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ABEX 0000 XXXXX XXXXX
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 235,852 shares of the common stock
(the "Shares") of California Communities, Inc. (the "Company"), for a cash
purchase per share of $8.25 per share or a total of $1,945,779.00.
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 non-disclosure) 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
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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. 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.
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
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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, Trustee
Abex 1992 Stock Trust
Accepted and Agreed to:
ING Baring (U.S.) Capital Corporation
By:_____________________________
X. X. Xxxxxxxx XX
Managing Director
