Exhibit 3
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 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.]
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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
