Exhibit 10.I.1
NOVATION AGREEMENT
AND
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This NOVATION AGREEMENT AND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
(this "AGREEMENT"), dated as of August 23, 2002, by and among The FINOVA Group
Inc., a Delaware corporation (the "COMPANY"), Berkadia LLC, a Delaware limited
liability company ("BERKADIA"), and Berkadia Equity Holdings LLC, a Delaware
limited liability company ("HOLDINGS"), relates to the Registration Rights
Agreement, dated as of August 21, 2001 (the "REGISTRATION RIGHTS AGREEMENT"), by
and between the Company and Berkadia. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Registration
Rights Agreement.
RECITALS
WHEREAS, Berkshire Hathaway Inc., a Delaware corporation and Leucadia
National Corporation, a New York corporation, each indirectly owns 50% of the
membership interests in each of Berkadia and Holdings;
WHEREAS, Berkadia owns 61,020,581 shares of common stock of the Company;
WHEREAS, the Registration Rights Agreement grants Berkadia and its
permitted transferees certain registration rights with respect to such common
stock;
WHEREAS, concurrent with the execution and delivery of this Agreement by
the parties hereto, Berkadia is transferring to Holdings all of its right, title
and interest to such common stock (the "TRANSACTION") and, as a result of such
transfer, will cease to hold any common stock of the Company; and
WHEREAS, in connection with the Transaction, the parties hereto wish for
Holdings to replace Berkadia as a party to the Registration Rights Agreement,
for Berkadia to withdraw as a party thereto, and for Holdings to be entitled to
all of the rights and be subject to all of the obligations, in each case, of
Berkadia set forth therein;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
AGREEMENT
1. NOVATION. Effective upon the consummation of the Transaction, the
Company, Berkadia, and Holdings hereby novate the Registration Rights of
Agreement, thereby extinguishing the contractual relationship thereunder between
the Company and Berkadia and creating a new contractual relationship between the
Company and Holdings on the same terms and conditions as set forth in the
Registration Rights Agreement other than the replacement of Berkadia with
Holdings as a party thereto and as otherwise set forth herein. For the avoidance
of doubt, and without limiting the foregoing, upon such novation:
(a) Holdings shall be bound by the Registration Rights
Agreement, be entitled to all of Berkadia's rights
thereunder (including, without limitation, the registration
rights set forth therein), and be subject to all of
Berkadia's obligations thereunder, in each case, as if
Holdings were the original party thereto;
(b) the Company shall recognize Holdings as the
successor-in-interest of Berkadia under the Registration
Rights Agreement;
(c) all references to Berkadia in the Registration Rights
Agreement shall be deemed to refer to Holdings; and
(d) Berkadia shall be released from all obligations under the
Registration Rights Agreement.
2. PERMITTED TRANSFER. Notwithstanding anything in the Registration
Rights Agreement to the contrary, including Section 11 thereof, the parties
hereto agree to treat the Transaction as a transfer of Registrable Securities to
a Permitted Transferee for the purposes of the Registration Rights Agreement.
3. AMENDMENT TO DEFINITION OF PERMITTED TRANSFEREE. Section 1 of the
Registration Rights Agreement is hereby amended to delete the definition of
"Permitted Transferee" in its entirety and substitute the following in lieu
thereof:
"PERMITTED TRANSFEREE" means (a) Berkshire Hathaway Inc., a Delaware
corporation
("BERKSHIRE"), and/or Leucadia National Corporation, a New York
corporation
("LEUCADIA"), or (b) any wholly-owned subsidiary of Berkshire and/or
Leucadia.
4. NO OTHER CHANGES. Except as expressly set forth above, all of the
provisions of the Registration Rights Agreement shall remain unchanged and in
full force and effect.
5. MISCELLANEOUS. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original but all of which together shall be one
and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
THE FINOVA GROUP INC.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
General Counsel and Secretary
BERKADIA LLC
By: /s/ Xxxx X. Hamburg
------------------------------------
Name: Xxxx X. Hamburg
Title: President
BERKADIA EQUITY HOLDINGS LLC
By its members:
BHF BERKADIA MEMBER, INC.
By: /s/ Xxxx X. Hamburg
------------------------------------
Name: Xxxx X. Hamburg
Title: President
and
WMAC INVESTORS, INC.
By: /s/ Xxxxxx X. Orlando
------------------------------------
Name: Xxxxxx X. Orlando
Title: Vice President
