Exhibit 10.21
AMENDMENT
to the
ADMINISTRATIVE SERVICES AGREEMENT
THIS AMENDMENT NO. 1 dated as of November 1, 2000 to the
ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") dated as of March 1, 2000 (such
agreement as so amended is referred to herein as the "Agreement") between
Leucadia Financial Corporation, a Utah corporation ("Leucadia"), HomeFed
Corporation, a Delaware corporation ("HomeFed"), HomeFed Resources Corporation,
a California corporation ("HomeFed Resources") and HomeFed Communities, Inc., a
California corporation ("HomeFed Communities").
HomeFed, HomeFed Resources and HomeFed Communities are
referred to herein as the "HomeFed Group."
WHEREAS, the directors of HomeFed unaffiliated with Leucadia
or its parent company, Leucadia National Corporation, have determined that for
reasons of cost savings and otherwise, it is in the best interests of the
HomeFed Group to obtain certain services from Leucadia on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Retention of Leucadia. As of the effective date of this
Agreement, Leucadia is retained to provide the services described in this
Agreement in consideration of the payment of the compensation described herein.
2. Scope of Work. At the request of HomeFed and under the
direction of HomeFed, Leucadia shall provide the following administrative
services required by the HomeFed Group in connection with the ongoing operation
of its businesses:
a. Receive, deposit and withdraw certain funds received from
the operations of the HomeFed Group;
b. Establish and maintain books of account in accordance with
generally accepted accounting practices;
c. Prepare HomeFed consolidated quarterly unaudited financial
statements meeting the requirements of Form 10Q of the Securities and Exchange
Commission (the "SEC");
d. Provide, to the extent possible and based upon available
revenues, for the orderly payment of certain accounts payable incurred by a
member of the HomeFed Group;
e. Supervise the annual audit of the financial records of each
member of the HomeFed Group, and prepare consolidated annual financial
statements meeting the requirements of Form 10K of the SEC;
f. Subject to her election by the Board of Directors of
HomeFed, provide the services of Corinne Maki as Secretary and Treasurer. As an
officer of HomeFed, Ms. Maki shall be under the direction of the Board of
Directors of HomeFed. As Secretary/Treasurer, Ms. Maki shall report to the
President of HomeFed;
g. Prepare annual income tax returns;
h. Provide certain additional administrative services and
support as may reasonably be requested by HomeFed.
Leucadia shall provide all personnel necessary to carry out
the services specified in this Agreement. The number of personnel providing
services at any one time and the number of hours such personnel devote to the
specified services shall not be fixed and shall at all times be determined by
Leucadia in its sole judgment, but shall at all times be adequate to properly
and promptly perform and discharge the specified services.
3. Compensation. As compensation for the services provided
under this Agreement, Leucadia shall be paid at an annual rate of $132,000,
payable in monthly installments of $11,000 on the first day of each month, plus
any additional amounts that may be agreed upon by HomeFed and Leucadia.
4. Term and Termination. The term of this Agreement shall
commence on the effective date set forth in the preamble to this Agreement and
continue until February 28, 2001, unless extended in writing by mutual agreement
of the parties. HomeFed shall have the right to terminate this Agreement,
without restriction or penalty, upon 30 days prior written notice to Leucadia.
In all events, the provisions of Section 7. "Indemnification" shall survive the
termination of this Agreement, whether as a result of the passage of time or the
election of HomeFed or otherwise.
1
5. Inspection Rights of HomeFed Group. During the term of this
Agreement, each member of the HomeFed Group shall have the right to appoint a
person (other than an employee or officer of Leucadia or any of its affiliates)
who shall have the right to inspect at reasonable times and upon reasonable
notice all books and records maintained by Leucadia pertaining to each member of
the HomeFed Group.
6. Relationship of Parties. The relationship of Leucadia to
each member of the HomeFed Group shall be that of independent contractor and
principal. This Agreement does not create an employer/employee relationship, or
a partnership, joint venture or other agency relationship between the parties.
7. Relationship with HomeFed. At all times, the personnel
provided under this Agreement to serve as an officer of HomeFed (the "Designated
Officer") shall work under the sole direction and supervision of HomeFed in
accordance with the practices and policies of HomeFed. Accordingly, HomeFed
shall be fully responsible for the acts and omissions of the Designated Officer
within the scope of the services and responsibilities provided in accordance
with this Agreement and shall indemnify the Leucadia Parties (as defined herein)
therefor. Except to the extent that Leucadia agrees in this Agreement to
indemnify the HomeFed Group, no Leucadia Party (as defined herein) shall have or
suffer any Damages (as defined herein) as a result of any act or omission,
condition or circumstance associated with this Agreement or performance
hereunder.
8. Indemnification .
(a) The HomeFed Group shall indemnify, defend and hold
harmless Leucadia, its parent entities and their respective directors, officers,
agents and permitted assigns (collectively, the "Leucadia Parties") from and
against all liabilities, claims, damages, losses and expenses (including, but
not limited to, court costs and reasonable attorneys' fees) (collectively,
"Damages") of any kind or nature, to third parties caused by, relating to, or
arising in connection with this Agreement, other than as a result of the wilfull
misconduct of any of the Leucadia Parties. Not in limitation of the foregoing,
HomeFed shall indemnify and hold harmless the Leucadia Parties from and against
any Damages arising from any acts or omissions of any and all Designated
Officers, as well as from HomeFed's own acts or omissions or violations of law
with respect to the Designated Officers.
(b) Subject to the limitations contained in this Section,
Leucadia shall indemnify, defend and hold harmless the HomeFed Group, its parent
entities and their respective directors, officers, agents and permitted assigns
(collectively, the "HomeFed Parties") from and against all Damages of any kind
or nature, caused by, relating to, or arising in connection with the wilfull
misconduct of any of the Leucadia Parties. Leucadia's liability under this
Section shall not exceed $228,000.
9. Severability. Each provision of this Agreement shall be
viewed as separate and divisible, and in the event any provision shall be held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall continue in full force and effect.
10. Waiver. The waiver by any party of a breach or violation
of any provision of this Agreement shall not operate as or be construed to be a
waiver of any subsequent breach.
11. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
12. Assignment. No party hereto shall have the right to assign
any of its rights, duties or obligations under this Agreement without the prior
written consent of the other parties.
13. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service if personally served on the party to whom the notice is to be
given, or 72 hours after mailing, if mailed to the party to whom notice is to be
given by first class mail, postage prepaid and properly addressed to the party
at its address set forth on the signature page of this Agreement or any other
address that such party may designate by written notice to the other parties.
14. Successors and Assigns. Subject to the restrictions on
assignment set forth hereinabove, this Agreement shall be binding upon and inure
to the benefit of the legal representatives, successors and assigns of the
parties hereto.
[Remainder of page intentionally left blank.]
2
IN WITNESS WHEREOF, this Agreement has been executed as of the
date first hereinabove written.
LEUCADIA FINANCIAL CORPORATION, a Utah corporation
Address: 529 East South Temple
Salt Lake City, UT 84102
By: /s/ Joseph A. Orlando
Name: Joseph A. Orlando
Title: Vice President
HOMEFED CORPORATION, a Delaware corporation
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
Name: Paul J. Borden
Title: President
HOMEFED RESOURCES CORPORATION, a California
corporation
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
Name: Paul J. Borden
Title: President
HOMEFED COMMUNITIES, INC., a California
corporation
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
Name: Paul J. Borden
Title: President
3
Exhibit 10.22
AMENDMENT
to the
ADMINISTRATIVE SERVICES AGREEMENT
THIS AMENDMENT NO. 2 dated as of February 28, 2001 to the
ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") dated as of March 1, 2000 (such
agreement as so amended is referred to herein as the "Agreement") between
Leucadia Financial Corporation, a Utah corporation ("Leucadia"), HomeFed
Corporation, a Delaware corporation ("HomeFed"), HomeFed Resources Corporation,
a California corporation ("HomeFed Resources") and HomeFed Communities, Inc., a
California corporation ("HomeFed Communities").
HomeFed, HomeFed Resources and HomeFed Communities are
referred to herein as the "HomeFed Group."
WHEREAS, the directors of HomeFed unaffiliated with Leucadia
or its parent company, Leucadia National Corporation, have determined that for
reasons of cost savings and otherwise, it is in the best interests of the
HomeFed Group to obtain certain services from Leucadia on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Retention of Leucadia. As of the effective date of this
Agreement, Leucadia is retained to provide the services described in this
Agreement in consideration of the payment of the compensation described herein.
2. Scope of Work. At the request of HomeFed and under the
direction of HomeFed, Leucadia shall provide the following administrative
services required by the HomeFed Group in connection with the ongoing operation
of its businesses:
a. Receive, deposit and withdraw certain funds received from
the operations of the HomeFed Group;
b. Establish and maintain books of account in accordance with
generally accepted accounting practices;
c. Prepare HomeFed consolidated quarterly unaudited financial
statements meeting the requirements of Form 10Q of the Securities and Exchange
Commission (the "SEC");
d. Provide, to the extent possible and based upon available
revenues, for the orderly payment of certain accounts payable incurred by a
member of the HomeFed Group;
e. Supervise the annual audit of the financial records of each
member of the HomeFed Group, and prepare consolidated annual financial
statements meeting the requirements of Form 10K of the SEC;
f. Subject to her election by the Board of Directors of
HomeFed, provide the services of Corinne Maki as Secretary and Treasurer. As an
officer of HomeFed, Ms. Maki shall be under the direction of the Board of
Directors of HomeFed. As Secretary/Treasurer, Ms. Maki shall report to the
President of HomeFed;
g. Prepare annual income tax returns;
h. Provide certain additional administrative services and
support as may reasonably be requested by HomeFed.
Leucadia shall provide all personnel necessary to carry out the services
specified in this Agreement. The number of personnel providing services at any
one time and the number of hours such personnel devote to the specified services
shall not be fixed and shall at all times be determined by Leucadia in its sole
judgment, but shall at all times be adequate to properly and promptly perform
and discharge the specified services.
3. Compensation. As compensation for the services provided
under this Agreement, Leucadia shall be paid at an annual rate of $132,000,
payable in monthly installments of $11,000 on the first day of each month
through February 28, 2001 and thereafter at an annual rate of $102,000, payable
in monthly installments of $8,500 on the first day of each month, plus any
additional amounts that may be agreed upon by HomeFed and Leucadia.
4. Term and Termination. The term of this Agreement shall
commence on the effective date set forth in the preamble to this Agreement and
continue until December 31, 2001, unless extended in writing by mutual agreement
of the parties. HomeFed shall have the right to terminate this Agreement,
without restriction or penalty, upon 30 days prior written notice to Leucadia.
In all events, the provisions of Section 7. "Indemnification" shall survive the
termination of this Agreement, whether as a result of the passage of time or the
election of HomeFed or otherwise.
1
5. Inspection Rights of HomeFed Group. During the term of this
Agreement, each member of the HomeFed Group shall have the right to appoint a
person (other than an employee or officer of Leucadia or any of its affiliates)
who shall have the right to inspect at reasonable times and upon reasonable
notice all books and records maintained by Leucadia pertaining to each member of
the HomeFed Group.
6. Relationship of Parties. The relationship of Leucadia to
each member of the HomeFed Group shall be that of independent contractor and
principal. This Agreement does not create an employer/employee relationship, or
a partnership, joint venture or other agency relationship between the parties.
7. Relationship with HomeFed. At all times, the personnel
provided under this Agreement to serve as an officer of HomeFed (the "Designated
Officer") shall work under the sole direction and supervision of HomeFed in
accordance with the practices and policies of HomeFed. Accordingly, HomeFed
shall be fully responsible for the acts and omissions of the Designated Officer
within the scope of the services and responsibilities provided in accordance
with this Agreement and shall indemnify the Leucadia Parties (as defined herein)
therefor. Except to the extent that Leucadia agrees in this Agreement to
indemnify the HomeFed Group, no Leucadia Party (as defined herein) shall have or
suffer any Damages (as defined herein) as a result of any act or omission,
condition or circumstance associated with this Agreement or performance
hereunder.
8. Indemnification .
(a) The HomeFed Group shall indemnify, defend and hold
harmless Leucadia, its parent entities and their respective directors, officers,
agents and permitted assigns (collectively, the "Leucadia Parties") from and
against all liabilities, claims, damages, losses and expenses (including, but
not limited to, court costs and reasonable attorneys' fees) (collectively,
"Damages") of any kind or nature, to third parties caused by, relating to, or
arising in connection with this Agreement, other than as a result of the wilfull
misconduct of any of the Leucadia Parties. Not in limitation of the foregoing,
HomeFed shall indemnify and hold harmless the Leucadia Parties from and against
any Damages arising from any acts or omissions of any and all Designated
Officers, as well as from HomeFed's own acts or omissions or violations of law
with respect to the Designated Officers.
(b) Subject to the limitations contained in this Section,
Leucadia shall indemnify, defend and hold harmless the HomeFed Group, its parent
entities and their respective directors, officers, agents and permitted assigns
(collectively, the "HomeFed Parties") from and against all Damages of any kind
or nature, caused by, relating to, or arising in connection with the wilfull
misconduct of any of the Leucadia Parties. Leucadia's liability under this
Section shall not exceed the annual amount received by Leucadia hereunder.
9. Severability. Each provision of this Agreement shall be
viewed as separate and divisible, and in the event any provision shall be held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall continue in full force and effect.
10. Waiver. The waiver by any party of a breach or violation
of any provision of this Agreement shall not operate as or be construed to be a
waiver of any subsequent breach.
11. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
12. Assignment. No party hereto shall have the right to assign
any of its rights, duties or obligations under this Agreement without the prior
written consent of the other parties.
13. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service if personally served on the party to whom the notice is to be
given, or 72 hours after mailing, if mailed to the party to whom notice is to be
given by first class mail, postage prepaid and properly addressed to the party
at its address set forth on the signature page of this Agreement or any other
address that such party may designate by written notice to the other parties.
14. Successors and Assigns. Subject to the restrictions on
assignment set forth hereinabove, this Agreement shall be binding upon and inure
to the benefit of the legal representatives, successors and assigns of the
parties hereto.
[Remainder of page intentionally left blank.]
2
IN WITNESS WHEREOF, this Agreement has been executed as of the
date first hereinabove written.
LEUCADIA FINANCIAL CORPORATION, a Utah corporation
Address: 529 East South Temple
Salt Lake City, UT 84102
By: /s/ Joseph A. Orlando
---------------------------
Name: Joseph A. Orlando
Title: Vice President
HOMEFED CORPORATION, a Delaware corporation
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
-------------------------------
Name: Paul J. Borden
Title: President
HOMEFED RESOURCES CORPORATION, a California
corporation
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
-------------------------------
Name: Paul J. Borden
Title: President
HOMEFED COMMUNITIES, INC., a California
corporation
Address: 1903 Wright Place, Suite 220
Carlsbad, CA 92008
By: /s/ Paul J. Borden
-------------------------------
Name: Paul J. Borden
Title: President
3
Exhibit 10.23
LEUCADIA FINANCIAL CORPORATION
529 EAST SOUTH TEMPLE
SALT LAKE CITY, UTAH 84102
LINE LETTER
Dated as of March 1, 2001
HomeFed Corporation
1903 Wright Place
Suite 220
Carlsbad, CA 92008
Ladies and Gentlemen:
Leucadia Financial Corporation ("Leucadia") hereby confirms
that it is holding available for HomeFed Corporation, a Delaware corporation
(the "Company"), subject to the restrictions outlined below and in the Term Note
(as defined below), a line of credit for the purpose of funding proposed
business projects, (i) which projects are satisfactory to and have been approved
in advance in writing by Leucadia in its sole discretion, and (ii) for which
Company has submitted to Leucadia business plans, projections, and any other
documentation reasonably requested by Leucadia. So long as said line is not
cancelled as hereinafter provided, credit shall be available, from the date
hereof, in the amount of $3,000,000.00. Any drawing by you hereunder shall only
be made in writing signed by your President, Paul J. Borden, or your Controller,
Erin N. Ruhe. Such draw shall be mailed to us at the address written above,
attention: Corinne A. Maki, or sent by facsimile to us at 801-524-1761,
attention: Corinne A. Maki, no later than 10:00 A.M. (Salt Lake City time) on
the date of such draw. Any requests received after such time will be considered
to have been made on the following date.
Any loans made by Leucadia under this line of credit shall be
evidenced by the Company's term note substantially in the form of Exhibit A
attached hereto (the "Term Note"), executed by a duly authorized officer of the
Company, which shall represent the Company's obligation to pay the principal
amount of $3,000,000.00 or, if greater or less, the aggregate unpaid principal
amount of all loans made by Leucadia under this line of credit, with interest
thereon. The date and amount of any borrowing from Leucadia under this line of
credit and each payment of principal in respect thereof shall be (i) endorsed by
Leucadia at the date thereof on the schedule annexed to and made a part of the
Term Note, which endorsement shall constitute a part of the Term Note, or (ii)
recorded on the books and records of Leucadia (provided such entries shall be
endorsed on the schedule annexed thereto prior to any negotiation thereof). Any
endorsement on the schedule annexed hereto or record of borrowing or payment of
principal on the books and records of Leucadia, in either case, shall constitute
prima facie evidence of the accuracy of the information endorsed or recorded, as
the case may be. As set forth therein, the Term Note shall bear interest (based
upon the principal amount then outstanding) at a rate per annum equal to ten
percent (10.00%) (calculated on the basis of a 360 day year for the actual
number of days elapsed). The Term Note may be prepaid, in whole or in part, at
any time without premium or penalty.
The Company agrees to pay to Leucadia a quarterly commitment
fee in an amount equal to the average of the daily excess of $3,000,000.00 over
the aggregate principal amount of loans outstanding multiplied by 0.375% per
annum, calculated on the basis of a 360 day year for the actual number of days
elapsed, payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of any year, commencing on March 31, 2001 and ending on the Maturity
Date.
This credit facility will remain available until the first to
occur of: (i) written cancellation by the Company; (ii) written cancellation by
Leucadia after the occurrence of an Event of Default as defined in the Term
Note; or (iii) written notice by Leucadia given any time after February 28,
2002. No other document shall evidence the indebtedness to Leucadia which may be
created pursuant to the terms of this Line Letter, other than the Term Note.
This Line Letter shall be governed by, construed and
interpreted in accordance with the laws of the State of New York.
Very truly yours,
LEUCADIA FINANCIAL CORPORATION
By:/s/ Joseph A. Orlando
-----------------------------------
Name: Joseph A. Orlando
Title: Vice President
Agreed and Accepted as of March 1, 2001.
HOMEFED CORPORATION
By: /s/ Paul J. Borden
--------------------------------------------
Name: Paul J. Borden
Title: President
1
Exhibit A
TERM NOTE
$3,000,000.00 Carlsbad, CA
Dated as of March 1, 2001
FOR VALUE RECEIVED, the undersigned, HomeFed Corporation, a
Delaware corporation (the "Company"), hereby unconditionally promises to pay to
the order of Leucadia Financial Corporation, a Utah corporation ("Leucadia"), at
c/o Leucadia National Corporation, 315 Park Avenue South, New York, New York
10010, on the Maturity Date (as defined below) and in the manner set forth
below, in lawful money of the United States of America and in immediately
available funds, the principal amount of (a) THREE MILLION DOLLARS
($3,000,000.00) or (b) if greater or less, the aggregate unpaid principal amount
of all loans made by Leucadia to the Company pursuant to the Line Letter
hereinafter referred to. The Company further agrees to pay interest in like
money on the unpaid principal amount hereof from time to time outstanding, until
paid in full (both before and after judgment), at a rate per annum equal to ten
percent (10.00%) (calculated on the basis of a 360 day year for the actual
number of days elapsed). Interest shall be payable quarterly in arrears on each
March 31, June 30, September 30 and December 31, commencing on March 31, 2001,
and shall accrue on all unpaid principal amounts and will be payable in the
manner set forth in this Note. The holder of this Note is authorized to (i)
endorse the date and amount of each loan pursuant to the Line Letter and each
principal payment with respect thereto on the schedule annexed hereto and made a
part hereof, or (ii) record on its books and records each loan pursuant to the
Line Letter and each principal payment with respect thereto (provided such
entries shall be endorsed on the schedule annexed hereto prior to any
negotiation hereof), which endorsement or entry on the books and records of the
holder hereof shall constitute prima facie evidence of the accuracy of the
information endorsed or recorded, as the case may be.
This Note is the Term Note referred to in the Line Letter
dated of even date herewith from Leucadia to the Company and is entitled to the
benefits and obligations thereof. This Note shall have a term of one (1) year
from the date hereof (the "Maturity Date") and principal and interest due on
this Note shall be payable at the Maturity Date. This Note may be prepaid in
whole or in part, at any time without premium or penalty, but with interest on
the amount prepaid.
Upon the happening of an Event of Default (as defined below)
Leucadia may declare the entire unpaid balance of the amount owed by the Company
under this Note, together with all accrued and unpaid interest, to be
immediately due and payable. An "Event of Default" shall mean the commencement
by or against the Company of any proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law seeking to adjudicate the
Company bankrupt or insolvent, or seeking liquidation, winding-up,
reorganization, arrangement, adjustment, protection, relief or composition of
the Company or its debts, or seeking the entry of an order for relief or the
appointment of a receiver, liquidator, assignee, trustee, sequestrator, agent or
custodian (or other similar official) for it or any substantial part of its
property, and relief against it is ordered in such proceeding or in the event
the appointment or petition is not contested by the Company.
The Company, for itself and all other persons who now are or
who may become liable for the payment of all or any part of the obligations
evidenced by this Note, jointly, severally and irrevocably, hereby waive
presentment for payment, demand, protest, notice of protest, notice of dishonor
and any and all other notices and demands whatsoever.
This Note shall be governed by, construed and interpreted in
accordance with the laws of the State of New York.
HOMEFED CORPORATION
By: /s/ Paul J. Borden
------------------------------------
Name: Paul J. Borden
Title: President
2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
UNDER THE TERM NOTE
ISSUED TO
LEUCADIA FINANCIAL CORPORATION
BY
HOMEFED CORPORATION
Amount Amount Unpaid
of Of Principal Notation
Date Loan Principal Paid Balance Made By
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3
TERM NOTE
$3,000,000.00 Carlsbad, CA
Dated as of March 1, 2001
FOR VALUE RECEIVED, the undersigned, HomeFed Corporation, a
Delaware corporation (the "Company"), hereby unconditionally promises to pay to
the order of Leucadia Financial Corporation, a Utah corporation ("Leucadia"), at
c/o Leucadia National Corporation, 315 Park Avenue South, New York, New York
10010, on the Maturity Date (as defined below) and in the manner set forth
below, in lawful money of the United States of America and in immediately
available funds, the principal amount of (a) THREE MILLION DOLLARS
($3,000,000.00) or (b) if greater or less, the aggregate unpaid principal amount
of all loans made by Leucadia to the Company pursuant to the Line Letter
hereinafter referred to. The Company further agrees to pay interest in like
money on the unpaid principal amount hereof from time to time outstanding, until
paid in full (both before and after judgment), at a rate per annum equal to ten
percent (10.00%) (calculated on the basis of a 360 day year for the actual
number of days elapsed). Interest shall be payable quarterly in arrears on each
March 31, June 30, September 30 and December 31, commencing on March 31, 2001,
and shall accrue on all unpaid principal amounts and will be payable in the
manner set forth in this Note. The holder of this Note is authorized to (i)
endorse the date and amount of each loan pursuant to the Line Letter and each
principal payment with respect thereto on the schedule annexed hereto and made a
part hereof, or (ii) record on its books and records each loan pursuant to the
Line Letter and each principal payment with respect thereto (provided such
entries shall be endorsed on the schedule annexed hereto prior to any
negotiation hereof), which endorsement or entry on the books and records of the
holder hereof shall constitute prima facie evidence of the accuracy of the
information endorsed or recorded, as the case may be.
This Note is the Term Note referred to in the Line Letter
dated of even date herewith from Leucadia to the Company and is entitled to the
benefits and obligations thereof. This Note shall have a term of one (1) year
from the date hereof (the "Maturity Date") and principal and interest due on
this Note shall be payable at the Maturity Date. This Note may be prepaid in
whole or in part, at any time without premium or penalty, but with interest on
the amount prepaid.
Upon the happening of an Event of Default (as defined below)
Leucadia may declare the entire unpaid balance of the amount owed by the Company
under this Note, together with all accrued and unpaid interest, to be
immediately due and payable. An "Event of Default" shall mean the commencement
by or against the Company of any proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law seeking to adjudicate the
Company bankrupt or insolvent, or seeking liquidation, winding-up,
reorganization, arrangement, adjustment, protection, relief or composition of
the Company or its debts, or seeking the entry of an order for relief or the
appointment of a receiver, liquidator, assignee, trustee, sequestrator, agent or
custodian (or other similar official) for it or any substantial part of its
property, and relief against it is ordered in such proceeding or in the event
the appointment or petition is not contested by the Company.
The Company, for itself and all other persons who now are or
who may become liable for the payment of all or any part of the obligations
evidenced by this Note, jointly, severally and irrevocably, hereby waive
presentment for payment, demand, protest, notice of protest, notice of dishonor
and any and all other notices and demands whatsoever.
This Note shall be governed by, construed and interpreted in
accordance with the laws of the State of New York.
HOMEFED CORPORATION
By: /s/ Paul J. Borden
------------------------------
Name: Paul J. Borden
Title: President
4
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
UNDER THE TERM NOTE
ISSUED TO
LEUCADIA FINANCIAL CORPORATION
BY
HOMEFED CORPORATION
Amount Amount Unpaid
of Of Principal Notation
Date Loan Principal Paid Balance Made By
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5