0
XXXX X. XXXXXXX
Xxxxxxx Xxxx
Xxxxxxx, XX 00000
July 16, 1998
ING Baring (U.S.) Capital Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: X. X. Xxxxxxxx XX
Dear Xx. Xxxxxxxx:
On the date of this letter agreement, the undersigned (together, "the
Seller") will sell, and the person or entity countersigning this letter as
"purchaser" (the "Purchaser") will purchase 3,583 shares of the common stock
(the "Shares") of California Communities, Inc. (the "Company"), for a cash
purchase price of $8.25 per share or a total of $29,559.75
In consideration of the foregoing, Seller acknowledges, and each of the
signatories hereto agrees, as to the following:
1. No Reliance; Assumption of Risk. Seller acknowledges that Purchaser may be
deemed to be an affiliate of the Company (as such term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended). Seller further
acknowledges that Seller has been advised that Purchaser and the Company may
have confidential information concerning the Company's business and affairs
which is not public and may be considered material, including but not limited to
information relating to various alternatives, financial or otherwise, for the
Company (including, but not limited to, the sale or other disposition of all or
a portion of the equity or assets of the Company, one or more of the Company's
subsidiaries, a refinancing of all or a portion of the Company's existing
indebtedness, or the purchase, in the open market, in private transactions,
through tender offers or otherwise, of all or a portion of the outstanding
common stock, and/or any other of the Company's outstanding securities).
Recognizing the foregoing, Seller does not request, desire or require the
Company or Purchaser to disclose any information any confidential information
and specifically request the Company and Purchaser not to disclose any such
information relating the Shares or otherwise. In addition, Seller acknowledges
and agrees that (i) Seller initiated and still desires to consummate the sale of
the Shares to Purchaser, (ii) Seller is fully satisfied with the Purchase Price
and the Purchase Price is all that Seller is or will be entitled to receive for
the Shares, (iii) Seller is voluntarily assuming all risks associated with the
sale of the Shares and is not relying on any disclosure (or nondisclosure) made
(or not made) in connection with or arising out of the purchase of the Shares,
and (iv) Seller does not and will not have or assert any claims against the
Company, Purchaser or any of their respective affiliates for any additional
compensation or payments for any reason whatsoever, including by reason of or as
a result of the entering into or consummation by the Company or any of its
affiliates, including Purchaser or its affiliates, of any of the transactions
described above.
2
2. Investigation. Seller has conducted its own investigation, to the
extent that Seller has determined necessary or desirable, in connection with its
sale of the Shares and has determined to enter into and complete such
transaction based on, among other things, such investigation.
3. Accredited Investor. Seller is an "accredited investor" as defined
in Rule 501 promulgated under the Securities Act of 1933, as amended, and is
sophisticated in matters relating to the valuation of securities and the
purchase and sale of securities. Seller is selling the Securities for its own
account.
4. Waives and Releases. (a) In further consideration for the sale of
the Shares, Seller, on behalf of itself and its heirs, executors,
administrators, devisees, trustees, partners, directors, officers, shareholders,
employees, consultants, representatives, predecessors, principals, agents,
parents, associates, affiliates, divisions, subsidiaries, attorneys,
accountants, successors, successors-in-interest and assignees (collectively, the
"Releasing Persons"), hereby waives and releases, to the fullest extent
permitted by law, any and all claims, rights and causes of action, whether known
or unknown (collectively, the "Claims"), that any of the Releasing Persons had,
has or may have against (i) the Purchaser, (ii) the Company, (iii) any of the
Purchaser's or the Company's respective current or former parents, shareholders,
affiliates, subsidiaries, divisions, predecessors or assigns, or (iv) any of the
Purchaser's, the Company's or such other persons' or entities' current or former
officers, directors, employees, consultants, spouses, heirs, estates, executors,
attorneys, auditors and associates and members of their immediate families
(collectively, the "Released Persons," arising out of or relating to any matter,
including, without limitation, any Claims against any of the Released Persons
relating to or arising out of (x) the transactions pursuant to which the Seller
originally purchased the shares, or (y) the purchase and sale of the Shares
contemplated by this letter agreement or (z) the nondisclosure of any
information,
(b) In consideration for the foregoing, each of the Purchaser and the
Company hereby waives and releases, to the fullest extent permitted by law, any
and all Claims that it had, has or may have against (i) the Seller, (ii) any of
the Seller's current or former parents, shareholders, affiliates, subsidiaries,
divisions, predecessors or assigns, or (iii) any of the Seller's or such other
persons' or entities' current or former officers, directors, employees,
consultants, spouses, heirs, estates, executors, attorneys, auditors and
associates and members of their immediate families, arising out of or relating
to the transactions pursuant to which the Seller originally purchased the
Shares, or (y) the purchase and sale of the Shares contemplated by this letter
agreement, except for claims arising out of the breach by Seller of any
representations, warranties or covenants contained herein.
3
5. Governing Law, Counterparts. This letter agreement shall be governed
by and construed in accordance with the laws of the State of Delaware, without
giving effect to the conflicts of laws principles thereof. This letter agreement
may be executed in Counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall constitute one and the same
document.
Very truly yours,
Xxxx X. Xxxxxxx
Accepted and Agreed to:
ING Baring (U.S.) Capital Corporation
By:_____________________________
X. X. Xxxxxxxx XX
Managing Director