STOCK PURCHASE AGREEMENT
BETWEEN
HOMEFED CORPORATION
AND
LEUCADIA NATIONAL CORPORATION
Dated as of October 20, 1998
TABLE OF CONTENTS
Page
I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . 2
II. PURCHASE OF SECURITIES. . . . . . . . . . . . . . . 2
2.1. Purchase of Securities. . . . . . . . . . . . 2
2.2. Anti-dilution . . . . . . . . . . . . . . . . 2
III. PURCHASE PRICE AND PAYMENT. . . . . . . . . . . . . 2
3.1. Amount of Purchase Price. . . . . . . . . . . 2
3.2. Payment of Purchase Price . . . . . . . . . . 3
IV. THE COMPANY'S REPRESENTATIONS AND WARRANTIES. . . . 3
4.1. Organization. . . . . . . . . . . . . . . . . 3
4.2. Due Authorization . . . . . . . . . . . . . . 3
4.3. Authorized and Outstanding Shares of Capital
Stock . . . . . . . . . . . . . . . . . . 4
4.4. Authorization and Issuance of Securities. . . 4
4.5. Subsidiary Organizations. . . . . . . . . . . 4
4.6. No Other Rights . . . . . . . . . . . . . . . 4
4.7. No Conflicts. . . . . . . . . . . . . . . . . 4
4.8. No Consents . . . . . . . . . . . . . . . . . 5
4.9. Litigation. . . . . . . . . . . . . . . . . . 5
X. XXX'x REPRESENTATIONS AND WARRANTIES. . . . . . . . 5
5.1. Organization. . . . . . . . . . . . . . . . . 5
5.2. Due Authorization . . . . . . . . . . . . . . 6
5.3. No Conflicts. . . . . . . . . . . . . . . . . 6
5.4. LUK's Investment Intention. . . . . . . . . . 6
5.5. Access to Data. . . . . . . . . . . . . . . . 7
VI. COVENANTS . . . . . . . . . . . . . . . . . . . . . 7
6.1. Tax Compliance. . . . . . . . . . . . . . . . 7
6.2. Registration Rights . . . . . . . . . . . . . 7
VII. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . 7
7.1. Conditions Precedent to Obligations of LUK. . 7
7.2. Conditions Precedent to Obligations of the
Company . . . . . . . . . . . . . . . . . 8
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VIII.CLOSING . . . . . . . . . . . . . . . . . . . . . . 9
8.1. Closing Date . . . . . . . . . . . . . . . . . 9
8.2. Liquidated Damages . . . . . . . . . . . . . . 9
8.3. Specific Performance . . . . . . . . . . . . . 10
IX. SECURITIES LAW MATTERS. . . . . . . . . . . . . . . 10
9.1. Legends . . . . . . . . . . . . . . . . . . . 10
X. INDEMNIFICATION AND EXPENSES. . . . . . . . . . . . 10
10.1. Indemnification by the Company . . . . . . . 10
10.2. Indemnification by LUK . . . . . . . . . . . 10
XI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 11
11.1. Notices. . . . . . . . . . . . . . . . . . . 11
11.2. Binding Effect; Benefits . . . . . . . . . . 12
11.3. Waiver . . . . . . . . . . . . . . . . . . . 12
11.4. Amendment. . . . . . . . . . . . . . . . . . 13
11.5. Assignability. . . . . . . . . . . . . . . . 13
11.6. Applicable Law . . . . . . . . . . . . . . . 13
11.7. Section and Other Headings . . . . . . . . . 13
11.8. Severability . . . . . . . . . . . . . . . . 13
11.9. Counterparts . . . . . . . . . . . . . . . . 13
ii
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of October 20, 1998,
between HomeFed Corporation, a Delaware corporation having
an office at 000 Xxxx Xxxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000 (the "Company"), and Leucadia National Corporation, a
New York corporation having an office at 000 Xxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LUK").
W I T N E S S E T H:
WHEREAS, the Company emerged from bankruptcy under
the United States Bankruptcy Code, pursuant to a plan of
reorganization (the "Plan") that became effective on July 3,
1995 (the "Effective Date"); and
WHEREAS, the Plan prohibits the Company from
issuing any additional shares of stock prior to the fourth
anniversary of the Effective Date; and
WHEREAS, approximately 41% of the issued and
outstanding common stock, par value $.01 per share of the
Company (the "Common Stock") is owned by a Trust for the
benefit of the shareholders of record of LUK as of August
25, 1998 (the "LUK Shareholders Trust"); and
WHEREAS, on August 14, 1998, LUK and the Company
entered into a Stock Purchase Agreement (the "August
Agreement") pursuant to which LUK or its assignee will
purchase from the Company and the Company will sell to LUK
(or its assignee), an additional 37,056,112 shares of Common
Stock (the "August Shares") subject to certain conditions,
after July 5, 1999; and
WHEREAS, the August Agreement was assigned by LUK
to the LUK Shareholders Trust; and
WHEREAS, upon the terms and conditions hereinafter
provided, the Company has agreed to issue and sell to LUK
(or its assignee) shares of its Common Stock, and LUK has
agreed to purchase such shares upon the terms and conditions
hereinafter provided;
NOW, THEREFORE, in consideration of the premises and
the covenants hereinafter contained, it is agreed as
follows:
1
I. DEFINITIONS
References to this "Agreement" shall mean this Stock
Purchase Agreement, including all amendments, modifications
and supplements and any exhibits or schedules to any of the
foregoing, and shall refer to this Agreement as the same may
be in effect at the time such reference becomes operative.
The words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole,
including the schedules and exhibits hereto, as the same may
from time to time be amended or supplemented, and not to any
particular section, subsection or clause contained in this
Agreement.
II. PURCHASE OF SECURITIES
2.1. Purchase of Securities. Upon the terms and
subject to the conditions set forth in this Agreement, on
the Closing Date (as defined herein) the Company shall
issue, sell and deliver to LUK, and LUK shall purchase from
the Company 9,501,714 shares of Common Stock (the
"Securities").
2.2. Anti-dilution. Subject to the provisions of
Section 7.2(c) hereof, if the Company issues additional
shares of Common Stock (other than the August Shares to be
issued to the LUK Shareholders Trust) to any party other
than LUK, the number of shares of Common Stock constituting
the Securities shall be increased so that the Securities
purchased on the Closing Date (including the August Shares
and the Common Stock owned by the LUK Shareholders Trust)
will give LUK, together with the LUK Shareholders Trust, an
89.6% interest in the Company on a fully diluted basis.
III. PURCHASE PRICE AND PAYMENT
3.1. Amount of Purchase Price. The aggregate purchase
price for the Securities (the "Purchase Price") shall be
$1,710,300; provided, however, that if the number of shares
constituting the Securities to be purchased under this
Agreement results in the percentage share ownership in the
Company of LUK, together with the LUK Shareholders Trust,
being below 89.6% pursuant to Section 7.2(c), the Purchase
Price shall be reduced proportionately based on a per share
price of $.179 per share.
3.2. Payment of Purchase Price. (a) On the date
hereof, LUK shall advance the entire Purchase Price to the
Company.
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(b) Upon the terms and subject to the conditions
set forth in this Agreement, on the Closing Date the Company
shall deliver to LUK the Securities issued in the name of
LUK or such other person or persons as LUK shall direct.
(c) Payment of the Purchase Price shall be made by
wire transfer of immediately available funds into an account
designated by the Company.
IV. THE COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and
warranties to LUK, each and all of which shall survive the
execution and delivery of this Agreement and the Closing (as
defined herein) hereunder:
4.1. Organization. The Company has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its
properties and to conduct its business as currently being
and as proposed to be conducted. The Company is qualified
as a foreign corporation to transact business in California
and in any other jurisdiction where it is required to be so
qualified, except where the failure to be so qualified would
not have a material adverse effect on the condition,
financial or otherwise, or the results of operations,
business or business prospects of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
4.2. Due Authorization. The Company has the requisite
corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the
Company and, assuming that this Agreement has been duly
executed and delivered by LUK, constitutes a legal, valid
and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as rights
to indemnity hereunder may be limited by federal or state
securities laws and except as enforceability may be limited
by bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization and similar laws relating to or
affecting creditors' rights generally and general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4.3. Authorized and Outstanding Shares of Capital
Stock. The authorized capital stock of the Company consists
of one hundred million (100,000,000) shares of Common Stock,
of which ten million (10,000,000) shares currently are
issued and outstanding as of the date hereof. No
subscription, warrant, option or other right to purchase or
acquire any shares of any class of capital stock of Company
3
or securities convertible into such capital stock (other
than the August Shares) is authorized or outstanding, and
other than this Agreement there is no commitment of Company
to issue any such shares, warrants, options or other such
rights or securities (other than the August Shares). After
giving effect to the issuance of the August Shares and the
Securities pursuant to this Agreement, an aggregate of
56,557,826 shares of Common Stock will be outstanding, of
which the Securities, together with the August Shares and
the other shares of Common Stock beneficially owned by the
LUK Shareholders Trust, will represent approximately 89.6%
of the outstanding shares of Common Stock, unless the number
of shares constituting the Securities is reduced pursuant to
Section 7.2(c) hereof.
4.4. Authorization and Issuance of Securities. The
issuance of the Securities has been duly authorized and,
upon delivery to LUK of certificates therefor against
payment in accordance with the terms hereof, the Securities
will have been validly issued and fully paid and non-asses-
sable, free and clear of all pledges, liens, encumbrances
and preemptive rights.
4.5. Subsidiary Organizations. Each subsidiary of the
Company has been duly organized and is validly existing and
in good standing under the laws of the State of California,
has corporate power and authority to own, lease and operate
its properties and to conduct its business as currently
being and as proposed to be conducted and is not required to
be qualified as a foreign entity to transact business in any
jurisdiction. All of the issued and outstanding capital
stock of each such subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is owned
directly by the Company.
4.6. No Other Rights. The issuance of the Securities
is not subject to preemptive or other similar rights.
4.7. No Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its
4
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, the effect of
which default in performance or observance would have a
Material Adverse Effect. None of the execution and delivery
of this Agreement will conflict with or constitute a breach
of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the certificate of
incorporation or by-laws of the Company or any applicable
law, administrative regulation or administrative or court
decree.
4.8. No Consents. No authorization, approval or
consent of, or filing with, any court or governmental
authority or agency is necessary or required in connection
with the sale of the Securities hereunder or under the
certificate of incorporation of the Company or the
execution, delivery or performance of this Agreement or the
Restated Certificate of Incorporation.
4.9. Litigation. There is no action, suit or
proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the best
knowledge of the Company, threatened, against or affecting
the Company or any of its subsidiaries, which is reasonably
likely to have a Material Adverse Effect. There is no
action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now
pending or, to the best knowledge of the Company,
threatened, which would materially and adversely affect the
consummation of the transactions contemplated by this
Agreement.
X. XXX'x REPRESENTATIONS AND WARRANTIES
LUK makes the following representations and warranties
to the Company, each and all of which shall survive the
execution and delivery of this Agreement and the Closing
hereunder:
5.1. Organization. LUK has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the State of New York with corporate power and
authority to own, lease and operate its properties and to
conduct its business as currently being and as proposed to
be conducted and to enter into and perform its obligations
under this Agreement. LUK is qualified as a foreign
corporation to transact business in each jurisdiction where
it is required to be so qualified, except where the failure
to be so qualified would not have a material adverse effect
on the business, financial condition or results of operation
of LUK and its subsidiaries taken as a whole.
5.2. Due Authorization. LUK has the requisite
corporate power and authority to enter into this Agreement
and consummate the transactions contemplated hereby. This
5
Agreement and the transactions contemplated hereby have each
been duly authorized, executed and delivered by LUK, and
this Agreement constitutes a legal, valid and binding
agreement of the Company, enforceable against LUK in
accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws
and except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, moratorium,
reorganization and similar laws relating to or affecting
creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.3. No Conflicts. LUK is not in violation of its
certificate of incorporation or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which LUK is a party or by which
it may be bound, or to which any of the property or assets
of LUK or any of its subsidiaries is subject, the effect of
which default in performance or observance would have a
material adverse effect on the condition, financial or
otherwise, or the results of operations, business or
business prospects of LUK and its subsidiaries considered as
one enterprise. The execution and delivery of this
Agreement will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of LUK or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which LUK or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of LUK or
any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the certificate
of incorporation or by-laws of LUK or any applicable law,
administrative regulation or administrative or court decree.
5.4. LUK's Investment Intention. LUK represents and
warrants that it is purchasing the Securities for its own
account, for investment purposes and not with a view to the
distribution thereof, except in compliance with the
provisions of the Securities Act of 1933, as amended (the
"Act"). LUK agrees that it will not, directly or
indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any of the Securities
(or solicit any offers to buy, purchase, or otherwise
acquire or take a pledge of any of the Securities), except
in compliance with the Act and the rules and regulations
thereunder.
5.5. Access to Data. LUK has had an opportunity to
discuss the Company's business, management, and financial
affairs with its management and to review the Company's
records and facilities, and LUK is relying for purposes of
6
this Agreement upon its own due diligence review of the
Borrower, not on any representation or warranty of the
Borrower other than as expressly set forth in this
Agreement.
VI. COVENANTS
6.1. Tax Compliance. The Company shall pay all trans-
fer, excise or similar taxes in connection with the
issuance, sale, delivery or transfer by the Company to LUK
of the Securities and shall save LUK and any other holder of
the Securities harmless without limitation as to time
against any and all liabilities with respect to such taxes.
The Company shall not be responsible for any taxes in
connection with the transfer of the Securities by the holder
thereof. The obligations of Company under this Section 6.1
shall survive the payment, prepayment or redemption of the
Securities and the termination of this Agreement.
6.2. Registration Rights. At any time after the date
hereof, upon the written request of LUK that the Company
effect the registration under the Act (which shall be a
shelf registration if requested by LUK) of all or part of
the shares of Common Stock (including the Securities upon
their issuance) owned or to be owned by LUK (including any
affiliate of LUK or any trust for the benefit of LUK's
shareholders) and specifying the intended method or methods
of disposition thereof, the Company shall cooperate with LUK
and effect the registration under the Act of such shares as
soon as practicable after receipt of such request.
VII. CONDITIONS PRECEDENT
7.1. Conditions Precedent to Obligations of LUK. The
obligation of LUK to purchase the Securities and to
consummate the transactions contemplated by this Agreement
is subject to the following conditions:
(a) LUK shall have been furnished with certificates
(dated the Closing Date and in form and substance reasonably
satisfactory to LUK) executed by an officer of the Company
certifying that (i) all representations and warranties of
the Company to LUK contained herein are true and correct in
all material respects as of the Closing Date, with the same
force and effect as if made as of the Closing Date; (ii) the
Company shall have performed and complied in all material
respects with the covenants and provisions of this Agreement
required to be performed or complied with by it, on or prior
to the Closing Date; and (iii) after giving effect to the
sale of Securities contemplated hereby, the Company will not
7
be in default under or breach of any material contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party.
(b) LUK's receipt of certificates representing the
Securities registered in LUK's name or in the name of such
persons as LUK shall direct.
(c) LUK's receipt of a copy of the Company's
certificate of incorporation, certified as of a recent date
by the Secretary of State of the State of Delaware, and a
copy of the by-laws, certified by the Secretary or Assistant
Secretary of the Company as true and correct;
(d) LUK's receipt of governmental certificates or
telegrams evidencing that the Company is organized and in
good standing in the State of Delaware;
(e) LUK's receipt of a certificate stating that the
Development Management Agreement, dated August 14, 1998
between the Company and Provence Hills Development Company
LLC (the "Development Management Agreement"), is in full
force and effect on the Closing Date and that neither party
to such agreement has given notice of termination to the
other party to such agreement.
7.2. Conditions Precedent to Obligations of the
Company. The obligation of the Company to issue the
Securities pursuant to this Agreement is subject to the
following conditions:
(a) The Company shall have been furnished with
certificates (dated the Closing Date and in form and
substance reasonably satisfactory to the Company) executed
by an officer of LUK certifying that (i) all representations
and warranties of LUK to the Company contained herein are
true and correct in all material respects as of the Closing
Date, with the same force and effect as if made as of the
Closing Date; and (ii) LUK shall have performed and complied
in all material respects with the covenants and provisions
of this Agreement required to be performed or complied with
by it, on or prior to the Closing Date.
(b) The Company shall have been furnished with an
opinion of Weil, Gotshal & Xxxxxx LLP dated the Closing Date
to the effect that the issuance of the Securities pursuant
to this Agreement (taken together with the issuance of the
August Shares) shall not result in the application of any
limitations under Section 382 or Section 383 of the Internal
Revenue Code of 1986, as amended (the "Code"), on the use
of the Tax Benefits (as defined in the Company's Restated
Certificate of Incorporation); provided, however, that if
the Company fails to receive the foregoing opinion, the
Company will be obligated to deliver such lesser number of
8
shares under Article 2 hereof, which number shall constitute
the Securities under this Agreement, (taken together with
the issuance of the August Shares) as shall result in
increases calculated under Sections 382(g)(1)(A) and (B) of
the Code aggregating 49.8 percentage points during the
applicable "testing period" as defined in Section 382 of the
Code culminating on the Closing Date, and the Company shall
be furnished with an opinion of Weil, Gotshal & Xxxxxx LLP
to the effect that the issuance of the Securities (as so
adjusted) pursuant to this Agreement shall not result in the
application of any Section 382 limitation on the use of the
Tax Benefits.
VIII. CLOSING
8.1. Closing Date. (a) The closing of the sale and
purchase of the Shares provided for in Article III hereof
(the "Closing") shall take place at the offices of Weil,
Gotshal & Xxxxxx LLP, New York, New York at 10:00 a.m. (New
York City time) (or at such time and at such place as the
parties may designate) on the second business day following
the date on which each of the conditions specified in
Article VII hereof has been fulfilled (or waived by the
party entitled to waive that condition), provided that in no
event shall the Closing take place prior to July 5, 1999.
The date on which the Closing occurs is referred to in this
Agreement as the "Closing Date".
(b) In the event that LUK fails to close because the
conditions set forth in Section 7.1 have not been satisfied,
the Company shall repay to LUK an amount equal to the
Purchase Price delivered to the Company on the date of this
Agreement pursuant to Section 3.2 of this Agreement, plus
interest on such Purchase Price, which shall accrue at the
rate of 6% per annum from the date of deposit of the
Purchase Price with the Company through the date such
Purchase Price is repaid to LUK.
(c) In the event that the Purchase Price is reduced
pursuant to Section 3.1 hereof, the Company shall repay to
LUK at the Closing an amount equal to the difference between
the Purchase Price advanced to the Company on the date of
this Agreement and the reduced Purchase Price. If this
payment is not made at the Closing, the Company interest
shall accrue on such amount at the rate of 6% per annum from
the Closing Date through the date such payment is made to
LUK.
8.2. Liquidated Damages. If the Company fails to
deliver the Securities at the Closing (other than as a
result of the exercise of its rights under Section 7.2
hereof), then the Company shall be required to repay the
Purchase Price to LUK and, at LUK's option, the Company
shall either (i) repurchase the shares of Common Stock owned
by LUK at 200% of the fair market value for such shares as
of the Closing Date, but not less than a price per share of
9
$1; or (ii) pay LUK $2,000,000. The Company and LUK agree
that the payment obligation contained in the foregoing
sentence is an integral part of the transactions
contemplated by this Agreement and constitute liquidated
damages and not a penalty. If the Company fails to pay such
amount to LUK, then the Company shall pay the costs and
expenses (including reasonable legal fees and expenses) in
connection with any action, including the filing of any
lawsuit or other legal action, taken to collect payment,
together with interest on the amount of any unpaid fee at
the publicly announced prime rate of Chase Manhattan Bank
from the Closing Date to the date of prepayment.
8.3. Specific Performance. The parties hereto
acknowledge that irreparable damage would result if this
Agreement were not specifically enforced, and they therefore
consent that the rights and obligations of the parties under
this Agreement, including the Company's obligation to sell
the Securities to LUK, may be enforced by a decree of
specific performance issued by a court of competent
jurisdiction. Such remedy shall, however, not be exclusive
and shall be in addition to any other remedies which any
party may have under this Agreement or otherwise.
IX. SECURITIES LAW MATTERS
9.1. Legends. Unless the Securities are the subject
of an effective registration statement, each certificate
representing the Securities shall bear a legend
substantially in the following form:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("THE ACT") OR
ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFEC-
TIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION THEREFROM."
X. INDEMNIFICATION AND EXPENSES
10.1. Indemnification by the Company. The Company
agrees to indemnify, defend and hold LUK and its respective
officers, directors, employees, agents and controlling
persons (collectively, the "LUK Indemnitees") harmless from
and against any and all expenses, losses, claims, damages
and liabilities which are incurred by or threatened against
the LUK Indemnitees, or any of them, including, without
limitation, reasonable attorneys' fees and expenses, caused
by, or in any way resulting from or relating to the
10
Company's breach of any of the representations, warranties,
covenants or agreements of the Company set forth in this
Agreement.
10.2. Indemnification by LUK. LUK agrees to
indemnify, defend and hold harmless the Company and its
respective officers, directors, employees, agents, partners
and controlling persons (collectively, the "Company
Indemnitees") harmless from and against any and all
expenses, losses, claims, damages and liabilities which are
incurred by or threatened against the Company Indemnitees,
or any of them, including, without limitation, reasonable
attorneys' fees and expenses, caused by, or in any way
resulting from or relating to LUK's breach of any of the
representations, warranties, covenants or agreements of LUK
set forth in this Agreement.
XI. MISCELLANEOUS
11.1. Notices. Whenever it is provided herein that
any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served
upon any of the parties by another, or whenever any of the
parties desires to give or serve upon another any such
communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or
other communication shall be in writing and either shall be
delivered in person with receipt acknowledged or by regis-
tered or certified mail, return receipt requested, postage
prepaid, or by telecopy and confirmed by telecopy answerback
addressed as follows:
If to Company at:
HomeFed Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxx
Telecopy Number: (000) 000-0000
With a copy to:
Pillsbury Madison & Sutro LLP
000 Xxxx Xxxxxxxx
00
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: K. Xxxxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
If to LUK at:
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, President
Telecopy Number: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
or at such other address as may be substituted by notice
given as herein provided. The giving of any notice required
hereunder may be waived in writing by the party entitled to
receive such notice. Every notice, demand, request, con-
sent, approval, declaration or other communication hereunder
shall be deemed to have been duly given or served on the
date on which personally delivered, with receipt acknowl-
edged, telecopied and confirmed by telecopy answerback, or
three (3) business days after the same shall have been
deposited with the United States mail.
11.2. Binding Effect; Benefits. Except as otherwise
provided herein, this Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and
their respective successors, transferees and permitted
assigns. Except as expressly set forth herein, nothing in
this Agreement, express or implied, is intended or shall be
construed to give any person other than the parties to this
Agreement or their respective successors, transferees or
permitted assigns any legal or equitable right, remedy or
claim under or in respect of any agreement or any provision
contained herein.
11.3. Waiver. Either party hereto may by written
notice to the other (a) extend the time for the performance
of any of the obligations or other actions of the other
party under this Agreement; (b) waive compliance with any of
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the conditions or covenants of the other party contained in
this Agreement; and (c) waive or modify performance of any
of the obligations of the other party under this Agreement.
Except as provided in the preceding sentence, no action
taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of either
party, shall be deemed to constitute a waiver by the party
taking such action, of compliance with any representations,
warranties, covenants or agreements contained herein. The
waiver by either party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a
waiver of any preceding or succeeding breach and no failure
by either party to exercise any right or privilege hereunder
shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such
party's rights to exercise the same at any subsequent time
or times hereunder.
11.4. Amendment. This Agreement may be amended,
modified or supplemented only by a written instrument
executed by LUK and the Company.
11.5. Assignability. Neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or
by reason hereof shall be assignable by Company. Neither
this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be
assignable by LUK without the prior written consent of the
Company; provided, however, that without the consent of the
Company LUK may assign this Agreement and any or all rights
or obligations hereunder (including, without limitation,
LUK's rights to purchase the Securities and LUK's rights to
seek indemnification hereunder) to any affiliate of LUK or
to any trust for the benefit of LUK's shareholders,
including the LUK Shareholders Trust. Upon any such
permitted assignment, the references in this Agreement to
LUK shall also apply to any such assignee unless the context
otherwise requires; provided, however, that the conditions
set forth in Section 7.2 shall continue to apply to LUK.
11.6. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
11.7. Section and Other Headings. The section and
other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or
interpretation of this Agreement.
11.8. Severability. In the event that any one or more
of the provisions contained in this Agreement shall be
determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforce-
ability of any such provision or provisions in every other
respect and the remaining provisions of this Agreement shall
not be in any way impaired.
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11.9. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to
be an original and all of which together shall be deemed to
be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
HOMEFED CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman of the Board
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Orlando
----------------------------
Name: Xxxxxx X. Orlando
Title: Vice President and
Chief Financial Officer
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