywide will pay the Settlement Amount plus 8% interest as provided in this Agreement a. Cash. Kipuros shall pray $50,000 to the City by tendering a cashiers s check or certified check in that 4mount to a representative of the City. This payment shall be made contemporaneously with the execution of this Agreement and shall immediately reduce the Settlement Amount by $50,000. b. Promissory Note. Kipuros shall deliver to the City his Promissory Note in the amount of $195,000: payable to the City, which Promissory Note shall be secured by a valid and enforceable mortgage on Kipuros' residence located in the State of Massachusetts (the "Mortgage ") having an equity of at least $195,000 in excess of any and all other liens and encumbrances on the residence. The Promissory NotF shall be satisfied in two payments as follows: on or before April 2, 2002, or one year from the date of the execution of this Agreement by the Parties, whichever is later, Kipuros shall deliver and pay to the City $150,000, and on or befor! October 2, 2002, or eighteen months from the date of the execution of this Agreement by the Parties, whichever is later, Kipuros shall deliver and pay tc the City $45,000. Upon payment of $195,000, MAR -28 -2001 WED 05:30 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 06 the Promissory Note shall be deemed satisfied, the lien granted under the Mortgage shall terminate, and 4 duly authorized representative of the City shall execute all documents Kipuros, may deliver to the City that are reasonable and necessary to release and disch�ge the Mortgage. The executed Promissory Note and Mortgage shall be in the fgrms attached as Exhibits B and C to this Agreement and shall be delivered contemporaneously with the execution of this Agreement. Any payments made by Kipuros pursuant to the Promissory Note shall be applied against the outstanding principal balance of the Settlement Amount. c. Installment ,Payment s. Kipuros shall deliver and pay to the City minimum successive monthly payments as follows; $12,000 on May 1, 2001, and $12,000 on the first day of each month thereafter until the Settlement Amount plus accrued interest ire paid in full.: E-lereinaftcr, the monthly payments of $12,000 shall be referred to ias the "Installment Payments." Each Installment Payment shall be applied first to the reduction. of accumulated interest and then to reduction of the Settlement amount. Notwithstanding any other provision in this Agreement to the contrary the payment of any other monies to reduce the Settlement Amount, or accrued interest, shall not postpone the due date or change the amount of the Installment Payments. All payments shall be delivered to and received by the Director of finance;, City of .Pueblo, 1 City lull Place, 4 MAR -28 -2001 WED 05:30 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 07 Pueblo, Colorado 81003. Pa Y19 ents by electronic funds transfer in lieu of payments by check may be agreed to by the Parties following execution of this Agreement, a d. Notice of Default. Ir the event any Installment Payment is not received by the City's Director of Finance on the date such payment is due, the City shall give a written Notice of Default to Kipuros at the following address. Steve Kipuros, President, PTM Telecommunications Services, Inc., 432 Columbia Street, Cambridge, MA 02141; and to his attorneys at the following address: :Haddon, Morgan & Foreman, P.C., 150 East Tenth Avenue, Denver, CO 80203. The Notice of Default shall be', given by United States first class mail, postage pre -paid and properly addressdd. The date of the Notice of Default shall be the date the Notice is deposited in'.-the mail. Kipuros shall have 10 days from the date of the Notice to cure default, either by (a) providing to the Director of Finance information from his finan.cialiinstitution that the City has received the Installment Payment, or (b) delivering to the City an Installment Payment by an Y electronic funds transfer in the amount of $12,000 plus an additional $400 as a Tate Payment Fee. The Late Ppyment Fee shall not reduce or affect the N Settlement Amount or interesirequired to be paid under this Agreement. e. The Settlement Amount may be prepaid by any person or entity and i; from any source in whole or ii part at any tithe, without premium, penalty or. K MAR -28 -2001 WED 05:30 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 08 i prior notice. In the event Kipuros makes Installment Payments that exceed F $12,000, the amount in excess of $12,000 paid shall be applied against the outstanding principal balance of the Settlement Amount. Payments to the City by Kipuros that are not specifically required under this Agreement to be made at a specific time shall also be applied against the outstanding principal balance of the Settlement Amount. f.. For the purposes of this subparagraph 21, "payments" means any payment made in cash or certified funds and received by City. In the event the City receives any payments from any person or entity other than Kipuros, which payments arise out of the use of the City Funds, such payments shall be applied against the outstanding principal balance of the Settlement Amount. 3. Kipuros represents and w4rrants (the "Kipuros Warranties "). a. The Mortgage on hioresidence located in the State of Massachusetts (the "Mortgage ") upon recording in the appropriate governmental office is and will be a valid and enforceable ,lien on his residence and at the time of filing and recording of the Mortgage, the'fair market value of his residence is acrd -�at least $195,000 more than all other liens and encumbrances against his residence superior to or having a priority over the Mortgage, b. Kipuros will file or Qause to be filed the Mortgage in the appropriate governmental offices within tNN *enty -four (24) hours after the execution of this I 6 f7�vv�vlecA hvwtver +hF+ c� Fi SUUO f /a t +a.tE+r►+ev+t w^f �'�co�'depr A9a� -.r+ �-6e �eride..c, IC+s�efC - .!a frcw.c DI- r"Qt -a" t}+t S�pP- io��`sy or MAR -28 -2001 WED 05:31 PM HADDON, MORGAN & FOREMAN FAX NO, 3038322628 P. 09 Agreement and will cause the filed and recorded Mortgage to be immediately delivered to City. 4. No Admission by Kipuro and Countrywide. It is expressly understood and agreed that this Agreement settles cairns in dispute. Payment of, and payments made toward, the Settlement Amount (and interest paid on the Settlement Amount) shall not constitute, nor shall it be construed as, iii any way an admission of fault or liability on the part of Kipuros and Countrywide. To tho contrary, Kipuros and Countrywide specifically i deny any liability to the City or any other person or entity, with respect to Pueblo District Court Case No. OOCV559 or any other fiction commenced or yet to be commenced against Kipuros or Countrywide. 5. Use of this Agreement. except as otherwise expressly provided in this A Agreement, this Agreement shall not bet offered by any of the Parties or any other person n or entity in any action or proceeding as fin admission, a concession or as evidence of a liability or wrongdoing of any kind. Ngtwithstanding any provision in this Agreement to 4 the contrary, this Agreement is admissi.We, however, in an action to enforce or interpret 3 this Agreement or to determine whetheg any of its provisions has been violated and in any F Bankruptcy Discharge Exemption Proceedings. 6. Mutual Release. a a. Except as otherwise express1y provided in this Agreement, and 's especially (b) below, t1.ie City ljereby acquits, removes, releases and forever 7 MAR -28 -2001 WED 05:31 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 10 discharges Kipuros and Countrywide and their respective agents, representatives, insurers or attorneys of and fro zr any and all claims, counterclaims, actions, causes of action, suits, debts, dues, accounts, bonds, contracts, agreements, obligations, charges, liabilities pr damages of any kind, type or description C whether in law or equity which�the City may have had, now have, or may have against Kipuros or Countr ywid� by reason of any matter arising from or related to Pueblo District Court Case Igo. OOCV559, and any and all claims arising out of any act committed on or before the execution of this Settlement Agreement, whether or not such claims are 'elated to Pueblo District Court Case No. t OOCV559. b. Nothing in the foregoing paragraph 6 (a) or any other provision of this i Agreement shall be or be const' rued to be a merger, waiver, release, discharge or cancellation of: k i. This Agreement or apy provision hereof., the rights, interests and remedies of the City under this Agreement, or the duties and obligations of Kipuros or Countrywide 4nder and pursuant to this Agreement; and, ii. The Countrywide ScGurity Agreement a copy of which is attached as Exhibit A to this Agreement, City's security interest in the Countrywide Equipment, or the right, interests and remedies of City thereunder and under Article 9 of the Colorado Uniform Commercial Code which shall remain in MAR -28 -2001 WED 05;31 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 11 full force and effect, outst4nding, valid and separately enforceable according to their terms until the Settlement Amount and all accrued interest thereon are paid ink full. C. Notwithstanding any rovision in this Agreement to the contrary, the City may assert the City's SixthFClaim for Relief, bring an action thereon, and object to the discharge of the Settlement Amount with accrued interest in any t bankruptcy proceeding which t4ay be initiated by or against Kipuros [ "the BanknYptcy Discharge Exception Proceeding "]. The City shall not bring any action against Kipuros other th4n said Bankruptcy Discharge Exception Proceeding with respect to the §ixth Claim for Relief. The City shall not be r precluded by collateral estoppe] or res judicata from initiating the Bankruptcy is Discharge Exception Proceeding, nor shall Kipuros object to a Bankruptcy t Discharge Exception Proceeding upon such basis. Kipuros does not by entering into this Agreement admit and in fact denies that the City has any right to the relief claimed under. the Sixth � laim for Relief; further, Kipuros reserves the right to interpose any defense e%cept res judicata or collateral estoppel in any P bankruptcy proceeding to the City's assertion of the Sixth Claim for Relief. d. Kipuros and Countrywide acquit, remove, release and forever discharge the City, its agents, rgpresentatives, insurers or attorneys of and from i any and all claims, eounterclai111s, actions, causes of action, suits, debts, dues, 9 MAR -28 -2001 WED 05:31 PM HADDON, MORGAN & FOREMAN FAX NO, 3038322628 P. 12 accounts, bonds, contracts, agreements, obligations, charges, liabilities or damages of any kind, type or depeription whether in law or equity which Kipuros r and Countrywide may have had,; now have, or may have against the City by reason of any matter arising from. or related to Pueblo District Court Case No. OOCV559, and any anti all claims arising out of any act committed on or before the execution of this Settlement Agreement, whether or not such claims f are related to Pueblo District Court Case No. OOCV559. 7. Dismissal of Claims, The Parties agree as follows: • the Complaint's first,: second, third and fourth claims, to whatever extent they are brought against Countrywide and Kipuros, shall be dismissed with prejudice; v the Complaint's fifth And sixth claims, to whatever extent they are brought against Countrywide and Kipuros, shall be dismissed without prejudice, provided, lLowever, that the City shall be barred from re- asserting the sixth cl4im against Countrywide or Kipuros in any court or tribunal, except ascprovided in Paragraph G.e. Upon execution of this Settlement Agreement, the Parties agree to execute and P immediately file with the Court a Joint Stipulation for Dismissal of Claims [ "Joint 5 Stipulation "]. The Joint Stipulation shal'be in substantially the form attached as Exhibit D to this Agreement. The Partico agree they shall execute and file with the Court 10 P is i MAR -28 -2001 WED 05;32 PM HADDON, MORGAN & FOREMAN FAX NON 3038322628 P. 13 the Joint Stipulation immediately after execution of this Agreement and receipt by City of the $50,000 required by paragraph 2(a) a}td Promissory Note and Mortgage required by F paragraph 2(b), and in any event no later4Ihan 24 hours following execution of this Agreement, and such receipt by City, exgluding weekends and legal holidays. N I' S, City's Security Interest i4 Countrywide Equipment. The Countrywide N Security Agreement, City's Security Interest is the Countrywide Equipment, and City's is rights, interest and remedies thereunder 4 hall not be cancelled, discharged or released nor merge into this Agreement or any court grder or judgement based thereon but shall Y. 4 remain in full force and effect, outstandipg, valid and separately enforceable according to their terms until the settlement amount a0d all accrued interest thereon are paid in full. Countrywide and the City agree as follows: Countrywide has defaulted under the r r Countrywide Security Agreement; that Pountrywide waives any and all notices, required by law or agreement, prior to the City's seizure or sale of the Countrywide Equipment; V that the City shall have all the rights —axed may exercise all the remedies —under the Countrywide Security Agreement and those of a secured party under Article 9 of the Colorado Uniform Commercial. Code, ix cluding the right to take possession of, and the p i' seizure and sale of the Countrywide Equipment; that upon the City's exercise of any f remedy of a secured party under the Coy ntrywide Security Agreement and Article 9 of the Colorado Uniform Commercial Co* Countrywide shall not oppose any seizure or sale of the Countrywide Equipment by tie City and shall cooperate fully with such 11 MAR -28 -2001 WED 05:32 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 14 seizure or sale of the Countrywide Equipment, including the execution of any documents necessary to effectuate such seizure or sale; that the City may take possession of, seize and sell the Countrywide Equipment without obtaining a judgment from a court and that, if the City in its sole discretion seeks to obtain such a judgment, Countrywide will stipulate to a judgment that Countrywide is in default under the Countrywide Security Agreement and that the City is entitled Jo any remedy under the Countrywide Security i Agreement and those of a secured part} under Article 9 of the Colorado Uniform Commercial Code, provided, however, that Countrywide shall not be required to, and will not, stipulate that it has committed any wrongful act and Countrywide shall not be liable k 4 for any attorney fees or costs incurred by the City in such an action to obtain a court judgment on the Countrywide Security Agreement. Any proceeds from the sale of the Countrywide Equipment by City shall be paid to the City, provided, however, that such proceeds shall be applied against the o4tstanding principal balance of the Settlement Amount, 9. Countryrwide's Right to Sell the Equipment. Notwithstanding any provision to the contrary in this Agreern' ent, the Parties agree that Countrywide (or its agents and designees), shall, so long asno judgment has been entered pursuant to paragraph 11 hereof, have up to and including October 2, 2001, or G months from the date of the execution of this Agreement, whichever is later, to sell the Countrywide Equipment [hereinafter "Sale Period "]. 12 MAR -28 -2001 WED 05:32 PM HADDON, MORGAN & FOREMAN FAX NO, 3038322628 P, 15 a. During the Sale Period and provided no judgment has been entered pursuant to paragraph 11 hereof, the City shall not exercise any remedy available to it under Article 9 of the Colorado Uniform Commercial Code. b. Countrywide may attempt to sell the Countrywide Equipment as a unit or in parcels and at any time or place for a cash price but any aspect of the sale including the method, manner, place and price must be commercially reasonable. All proceeds from - any such sale shall be held in trust for the use and benefit of the City and shall be paid to the City immediately after receipt thereof by Countrywide. C. None of the Countrywide Equipment shall be removed from #1 William White Boulevard, Pueblo, Colorado, without the prior written consent of the City. The City shall not withhold unreasonably its cooperation in Countrywide's efforts to sell the Countrywide Equipment or preserve its value. d. Any private sale of the Countrywide Equipment, or any part thereof, must be for cash or certified funds and first approved in writing by the City, which approval shall not be unreasonably withheld or delayed. The City shall have the right of first refusal to purchase the Countrywide Equipment at the price of a good faith negotiated arms- length private sale for cash or certified funds presented to the City by Countrywide for approval. If the sale of the Countrywide Equipment is by.;public sale, the City may buy at such sale. The 13 MAR -28 -2001 WED 05:32 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 16 price payable by the City at either a private or public sale shall not be in cash but shall be credited and applied against the outstanding principal balance of the Settlement Amount. e. All cash proceeds from the sale of the Countrywide Equipment received by City shall be credited and applied against the outstanding principal balance of the Settlement Amount. Amounts received by City from the sale of the Equipment either in cash or. credit against the Settlement Amount shall not postpone the due date of any of the payments under Paragraph 2.c. or change the amount of such payments. By written agreement of the City and Countrywide, the Sale Period may be extended. 10. Confidentiality and Publicity. The Parties agree that the only public remarks they may make relating to this Settlement Agreement will be confined to remarks relating to the terms of the Settlement Agreement [hereinafter "Confidentiality Provision "]. For purposes of the enforc$ment of the Confidentiality Provision, the Parties agree that, in the event of a violation of the Confidentiality Provision, there is no adequate remedy at law, there will be immediate and irreparable injury, loss or damage preventable by injunctive relief, and injunctive relief is appropriate. 11. Enforcement of the Agreement. a. Breach by Kipuros. In the event of a breach of this Agreement by Kipuros, the City may move immediately for entry of judgment on the 14 MAR -28 -2001 WED 05;33 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 17 Settlement Amount plus any and all interest due under this Agreement. In such an event, i. Kipuros will consent to, and will not oppose, a motion by the City for an expedited ruling on the: motion for entry of judgment. ii. Kipuros shall have the right to defend against entry of judgment against him on this Agreement on the ground that he did not breach the Agreement; however, at np time shall Kipuros dispute the validity of or his obligation to pay the Settlement Amount under this Agreement. iii. If the Court determirjes that Kipuros breached this Agreement, the Court shall immediately enter a judgment in favor of the City and against Kipuros and Countrywide in the amount of the Settlement Amount plus any and all interest due under;this Agreement, less all payments made to the City under this Agreement by Kipuros and Countrywide. iv. Upon entry of judgment, the City may pursue all remedies of a judgment creditor under 4.ny applicable law. b. Breach by Countrywide. In the event of a breach of this Agreement by Countrywide, the City may move immediately for entry of judgment on the Settlement Amount plus any and all interest due under this Agreement. In such an event, i. Countrywide will ednsent to, and will not oppose, a motion by the City 15 MAR -28 -2001 WED 05:33 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 18 for an expedited ruling on the motion for entry of judgment. ii. Countrywide shall hove the right to defend against entry of judgment against it on this Agreement on the ground that it did not breach the Agreement; however, at ri: time shall Countrywide dispute the validity of or its obligation to pay the Settlement Amount under this Agreement. iii. If the Court determines that Countrywide breached the Agreement, the Court shall immediately enter a judgment in favor of the City and against Countrywide and Kipuros in the amount of the Settlement Amount plus any and all interest due under this Agreement, less all payments made to the City under this Agreement. iv. Upon entry of judgment, the City may pursue all remedies of a judgment creditor under 4ny applicable law. c. Breach by the City. XJpon breach of this Agreement by the City, then Kipuros or Countrywide, at his or its option, may pursue specific enforcement or damages. d. Attorney fees and costs for breach of the Agreement. In the event any of the Parties commences an action for enforcement or interpretation of or for a breach of this Agreement, the prevailing party in the action shall be entitled to reasonable attorney fees and costs. e. Alternative Dispute Resolution. Nothing in. this Agreement shall 16 MAR -28 -2001 WED 05;33 PM HADDON, MORGAN & FOREMAN FAX NO, 3038322628 P. 19 prohibit the Parties frorn mutually agreeing to submit any dispute under this Agreement to binding arbitration, mediation, or any other form of alternative dispute resolution. 12. PTM Confidential Financial Documents. The City shall return to PTM's attorneys the originals and any copies of PTM Confidential Financial Documents. Such documents shall be delivered to PTM's' attorneys contemporaneously with the execution of this Agreement. 13. Entire Agreement. The ;Parties expressly understand and agree that all agreements and understandings between the Parties are embodied and expressed herein. The Parties agree this Agreement repre0ents their entire agreement and supersedes all prior understandings and agreements between and among them with regard to any of the subject matter set forth herein. 14. Continuing Jurisdictiop, The Court in Pueblo District Court Case No. OOCV559 shall retain continuing jurisdiction over the Parties and subject matter of this Agreement, and the Parties submit to the continuing jurisdiction of this Court for purposes of enforcement or interpretation of this Agreement. 15. Non - Waiver of Claims Against Other Parties. Nothing in this Agreement shall be construed to prohibit the Parties from pursuing claims or contribution against other persons or entities who are not PArties to this Agreement or be construed as a waiver, release or discharge of any such claims or contribution. 17 MAR -28 -2001 WED 05;33 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 20 16. Costs and Attorney Fees. Except as provided in paragraph 11.d, the Parties agree they will each be responsible for payment of their own respective costs and attorney fees incurred in Pueblo District Court Case No. OOCV559. 17. Execution in Counterparts. This Agreement may be executed in one or more counterparts, all of which together shall constitute one instrument and all of which shall be considered duplicate originals. Notarized signatures of the Parties that are faxed among the Parties will constitute signatures legally sufficient to bind the signatories. Subsequent to any exchange of faxed signature pages, the Parties shall immediately exchange duplicate original, ink- signed 4ignature pages. 18. Construction and Governing Law. The headings and catchlines of this Agreement are used only for the convenjence of the Parties and shall have no effect on the interpretation or construction of this Agreement. This Agreement and all rights and obligations hereunder, including matters of construction, validity, performance, and enforcement, shall be governed by and construed in accordance with the laws of the State of Colorado. In the event any provision of this Agreement is held to be unenforceable by a court of law, the other provisions of the Agreement that remain enforceable shall continue to be binding upon the Parties. The Parties agree that this Agreement was entered into in the State of Colorado 'forpurposes of any action to enforce or interpret this Agreement, and that any action to enforce or interpret any terms of this Agreement shall be brought in the County of Pueblo, State of Colorado. 18 MAR -28 -2001 WED 05;34 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 19. Knowing and Voluntary I xerution. Each party acknowledges and represents that he or it (a) has fully and c4refully read and considered this Agreement prior to its execution; (b) has been or has had the opportunity to be fully apprised by his or its attorney of the legal effect and meaning of this Agreement, including all attached Exhibits and all of their terms and conditions, and are relying exclusively on their own respective legal counsel's advice and recommendations in entering into this Agreement; (c) has had the opportunity to make whatever investigation or inquiry he or it deems P. 21 necessary or appropriate in connection with the subject matter of this Agreement; (d) has been afforded the opportunity to negotiate as to any and all terms of this Agreement; and (e) is executing this Agreement voluntarily, free from any undue influence, coercion, duress or fraud of any bind. 20. Execution of Related Documents. The Parties agree to execute all such further and additional documents as shall be reasonable, convenient, necessary and desirable to carry out the provisions of this Agreement. 1.9 MAR -28 -2001 WED 05:34 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P. 22 DATED this Z day of Me*h 2001. APPROVED AS TO FORM: Thomas J ig w e Robert Jagger 127 Thatcher Building Pueblo, CO 81003 Telephone: (719) 545 -4412 Attorneys far City of Pueblo 20 Ty Gee Fredric Winoour HADDON, MORGAN & FOREMAN, P.C. 150 E. Tenth Avenue Denver, CO 80203 Telephone: (303) 8317364 Facsimile: (303) 8322628 Attorneys for Steve Kipuros and Countrywide MAR -28 -2001 WED 05:34 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 P, 23 :Execution by City of )Pueblo: STATE OF COLORADO ) COUNTY OF PUEBLO ) Subscribed and sworn to before me this � day of April 2001 by A� --air RT I� • C�u�RuLt , as P. esident of the City Council of Pueblo, a Municipal Corporation. My Commission expires: A ljky5 - r I 1 )-003 Notary 1&ic 21 MAR -28 -2001 WED 05;34 PM HADDON, MORGAN & FOREMAN FAX NO. 3038322628 Execution by Countrywide Telecommunications, LLC: Co"ONWakg14 of NIASSACt4USEIT5 S O COUNT'' OF S 0 '�ku 1 k gountrywide Telecommunications, LLC $y PTM Telecommunications, Inc., Manager Steve Kipuros, President of PTM Telecommunications, Inc. ss. Subscribed and sworn to before me this 3 U 4 VN day of12001 by S�� V k ► U f o S , as President of PTM Telecommunications, Inc. My Commission expires. Camille A. Power, Notary Public My Commission Exal.rss December 22, 2'008 P. 24 �A a&, Notary Public 22 MAR-28-2001 WED 05:34 PM HADDON, MORGAN & FOREMAN Execution by Steve Kipuros: FAX NO. 3038322628 P. 25 Steve Kipuros &T -ATE -4F MASSACHUSETTS COUNTY OF mart-k Subscribed and sworn to before i this day of Apri4 2001 by Steve Kipuros, My Commission expires: Camille A. Power, Notary Pubfic My Commission Exp0e-s December 22,20D6 Notary Public 23 EXHIBIT A Debtors 7;ey ko Nome: Address: Resldenco Securo-d Pcrtyr . Nona: Addres Suslnoss SECURITY AOREIMFNT S LUA hhgr72_:F ,-vim ' Debtor, for considernlion, heroby gr, nts to $-cured Porty a security Ir crost in tba following properly, end ony and c l property of Irke typo now owned or },envftar acquired by Debtor, to;a Ih.r wiih a add!:ons, n:cass ion s, sAs6wVcni, prcc. ds and procucts therofroni, Includlnfl heturol inupcse of livostock, all he } eIn called the. "Collotere I ": I- Startel 57001'5 Base Unit, 1 -586 DX4 /200 Digital Bank Processor, 2 -2 GIG Hard Drive, 10 -T1 Span (240 channels) (2 for VoiceNet), 7 -8 Port DID Teleset cards, 4 -8 -Port Loop Car d, 1- ACD.Inierface to PI, l- Switch PU Card, 2 -BIC CPU card, 1- Operator Display Card, I- Switch Matrix Card, 2 -Bank Interface Card, I -Intel 586 DX4/200 Data Processor, 1 -64M Rain, 1 -Zip Hard Drive Back -tip, l- Floppy Disk Drive, I- Serial Data Ports (1 -64), 1 - Remote Dia;nostics Kit, 1 - MAT Terininal, 2 -1 iot Swappable Power Supplies, 1- System Printer & System -o ver Line Conditioner, 50- Operator Workstation with PC Connect Software (PC Hardware Supplied by customer), 50- Stahel PC- Keyboarcls; 50- Operator Consoles, 2- Communication Server (8 ports Fax & 1 Port Internet), 1- D Basic Spares Kit including: h Switch ACD CPU, IBIC Card, 1CMI card, 1 Switch Card; 1 Power Panel, i -DP Spares Kir including: l Pentium CPU,-! Serial Port Contoller, I -NT Spares, 8- Alpha 58 -Penti m PC Stations, Including: 58 -17 inch SVGA Color Displays, 50- Telesecretary Workstations, 8- Manager Workstd ions,. I- Teledata Billing System, I -CA 48 port IVR System, 1 -EM 20 port Data Fax System„ 1-16 position EF Intern 1 Phone System,•1 -15 hour UPS System, 6- Printer Stations; 1- Video & Training Conference Station, 50- Appli6 Headsets, 1- Starte1 d8 port VM System. 7o secure peytnenl of the Indebted t t o Monced by • c. t - `rrh reer�enZ Ci�4- led�`une 1 4 ,.��t4 bk II - kart end Secured PArc Q (fit u e� c� F � ree�tfn a s ea and alf othor liobiiifias of Debtor to Secured Party, obsolvfo or eant!rg du: or to boco:no duv, now exlsling or herea'ttr arising indvd ng liabilities ar4lr�g ixcouse of fvnds advanced In thu h.etcr ot'tl) option of 5--cured Party, 09 F. , jmin tolled the "041GATIONS ", .DEBTOR EXPRE551I.Y 1! ARP.A,NTS AND COVE NANv 5*1 Th# Coliotvral is t9ad or bought prlmcrlly for: . ❑ P:rscncl, fnnsily or household p!irpo:ast Cl Ux Jr. farming oporw:cn;j ; X tlsa ir. L'siness. 7ha1�D rzsl a'mc- is a+ t!wcd objYr, one tic C wiii b* l 0.01 of y� Locaficn.,L_ LJL���� /�— s� -1 / Covnty t � Sfale C L If any of the Colloiarol is crop:, oil, r.a, or rnl.:crnls to be ex!roc!ed or limber to be cut; or goodswhich are or ore fo becomefli vros, sold CcHolerol conc#rrss be folla"Anq described re-al #Otte sitvo!a in fbe _ __.,. County of and State of Coto ado, to - wife The undersigned 0c'c710wf3dge re:e "pl of e car; nl !his Se:drity Acregment or do!e':ereof, and opr9v thal it includes end is sLblect io the ADUMUNAL PROVISIONS on Iho rvv#rse side hereof, the scr born.3 incartaro!ed hveln by refs ©xe, Debt or: G �J4PzS ....�: Y.___��` dCr Cf 1 �.1.�� -• �` - -- -- Exhibit 6 a No. 651. Rey. S -90. s_CC;t'r:': Ali RZ6:�t_NT 1 . ADDITIONAL PROVISIONS FURTHER W ARRANTIE S AND COVENANTS OF THE DEBTOR. The Debtor hereby warrants and covenants that: 1. Except for the security interest granted hereby, the Debtor is, or to the ex!ent that this agreement states that the Colic!erol is to be acquired after the d he. eaf, will be, the owner of the Col latercl free from any prior lien, security interest or encumbrance; and the Debtor wi!I de!end the Collo :erol against oil cicims cr. demands of all persons cl cny tine cIc7ming 1I e some or any in :_rest therein. ` 2. irresp•ect;ve of whether the Secured Pc.ty cicims o security interest in proceeds hereunder, the Debtor will not sell or oSer to sell or otherwise tra ,sf encumber the Co!lo!ero'. or cn interest therein v6:houf :he prior writ :en consent of :he Secured Forty. The Collotercl will be ioccred of and kept a! the locc:ion shov,,, the reverse side hereof and shell rot be removed without the prior written consent of the Secured Party. .. 3. The Debtor wi11 pay all taxes and cssessr._n :s of every noture wh :ch'mcy be levied or assessed ogcins: the Co "o :etc!. ' ' 4. The Debtor will keep the Co!Ie :erol at all tines insured ogoinst risks of loss or damage by fire linc!uding so -cooed extended coverage), theft erd such eth cosuo lies as the Secured Party noy reasonably require, including collision in the case of any motor vehicle, all in such cmrJ.nts, under such forms of policies, upon S terns, for such periods, and vrri,.en.by such co: tponies or anderw, i :ers as the Secured Party nay approve, losses in all cases to be pcycbie to :he Secured Party c : . the Debtor as their interest r..ay appear. All policies of insurance shall provide for c: least ten days prior w.i::_n notice of ccnce!Iction to the Secured Potty and t- Debtor sh& furnish the Secured Party with cer:ircc :es of such insu. once or other evidence satisfactory to the Secured Party as to compricnce %4 :h the provisions of v parcg :oph. The Secured Port mcy act as ora ney for the Debtor in making, adjusting and se :t5ng claims under or concelling such insuronce and endorsing I', Deb :or's name on any dre.ls d wn by insurers of the Collate. cl. 5. The Debtor will not permit or allow any adverse lien, security interest or encumbrance whatsoever upon the Collo :e :al, and will not permit the some to b etioched or repievined. b. The Collate. al is in good condition, and the Debtor will, of the Debtor's own expense, keep the same in good condition and from time to fine, fonhwi; . replace and repair all such parts of the Colic :e: of as may be broken, worn out, or damaged without =!lowing ony Gen to be created upon the Colo :ercl on occount c such, ep!ocer „ent or repairs, and the Secured Party moy exon.ine and inspect the Collateral at any time, wherever located. 7. The Debtor will not use the Collo :ercl in violation of any cpplicoble sto :uses, regulations or ordinonces. ADDITIONAL RiGHT5 OF PARTIES. At its option but wit hout ob!igo :ion to the Debtor, the Secured Po :-, y may discharge loxes, liens, or security interests or encumbrances at any time levied or placed on the Collateral, moy place and pay for insurance thereon, may order and pay for the repair, mointenonce or preservation thereof and may pay any necessary filing or recording fees. The Debtor agrees to reimburse the Secured Par:y on demand for ony payment mode or on expense incurred by the Secured Party pursu=it to the foregoing authorization. Until defoult the Debtor mcy hove possessicn of the Collateral and use it in any IcwrL manner, and upon default the Secured Potty sholl have the immediate right to the possession of the Colla :era[. Borrower hereby wolves all right of homestead exemption in the collateral, including thbt granted by C.R.S. 138-41-201.6, and wolves any other stotutor exemptions, including those granted by Sec. 13- 54=102, C.R.S., insofar as such exemptions pertain to the Collc :erol described in this Security Agreement. THE DEBTOR SHALL EE IN DEFAULT under this agreement upon the happening of any of the following events or conditions: (a) default in the payment or performance of any obligation, covenant or liability contained or referred to herein or in any note evidencing the some; (b) the moking or furnishing of any worronty, represento lion or statement to the Secured Party by or on behalf of the Debtor which proves to have been false i .ony moteriol respect when made or furnished. (c) loss, theft, domcge, destruction, sale or encumbrance to or of any of the Codoterol, or the making of any levy, seizure or ettochment thereof or thereon; (d) death; change of nerne, dissolution, merger, terminotion.of existence, insolvenc business failure, oppoinfrnent of a receiver of any part of the property o assignment for the benefit of creditors by, or the conmencenent of bny proceeding un der any bankruptcy or insolvency lows of,.by or against the Debtor or c,-, gvoronlor or surety for the Debtor. UPON SUCH DEFAULT and of any I'me thereafter, or if it deems itself insecure, the Secured Party may declare all Obligo :ions secured hereby immediately d•: end poycble subject to ony notice required by law or agreement, and shall have the remedies of a secured party under Article 9 of the Colorado Uniform Commerci: Code. The Secured Party may require the Deb :or to assemble the Copoter=I and deliver or mc'ce it available to the Secured Forty of o piece to be designated by t' Secured Part j which is reasonably convenient to both partiei. Expen' es of ietcking;•-hblding, preparing for sale, sei!ing or the like sholl,'subject'to UCCC limits oppliceb!e, include the Secured Party's reasonable attorneys' fees and legal expenses. Unless the Collateral is perishable or threatens to decline speedily in value or of a type custcrnorily sold on a recognized market, the Secured Forty will give the Debtor reasonable notice of the time and place of any public sole thereof or of th tine otter which cny private sale or any other in :ended disposition thereof is to be node. The requirements of reasonable notice shell be met if such notice is mci'•e: postage prepaid, to the address of the Debtor shown of the beginning of this Agreement at leas. ten days before the time of the sde or disposition. As respects cro` covered by this Security Agreement, upon such de!ovlt, it is agreed by the parties hereto that sold crops ore perishable or may decline speedify in value, and that t,. Secured Party may pro :_U, cvIrivote, care for, harvest, or process said crops at the expense of the D ebtor and may se!1 and dispose of sold crops of privole so!e cs I.' scene ma:ura or cre harvested, of the best price then avo1oble. Wner e the Collotercl is livestock, it is agreed that o commercially recsoncb!e meohs of d isposing of I; Co!latercl shell include se!e of such Collcterol in the cusiornery manner on the Denver, Colorado, lives :ock market or through a licensed livestock sales ring in Colorc� and it is agreed that such Col!ateral is of a type customarily sc!d on such reco ,9nized markets. Sale of such livestock mcy be otherwise as permitted by low. I expressly e -reed e!so that it will not be necessary, of :er dercult cnd before the so e of any livestock Collo :ercl, to co!!ect sold Gvestoc'< or to have the some preser••t c the p!oce o(sc!Z_ in the event the Secured Party institutes legal proceedings to regain possession of the Collcterol. Debtor knowing!y and volun:orily waives hi right to c f.ecring prior to losing possession of the Collateral by means of a court order, and ogrees that the Secured Party mcy obioin on order for possession prig: hearing as provided in C.R.C.P. 101' (d)(4). No vrCiver by the Secured Pcr :y or cny de!euIt shall a x, Cerete as a vreiver of cny cer de erfuture !evl: or of the se de!oul: on a f c< %: caslon. The Mrg of t:.: security agreement shc!I nor we : e or impair cry other security the Secvr Potty mcy have or herea!rer ecgvira for :he pcynent of -, .e Ob!i9s!ions, nor shell the of cny such odd;fionel security wo:.. a or impair ,i$ security cg: _anent; but the Secured Forty mcy resort to cny security it r.,cy hove in the order it mcy deem prep' c:-,d ro ;w:;hsrcnding cry Collotercl Securit tea Secured Forty s=Icll retain its rights of s>_ :o8 cganst t=ee D_b:or. A!I rights of ,e Secured Pc.-:y herevnder shell inure to t!-e beneSr o! the Secured Pe:ly's heirs, personal represento5ves, successors or assigns; and ell pro�;s cnd dJ::es of ;he De .or s:.aC bind t..e Debtor's heirs, persGncl repres :orives, successors or e5signs. if there be mere than one Deb :Gr, their liabilities hareund_r s`. be join,; and several. S Cu!d Cny prcv :stGn of :his Se :vri : Agreement V e cny federal, State or iccc! Icv, or Grdincnce, I:.Ct provision s :.ic!: be deer.ad cmended:a so cGenp!Y such Ic:r or crcincnCe, and 5;•o!i 62 cor.s:rW_, in 0 mcr,n_r so c5 10 c0np!y. EXHIBIT B This note has not been registered under the Securities Act of 1933, as amended, and may not be sold, assigned, pledged or otherwise transferred in the absence of an effective registration statement under said Act covering the transfer or an opinion of counsel satisfactory to the issuer that registration under said Act is not required. PROMISSORY NOTE MARCH 22, 2001 FOR VALUE RECEIVED, the undersigned, Steve Kipuros, Jr. ( "Kipuros ") hereby promises to pay to the City of Pueblo, Colorado, a Municipal Corporation ( "City "), the amount of $195,000, payable as follows: on or before April 2, 2002, the amount of One Hundred Fifty Thousand Dollars ($150,000) and on or before October 2, 2002, the amount of Forty Five Thousand Dollars ($45,000). This Promissory Note may be prepaid in whole or in part at any time, without premium, penalty or prior notice. As security for the prompt and complete payment and performance when due of the obligations set forth in this Promissory Note, Kipuros hereby grants to the City a Mortgage Deed and Security Interest to Kipuros' residence located in the State of Massachusetts. Kipuros, having executed, recorded, and delivered to City a mortgage deed on said residence, hereby warrants and represents that the mortgage deed is a valid and enforceable mortgage on his residence and that on the date hereof, the fair market value of the residence is at least $195,000 more than all other liens and encumbrances against the residence; provided however that the mortgage deed and security interest granted herein by Kipuros shall terminate upon payment of this Promissory Note in full. Upon such payment of $195,000 to City, City will execute all documents delivered to City by Kipuros reasonable and necessary to release and discharge the Mortgage. If the representations and warranties contained in this paragraph are not true and correct, such default shall constitute a default under this Promissory Note and mortgage, and City may enforce this Promissory Note and foreclose on the mortgage. In the event that (a) Kipuros fails to make any payment of principal or interest on this Promissory Note as provided herein and such failure continues for a period of 30 days or (b) Kipuros files or has filed against him any petition under any bankruptcy or insolvency law or for the appointment of a receiver or makes a general assignment for the benefit of creditors, then the entire unpaid principal of this Promissory Note, together with accrued interest thereon, shall 8439191 automatically become immediately due and payable. No failure by the holder to take action with respect to any default hereunder shall affect its subsequent rights to take action with respect to the same or any other default. Upon the occurrence of a default Kipuros agrees to pay all reasonable costs and expenses of collection to the extent allowed by law, including but not limited to reasonable attorneys' fees. All payments to the holder hereof shall be made at the address set forth in the Settlement Agreement or at such other addresses as the holder hereof shall specify in writing to Kipuros. This Promissory Note shall be governed by and construed in accordance with the laws (other than the conflict of law rules) of The Commonwealth of Massachusetts. Kipuros and all endorsers and guarantors of this Promissory Note hereby waive presentment, demand, notice of nonpayment and protest except as provided in this Promissory Note. IN WITNESS WHEREOF, the undersigned individual has executed this Promissory Note. [Seal] Camille A. Power, Notary Public My Commission Expires December 22, 2DD& 13 . Steve Kipuros, Jr. 21 Wormwood Street, Unit 601 Boston, MA 02210 -1637 8439191 -2- EXHIBIT C 26046 307 MASSACHUSETTS REAL ESTATE MORTOAGN INDIVIDUAL (SHORT FORM) 991 i V z Q Steve Kipuros, Jr. of Unit 601, 21 Wormwood Street, Boston, Suffolk County, Massachusetts, for consideration paid, grants to the City of Pueblo, a Municipal Corporation,, of 127 Thatcher Building, Pueblo, Colorado 81403 with martg4gr rournttntu to secure the payment of One Hundred Ninety Five Thousand Dollars and 00 /100 Dollars- ($195,000.00) :Nkfct Rd0MM in One year wA as provided in MY note of even date, thelandin Boston, Suffolk County, as described on the attached exhibit A. [Description and enaunbrances, if any] ► G O LJ In O tC u a� d H LJ N b O O 3 N This mortgage is upon the statutory condition, for any breach of which the mortgagee shall have the statutory lower of sale. 4o ttttrists..m.........hand and seal this............. ........day of rv � ® C.� :.........71:► 2001 .... ... .... .. C: z ................................................... ............................... .,..�......... ............... Steve- '�C�puros, .ir. ................................................... ............................... ................................................... ............................... U4r Tantntanwrult4 of Auuuurlliturtta ss. , Stevc ]- l�M..� -w t) T Then p erson ally a- carcd t abov alanncd wi a1r05, ' and acknowledged the foregoing instrument to be before me, iA 2001 his fr a act and deed, C i�- .::... � jc .... . . . ............ .... — �\ a C014 Mr Commission Faxpices.��..._1..1�. . »..: ..�....... ». ( *Individual -- Joint Tenants — Tenants in Common.) (Zr. ('({ O "� Z DIC lwx && 6a.1,w, AA 01 w "ati I n rn -t N) C) 3: 3 C7 u, N ern YS r'+ :n 0 ..a <r This mortgage is upon the statutory condition, for any breach of which the mortgagee shall have the statutory lower of sale. 4o ttttrists..m.........hand and seal this............. ........day of rv � ® C.� :.........71:► 2001 .... ... .... .. C: z ................................................... ............................... .,..�......... ............... Steve- '�C�puros, .ir. ................................................... ............................... ................................................... ............................... U4r Tantntanwrult4 of Auuuurlliturtta ss. , Stevc ]- l�M..� -w t) T Then p erson ally a- carcd t abov alanncd wi a1r05, ' and acknowledged the foregoing instrument to be before me, iA 2001 his fr a act and deed, C i�- .::... � jc .... . . . ............ .... — �\ a C014 Mr Commission Faxpices.��..._1..1�. . »..: ..�....... ». ( *Individual -- Joint Tenants — Tenants in Common.) (Zr. ('({ O "� Z DIC lwx && 6a.1,w, AA 01 w "ati 26046 388 EXHIBIT A Property in Boston known as Unit No. 601 ( "UNIT "), of The Fort Point Place Condominium (the "CONDOMINIUM "), located at 21 Wormwood Street, Boston, Suffolk County, Massachusetts, created pursuant to M.G.L. Chapter 183A by the recording of a Master Deed (the "MASTER DEED ") dated August 24, 2000 and recorded at the Suffolk Registry of Deeds in Book 25275, Page 197 as amended from time to time. Said Unit is shown on the floor plans of the Building recorded with the Master Deed and on the Unit Plan recorded therewith to which is affixed the verified statement of a registered architect, registered professional engineer or registered land surveyor. The Unit is conveyed together with a 1.61027% undivided percentage interest in the common elements and facilities as defined and described in the Master Deed and the exclusive right to use those Common Areas and Facilities appurtenant to said Unit as set forth in the Master Deed. The Unit has an exclusive right to easement to use for the parking. of automobiles, parking space Number 17. The Unit is subject to and has the benefit of all rights, easements, agreements, interest and provisions contained in the Master Deed and the Condominium Trust and By -Laws recorded therewith, as any of the same may be amended from time to time pursuant to the provision thereof, as well as the provisions of Chapter 183A of the Massachusetts General Laws, as the same may be amended from time to time. 8443193.1 HIS IS A TRUE COPY OF AN INSTRUMENT RECORDED W THE SUFFOLK COUNTY REGISTRY OF DEEDS AT THE BOOK AND PAGE ON THE FIRST PAGE HEREOF. ATTEST: MAR "Lalm-n � � 200 � • EXTILACT FROM GENERAL LAWS. (TER. ED.) CHAPTER 183, SECTIONS 18, n, 20, 21 Section 19. A deed in substance following the form entitled "Mortgage Deed" shall when duly executed have the force and effect of a mortgage deed to the use of the mortgagee and his heirs and assigns with mortgage covenants and upon the statutory condition and with the statutory power of sale, as defined in the three following sections, to secure the payment of the money or the performance of any obligation therein specified. The parties may insert in such mortgage any other lawful agreement or condition. Section 19. In a conveyance of real estate the words " mortg covenants' shall have the full force, meaning and effect of the following words, and shall be applied and construed accordingly: "The mortgagor, for himself, his heirs, executors, Administrators and successors, covenants with the mortgagee and his heirs, successors and assigns, that be is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will, and his heirs, executors, administrators anti successors shall, warrant and defend the same to the mortgagee and his heirs, successors and assigns forever against the lawful claims and demands of all persons; and that the mortgagor and his heirs, successors or assigns, in case a sale shall be made undet the power of sale, will, upon request, execute, acknowledge and deliver to the purchaser or purchasers.a deed or deeds of release confirming such sale. and that the mortgagee and his heirs, executors, administrators, successors and assigns are appointed and constituted the attorney or attorneys irre- vocable of the said mortgagor to execute and deliver to the said purchaser a full transfer of all policies of insurance on the buildings upon the land covered by the mortgage at the time of such sale." Section 20. The following "condition" shall be known as. tjtt �ifylrbPr). Cendirivn,...and- ..map•. be incorperatc&iw-any- snort- Me by reference: (CONDITION) O 0 G Provided, neverthelerr, except as otherwise specifically stated in the mortgage, that if the mortgagor, or his heirs, executors, administrators, successors, or assigns shall pay unto the mortgagee or his executors, administrators or assigns the principal and interest secured by the mortgage, and shall perform any obligation secured at the time provided in the note, mortgage or other instrument or any extension thereof, and shall perform the condition of any prior mortgage, and until such payment and performance shall pay when due and payable all taxes, charges and assessments to whomsoever and whenever laid or assessed, whether on the mortgaged premises or on any interest therein, or on the debt or obligation secured thereby; shall keep the buildings on said premises insured against fire in a sum not less than the amount secured by the mortgage or as otherwise provided therein for insurance for the benefit of the mortgagee and his executors, administrators and assigns in such form and at such insurance offices as they shall approve, and, at least two days before the expiration of any policy on said premises, shall deliver to him or them it new and sufficient policy to take the place of the one so expiring„ and shall not commit or suffer any strip or waste of the mortgaged premises or any breach of any covenant contained in the mortgage or in any prior mortgage, then the mortgage deed, as also the mortgage note or notes, shall be void. Section 21. The following "power" shall be known as the Statutory Pottier of Sale, and may be incorporated in any mortgage by reference: (POWER) But upon any default in the performance or observance of the foregoing or other condition, the mortgagee or his executors, administrators, successors or assigns may sell the mortgaged premises or such portion thereof as may remain subject to the mortgage in case of any partial release thereof, either as a whole or in parcels, together with all improvements that may be thereon, by public auction on or near the premises, then subject to the mortgage, or, if more than one parcel is then subject thereto, on or near out of said parcels, or at such place as may be designated for that purpose in the mortgagee, first complying with the terms of the - moetgagte and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale. and coq convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in fee - simple; and such sale shall forever bar the mortgagor and all persons claiming under him from all right and interest In the mortgaged premises, whether at law or in equity. r a, a i� b N • S HE R y�f1'•4' �t 1yi t� C r ! a► 1. � , ---•j ? o 0' F w �1 to ^ Q My 0 .Q t .� p ' 3 G n o r z P1 � cn� M i C A I 0 (Please print o . e) �„ r Joseph T. Hawkins 1 1' Ropes & Gray' One International Pld. e Boston MA 02110 r a, a i� b N • S HE R y�f1'•4' �t 1yi t� C r ! a► 1. � , ---•j EXHIBIT D DISTRICT COURT, PUEBLO COUNTY, COLORADO Case No. 2000 CV 559, Division F Plaintiff: City of Pueblo, a municipal corporation. Defendants: Countrywide Telecommunications, LLC, a A COURT USE ONLY A Colorado limited liability company; Steve Kipuros, Oliver Shatz, Susan A. Pappalardo. Case No.: 2000 -CV -559 Third -Party Plaintiff: Oliver Shatz. Division F Third -Party Defendant: PTM Telecommunications Services, Inc., a Massachusetts corporation. Attorneys for Defendants Countrywide Telecommunications, LLC, and Steve Kipuros and Third -Party Defendant PTM Telecommunications, Inc. Pamela Robillard Mackey, #15136 Ty Gee, #19772 Fredric Winocur, #22112 150 East Tenth Avenue Denver, CO 80203 Phone Number (303) 831 -7364 Fax Number (303) 832 -2628 Email: Tygee @rmi.net JOINT STIPULATION FOR DISMISSAL OF CLAIMS D D D City of Pueblo OFFICE OF THE CITY ATTORNEY 127 Thatcher Building PUEBLO, COLORADO 81003 MEMORANDUM TO: Gina Dutcher, City Clerk FROM: City Attorney RE: Resolution No. 9255 DATE: April 3, 2001 We enclose the following documents to be kept with Resolution No. 9255 file: (a) Original Promissory Note dated March 22, 2001 executed by Steve Kipuros, Jr., payable to the City in the amount of $195,000. (b) Original Loan Policy of Title Insurance No. 5412- 1119664 issued by Fidelity National Title Insurance Company of New York. (c) Copy of March 15, 2001 appraisal of 21 Wormwood -601, Boston, MA 02110. (d) Copy of Dovenmuehle Mortgage, Inc.'s statement dated March 8, 2001. Very truly yours, Thomas E. Jagger sm 4 enclosures This note has not been registered under the Securities Act of 1933, as amended and may not be sold, assigned, pledged or otherwise transferred in the absence of an effective registration statement under said Act covering the transfer or an opinion of counsel satisfactory to the issuer that registration under said Act is not required. PROMISSORY NOTE MARCH 22, 2001 FOR VALUE RECEIVED, the undersigned, Steve Kipuros, Jr. ( "Kipuros ") hereby promises to pay to the City of Pueblo, Colorado, a Municipal Corporation ( "City "), the amount of $195,000, payable as follows: on or before April 2, 2002, the amount of One Hundred Fifty Thousand Dollars ($150,000) and on or before October 2, 2002, the amount of Forty Five Thousand Dollars ($45,000). This Promissory Note may be prepaid in whole or in part at any time, without premium, penalty or prior notice. As security for the prompt and complete payment and performance when due of the obligations set forth in this Promissory Note, Kipuros hereby grants to the City a Mortgage Deed and Security Interest to Kipuros' residence located in the State of Massachusetts. Kipuros, having executed, recorded, and delivered to City a mortgage deed on said residence, hereby warrants and represents that the mortgage deed is a valid and enforceable mortgage on his residence and that on the date hereof, the fair market value of the residence is at least $195,000 more than all other liens and encumbrances against the residence; provided however that the mortgage deed and security interest granted herein by Kipuros shall terminate upon payment of this Promissory Note in full. Upon such payment of $195,000 to City, City will execute all documents delivered to City by Kipuros reasonable and necessary to release and discharge the Mortgage. If the representations and warranties contained in this paragraph are not true and correct, such default shall constitute a default under this Promissory Note and mortgage, and City may enforce this Promissory Note and foreclose on the mortgage. In the event that (a) Kipuros fails to make any payment of principal or interest on this Promissory Note as provided herein and such failure continues for a period of 30 days or (b) Kipuros files or has filed against him any petition under any bankruptcy or insolvency law or for the appointment of a receiver or makes a general assignment for the benefit of creditors, then the entire unpaid principal of this Promissory Note, together with accrued interest thereon, shall 8439191 automatically become immediately due and payable. No failure by the holder to take action with respect to any default hereunder shall affect its subsequent rights to take action with respect to the same or any other default. Upon the occurrence of a default Kipuros agrees to pay all reasonable costs and expenses of collection to the extent allowed by law, including but not limited to reasonable attorneys' fees. All payments to the holder hereof shall be made at the address set forth in the Settlement Agreement or at such other addresses as the holder hereof shall specify in writing to Kipuros. This Promissory Note shall be governed by and construed in accordance with the laws (other than the conflict of law rules) of The Commonwealth of Massachusetts. Kipuros and all endorsers and guarantors of this Promissory Note hereby waive presentment, demand, notice of nonpayment and protest except as provided in this Promissory Note. IN WITNESS WHEREOF, the undersigned individual has executed this Promissory Note. [Seal] Camille A. Power, Notary Public My Commission Expires Dacember22,20DS B . Steve Kipuros, Jr. 21 Wormwood Street, Unit 601 Boston, MA 02210 -1637 8439191 -2- MAR-26-2001 16:03 -JOL'Ul DOVKNMXT=X0ItTGAGF, INC IWAI P.O. BOX 59940 Schaumburg, IL 60159-0840 Lmm Number; 0012355871 CustAwwr Service Pbovm Wuxbwr; (808) 401-4600 SITSVE XXPUMS, ist. 04 21 WORNMOOD ST.MUT 601 BOSTM MR 02210-1637 P. 02/02 8I&WWtD0W. 03 / 01 1IM 0 1 Cuirrat Pm*w Interest Paid Taft Paid Bslar e * Year ft NO Year to Data $328,926.02 $7,055.54 Cuff"I Egeraw Balowd --- W1.49 * The current Principal Balance (above) dm not necessarily feud the WW ar"Wim roquired b pay your low in *A PWM ad our 01fice at 14811 tD obtofm an updated payoff sttitonlant Prop6rty Addrissr. 21 WINUDOM STFZBT, =1 DWTOK MR 02210 Activity Since Your Last Stiftmont Descripfum Data Due/ Date Paid PtincoW W~ Escrow 00W Min 22= TOU 03-01 03f08 $360.37 $3,526.58 S64.49 7 TOW pa"UNd $3,993.43 4 yqqrzheck - PMfW6.AD'4DW q*60 M dv -PAS7j-DW- AMOUNT, - AMLPF4!5qfAI, X)TWR CHARGE 8 moutir IMPORT 7 w. A a tat ribcbww Oaft , IT gy M 'y;" L -8, 6-- OWENM ' d 7 T10 . P X0!$8 -4512. i'll At' IIL si: Li s J I ' 00123558710407010039534313U4DlDl3 TOTAL P.02 Loan Policy of Title Insurance Fidelity National Title Insurance Company of New York A Stock Company POLICY 5412 - 1 1 19 6 6 4 NUMBER SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, a New York corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of. I. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land; 5. The invalidity or unenforceability of the lien of the insured mortgage upon the title; 6. The priority of any lien or encumbrance over the lien of the insured mortgage; 7. Lack of priority of the lien of the insured mortgage over any statutory lien for services, labor or material: a. arising from an improvement or work related to the land which is contracted for or commenced prior to Date of Policy; or b. arising from an improvement or work related to the land which is contracted for or commenced subsequent to Date of Policy and which is financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance; 8. The invalidity or unenforceability o any assignment of the insured mortgage, provided the assignment is shown in Schedule , or the failure of the assignment shown in Schedule A to vest title to the insured mortgage in the named insured assignee free and clear of all liens. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title or the lien of the insured mortgage, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF, FIDELITYNATIONAL TITLE INSURANCE COMPANY OF NEW YORK has caused this policy to be signed and sealed by its duly authorized officers as of Date of Policy shown in Schedule A. i) F NF,'IN ,'ORt" Countersigned - -��� Authorize (rSignature (PLEASE PRINT NAME) Po0?4 f / SEAL °�ecrwsxn FORM 5412 (5/1/93) Reprinted (1/96) ALTA LOAN POLICY 1992 (10- 17 -92) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of the insured mortgage over any statutory lien for services, labor or material); or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage. 4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the state in which the land is situated. 5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory lien for services, labor or materials over the lien of the insured mortgage) arising from an improvement or work related to the land which is contracted for and commenced subsequent to Date of Policy and is not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance. 7. Any claim which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: (i) the transaction creating the interest of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the subordination of the interest of the insured mortgagee as a result of the application of the doctrine of equitable subordination; or (iii) the transaction creating the interest of the insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. CONDITIONS AND STIPULATIONS 1. DEFINITION OF TERMS The following terms when used in this policy mean: (a) "insured ": the insured named in Schedule A. The term "insured" also includes (i) the owner of the indebtedness secured by the insured mortgage and each successor in ownership of the indebtedness except a successor who is an obligor under the provisions of Section 12(c) of these Conditions and Stipulations (reserv- ing, however, all rights and defenses as to any successor that the Company would have had against any predecessor insured, unless the successor acquired the in- debtedness as a purchaser for value without knowledge of the asserted defect, lien, encumbrance, adverse claim or other matter insured against by this policy as affec- ting title to the estate or interest in the land); (ii) any governmental agency or governmental instrumentality which is an in- surer or guarantor under an insurance contract or guaranty insuring or guaranteeing the indebtedness secured by the insured mortgage, or any part thereof, whether named as an insured herein or not; (iii) the parties designated in Section 2(a) of these Conditions and Stipulations. (b) "insured claimant ": an insured claiming loss or damage. (c) "knowledge" or "known ": actual knowledge, not constructive knowledge or notice which may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart constructive notice of mat- ters affecting the land. (d) "land ": the land described or referred to in Schedule A, and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. (e) "mortgage ": mortgage, deed of trust, trust deed, or other security instrument. (f) "public records ": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. With respect to Section I(a)(iv) of the Exclusions From Coverage, "public records" shall also include environmen- tal protection liens filed in the records of the clerk of the United States district court for the district in which the land is located. (g) "unmarketability of the title ": an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would entitle a purchaser of the estate or interest described in Schedule A or the insured mortgage to be released from the obligation to purchase by virtue of a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE (a) After Acquisition of Title. The coverage of this policy shall continue in force as of Date of Policy in favor of (i) an insured who acquires all or any part of the estate or interest in the land by foreclosure, trustee's sale, conveyance in lieu of foreclosure, or other legal manner which discharges the lien of the insured mort- gage; (ii) a transferee of the estate or interest so acquired from an insured corpora- tion, provided the transferee is the parent or wholly -owned subsidiary of the insured corporation, and their corporate successors by operation of law and not by pur- chase, subject to any rights or defenses the Company may have against any predecessor insureds; and (iii) any governmental agency or governmental instrumentality which acquires all or any part of the estate or interest pursuant to a contract of insurance or guaranty insuring or guaranteeing the indebtedness secured by the insured mortgage. (b) After Conveyance of Title. The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not continue in force in favor of any purchaser from the insured of either (i) an estate or interest in the land, or (ii) an indebtedness secured by a purchase money mortgage given to the insured. (c) Amount of Insurance. The amount of insurance after the acquisition or after the conveyance shall in neither event exceed the least of: (i) the Amount of Insurance stated in Schedule A; (ii) the amount of the principal of the indebtedness secured by the insured mort- gage as of Date of Policy, interest thereon, expenses of foreclosure, amounts ad- vanced pursuant to the insured mortgage to assure compliance with laws or to pro- tect the lien of the insured mortgage prior to the time of acquisition of the estate or interest in the land and secured thereby and reasonable amounts expended to prevent deterioration of improvements, but reduced by the amount of all payments made; or (iii) the amount paid by any governmental agency or governmental instrumen- tality, if the agency or instrumentality is the insured claimant, in the acquisition of the estate or interest in satisfaction of its insurance contract or guaranty. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT The insured shall notify the Company promptly in writing (i) in case of any litiga- tion as set forth in Section 4(a) below, (ii) in case knowledge shall come to an in- sured hereunder of any claim of title or interest which is adverse to the title to the estate or interest or the lien of the insured mortgage, as insured, and which might cause loss or damage for which the Company may be liable by virtue of this policy, or (iii) if title to the estate or interest or the lien of the insured mortgage, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. CONDITIONS AND STIPULA1104S - t Coniiayed and Concluded on Last Page of this Policy ) Loan Policy of Title Insurance Issued By Fidelity National Title Insurance Company of New York Schedule A Policy No. 5412 - 1119664 File No. B01 -117 Date of Policy: March 23, 2001 at 2:22 P.M. Amount of Insurance: $195,000.00 1. Name of Insured: City of Pueblo, a Municipal Corporation 2. The estate or interest referred to herein is at Date of Policy vested in Steve Kipuros, Jr. 3. The estate or interest in the land described in this Schedule and which is encumbered by the insured mortgage is FEE SIMPLE. 4. The mortgage, herein referred to as the insured mortgage, and the assignments thereof, if any, are described as follows: Mortgage from Steve Kipuros, Jr. to City of Pueblo, a Municipal Corporation, dated March 22, 2001, recorded March 23, 2001 as Instrument No. 658. 5. The land referred to in this Policy is located at 21 Wormwood Street, Boston, Suffolk County, Commonwealth of Massachusetts, and more particularly described as Unit No. 601 of a certain Condominium known as The Fort Point Place Condominium, submitted to the provisions of Massachusetts General Laws Chapter 183A, as amended, by virtue of a Master Deed, dated August 24, 2000, and recorded in Book 25275, Page 197, together with an undivided interest in the common areas and facilities, as set forth in said Master Deed, and any amendments thereto, subject to and in accordance with the terms and provisions thereof. NOTE Unless otherwise expressly specified herein, wherever used herein the word "recorded" shall mean recorded with the Suffolk County Registry of Deeds. Countersigned at Boston, MA by TAMAGINI & BLOOMENTHAL, P.C. AUTHORIZED AGENT � r NOTE: This Policy is invalid unless the cover and Schedule B are attached. Schedule A -ALTA Loan Policy (10- 17 -92) • S I ChedAle B Policy No. 5412 - 1119664 File No. B01 -117 This Policy does not insure against loss or damage by reason of the following: General Exceptions 1. Rights, interests or claims of present tenants, lessees or parties in possession. 2. Any lien or right to a lien for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 3. Easements or claims of easements not shown by the public records, title to filled land (if any), discrepancies, conflicts in boundary lines, overlaps, encroachments and any facts which an accurate and complete survey and inspection of the premises would disclose. NOTE General Exceptions numbered 1, 2 and 3 are hereby omitted from the Loan Policy. Special Exceptions The mortgage, if any, referred to in Item 4 of Schedule A. (This exception does not apply to Loan Policies). 1. Real Estate Taxes and Assessments (including liens not yet due and payable) as follows: Real estate taxes assessed January 1, 2000 for fiscal year commencing July 1, 2000, not yet due and payable and for subsequent years; lien(s) for unpaid water and sewer use charges, if any, not yet due and payable. 2. Reservations, restrictions, agreements, covenants, conditions, easements, liens for assessments, options, powers of attorney and limitations on title, created by the Commonwealth of Massachusetts, General Laws, Chapter 183A, as amended, and all other provisions contained in or incorporated by reference into the Master Deed of the Condominium known as The Fort Point Condominium, dated August 24, 2000, and recorded in Book 25275, Page 197; the related Condominium Trust or Condominium Association; the related By -Laws; all Unit Deeds, and in any other instruments creating said estate or interest, and any of the allied instruments referred to in the aforesaid instruments, and to all recorded amendments to said instruments, as the same may be amended from time to time. Note: This policy affirmatively insures that the insured premises forms a portion of a condominium validly created under M.G.L. c. 183A, as amended. 3. Title to and rights of the public and others entitled thereto in and to so much of the Insured Premises lying within the bounds of adjacent streets and ways. 4. The exact area or square footage being other than as stated in the Schedule A description of the insured premises and /or the plan(s) therein referred to. 2 scted B Policy No. 5412 - 1119664 File No. B01 -117 5. Loss or damage arising as a result of liens for common charges, assessments and attorney's fees pursuant to Chapter 400 of the Acts of 1992. 6. Terms and provisions of the unit deed to the owner hereinabove set forth. 7. Rights of Commonwealth of Massachusetts (as Owner of land abutting Wormwood Street on the east of the street) and Two 49 A Street Cooperative Corp. to use Wormwood Street, as set forth in Deed from Boston Wharf Company to Samuel P. Wormwood, dated September 15, 1892, recorded in Book 2086, Page 385. 8. Rights to Two 49 A Street Cooperative Corp., Boston Wharf Company and the U.S. Postal Service, t use a portion of Binford Street, as set forth in an Agreement dated June 19, 1894, by and between Boston Wharf Company, Samuel P. Wormwood and New York & New England Railroad Company, recorded in Book 2228, Page 369. NOTE: The Policy affirmatively insures against loss or damage sustained by the Insured as a result of a final decree of a court of competent jurisdiction, the effect of which is to compel the removal or alteration of, or to deny the Insured the right to use, the parking spaces, and the pavement, berms and curbing related thereto, located within that portion of Binford Street as lies within 15 of the southerly boundary of Binford Street, based upon a claim that (i) the existence of such parking spaces or the parking of vehicles within said parking spaces violated the rights of others, including the aforementioned parties created pursuant to the Binford Deed, or otherwise, or that (ii) Binford Street was a public way of the City of Boston. The coverage afforded hereunder includes legal fees, court costs and litigation expenses in defense of any such claim, as provided for by the Condition and Stipulations of the Policy. No coverage is afforded under this Policy for any action by the City of Boston exercising its regulatory or eminent domain authority. 9. Easement to the City of Boston, dated July 20, 1898, recorded in Book 3 2549, Page 611. 10. Common passageway rights created by Deed recorded in Book 6116, Page 231. 11. Easement to Boston Edison Company dated February 23, 1998, recorded in Book 13588, Page 258. 12. Order of Taking by the Commonwealth of Massachusetts Department of Highways, recorded March 10, 1997 in Book 21254, Page 333. 13. Order of Taking by the Commonwealth of Massachusetts Department of Highways, recorded August 7, 1997 in Book 21627, Page 1. 3 S'Aediile B Policy No. 5412 - 1119664 File No. B01 -117 14. Rights, easements and covenants set forth in a certain Deed from Wormwood Property LLC to Fort Point Place, Inc. dated as of May 19, 2000, recorded June 2, 2000 in Book 25011, Page 347. 15. Declaration of Restrictions by Wormwood Property LLC dated May 10, 2000, recorded in Book 24931, Page 133. 16. Easement Agreement by and between 249 A Street Cooperative Corporation and Fort Point Place, Inc. dated August 24, 2000, recorded in Book 25234, Page 287. 17. Easements as shown on a plan prepared by Harry R. Feldman, Inc. dated January 26, 2000, recorded in Book 25011, Page 347. 18. Consent to Taking by Fort Point Place, Inc., regarding an eminent domain taking by the City of Boston of a portion of Wormwood Street, which Consent is dated August 24, 2000, recorded in Book 25275, Page 193. 19. Such state of facts as shown on Plan of Land recorded on August 4, 1998 in Book 12733, End. 20. Mortgage from Steve Kipuros, Jr. to Citizens Mortgage Corporation dated November 30, 2000, recorded in Book 25618, Page 285. Schedule B -ALTA Loan Policy (10- 17 -92) NOTE 1: Unless Schedule B - Part II is attached hereto and states otherwise, there are no subordinate mortgage(s) or other matter(s) recorded or filed prior to or concurrently with the Insured Mortgage that affect the title to the estate or interest referred to in Schedule A. NOTE 2: This Policy is invalid unless the cover and Schedule A are attached. NOTE 3: This Policy omits any covenant, condition or restriction referred to above which is based on race, color, religion, sex, handicap, familial status or national origin, unless and only to the extent that the restriction is not in violation of state or federal law, or relates to a handicap, but does not discriminate against handicapped people. NOTE 4: The property address is not insured and is incorporated for the Company's indexing purposes only a handicap, but does not discriminate against handicapped people. 4 . ; CONDITIONS AND STIPULATIONS - ( Continued from Reverse Side of Policy Face ) 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE (a) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the tide or interest as insured, but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its tights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company may pursue any litigation to final determination by a court of competent jurisdiction and ex- pressly reserves the right, in its sole discretion, to appeal from any adverse judg- ment or order. (d) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the action or pro- ceeding, and all appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Company's expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or con- tinue any litigation, with regard to the matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DAMAGE In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against by this policy which con- stitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such proof of loss or damage. In addition, the insured claimant may reasonably be required to submit to ex- amination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to sub- mit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in the above paragraph, unless prohibited by law or governmental regula- tion, shall terminate any liability of the Company under this policy as to that claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY In case of a claim under this policy, the Company shall have the following addi- tional options: (a) To Pay or Tender Payment of the Amount of Insurance or to Purchase the Indebtedness. (i) to pay or tender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay; or (ii) to purchase the indebtedness secured by the insured mortgage for the amount owing thereon together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of pur- chase and which the Company is obligated to pay. If the Company offers to purchase the indebtedness as herein provided, the owner of the indebtedness shall transfer, assign, and convey the indebtedness and the in- sured mortgage, together with any collateral security, to the Company upon pay- ment therefor. Upon the exercise by the Company of either of the options provided for in paragraphs a (i) or (ii), all liability and obligations to the insured under this policy, other than to make the payment required in those paragraphs, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, and the policy shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against under this policy, together with any costs, at- torneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage pro- vided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs b(i) or (ii), the Company's obligations to the insured under this policy for the claim- ed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation. 7. DETERMINATION AND EXTENT OF LIABILITY This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A, or, if applicable, the amount of insurance as defined in Section 2 (c) of these Conditions and Stipulations; (ii) the amount of the unpaid principal indebtedness secured by the insured mort- gage as limited or provided under Section 8 of these Conditions and Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage insured against by this policy occurs, together with interest theron; or (iii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encum- brance insured against by this policy. (b) In the event the insured has acquired the estate or interest in the manner described in Section 2(a) of these Conditions and Stipulations or has conveyed the title, then the liability of the Company shall continue as set forth in Section 7(a) of these Con- ditions and Stipulations. (c) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations. 8. LIMITATION OF LIABILITY (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land, or cures the claim of unmarketability of title, or otherwise establishes the lien of the insured mortgage, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title or to the lien of the insured mortgage, as insured. (c) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. (d) The Company shall not be liable for: (i) any indebtedness created subsequent to Date of Policy except for advances made to protect the lien of the insured mor- tgage and secured thereby and reasonable amounts expended to prevent deteriora- tion of improvements; or (ii) construction loan advances made subsequent to Date of Policy, except construction loan advances made subsequent to Date of Policy for the purpose of financing in whole or in part the construction of an improvement to the land which at Date of Policy were secured by the insured mortgage and which the insured was and continued to be obligated to advance at and after Date of Policy. 9. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY (a) All payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the insurance pro tanto. However, any payments made prior to the acquisition of title to the estate or interest as provid- ed in Section 2(a) of these Conditions and Stipulations shall not reduce pro tanto the amount of the insurance afforded under this policy except to the extent that the payments reduce the amount of the indebtedness secured by the insured mortgage. (b) Payment in part by any person of the principal of the indebtedness, or any other obligation secured by the insured mortgage, or any voluntary partial satisfac- tion or release of the insured mortgage, to the extent of the payment, satisfaction or release, shall reduce the amount.of insurance pro tanto. The amount of insurance may thereafter be increased by accruing interest and advances made to protect the lien of the insured mortgage and secured thereby, with interest thereon, provided in no event shall the amount of insurance be greater than the Amount of Insurance stated in Schedule A. (c) Payment in full by any person or the voluntary satisfaction or release of the insured mortgage shall terminate all liability of the Company except as provided in Section 2(a) of these Conditions and Stipulations. CONDITIONS AND STIPULATIONS - ( Continued and Concluded From Reverse Side ) 10. LIABILITY NONCUMULATIVE If the insured acquires title to the estate or interest in satisfaction of the indebtedness secured by the insured mortgage, or any part thereof, it is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy insuring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy. 11. PAYMENT OF LOSS (a) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within 30 days thereafter. 12. SUBROGATION UPON PAYMENT OR SETTLEMENT (a) The Company's Right of Subrogation. Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act of the in- sured claimant. The Company shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the Company, the in- sured claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The in- sured claimant shall permit the Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transac- tion or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to all rights and remedies of the insured claimant after the insured claimant shall have recovered its principal, interest, and costs of collection. (b) The Insured's Rights and Limitations. Notwithstanding the foregoing, the owner of the indebtedness secured by the in- sured mortgage, provided the priority of the lien of the insured mortgage or its enforceability is not affected, may release or substitute the personal liability of any debtor or guarantor, or extend or otherwise modify the terms of payment, or release a portion of the estate or interest from the lien of the insured mortgage, or release any collateral security for the indebtedness. When the permitted acts of the insured claimant occur and the insured has knowledge of any claim of title or interest adverse to the title to the estate or interest or the priority or enforceability of the lien of the insured mortgage, as insured, the Com- pany shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the impairment by the insured claimant of the Company's right of subrogation. (c) The Company's Rights Against Non - insured Obligors. The Company's right of subrogation against non - insured obligors shall exist and shall include, without limitation, the rights of the insured to indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions con- tained in those instruments which provide for subrogation rights by reason of this policy. �L ti N � A � O a� SD z� C� Z; 0 A The Company's right of subrogation shall not be avoided by acquisition of the insured mortgage by an obligor (except an obligor described in Section 1(a)(ii) of these Conditions and Stipulations) who acquires the insured mortgage as a result of an indemnity, guarantee, other policy of insurance, or bond and the obligor will not be an insured under this policy, notwithstanding Section 1(a)(i) of these Condi- tions and Stipulations. 13. ARBITRATION Unless Prohibited by applicable law, either the Company or the insured may de- mand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. All arbitrable matters when the Amount of Insurance is $1,000,000 or less shall be arbitrated at the option of either the Company or the insured. All arbitrable matters when the Amount of Insurance is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Com- pany and the insured. Arbitration pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at Date of Policy shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title In- surance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 14. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT (a) This policy together with all endorsements, if any, attached hereto by the Com- pany is the entire policy and contract between the insured and the Company. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the lien of the insured mortgage or of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 15. SEVERABILITY In the event any provision of this policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 16. NOTICES, WHERE SENT All notices required to be given the Company and any statement in writing re- quired to be furnished the Company shall include the number of this policy and shall be addressed to the Company at: 2 Park Avenue, New York, NY 10016 z � z c z E MAR -16 -2001 10:16 Middlasox Appral8al Associates 469 Broadway, suite 306 Everett, MA 02149 March 15. 2001 Steven Kiporus 21 Wormwood Street Maio Boston, Ma. RE FrODertY. 21 Wormwood Street - 601 aoston, MA W10 Name: stove yiporus File NO. 5022 Cece No. Dow Mr. igporus In accordance with your request. I have personally Inspoded and prepared an appraisal report of the real property located at 21 Wcrnwood street - 601 The purpose of this appraisal is to estimate the market value of the property described in the body of this appraisal report. Enclosed, please find the appraised report which describes certain data gathered aunmg our inveftatlon of the property. The methods of approach and reasoning in uw valuation of the various physical and economic factors of the subject property are contained in this report. An inspection of the properly and a study of pertinent factors, including valuation trends and an ana"s of neighborhood data, led the appraiser to the cwmk slon that the market value, as of March 15. 2001 S 725.000 The opinion of value expressed In this report is oonwWt upon the limiting conditions attached to this repots. It has been a pleasure to assist you. if I may be of f4xther service to you in the future, please lot me know. Respectfully StrDrttitled, Daniel E. Zenpa, Jr. MA Certified Real Estate Appraiser Trainee 01165 P. 02112 MAR -16 -2001 10:16 P.03i12 INDMDUAL CONDOM ' iN t1M UNIT APP�RA19A1 RM" 4 2MIlOww Stave X oeKa I I - rww vse.A end I — a lend NIA z Una. Jr. 1 Loeotrn X lido &v0. wno Irodor1=1 DY11ele UMY Roudne Fladoele Dorldo vNIC3C AK 0*09 ^6d &Awp 0? 7s% 2&7n (N1darM% dnYfefse som tow ReRaY qw" 4*d QM"%raw RMdd X SWA so. Ov w 95 M& Low Low Now P1a4abvWo3 Y106" X awe Dacia% R.. Trnrr4 5 A TeNM 3 f Dwrdo6aWWy IMnw X M mom (hwvjow vwaaM(04%) X vawnl(05%1 nro . enr o PfaaKl %: OA6nAy 74Fnrfy -P*.- R+.lp_ CondafAAUm 40 , Cerowreu 40 _ boy.-1 10 vavH�.(m -„�, �Q l.indve a"M [K,*- . k-y LJ -PVC olo Ns0 11 Raw andtn►radY eeiwFerRee of We saoawno.dnvr,vet y4e/..1 te4w Ndyrbalnod Noundsdw end d+ :edarlMO: i r tid Paz n Harbor, F[da p t* Okd m m. p pod w elo Plopaoed nova net oomood (PraevNhls pnolord+>n1 wd WW &L wnolormad Saab. 3PPOW ro nUMCL OW: ' n Immedi t dwelflogs and otnor mmilir QMd2MInjum units, T sublett Is a short walk to b lic tranlQMQrloQ 4og Qjrkj The subloot h as 990 access bo Bostgo ang ItB employment Y% DrIvate and publ n MAMCM bor'"dv - *4 W4.0 rei opftw ondinOnt x4wwt for the asov. oaaura. As WW a (he hold of VMMV v7ILM durarMAIPPIY, m1a nvM&Q ttno &V h sM a,a am ow-psf*,e pmomos tar smo M fno - -a end neipaeomaed, Owuripfan P TO wv%zolm d rasa and Inmaft donee amw er.� I sp— tvft cowndwoon end dn-wom M.4 TGPOW*by Lovol _ ._. tainta "Obnoo ❑Lop- X Lqd Sion Mdraog use es X Dsr.l ow" Typical MOM P1ma o4MU Off4"W re.env■rte T ypo Ftma prWou vw o"4-9h X 36VA Anehntt X u'e4mpe Ties X (aea4afatr Mranlloo X APParams OawmtdA Wafer t4ae.4R Concloto X Fll"Spodol Ffoed NeRpd Aron Yw X No seniryww X sroatwo Incandescent X I X Caw"Wo (Aapm.M edww" WAVA XAL wo m000fmMs, opodal zMaucen A, otdo wan ogp4 v IOPd tlanaanfanwlp =nhv W. *e - No AnnatAnt zo ne, NO, dRlodes WalOrwds ,�[j� Hf70lOQ COniPlatsC Hlfopq rKal110kYr. iv0(ed Pl,ele,; No, of Elo•ata(a) RoOSateoe AravAl Tow Np d p""am Tolaw. d Prow Pssou N46 TOG NA d lilt ti0dlf9lPfWMO Tom No. Fool 98 TOM M. of VMt T-- No. of Pfi—W Uwe WA Tar w M u,& 0 119 awma-arl,anp,wro wfflz Ryia p11wwwlAts) TOtal Nta Mli11dsbo 1. Told No. Slide for Eels lowwrf(Alooyoiela Dole d Convwaon 2MO Type Tofaf N. a tML, odi Told No. of UN+ &old You me. ot ufft 83m Unkm AM CM.) 97 Q1wt Pwov Taw Na. at llnlA r w w Tard No. of Un to K. NIA rwi me. of uffa Keno Use P1yaa Type: Y A°Ilda.9a &P w ! om ra or Roemarorw Rae or Tp.nNluw Ciafdon MOW NipMtR Li Condton d fie pralad wooM of oanovaran -H -P. appo- b lnww ew.: subject I& a recently Y Aro toe Mealy etd BOOM Wr 4110 MONOAI alit, aW W "W Od f X YaP NO it ro, dvopio. and w Erd" an oarp b* fe door O vihA , i, mwkM Arad w r to accaplafloo: opou6 ow on olanafa and rawoTtmm uasmS: Grounds and common area, Am Ms oo wo- o1~w wrtplmod Yes X No M Bwr M wevi at M Nome 0-w%e Aawaadon? W T Li NO A. „based ro a 'd600 vw F R I M rand wwwwoollaft . ROOMS F lew. R 40f1e DOW- on U 1 1 IMUSU eodeYU: 2 529= •• 1 d GENERAL DKS=IlnoN N@ATINC K(TCNFN COUP. AMGNMEg CARMRAQE wIUL "O" Flow NO, Tyw FMA R w*w X FitpLxcp)M - N" Roo COM_ X Fiat Gas N0. of Lvn* P4paOvOn raw Giwwo X Clav �' ng X INTGWOR MAAMM%rwd&e Dbpeed X p/gry No. a/CWA Yom �y„ X COOLING Roam ClSn*R W X D.d coon Fran X wd. Cw od Yom ftvmm X 1Orrl1 d Caro Na" odw ..r N ae17 Fow Mcraravo Fordo lW ovm Td oon60on of rip Mil oQxvcWm. roalrt: noodo4 OARty d oorotvdm. a=dditarwf fesesee hPadof seep, ateival - rGhouag gad Is considered f6 be In good overall conektim A&We ftvAft A w-" (wrzh W ON oat bW W b, t wpdeUa wo", foAC MA Ma M, etc) pvre,d n f10 ftwaftw on alto. a in Ow uanoomo %&& a " euElaOt PWOw meet wernnntey qs, Npe l al CNrfonr6O..11 0.0. AvaMY W%- P,.S dT.MW-W - PWl EM Fwwlry frm fotl lo-s. MAR -16 -2001 10:17 INDIVIDUAL CONDOMINIUM UNIT APPRAISAL REPORT FUNS. _ Unt faWip s 4T1 .s fua. a ttt = S yr. M Anrs.l n.�wnMt ehMye tors Y�•vus• >�+ e• s" A"'f +� � f �3 tho P wA@*2 q.et b OanA vm0 Vr )C N. S � urt.fhaffae hunlld.p.: pN«�. Nset h ;1W A rMS 90cli k ❑e. O wi. ® s..w NOW WW bee star tin M&W ROA VWW% is WC of lsaef.f cmww 4 io mw amloative PVP M s WHIN maw mg "m tb aeloa fm ewapo sppsarA !fy''A7 LJ faf.4aVU11b Typal law To propsfy mahmAl t)ro am pad•• ft Samoa. m6d"b me 4 p� � ..eL � .AA.pa.b UNewvm hbnap"W+ctaw: MMOMOftAWoabYan 0 ..v., IJ �w '4wtwlFf) Cuak of nw"mont in. lb Wfewslam of WAS me RCQUUV" b...e m QWWW *I . of O•iea •FVa.ns IlSJ= amoeawr 9Pecia «vnuwd eAaaolabfas b to GamanelAan Doamotis v ahar Inbnedon bmwel btw epprsbee thld soulfl.tls6'1 �.erRYleYMb1 Pt nono. % f.m1f Aaae.s. c.ut., 21 wormwood Stm4 21 wormwood St *614 I 27 Wormwood St #61 S o.w o.dApr Pe"nq B&TAkokef w. seams. I k woecdon Ass VAI�MM*Afaal. FTWN 095CMFTION - 7 SOP" a Fkwmi1D Cony Fin cm s1M tm I Grounds 6&T/ftker ►TIO Conv Fin LL�'R 7-n Beach Street "T/Broker FT1oa Conv Fn Grounds Abwe G.ao Ta W Y.mw O.fu T«al 9&d akc. Tom T Bdm FAA C.em P1. h + R. 1 -mild eAeaAla.t a PA 1R1aa WA NIA WA WA dW=nV. P••., 1 None I None 1 1 None I I None Aqusw4 s.Ne nlae ZZ UA dCe,.ms.aae s 706_A70 s 5 Cmm on S.IOa C=PW on Pnnualnv 1110 fA*4 FeWW" ea.p=W b New C-4 M IM unity M ne neiplbanmoa, Do., ft;; — .W — mmF 12100 No prior transfers No prior transfers No prior ttarxtct5 Salnt brpnsaWO 680.000 past 12 months past 12 ff"Tft past 12 monf Avl WG of Qq onwd.pw-*M d wile. option. wASCnp of fle a. fee! Wv" `"4 *."1, -S a y vlv Saco. d alkd w OWWWW" vv*m one Yes of It 021t m appnlsal: 1141WATLD VALUE BY 5AL.P.6 COMPARISON APPROACH .. T • f INWATCO VALUE BY 1141OOME A►PROACN (M Appk. -W-) &"Maw Abeam Hans S NtA_ Ab. >< Gross Rant Ati/SpMr A_ ' f NZA INOICATW VALUE aY COST APPROACH (Ma lfAPPk -WC) .. f Th6 iprJs7 n.sde [M--W Qxdpe! b.ppb.r, NMabas. AWeataem. s ooneiAw Wlod bebw ?Retm b to od" ow pti.a sed 1OSOf wonx C--*fb «AppnAsrt jbP XWue was daterMyned In 26 IN Fmm Reoonalpaera App The PurPo" CO W* Appra4ta is b Af11M Via mWW YAW of f* I FCIA IOVf � k to wl*d of td. wN, bad pee a M aAoA oane ms one tit .affafon a fi qvm W4 wmn mmaiivr, vw m~ vafae 4awam net at* .bet Ffeene Mao 4 WF.oafe Awe Fe 10M8 pbrtxe 06/93 f . 1 RM ESTIMATE TW MARKCT IIC. AS OF TSM PC"Y THAT Is THE EUSJECT OF TM! aPORT, A, Of March 15 2MI (WW" tS T)1! DATL OF N R na mg oRn To BE f mow SU" RVISORY AP►RNSM Pf&V W PMMRW) - . Slawe.a ❑L14 ❑dd Nor NNS. fewod Prooesb P. 04/12 ►vNW yea FaT.ae /0•Aa Pp. 2 ore 2 frw.s. Sr.n 1OI] soy MAR -16 -2001 10:17 COMMENTADDENOUM Fic No. 5022 No functional, external or economic inadequacies noted at the time of the inspection. No physical depreciation was noted other than normal wear or tear. It is assumed that the title of property is clear and marketable. The community does participate in the National Flood Insurance Program. It is covered by an emergency program. At the time of the inspection, this appraiser, although not a professional pest control expert, saw no visible evidence of pest or termite infestation or damage to the subject property. After an extensive market search, the best available comparables were utilized in preparing this report. All were considered to be good indicators of value. The appraiser is not an expert in the identification of hazardous substances. or detrimental environmental conditions. The appraisers inspection of, and inquiries regarding the subject, did not develop any information that indicated any apparent hazardous substances, or detrimental conditions, which would effect the property negatively. An environmental audit may reveal their existence, The subject features public water and sewer. All information regarding the subject complex was obtained from the owner. Due to the time restraints only one call was made to the management company was made in regards to obtaining the current number units sold and or rented. No return call was received. MIDDLESEX APPRAISAL ASSOCIATES P. 05/12 CWFO" Owl ESM ApemiW SWWAN M a TW.nWocl.s (OM 6=4rb MAR-16-2001 10:18 SKETCH ADDENDUM Fise No. 5022 r M� MA -.- — =�z T IILility clomat Bath closct LL Bedroom KiLchan Living ROOM P. 06/12 C&d$OF&S R.W Ear. AW*W 60hw by 01*dfo Tal*190. (OM 6MOn' MAR -16 -2001 10:16 LOCATION MAP ADDENDUM Fic No. 5022 P. 07/12 dc1N0�5.t5 4wt ERA. App�lul 8aCwn A' BMfba Tgwbpq. <0001826727 MAR -16 -2001 10:1e SUBJECT PHOTO ADDENDUM Flo No. 5022_ mrrou« a gigxj Ci=us Proovw Address 21 Wermwend Strw�t - 8A1 oi. 8esten Coin Siffjk stse MA Me t opa02110 tsnaencront Steven Kioorus Adam= N/A - FRONT OF SUBJECT PROPERTY Adore" 21 Wormwood Street • 601 Fort Point Place Condo Appraisal Dare March 16, 2001 AWO"I Vska 725,000 Leoeuon Average View NDhd/Clty DaaigrVAppmf Average Caws.Qw►b AveraW Me 67 Squ m Foes 1,585 Toarhooma 2 so*oomo 1.00 BOOM" 1,0 REAR OF SUBJECT PROPERTY STREET SCEPIE P.08/12 C**,Cfats Rw Esc. •cant 8.6 W & -ma U01 (WOW RbV V MAR -16 -2001 10:19 EXTRA SUBJECT PHOTO ADDENDUM F/o No. 5022 iorrowar S(@vg Ki00r1t3 PreueM IWgrom 21 Wormwood Street - 601„ Clly Realm Cournr Suffolk St*v MA bo code02910 _ IdoarmeM Steven Kioorus adetass WA P.09/12 COMWORAse.i¢cue . wartysarw. b Ol.a*ra T.avcbgift(S l OU" MAR -16 -2001 10,19 P.10i12 ' COMPARABLES 1 -2 -3 PHOTO ADDENDUM Fee Me. M22 Burrower Steve iq Propoay Address 21 Wormwood Stftt - 601 Car Roston County Suffolk _ Swo MA Zz Ced&022110 Landed CUent Steven KiorN11S Addraaa NIA COMPARABLE SALE #1 Address 21 Worn wood St #614 Fort Point Sale Datc 9!22/00 sitc Price 659,000 tAtaum Average vier. Nbrhd D- igNAppw Average C—. Ova ty Average A" 102 Square Feet 1,504 Total Rooms 2 Bedrooms 0 Bathrooms 1 COMPARABLE SALE 92 Address 21 Wormwood St #615 Fort Point Satc vale 12118/00 sate Price 785.000 Location Average vier. Nbad/City DesOvAppeal Average ConaVQusk Average Age 102 Sarmro Fcct 2,200 To4tRooms 2 Bcorooms 0 Bathrooms 1 COMPARABLE SALE #3 Address 121 Beads Street 121 -123 Beach Street Sale Datc 7128/00 SAID Prtoe 709.000 I.oxaoon Average Vicw Neighborhood DostgrVAppeal Average Cartst, dusk Average Age 102 Squsm Fcm 1.514 Total Roorm 4 Bedrooms 2 Bathrooms 2 :.I6900 4.d Ev!.s �pnlMl °_41v� M q�.;�nn) i+d`In1yW. (pQ0) MAR -16 -2001 10:19 DEFINMON OF MARKET VALUE: The most probable price which a property should bring In a competitive and open market under all conditions requlete to a fair tap, the buyer and sager. each acting PrtAenOy, Id&MMIlsably and w&untinp the pica is not affected by undue stimulua. WOM in this definition is the consummation of a sale als of a specified data and the passing of We from sager to buyer under conditions whereby. (1) buyer and seller are typkatiy motivated; (2) both partials are well informed or well advfsad, and each acting in what he oonciders his own bad fitarera; (3) a reasonable ante is allowed for CPWJFa in the open market; (a) payment le made in terms of cash in LL S dollars or N terms of Aran" smangemems comparable thareto; and (S) the Pries repteso a too normal consideration for the Pro" acid utwNecled by spacial or creative &-icing or sales oweessione granted by anyone associated with the sale, 'Ad)uslimhenls to the o0mpsrablea must be made for special or creative financing or salsa concessions, No sgUmments are necessary for dose costs wnicn are normally Paid by canine as a result of tradson or law in a ntaket; these ooeb are mWiy ldentnable since the sailer pays apse Cost le virtually all sales tranasWons. Special or creatve financing a mftams can be made to the oanptirable "party by comperlsorm to financing terra offend by a third party Inaltudonal lender that is not already Involved to the property or transaction. Any adjustrrtam should not be calculated an a mechanical dollar tr dollar cost of the financing or concession but the dollar amount of any adjustmerA should apprmdmaM the markers reaction to the financing or kxhnbasaierra based on the apprallieft judtFeK STATEMENT OF LIMITING CONDITIONS AND APPRAISER'S CERTIFICATION CONTINGM AND LWITING CONDMONS: The appraiser's certification tat appears in the appraisal report Is subjea to tie following oondnionc: 1. The appraiser witi not be responsible for matters of a legal nature that affect either Ko property being appraised or the cite to It The appraiser assumes Gnat the We Is good and markdable and, therefore, will not randar any opinions about the tide, The property Is appmisad on the basic of It being ~ responsible ownership. 2. The appraiser has provided a sketch in the appraisal report to show approximate dirtwnsions of the Irnprovemaris and the skdeh Is included only b assist the rosdar of the report In vis silizIN the property and understanding the appraisers determination of its size. Z. The appraise has examined the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted in the appraisal repon wt~ the subject site is located In an idartided Special Flood Hazard Area. Because the abomiser is not a surveyor. he or sne makes no guarantees. express or implied, regarding NNls detemhinatbrt a, the appraiser will not give tea lmony or appear in court because he or she made an appraisal of the property in question, untess $PW* artarigements to do to nave beet made beforehand 5. The appraiser has esthnekd the value of the land in the cost approach at Its highest and bemuse and the improvements at their oonalbutory value. Those separate vakr fWm of the land and knprovemenes must not be used in coniltuhdton with any other appraisal and are invalid It they aka so used 6. The appraiser has noted intro apprasal report any adverse conditions (such se, noWed repairs, depnntllen, tiro presence of hazardoua wastes, bait substeinees. etc) observed during the Inspection of Ohs subjed property or that he or She became aware of during the normal research Involved In perrormirg the appeals 4 Unless otherwise stated In the appraisal report, the appraiser has no knowledge of any hidden or unapphrent conditions of to property or adverse erwhonrnrnrd conditions (Ingtfding the presage of hazardous wastes, toxic submarrm. etc.) that would make the property more or less valuable, and has aaaumed that there are he such corditions and makes no guareirdees or wa tames, exprass or Implied, regarding the condition of the property. The appraiser YA not be responsible for any such conditions Get do exdst or for any engineering or testing that might be required to dhcove' wheaer such conditions eclat. Because the appraiser is not an expert In the laid d environmental hazards, the appraisal report must not be Considered as an awmintental assessment of the property. 7. The appraiser obtained the information, estimates. and Wnlons t were expressed in the appraisal repot iron scarves that he or she considers to be reliable and believes them te be true and corned The appraiser dots cad assum responsibility for the accwacy of such trams tnat were furnished by other parties, t. The appraiser vets hue disclose tie corser>ts of the appraisal report axcept as provided for in the Unaorm Standards of ProfAaaiomat Appraisal Radice. 9. The appraiser has based his or her appraisal report and vaimllon tondusion for an appraisal that is sub)ert to aaustakxory OOnplctieri, repairs. or alterations On the essumptlan that completion of the Impnovamahts will be penomxd In a wo6vilardke manner. 10. The appraiser must provide his or har prior written conseA before ft len"Wien specified In the appngal report can distribute the appraisal report (inducing aonduabns about the property value, the appraisers identity and prokssional desilgnatlans, and rafampnces b any professional appraisal oyanizeton e; or the Ann with which the appraiser k assodeW to anyone other than the bom mer: the morigagee or ifs successors and assigns: tha age Insurer, consultants; profeaafonai appraisal orgenizntlans: any state or federally approved financial Institution; or any department, agency, or instrumarrdality of the United States or any state or the District of Columbla: except that the lenderfdhnt may distribute the property description section of the report only to date Collection or reporting servioe(s) without having to obtain the appralser's prior wrttren consent, The appraisers written consent and approval must also be obtained before the appraisal Can be convoyed by aryae to the public through advemsin g. public relations, news, sales, or other media. P.11 /12 rraa®e Mat FCR% 439 (she) VOFOF44 R,.d Sot/ A —Wool Gahm by ammo T- --t0 J4M esYrrn Fww ie nee romp ioNB tae3) MAR -16 - 2001 10:20 APPRAISER'S CERTFICATM: The Appraiser certifies and agrees that t. 1 have researched the subject market area and have selected a minimum of three recent sales of properties most similar and proidmale to the -*d property for consideration in the sales comparison analysis and have made a door adjustment when appropriate to retfect the market reaction to those Roma of sigrrticant varlation. If a significant hem in a comparable property is superior to, or more favorable than, the subject property, I have Made a negative adjustment to reduce the adjusted sales price of the comparable and. N a significard item in a comparable property Is Inferior to, or less favorable than the subject property, I have made a positive adjustment to increase the adjusted sales pace of the comparable. 3. 1 have taken into consideration the factors that have an Impact on value in my development d the estimate of market value In the appraisal report I have not knowingly withheld any significant information from the appraisal report and I believe, to the best of my know! edge, that all statements and information in the appraisal report are true and correct 3. 1 Stated in the appraisal report only my own personal, unbiased and professional analysis, opinlons, and cone"Wri, which are subject only to the Contingent and limiting oondroon5 spedfled in this form. 4. 1 have no present or prospective interest In the property that is the subject to this report, and I nave no present or prospective personal Interest or bias With respect to the participants in the transaction_ I did not base, either partially or completely. my analysis and/or the estimate d market value in the appraisal report on the race, Color, retlon, sex, handicap, famlllai status. or national origin of either the prospective owners or occuparts of the subject property or of the present owners or occupants of the properties in the vicinity of the subject property. 5. 1 have rho present or contemplated hem Interest in the subject property, and neWW my current or future employment nor my compensation for performing this appraisal is contingent on the appraised value of the property. e. I was not required to report a predetermined value or direction in value that favors the cause of the Client or any related party, the amount of the value estimate. the attainment of a specMc result, or the pxurrsnce of a subsequent event in order to receive my Compensation and/or ar nploymert for performing the appraisal_ I ad not base the appraisal report on a requested minimum valuation, a specMc valuation, or the need to approve a specific mortgage loan. 7. 1 performed tiffs appraisal in conformity with the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were In place as of the effective date of thls appra", with the exception of the departure provision of Mace Standards, which does not apply. I acknowledge that an estimate of a reasonable time for exposure in the open market Is 3 condition In Ute definition of market value and the estimate I developed is consistent with the marketing time noted in the neighborhood section of this report, unless I have otherwise staled in the reconciliatlon section. 8. 1 have personalty ktspccted the interior and exterior areas of the subject property and the exteWOr of all properties risked as comparables In the appraisal report I funeral certify that I have noted any apparent or known advorse conditions m the subied improvements, on the subiect site. or on any sire within the Immediate vkdtity of the subject property of which 1 am aware and have mWe adjustments for these adverse conditions in my analysis of the property value to the extent that I had market evidence to support them. I have also conrrWiled about the effect of the adverse MIKI MS on the marketability of the subject property. 8. 1 personally prepared all conclusions and opinions about the real estate that were set forth in the appraisal report- If I retied on significant professional assistance from any Indivlduat or Individuals in the performance of the appraisal or the preparation of the appraisal report I have named such individual(s) and disclosed the specific tasks performed by them in the reoonrlRation secton of this appraisal report I cerilry that any indvidual so named Is qualified to perform the tasks, i have not authorized anyone to make a charge to any Rem in the report: therefore, if an unauthorized change is made to the appralr:al report, I vow take no responsimity for t. SUPERVISORY APPRAISER'S CERTIFICATION: If a supervisory appraiser signed the appraisal report, he or she certifies and agrees that r directly superv(se the appraiser who prepared the appraisal report, have reviewed the appraisal report, agree with the statements and conclusions of the appraiser, agree to be bound by the appraiser's oettifications numbered 4 through 7 above, and am taking full responsibility for the appraisal and the appraisal report, ADDRESS OF PROPERTY APPRAISED: APPRAISER: Signature; Name: T Date Signed: 1 State Certification tt; 11&S of State Uoense #; State: MA Expiration Date of Certircaton or License: t1W1102 SUPERVISORY APPRAISER (only if required) Signature: Name: Date Signed: State Certification a: or Stale Uoense #: cation Date of CeMVcation or Ucense: Did ❑ oid Nor I.P. Property Froddio Mx Fit 439 6-93 CNOWORLM AW Esau ACOdW GoUs . bw &"ftV TodN�kal.s te0%=4�v Fw„ Mao Fenn 10046 G-9 P.12 /12 TOTAL P.12