Exhibit 4
NOVATION AGREEMENT
This Novation 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"),
Berkadia Equity Holdings LLC, a Delaware limited liability company ("Holdings"),
Berkshire Hathaway Inc., a Delaware corporation ("Berkshire"), and Leucadia
National Corporation, a New York corporation ("Leucadia"), relates to the Voting
Agreement, dated as of August 21, 2001 (the "Voting Agreement"), by and among
the Company, Berkadia, Berkshire, and Leucadia. Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in the Voting
Agreement.
Recitals
Whereas, Berkshire and Leucadia 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, 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;
Whereas, Section 3.7 of the Voting Agreement requires any Stockholder
who transfers all or substantially all of its common stock of the Company to
cause the transferee to be bound by the terms of the Voting Agreement; and
Whereas, in connection with the Transaction, the parties hereto wish
for Holdings to replace Berkadia as a party to the Voting Agreement, for
Berkadia to withdraw as a party thereto, and for Holdings to succeed to all of
Berkadia's rights and obligations thereunder;
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, Holdings, Berkshire, and Leucadia hereby novate the Voting
Agreement, thereby extinguishing the contractual relationship thereunder among
the Company, Berkadia, Berkshire, and Leucadia and creating a new contractual
relationship among the Company, Holdings, Berkshire, and Leucadia on the same
terms and conditions as set forth in the Voting Agreement other than the
replacement of Berkadia with Holdings as a party thereto. For the avoidance of
doubt, and without limiting the foregoing, upon such novation:
(a) Holdings shall be bound by the Voting Agreement and be
obligated to perform all of the obligations of Berkadia
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 Voting Agreement;
(c) the term "Stockholder" as used in the Voting Agreement shall
be deemed to include Holdings and exclude Berkadia; and
(d) Berkadia shall be released from all obligations under the
Voting Agreement.
2. No Other Changes. Except as expressly set forth above, all of
the provisions of the Voting Agreement shall remain unchanged and in full force
and effect.
3. Miscellaneous. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without
reference to choice of law principles, including all matters of construction,
validity, and performance. This Agreement may be executed in any number of
counterparts, and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
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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
Berkshire Hathaway Inc.
By: /s/ Xxxx X. Hamburg
--------------------------------
Name: Xxxx X. Hamburg
Title: Vice President and Chief
Financial Officer
Leucadia National Corporation
By: /s/ Xxxxxx X. Orlando
--------------------------------
Name: Xxxxxx X. Orlando
Title: Vice President
