Exhibit 10.4 to
Form 8-K
SECOND AMENDED AND RESTATED VARIABLE RATE SECURED NOTE
DUE DECEMBER 31, 2007
Salt Lake City, Utah
October 9, 2002
For value received, the undersigned HomeFed corporation, a
Delaware corporation ("Borrower"), unconditionally promises to pay to the order
of Leucadia Financial Corporation, a Utah corporation ("Lender"), at Xxxxxx's
principal place of business or at such other place as may be designated in
writing by Xxxxxx, in lawful money of the United States of America and in
immediately available funds, the principal sum of $26,462,381.64 plus interest.
This Note is made pursuant to that certain Second Amended
and Restated Loan Agreement of even date herewith between Borrower and Lender
("Loan Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Loan Agreement. Interest on this Note shall be
payable in accordance with the terms of the Loan Agreement. This Note is due and
payable on December 31, 2007. There are no conversion rights under this Note.
This Note amends and restates and is being issued in
substitution for, but is not in payment or satisfaction of, the Note dated as of
August 14, 1998 (the "Original Note") in the aggregate principal amount of
TWENTY SIX MILLION FOUR HUNDRED SIXTY TWO THOUSAND THREE HUNDRED EIGHTY ONE AND
64/100 DOLLARS ($26,462,381.64), such Original Note having been issued in
connection with the First Amended and Restated Loan Agreement.
This Note is secured by, among other things, the following:
(i) that certain Security Agreement and Stock Pledge dated
July 3, 1995, executed by Xxxxxxxx;
(ii) that certain Payment Guaranty dated July 3, 1995,
executed by HomeFed Communities, Inc., a California corporation ("HomeFed
Communities"), which Payment Guaranty is secured by a Security Agreement of even
date herewith, executed by HomeFed Communities;
(iii) that certain Payment Guaranty dated July 3, 1995,
executed by HomeFed Resources Corporation, a California corporation ("HomeFed
Resources"), which Payment Guaranty is secured by a Security Agreement of even
date herewith, executed by HomeFed Resources; and
(iv) that certain Payment Guaranty and Deed of Trust dated
July 3, 1995, each executed by Paradise Valley Communities No. I, a California
general partnership (and related financing statements).
If an Event of Default shall occur and be continuing, all
Principal and all interest accrued and other amounts due hereunder may be
declared due and payable in the manner and with the effect provided in the Loan
Agreement.
If any attorney is engaged by Xxxxxx to enforce or defend
any provision of this Note or the Loan Agreement, or as a consequence of any
Default, with or without the filing of any legal action or proceeding, then
Borrower shall pay to Lender immediately upon demand reasonable attorneys' fees
and costs incurred by Xxxxxx in connection therewith, together with interest
thereon from the date of such demand until paid at the rate of interest
applicable to the Principal as if such unpaid attorneys' fees and costs had been
added to Principal.
No previous waiver and no failure or delay by Lender in
acting with respect to the terms of this Note or the Loan Agreement shall
constitute a waiver of any breach, default, or failure of condition under this
Note or the Loan Agreement. A waiver of any term of this Note or the Loan
Agreement must be made in writing and shall be limited to the express written
terms of such waiver. In the event of any inconsistencies between the terms of
this Note and the terms of any other document related to the Loan, the terms of
the Loan Agreement and this Note shall prevail.
Except as may otherwise be provided in the Loan Agreement,
Borrower waives: presentment; demand; notice of dishonor; notice of default or
delinquency; notice of acceleration; notice of protest and nonpayment; notice of
costs, expenses or losses and interest thereon; notice of late charges; and
diligence in taking any action to collect any sums owing under this Note or in
proceeding against any of the rights or interests in or to properties, if any,
securing payment of this Note.
Time is of the essence with respect to every provision
hereof. This Note shall be construed and enforced in accordance with the
internal laws of the State or Utah, except to the extent that Federal laws
preempt the laws of the State of Utah.
Any legal action or proceeding with respect to this Note or
any document related hereto may be brought in the courts of the State of Utah or
of the United States of America for the District of Utah, and, by execution and
delivery of this Note, the Borrower hereby accepts for itself and in respect of
its Property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower hereby irrevocably waives any objection, including, without
limitation, any objection to the laying of venue or based on the ground of forum
non conveniens, which Borrower may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions.
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The Borrower irrevocably consents to the service of process
of any of the aforesaid courts in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to the
Borrower at its address provided in the Loan Agreement.
Nothing contained in this Note shall affect the right of
Lender to serve process in any other manner permitted by law or commence legal
proceedings or otherwise proceed against the Borrower in any other jurisdiction.
BORROWER:
HomeFed Corporation,
a Delaware Corp.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: President
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Telecopier: (801-524-1751)
Telephone: (000-000-0000)
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