Exhibit 10.B
MANAGEMENT SERVICES AGREEMENT
MANAGEMENT SERVICES AGREEMENT, dated as of February 26, 2001, by and among
The FINOVA Group Inc. ("FINOVA" or the "Company"), a Delaware corporation, and
Leucadia National Corporation, a New York corporation ("Leucadia" or "Manager")
and Leucadia International Corporation, a Utah corporation that is a wholly
owned subsidiary of Leucadia ("Leucadia International").
WHEREAS, FINOVA has agreed to file a petition for voluntary reorganization
(the "Voluntary Petition") under chapter 11 of title 11 of the United States
Code 11 U.S.C. Sections 101 et seq. (the " Bankruptcy Code") with the United
States Bankruptcy Court for the District of Delaware (and together with the
United States District Court the "Bankruptcy Court"); and
WHEREAS, FINOVA, its subsidiary, FINOVA Capital Corporation ("FCC"),
Berkadia LLC, a Delaware limited liability company (the "Lender"), Berkshire
Hathaway Inc., a Delaware corporation ("Berkshire") and Leucadia have entered
into a commitment letter dated as of the date hereof (the "Commitment Letter")
pursuant to which, among other things, the Lender will make its commitment,
guarantied by Berkshire and Leucadia, to lend to FCC $6 billion on the terms and
conditions set forth in the Commitment Letter; and
WHEREAS, pursuant to the Commitment Letter, the Company and FCC have agreed
to file a chapter 11 plan containing the principal terms outlined in the
Commitment Letter or such other terms agreed to by the Company as are mutually
acceptable to both Leucadia and Berkshire in their reasonable discretion (the
"Plan"); and
WHEREAS, the Board of Directors of the Company (the "Board") will form a
special committee consisting of two directors to serve as a special committee of
the Board until the effective date of the Company's chapter 11 plan (the
"Special Committee"), to work closely with Leucadia and the chief restructuring
officer of the Company (the "Chief Restructuring Officer"); and
WHEREAS, certain management functions have previously been performed for
FINOVA by its own officers; and
WHEREAS, Leucadia, directly and through its subsidiaries, has the
capability to provide those services to FINOVA; and
WHEREAS, the Board has determined that it is in the best interests of
FINOVA to obtain such services from Leucadia and its subsidiaries.
It is hereby mutually agreed as follows:
1. TERM. The term of this Management Agreement shall be ten years
commencing on the date hereof.
2. COMPENSATION. For a period of ten years, commencing on the date of this
Agreement, FINOVA shall pay to Leucadia International annually a management fee
of $8 million, payable in immediately available funds (the "Annual Management
Fee"). The Annual Management Fee shall be payable quarterly, in advance, at the
beginning of each calendar quarter; provided, however, that the entire first
Annual Management Fee shall be paid to Leucadia International on the date
hereof. Until Leucadia International receives the first Annual Management Fee,
neither Leucadia nor Leucadia International shall have any responsibilities to
FINOVA under this Agreement.
3. SERVICES OF LEUCADIA. Subject to the authority of the Board, Leucadia,
directly and through its subsidiaries including Leucadia International, (i)
shall be responsible, together with the Special Committee, for the general
management of the Company; (ii) shall assume principal responsibility for
management of the "portfolio" of FCC, including the supervision of corporate
wide management of the portfolio sales, dispositions, acquisitions, and
administration; and (iii) shall provide to the Company the Chief Restructuring
Officer who initially shall be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (an employee of Leucadia
International), who will report to and work closely with the Special Committee
and who, as part of his duties related to the restructuring of the Company and
its subsidiaries, will supervise all communications with lenders and all
banking/creditor and other financial relationships.
In addition, following the effective date of the Plan, Leucadia shall
provide to the Company, the Chairman of the Board and President of the Company
and such other officers, if any, as shall be mutually determined between
Leucadia and the Company.
4. PERSONNEL. Leucadia shall provide a portion of the time of such
executive officers of Leucadia and its subsidiaries as Leucadia reasonably
determines is necessary to carry out the services specified herein. The number
of persons providing services at any one time and the number of hours such
persons devote to the services specified herein shall not be fixed but shall at
all times be adequate to properly and promptly perform and discharge the
specified services, it being understood that acting as Chief Restructuring
Officer shall be ▇▇. ▇▇▇▇▇▇▇▇▇▇'▇ principal professional activity through the
effective date of the Plan.
The persons provided by Leucadia hereunder shall for all purposes be
employees of Leucadia. Neither Leucadia nor Leucadia International shall be
entitled to receive any additional compensation for services rendered under this
Agreement other than the payments set forth in paragraph 2 above, but shall be
reimbursed for all reasonable out of pocket expenses, including reimbursement of
travel expenses. Nothing herein shall prevent, however, any individual provided
hereunder from becoming an elected or appointed officer or director of FINOVA
and enjoying the benefits (other than compensation) afforded to any persons in
any such position.
5. OFFICE SPACE, EQUIPMENT AND SUPPLIES, ETC. FINOVA shall provide to
Leucadia and its personnel provided hereunder office space, secretarial
services, equipment and supplies, telephone, telefax and related support
facilities to the extent available at FINOVA's regular work locations.
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6. MUTUAL OBLIGATIONS. In addition to their other obligations under this
Agreement, each of FINOVA and Leucadia shall cooperate with the other in the
preparation of the Plan. The parties hereto also shall keep each other fully and
promptly informed of developments in FINOVA's and FCC's businesses and
relationships and discussions and negotiations with or affecting their
respective creditors, including any notices from their respective lenders,
suppliers or advisors or any notices from any third party related to their
respective creditors. As promptly as practicable following execution of this
Agreement, the Board of FINOVA shall elect ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, or such other
person designated by Leucadia as is reasonably acceptable to FINOVA, as the
Chief Restructuring Officer and shall elect three designees of Leucadia that are
mutually acceptable to FINOVA and Leucadia as members of the Board (or upon
mutual advice of counsel to Leucadia and FINOVA, to become advisory participants
of the Board and, in such capacity, to attend all meetings of the Board (whether
telephonic or in person) and to receive all communications with the Board at the
same time sent to all regular members of the Board). FINOVA agrees that prior to
confirmation of the Plan, FINOVA and its subsidiaries will carry on their
respective businesses under the supervision of Leucadia and the Special
Committee in the ordinary course of business in compliance in all material
respects with all applicable laws and in accordance with Annex A hereto.
7. COMPANY EXPENSES. FINOVA will continue to bear the cost and expense of
its own employees, including their salary, travel, entertainment, other business
and benefit expenses.
8. BANKRUPTCY COURT APPROVAL. If the Bankruptcy Court does not approve this
Agreement on or before the day an order is issued by the Bankruptcy Court
approving a disclosure statement for the Company and FCC (which shall be no
later than 130 days from the date hereof), this Agreement will automatically
terminate unless termination is specifically waived by Leucadia in writing. The
Company agrees that it will use its best efforts to obtain Bankruptcy Court
approval of this Agreement in a timely manner. If the Agreement is not approved
by the Bankruptcy Court, the $8 million Annual Management Fee paid to Leucadia
International upon execution of this Agreement shall be deemed to be fully
earned upon its payment and shall not be refundable to the Company upon
termination of this Agreement.
9. TERMINATION. If (i) the Commitment Letter is terminated or (ii) a plan
of reorganization other than the Plan is confirmed by order of the Bankruptcy
Court, then Leucadia and the Company each shall have the right to terminate this
Agreement. Any termination shall be upon not less than 30 days prior written
notice given by the terminating party to the other party to this Agreement.
However, any termination (whether under this paragraph or otherwise) shall not
relieve FINOVA of its obligation to pay to Leucadia International the portion of
the Management Fee, if any, that has been earned through the termination date
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but has not been paid to Leucadia International as of the date of such
termination and any unpaid Management Fee due to the date of termination shall
be paid to Leucadia International in one payment, in immediately available
funds, upon the effective date of such termination. Notwithstanding the
foregoing, the $8 million Annual Management Fee paid to Leucadia International
upon execution of this Agreement shall be deemed to be fully earned upon its
payment and shall not be refundable to the Company upon termination of this
Agreement.
10. GOVERNING LAW. This Agreement shall be governed in accordance with the
laws of the State of New York.
11. ASSIGNMENT. Neither party may assign this Agreement or any of its
rights or duties hereunder, except that Manager may assign this Agreement to any
entity that is controlled by, controlling or under common control with Leucadia.
12. NOTICES. Services of all notices, if any, under this Agreement shall be
sufficient if given personally or sent by certified, registered mail, return
receipt requested, or telefax to the addresses set forth below:
If to Company, at:
The FINOVA Group Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice-President, General
Counsel and Secretary
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Manager or Leucadia International, at:
Leucadia National Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy (which shall not constitute notice) to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
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,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or three Business Days after the same shall have been deposited in
the United States mail.
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IN WITNESS WHEREOF, the parties hereto have caused this Management Services
Agreement to be duly executed on the date first written above.
THE FINOVA GROUP INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
LEUCADIA NATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Orlando
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. Orlando
Title: Vice President
LEUCADIA INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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Annex A
Except as otherwise expressly permitted or required by the terms of the
Plan or as otherwise expressly contemplated by this Management Agreement or the
Commitment Letter, during the period from the date of the Management Agreement
to entry of a final order of the Bankruptcy Court confirming the Plan, the
Company shall not, and shall cause any of its subsidiaries not to, without the
written consent of Manager, which decision regarding consents shall be made
promptly (in light of its circumstances) after receipt of notice seeking such
consent:
(i) amend its certificate of incorporation, bylaws or other comparable
organizational documents or those of any subsidiary of the Company;
(ii) except (A) pursuant to the exercise or conversion of outstanding
securities, (B) for issuances of Common Stock upon the exercise of
outstanding options under the benefit plans of the Company, (C) in
connection with other awards outstanding on the date of this Management
Agreement under any benefit plan, or (D) upon conversion of TOPrS, redeem
or otherwise acquire any shares of its capital stock, or issue or sell any
securities (including securities convertible into or exchangeable for any
shares of its capital stock), or grant any option, warrant or right
relating to any shares of its capital stock, or split, combine or
reclassify any of its capital stock or issue any securities in exchange or
in substitution for shares of its capital stock;
(iii) make any material amendment to any existing, or enter into any
new, employment, consulting, severance, change in control or similar
agreement, or establish any new compensation or benefit or commission plans
or arrangements for directors or employees, or amend or agree to amend any
existing benefit plan;
(iv) other than in connection with foreclosures in the ordinary course
of business and mergers or consolidations among wholly-owned subsidiaries
of the Company, merge, amalgamate or consolidate with any other entity in
any transaction, sell all or any substantial portion of its business or
assets, or acquire all or substantially all of the business or assets of
any other person;
(v) enter into any plan of reorganization or recapitalization,
dissolution or liquidation of the Company;
(vi) declare, set aside or make any dividends, payments or
distributions in cash, securities or property to the stockholders of the
Company in respect of any capital stock of the Company;
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(vii) except for borrowings under credit facilities or lines of credit
existing on the date hereof, incur or assume any indebtedness of the
Company or any of its subsidiaries, except indebtedness of the Company or
any of its subsidiaries incurred in the ordinary course of business;
(viii) take any action that would have a material impact on the
consolidated federal income tax return filed by the Company as the common
parent, make or rescind any express or deemed material election relating to
taxes, settle or compromise any material claim, action, suit, litigation,
proceeding, arbitration, investigation, audit or controversy relating to
taxes, enter into any material tax ruling, agreement, contract, arrangement
or plan, file any amended tax return, or, except as required by applicable
law or GAAP or in accordance with past practices, make any material change
in any method of accounting (whether for taxes or otherwise) or make any
material change in any tax or accounting practice or policy;
(ix) enter into any contract, understanding or commitment that
restrains, restricts, limits or impedes the ability of the Company or any
of its subsidiaries, or the ability of Leucadia, to compete with or conduct
any business or line of business in any geographic area;
(x) enter into, or amend the terms of, any contract relating to
interest rate swaps, caps or other hedging or derivative instruments
relating to indebtedness of the Company or any of its subsidiaries; or
agree or commit, whether in writing or otherwise, to do any of the foregoing.
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