<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: November 20, 1997
(Date of earliest event reported)
HELLER FINANCIAL, INC.
---------------------
(Exact name of registrant as specified in its charter)
Delaware
--------
(State or other jurisdiction of incorporation)
1-6157 36-1208070
------ ----------
(Commission File Number) (IRS Employer Identification Number)
500 West Monroe Street, Chicago, Illinois 60661
- ----------------------------------------- -----
(Address of principal executive offices) (Zip Code)
(312) 441-7000
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(Registrant's telephone number, including area code)
<PAGE>
ITEM 5. OTHER EVENTS
- ------ ------------
On November 20, 1997, Heller Financial, Inc. ("Registrant") commenced an
offering from time to time under the Registration Statement on Form S-3 No. 333-
38545 (the "Registration Statement") and pursuant to a Prospectus Supplement
dated November 17, 1997 of up to $2,500,000,000 of Medium Term Notes, Series H,
due from 9 months to 30 years from the date of issue.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
- ------ ---------------------------------
(c) Exhibits
1 Distribution Agreement dated as of November 17, 1997 between Registrant and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, BancAmerica Robertson
Stephens, Chase Securities Inc., Citicorp Securities, Inc., Credit Suisse
First Boston Corporation, First Chicago Capital Markets, Inc., Goldman,
Sachs & Co., Lehman Brothers Inc., J.P. Morgan Securities Inc. and UBS
Securities, Inc.
4(a) Second Supplemental Indenture for Senior Securities dated November 17, 1997
between the Registrant and State Street Bank and Trust Company, as Trustee
under an Indenture dated September 1, 1995
4(b) Form of Medium-Term Note, Series H (Fixed Rate) due from 9 months to 30
years from date of issue
4(c) Form of Medium-Term Note, Series H (Fixed Rate/Currency Indexed) due from 9
months to 30 years from date of issue
4(d) Form of Medium-Term Note, Series H (Floating Rate) due from 9 months to 30
years from date of issue
4(e) Form of Medium-Term Note, Series H (Floating Rate/Currency Indexed) due
from 9 months to 30 years from date of issue
8 Opinion of Katten Muchin & Zavis
23 Consent of Katten Muchin & Zavis (included in Exhibit 8)
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: November 20, 1997
-----------------
HELLER FINANCIAL, INC.
By: /s/ Lauralee E. Martin
-------------------------------
Lauralee E. Martin
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Numbered Pages
- ------ --------------
<S> <C> <C>
1 Distribution Agreement dated as of November 17, 1997 between Registrant and 5-70
Merrill Lynch, Pierce, Fenner & Smith Incorporated, BancAmerica Robertson
Stephens, Chase Securities Inc., Citicorp Securities, Inc., Credit Suisse First
Boston Corporation, First Chicago Capital Markets, Inc., Goldman, Sachs & Co.,
Lehman Brothers Inc., J.P. Morgan Securities Inc. and UBS Securities, Inc.
4(a) Second Supplemental Indenture dated November 17, 1997 to Indenture dated 71-74
September 1, 1995 between the Company and State Street Bank and Trust Company
4(b) Form of Medium-Term Note, Series H (Fixed Rate) due from 9 months to 30 years 75-87
from date of issue
4(c) Form of Medium-Term Note, Series H (Fixed Rate/Currency Indexed) due from 9 88-102
months to 30 years from date of issue
4(d) Form of Medium-Term Note, Series H (Floating Rate) due from 9 months to 30 years 103-127
from date of issue
4(e) Form of Medium-Term Note, Series H (Floating Rate/Currency Indexed) due from 9 128-154
months to 30 years from date of issue
8 Opinion of Katten Muchin & Zavis 155
23 Consent of Katten Muchin & Zavis (included in Exhibit 8)
</TABLE>
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HELLER FINANCIAL, INCHELLER FINANCIAL, INC.
$2,500,000,000
Medium-Term Notes, Series H
Due From 9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
November 17, 1997
MERRILL LYNCH & CO., FIRST CHICAGO CAPITAL
MERRILL LYNCH, PIERCE, FENNER & MARKETS, INC.
SMITH INCORPORATED The First National Bank of Chicago
Merrill Lynch World Headquarters One First National Plaza
North Tower Mail Suite 0084
World Financial Center Chicago, Illinois 60670-0084
New York, New York 10281-1310
CHASE SECURITIES INC. GOLDMAN, SACHS & CO.
270 Park Avenue 85 Broad Street
New York, New York 10017 New York, New York 10004
CITICORP SECURITIES, INC. LEHMAN BROTHERS
399 Park Avenue LEHMAN BROTHERS INC.
New York, New York 10043 Three World Financial Center,
12th Floor
New York, New York 10285-1200
CREDIT SUISSE FIRST BOSTON CORPORATION J.P. MORGAN SECURITIES INC.
Eleven Madison Avenue 60 Wall Street
New York, New York 10010 New York, New York 10260
BANCAMERICA ROBERTSON STEPHENS UBS SECURITIES LLC
231 South LaSalle Street, 17J 299 Park Avenue
Chicago, Illinois 60697 New York, New York 10171-0026
Dear Sirs:
Heller Financial, Inc., a Delaware corporation (the "Company"), confirms
its agreement with you (the "Agents") (either acting directly or through one or
more affiliates) with respect to the issue and sale by the Company of up to
$2,500,000,000 aggregate principal amount of its Medium-Term Notes, Series H
(the "Notes"). The Notes are to be issued under a senior indenture dated as of
September 1, 1995 between the Company and State Street Bank and Trust Company,
as trustee (the "Trustee") (as amended, the
<PAGE>
"Indenture"). The Notes will have the maturities, annual interest rates,
redemption provisions and other terms specified in a pricing supplement to the
Note Prospectus referred to below.
Subject to the terms and conditions stated herein, the Company hereby
appoints each of you as an agent of the Company for the purpose of soliciting
offers to purchase the Notes; provided, however, that the Company reserves the
right to appoint additional agents and agrees to provide written notice to you
as promptly as is practicable following the execution of any applicable pricing
agreement with any such additional agents, on substantially similar terms as are
set forth herein for the purpose of soliciting offers to purchase the Notes (the
"Other Agents"); and provided further that the Company reserves the right to
sell and may accept offers to purchase the Notes directly on its own behalf.
1. Solicitations by the Agents of Offers To Purchase; Purchases as
Principals.
(a) Following the Commencement Date (referred to below), the Company
shall notify the Agents from time to time as to the commencement of a period
during which the Notes may be offered and sold by the Agents (each period,
commencing with such a notification and ending at such time as the authorization
for offers and sales through the Agents shall have been suspended by the Company
or the Agents as provided hereunder, being herein referred to as an "Offering
Period"). On the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, the Agents will use
their respective reasonable best efforts to solicit offers to purchase the Notes
during each Offering Period upon the terms and conditions set forth in the Note
Prospectus as then amended and supplemented.
The Company agrees to pay each Agent, as consideration for soliciting
the sale of the Notes, in the form of a discount, a commission equal to the
applicable percentage set forth on Schedule 1 hereto of the principal amount of
each Note sold by the Company as the result of a solicitation by such Agent;
provided, however, that either the Agents or the Company may upon not less than
30 days' notice request that the commissions be renegotiated, and if no
agreement is reached within such 30-day period this Agreement shall be
terminated subject to Section 8 hereof.
The Agents are authorized to solicit orders for the Notes only in
denominations of $1,000 or any amount in excess thereof which is a multiple of
$1,000 and, unless otherwise agreed to by the Company, at a purchase price equal
to 100% of their principal amount. Each Agent shall communicate to the Company,
orally or in writing, each reasonable offer or indication of interest received
by it to purchase Notes. The Company shall have the sole right to accept offers
to purchase the Notes and may reject any such offer in whole or in part. Each
Agent shall have the right to reject, in its discretion reasonably exercised,
any offer received by it to purchase the Notes, in whole or in part, and any
such rejection shall not be deemed a breach of its agreements contained herein.
In soliciting offers to purchase the Notes hereunder, the Agents are acting
solely as agents for the Company, and not as principals. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but no Agent shall have any liability to the Company in
the event any such purchase is not consummated for
2
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any reason. Under no circumstances will the Agents be obligated to purchase any
Notes for their own accounts, unless a Terms Agreement has been entered into
pursuant to Section 1(b) hereof.
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Medium-Term
Note, Series H, Administrative Procedures attached hereto as Exhibit A (the
"Procedures"). The Procedures may be amended only by written agreement of the
Company and the Agents.
The documents required to be delivered by Section 5 of this Agreement
shall be delivered at the office of Katten Muchin & Zavis, counsel for the
Agents, 525 W. Monroe Street, Chicago, Illinois 60661, on such date as may be
agreed to by the Company and the Agents (the "Commencement Date").
(b) Subject to the terms and conditions stated herein, the Company
agrees that, whenever the Company determines to sell Notes directly to an Agent
as principal for resale to others, it will enter into a Terms Agreement (which
may be either oral, to be confirmed in writing, or written) relating to such
sale in accordance with the provisions of this Section 1(b). Each sale of Notes
to an Agent as principal shall be made in accordance with the terms of this
Agreement and a supplemental agreement which will provide for the sale of such
Notes to, and the purchase and reoffering thereof by, such Agent. Each such
supplemental agreement (which shall be either oral, to be confirmed in writing,
or written, and in either case the confirmation or the supplemental agreement
shall be substantially in the form of Exhibit B hereto and may take the form of
an exchange of any standard form of written telecommunication between the
applicable Agent and the Company) is herein referred to as a "Terms Agreement".
An Agent's commitment to purchase Notes pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall describe the Notes to be purchased
pursuant thereto by the Agent who is a party to such Terms Agreement, specify
the principal amount of such Notes, the price to be paid to the Company for such
Notes, the rate at which interest will be paid on the Notes, the date and time
of delivery of payment for such Notes (the "Purchase Date"), the place of
delivery of the Notes and payment therefor, the method of payment and any
modification of the requirements for the delivery of the opinions of counsel,
the certificates from the Company, and the letter from Arthur Andersen LLP,
pursuant to Section 5(B)(b). Agents acting as principals may utilize a selling
or dealer group in connection with the resale of Notes purchased. The Agents
may reallow any portion of the commission payable pursuant hereto to dealers or
purchasers in connection with the offer and sale of any Notes.
Delivery of the certificates for Notes sold to an Agent pursuant to
any Terms Agreement shall be made as agreed to between the Company and such
Agent as specified in the Terms Agreement, not later than the Purchase Date set
forth in such Terms Agreement, against payment of funds to the Company in the
net amount due to the Company for such Notes by the method and in the form
specified in the Terms Agreement.
2. Other Activities of Agents. The Company acknowledges that nothing in
this Agreement shall prohibit any Agent from (i) acting as broker for the sale
of Notes by
3
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customers other than the Company, (ii) soliciting the sale of Notes through such
Agent as broker for the seller, soliciting the sale of Notes to such Agent as
principal and soliciting offers to buy Notes, (iii) purchasing Notes, and (iv)
offering and selling as principal for its own account Notes which such Agent has
purchased.
3. Representations and Warranties. The Company represents and warrants
to, and agrees with, the Agents that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such form (File No. 333-38545) for the registration under the Act of certain
senior preferred stock, warrants to purchase debt securities and debt
securities, including the Notes. Such registration statement, at the time of
filing, at the time it became effective, and at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies
in all other material respects with said Rule. Such registration statement,
including the exhibits thereto, other than the Form T-1 Statements of
Eligibility and Qualification of the Trustees under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), when it became effective, is
hereinafter called the "Registration Statement", and the prospectus in the form
in which it appears in the Registration Statement is hereinafter called the
"Prospectus". The term "preliminary prospectus" as used herein means a
prospectus filed as part of any post-effective amendment to the Registration
Statement prior to the effective date of such post-effective amendment, as
contemplated in Rule 430 under the Act. The Company proposes to file with the
Commission from time to time, pursuant to Rule 424(b) under the Act, supplements
to the Prospectus, which will describe certain terms of the Notes and prior to
any such filing will advise the Agents of all further information (financial and
other) with respect to the Company to be set forth therein. The Prospectus as
so supplemented from time to time is hereinafter called the "Note Prospectus".
Any preliminary form of supplemental prospectus which may be filed pursuant to
Rule 424(b) under the Act is hereinafter called a "preliminary supplemental
prospectus". Any reference herein to the Registration Statement, any
preliminary prospectus, any preliminary supplemental prospectus, the Prospectus,
or the Note Prospectus as amended and supplemented, shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 (except for any documents or portions thereof which are deemed,
under Rule 412 of the rules and regulations of the Commission under the Act, not
to be incorporated) which were filed under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), on or before the effective date of the
Registration Statement, or the issue date of such preliminary prospectus,
preliminary supplemental prospectus, supplemental prospectus, the Prospectus or
the Note Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment", or "supplement" with respect to the Registration
Statement, any preliminary prospectus, any preliminary supplemental prospectus,
any supplemental prospectus, the Prospectus or the Note Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the effective date of the Registration Statement or the issue date of any
preliminary prospectus, any preliminary supplemental prospectus, any
supplemental prospectus, the Prospectus or the Note Prospectus, as the case may
be, deemed to be incorporated therein by reference.
4
<PAGE>
(b) When the Registration Statement became effective, when any
amendment to the Registration Statement becomes effective (including the filing
of any document incorporated by reference in the Registration Statement), when
any supplement to the Prospectus (other than a supplement specifying the terms
of debt securities other than the Notes) or the Note Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act, on each day during an
Offering Period, and at the time of delivery of any Notes to any purchaser or
his agent whose offer to purchase such Notes was delivered to the Company during
an Offering Period:
(i) The Registration Statement, as amended as of any such time,
and the Note Prospectus, as amended and supplemented as of any such time, and
the Indenture does and will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder.
(ii) Neither the Registration Statement nor the Note Prospectus,
each as amended and supplemented as of any such time, contains or will contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement or the Note Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of the Agents or the Other Agents
specifically for use in the Registration Statement and the Note Prospectus or
any amendment thereof or supplement thereto.
(iii) The documents incorporated by reference in the Registration
Statement or the Note Prospectus, when they became effective or were filed with
the Commission, as the case may be, under the Exchange Act, conformed, and any
documents so filed and incorporated by reference in the Registration Statement
or the Note Prospectus, each as amended or supplemented as of any such time,
after the date of this Agreement will, when they are filed with the Commission,
conform, in all material respects to the requirements of the Act and the
Exchange Act, as applicable, and all rules and regulations of the Commission
thereunder.
(iv) The consolidated financial statements and consolidated
financial schedules of the Company and any subsidiaries included or incorporated
by reference in the Registration Statement and the Note Prospectus, each as
amended or supplemented as of any such time, fairly present the financial
condition of such companies as of the dates indicated and the results of
operations and changes in financial position for the periods therein specified
in conformity with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein). Arthur
Andersen LLP, which has examined certain of such financial statements and
schedules, as set forth in their reports included or incorporated by reference
in the Registration Statement and the Note Prospectus, each as amended or
supplemented as of any such time, are, to the best of the Company's knowledge,
independent public accountants with respect to the Company and its subsidiaries
as required by the Act and the rules and regulations thereunder.
5
<PAGE>
(v) The Company and each of its subsidiaries (other than
subsidiaries which, considered in the aggregate as a single subsidiary, would
not constitute a "significant subsidiary" as defined in Rule 1-02(v) of
Regulation S-X promulgated by the Commission) have been duly incorporated and
are validly existing as corporations in good standing under the laws of the
respective jurisdictions of their incorporation; each of the Company and such
subsidiaries is duly licensed and duly qualified to do business as a foreign
corporation and is in good standing in all the jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business requires
such qualification, except where the failure to be so qualified, considering all
such cases in the aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the Company and its
subsidiaries, taken as a whole; and each of the Company and such subsidiaries
has full power and authority to own its properties and conduct its business as
described in the Prospectus; all the outstanding shares of capital stock of each
such subsidiary which are owned by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned by the
Company either directly or through wholly owned subsidiaries free and clear of
any perfected security interest and any other security interests, claims, liens
or encumbrances.
(vi) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered; as of the
Commencement Date the Notes will have been duly authorized and, when duly
executed, authenticated, issued and delivered as contemplated hereby and by the
Indenture, will constitute valid and legally binding obligations of the Company
in accordance with their terms subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditor's rights and to general equity principles.
(vii) Each of the agreements listed on Schedule II hereto has
been duly authorized, executed and delivered by the Company and (assuming the
due authorization, execution and delivery thereof by the other party or parties
thereto) constitutes a valid and legally binding obligation of the parties
thereto enforceable in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditor's rights and to general equity principles.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) Unless you shall have been otherwise promptly notified by
the Company in writing, except as contemplated in the Note Prospectus, as
amended and supplemented as of any such time, subsequent to the respective dates
as of which information is given in the Registration Statement and the Note
Prospectus, each as amended and supplemented as of any such time, (A) there has
not been any material adverse change in the financial condition, earnings,
business or properties of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business, (B)
neither the Company nor any of its subsidiaries has entered into any transaction
not in the ordinary course of business material to the
6
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Company and its subsidiaries taken as a whole and (C) neither the Company nor
any of its subsidiaries has incurred any liabilities or obligations, direct or
contingent, not in the ordinary course of business which are material in
relation to the Company and its subsidiaries taken as a whole.
(x) Except as set forth in the Note Prospectus, as amended and
supplemented as of any such time, and except for litigation which, if determined
adversely to the Company or its subsidiaries, would not have a material adverse
effect upon the financial condition or the earnings of the Company and its
subsidiaries (taken as a whole), the Company knows of no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject; to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
and there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement by the Act or by the rules and regulations of the Commission
thereunder and which have not been so filed or which will not be so filed as
required by the Act or such rules or regulations.
(xi) None of the issuance or sale of the Notes by the Company,
the performance of the obligations of the Company under the Notes, the Indenture
and this Agreement, the consummation by the Company of any other of the
transactions herein contemplated, or the fulfillment by the Company of the terms
hereof, will materially conflict with, result in a material breach of or
constitute a material default under any statute, the Company's charter or by-
laws or the terms of any indenture or other agreement or instrument to which the
Company or any of its subsidiaries is a party or is bound, or, to the best of
the Company's knowledge, any order or regulation applicable to the Company or
any of its subsidiaries of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or any of its
subsidiaries; no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation of the
transactions contemplated in connection with the issuance or sale of the Notes
by the Company, except such as may be required under the Act, the Trust
Indenture Act or state securities laws; and the Company has full power and
authority to authorize, issue and sell the Notes as contemplated by this
Agreement.
4. Agreements of the Company. The Company agrees with the Agents that:
(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement, the Company will not file any amendment to the Registration
Statement, any supplement to the Prospectus which would create a Note Prospectus
or any supplement to the Note Prospectus unless the Company has previously
furnished the Agents a copy thereof for their review and will not file any such
proposed amendment or supplement to which any of the Agents reasonably objects.
Subject to the foregoing sentence, the Company will promptly cause the
Prospectus together with each supplement thereto which would create a Note
Prospectus, and each Note Prospectus together with each supplement thereto, to
be transmitted to the Commission for filing electronically by the appropriate
date, or will promptly cause each supplement to the Prospectus or the Note
Prospectus, as the case may be, to be filed with the Commission pursuant to said
Rule. The Company will
7
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promptly advise the Agents (i) of the filing of any amendment or supplement to
the Prospectus which creates a Note Prospectus, including the filing of
documents incorporated therein by reference, (ii) of the filing of any amendment
or supplement to the Note Prospectus, including the filing of documents
incorporated therein by reference, (iii) of the filing or effectiveness of any
amendment to the Registration Statement, (iv) of any comments from the
Commission relating to or any request by the Commission for any amendment of the
Registration Statement, any amendment of or supplement to the Prospectus which
would create a Note Prospectus, or any amendment of or supplement to the Note
Prospectus, or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which,
in the reasonable opinion of counsel for the Agents or counsel for the Company,
the Registration Statement or the Note Prospectus, as then amended or
supplemented, would not reflect any facts or events which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the Registration Statement or the Note Prospectus, as then amended or
supplemented, and/or would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if, in
the reasonable opinion of either such counsel, it is necessary at any time to
amend or supplement the Registration Statement or the Note Prospectus, as then
amended or supplemented, to comply with the Act, the Company promptly will
notify the Agents and, if so notified by the Company, the Agents shall forthwith
suspend solicitation of offers to purchase Notes and cease using the Note
Prospectus, as then amended or supplemented; the Company will promptly prepare
and file with the Commission, subject to the first sentence of Section 4(a)
above, an amendment or supplement to such Registration Statement or Note
Prospectus which will include such facts or events and/or will correct such
statement or omission or will effect such compliance and will supply such
amended or supplemented Note Prospectus to the Agents in such quantities as the
Agents may reasonably request. If such amendment or supplement, and any
documents, certificates and opinions furnished to the Agents pursuant to Section
4(f) below in connection with the preparation or filing of such amendment or
supplement, are satisfactory in all respects to the Agents, the Agents will,
upon the filing of such amendment or supplement with the Commission or
effectiveness of an amendment to the Registration Statement, resume their
obligations to solicit offers to purchase Notes hereunder.
(c) The Company will make generally available to its security holders
as soon as practicable, but not later than 15 months after the end of a fiscal
quarter of the Company during which any Notes are sold through or purchased by
the Agents, an earnings statement of the Company (which need not be audited)
covering a 12-month period within such 15 months, which earnings statement shall
satisfy the provisions of
8
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Section 11(a) of the Act and the rules and regulations of the Commission issued
thereunder (including Rule 158 under the Act).
(d) The Company will furnish to each Agent and counsel for the Agents,
without charge, copies of the Registration Statement, the Note Prospectus and
all amendments of and supplements to such documents (including exhibits thereto
and documents incorporated by reference therein), in each case as soon as
available and in such quantities as such Agent reasonably requests and for so
long as delivery of a prospectus by such Agent may be required under the Act,
that the Company will also furnish to each Agent and counsel for the Agents one
manually signed copy of the Registration Statement and all amendments thereto
(including in each case all Exhibits thereto) as soon as available.
(e) The Company will use its best efforts to qualify the Notes for
sale under the securities laws of such jurisdictions as the Agents may
reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes pursuant to this Agreement (except
that the Company shall not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process in any
State) and will arrange for the determination of the eligibility for investment
of the Notes under the laws of such jurisdictions as the Agents may reasonably
request.
(f) The Company shall furnish to each Agent such documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement and the Note Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures and the
performance by the Company and such Agent of their respective obligations
hereunder and thereunder as such Agent may from time to time prior to the
termination of this Agreement reasonably request.
(g) The Company, whether or not any Notes are sold through or
purchased by the Agents and whether or not this Agreement is terminated, shall
pay all expenses incident to the performance of its obligations under this
Agreement, including, without limitation, the fees and disbursements of its
accountants; the cost of printing and delivery of the Registration Statement and
the Note Prospectus, all amendments and supplements thereto, the Indenture, and
all other documents relating to the offering; the cost of preparing, printing,
packaging and delivering the Notes; the fees and disbursements (including fees
of counsel) incurred in connection with the qualification of the Notes for sale
and determination of eligibility for investment of the Notes under the
securities or Blue Sky laws of such jurisdictions as the Agents may designate;
any filing fees of the National Association of Securities Dealers, Inc. relating
to the Notes; the fees and disbursements of the Trustee, the fees of any agency
that rates the Notes; and the fees and expenses in connection with any listing
of the Notes on any stock exchange or market.
(h) The Company shall reimburse each Agent for any out-of-pocket
expenses (including, without limitation, advertising expenses approved by the
Company in its discretion and the reasonable fees and disbursements of counsel
to the Agents) incurred heretofore or hereafter by such Agent in connection with
the offering, purchase and sale of
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<PAGE>
the Notes. Any such out-of-pocket expenses shall be payable upon the receipt by
the Company from such Agent of any itemized statement therefor.
(i) Each time the Registration Statement or the Note Prospectus is
amended (which term for the purposes of this Section 4 shall include the filing
by the Company of materials incorporated by reference in the Registration
Statement or the Note Prospectus) or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates on the Notes or
for a change deemed immaterial in the reasonable opinion of the Agents), or the
Prospectus is supplemented to create a Note Prospectus, the Company will, at the
request of any Agent in such Agent's sole discretion, deliver or cause to be
delivered forthwith to each Agent a certificate of the Company signed by the
Chairman of the Board, the President or any Vice President and by the principal
financial or accounting officer of the Company, dated the date of the
effectiveness of such amendment or the date of filing of such amendment or
supplement, as the case may be, in form reasonably satisfactory to the Agents,
to the effect that the statements contained in the certificate referred to in
Section 5(A)(d) that was last furnished to the Agents (either pursuant to
Section 5(A)(d) or pursuant to this Section 4(i)) are true and correct at the
time of the effectiveness of such amendment (which for the purposes of this
Agreement in the case of the filing of materials incorporated by reference shall
be the date of the filing of such materials) or the date of filing of such
supplement, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement as
amended at the time of effectiveness of such amendment, and to the Prospectus or
the Note Prospectus (as the case may be) as amended and supplemented at the date
of such certificate) or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 5(A)(d) but modified, if
necessary, to relate to the Registration Statement as amended at the time of the
effectiveness of such amendment, and to the Prospectus or the Note Prospectus
(as the case may be) as amended and supplemented at the date of such
certificate.
(j) Each time the Registration Statement or the Note Prospectus is
amended or supplemented, including by the filing by the Company of materials
incorporated by reference, or the Prospectus is supplemented to create a Note
Prospectus, the Company shall, at the request of any Agent in such Agent's sole
discretion, furnish to or cause to be furnished forthwith to each Agent a
written opinion of the General Counsel, any Group General Counsel or any
Associate General Counsel of the Company, or other United States counsel to the
Company reasonably satisfactory to the Agents, to the effect set forth in
Exhibit C hereto; provided, however, that such opinion need not be furnished
with respect to an amendment or supplement (i) providing solely for a change in
the interest rates on the Notes or for a change deemed immaterial in the
reasonable opinion of the Agents, or (ii) setting forth or incorporating by
reference financial statements or other information as of and for a fiscal
quarter, unless in the reasonable judgment of the Agents, such financial
statements or other information are of such a nature that an opinion of counsel
should be furnished. Any such opinion shall be dated the date of the
effectiveness of such amendment or the date of filing of such supplement, as the
case may be, in form satisfactory to the Agents. In lieu of such opinion, such
counsel may furnish to each Agent a letter to the effect that the Agents may
rely on such counsel's last opinion to the same extent as though it were dated
the date of such letter authorizing reliance on such last opinion (except that
statements in such last opinion will be deemed to relate to the
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<PAGE>
Registration Statement as amended at the time of the effectiveness of such
amendment, and to the Prospectus or the Note Prospectus (as the case may be) as
amended and supplemented at the date of such letter).
(k) Each time that the Registration Statement or the Note Prospectus
is amended or supplemented to set forth amended or supplemental financial
information, the Company shall, at the request of any Agent in such Agent's sole
discretion, cause Arthur Andersen LLP, its independent public accountants,
forthwith to furnish the Agents a letter, dated the date of the effectiveness of
such amendment or the date of filing of such supplement, as the case may be, in
form satisfactory to the Agents, of the same tenor as the letter referred to in
Section 5(A)(e) and clause (1) of Exhibit D hereto but modified to relate to the
Registration Statement and the Note Prospectus, as amended and supplemented to
the date of such letter, and of the same tenor as the portions of the letter
referred to in clauses (2) and (3) of Exhibit D hereto with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company; provided, that
if the Registration Statement or the Note Prospectus is amended or supplemented
solely to include or incorporate by reference financial information with respect
to a fiscal quarter, Arthur Andersen LLP may limit the scope of such letter to
the unaudited financial statements included in such amendment or supplement
unless any other information included or incorporated by reference therein of an
accounting, financial or statistical nature is of such a nature that, in the
reasonable judgment of the Agents, such letter should cover such other
information.
(l) Each acceptance by the Company of an offer for the purchase of
Notes shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement to the Agents pursuant
hereto are true and correct at the time of such acceptance, and an undertaking
that such representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent, or the applicable Agent, of the Notes
relating to such acceptance as though made at and as of each such time (and it
is understood that such representations and warranties shall relate to the
Registration Statement and the Note Prospectus as amended and supplemented to
each such time).
(m) Unless otherwise specified in a Terms Agreement, during the
period, commencing on the date of the Terms Agreement and ending on the
settlement date with respect thereto, the Company shall not, without the prior
consent of the Agent who is a party to such Terms Agreement, issue or announce
the proposed issuance of any of its debt securities, including Notes, with terms
substantially similar to those of the Notes being purchased pursuant to the
Terms Agreement.
(n) The Company will deliver to the Agents at their respective
addresses specified in Section 9 below, so long as this Agreement shall remain
in effect, copies of any published reports of the Company to its securities
holders, including, without limitation, any annual reports and quarterly reports
of the Company and any other financial reports made generally available to its
securities holders, at the same time as such reports are published or made
available to securities holders.
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5. Conditions to the Obligations of the Agents. (A) The obligations of
each Agent to solicit offers to purchase the Notes pursuant to Section 1(a)
hereof will be subject to the accuracy of the representations and warranties on
the part of the Company made herein as of the date hereof, the Commencement Date
and at the times set forth in Section 4(l), to the accuracy of the statements of
the Company's officers made in each certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to such Agent the opinions of the
General Counsel or Associate General Counsel of the Company, or other United
States counsel to the Company reasonably satisfactory to the Agents, dated the
Commencement Date, to the effect set forth in Exhibit C hereto.
(c) Such Agent shall have received from Katten Muchin & Zavis, counsel
for the Agents, an opinion dated the Commencement Date with respect to the
issuance and sale of the Notes, the Indenture, the Registration Statement, as
amended as of the Commencement Date, the Note Prospectus, as amended and
supplemented as of the Commencement Date, and other related matters as such
Agent may reasonably require; and the Company shall have furnished to such
counsel such documents as they may request for the purpose of enabling them to
pass on such matters.
(d) The Company shall have furnished to such Agent a certificate of
the Company, signed by the Chairman of the Board, the President or any Vice
President, and by the principal financial or accounting officer of the Company
(or another officer acceptable to such Agent), dated the Commencement Date, to
the effect that the signers of such certificate have examined the Registration
Statement, as amended as of the date of such certificate, the Note Prospectus,
as amended and supplemented as of the date of such certificate, and this
Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the date of
such certificate with the same effect as if made on the date of such
certificate, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as a condition to
the obligations of such Agent under this Agreement;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Note Prospectus, as amended and supplemented, there has been no
material adverse change in the condition (financial or other), earnings,
business or properties of the
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<PAGE>
Company and its subsidiaries, whether or not arising from transactions in the
ordinary course of business, nor any material change in the debt maturing more
than one year after the date of issue of the Company and its consolidated
subsidiaries, other than those changes reflected in or contemplated by the Note
Prospectus, as amended and supplemented as of the date of the certificate.
(e) Arthur Andersen LLP shall have furnished to such Agent a letter or
letters, dated the Commencement Date, in form and substance satisfactory to such
Agent, confirming that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable published rules and
regulations thereunder, that the response to Item 10 of the Registration
Statement is correct insofar as it relates to them and to the effect set forth
in Exhibit D hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Note Prospectus, as amended and
supplemented, there shall not have been (i) any change or decrease specified in
the certificate referred to in paragraph (A)(d) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries, the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the judgment of such
Agent, so material and adverse as to make it impractical or inadvisable to
proceed with the soliciting of offers to purchase the Notes as contemplated by
the Registration Statement and the Note Prospectus (or, in the case of a Terms
Agreement, to proceed with the offering or the delivery of the Notes to be
purchased as contemplated by the Terms Agreement).
(g) The Company shall have furnished to such Agent such further
information, certificates and documents as such Agent may reasonably request
from time to time. Any certificate signed by any officer of the Company and
delivered to such Agent or its counsel and delivered explicitly pursuant to the
terms of this Agreement shall be deemed a representation and a warranty by the
Company to such Agent as to matters covered thereby, as if set forth herein.
(B) The obligations of an Agent to purchase Notes pursuant to any Terms
Agreement entered into by it pursuant to Section 1(b) hereof will be subject to
the accuracy of the representations and warranties on the part of the Company
herein as of the date of such Terms Agreement and as of the Purchase Date
thereunder, to the accuracy of the statements of the Company's officers made in
each certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all covenants and agreements contained herein
and in such Terms Agreement on its part to be performed and observed and to the
following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) Except to the extent modified by such Terms Agreement, such Agent
shall have received, appropriately updated and modified, (i) a certificate of
the Company, dated as of the Purchase Date, to the effect set forth in Section
5(A)(d), (ii) the opinion of
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<PAGE>
the General Counsel or Associate General Counsel of the Company, or other United
States counsel to the Company reasonably satisfactory to such Agent, dated as of
the Purchase Date, to the effect set forth in Section 5(A)(b), (iii) the opinion
of Katten Muchin & Zavis, counsel for the Agents, dated as of the Purchase Date,
to the effect set forth in Section 5(A)(c) and (iv) the letter of Arthur
Andersen LLP, dated as of the Purchase Date, to the effect set forth in Section
5(A)(e).
(c) The conditions set forth in Section 5(A)(f) shall have been
satisfied.
(d) Prior to the Purchase Date, the Company shall have furnished to
such Agent such further information, certificates and documents as such Agent
may reasonably request.
If any of the conditions specified in this Section 5(B) shall not have been
fulfilled in all material respects when and as provided in this Agreement and in
such Terms Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement and in such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to such Agent
and its counsel, such Terms Agreement and all obligations of such Agent
thereunder may be canceled at, or at any time prior to, the Purchase Date by
such Agent. Notice of such cancellation shall be given to the Company in
writing or by telephone or telecopy confirmed in writing.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Agent and
each person who controls any Agent within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities and
reasonable expenses (including reasonable costs of investigation), as incurred,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
prospectus, any preliminary supplemental prospectus, the Prospectus, the Note
Prospectus or in any amendment thereof or supplement thereto, or arising out of
or based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon any untrue statement or omission, or allegation
thereof, which has been made therein or omitted therefrom in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of such Agent specifically for use therein, and (ii) such indemnity with respect
to any preliminary prospectus, any preliminary supplemental prospectus, the
Prospectus or the Note Prospectus shall not inure to the benefit of such Agent
(or any person controlling such Agent), if the Company shall have delivered
sufficient quantities of the Note Prospectus, as amended and supplemented, to
such Agent within a reasonable time prior to the earlier of the delivery of the
written confirmation of the sale of such Notes or the delivery of such Notes to
the person asserting such loss, claim, damage, liability or action for which
indemnification is sought, and the Note Prospectus as so amended and
14
<PAGE>
supplemented (excluding documents incorporated by reference) was not sent or
given to such person at or prior to the earlier of the delivery of the written
confirmation of the sale of such Notes or the delivery of such Notes to such
person in any case where such sending or giving of a prospectus is required by
the Act and the untrue statement or omission of a material fact contained in
such preliminary prospectus, such preliminary supplemental prospectus, such
Prospectus or such Note Prospectus was corrected in the Note Prospectus, as so
amended and supplemented, provided to such Agent. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Agent agrees to indemnify and hold harmless the Company, each
person, if any, who controls the Company within the meaning of either the Act or
the Exchange Act, each director of the Company and each officer of the Company
who signs the Registration Statement or any amendment thereto to the same extent
as the foregoing indemnity from the Company to such Agent, but only insofar as
such losses, claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which was
made therein in reliance upon and in conformity with written information
supplied to the Company by or on behalf of such Agent with respect to such Agent
specifically for use therein. This indemnity agreement will be in addition to
any liability which the Agents may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
Section 6(a) or 6(b). In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (other than local counsel), approved by the
Agents in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to
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<PAGE>
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 6 in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the relevant
Agent, on the other, from the offering of the Notes to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company, on the one hand, and such Agent, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and such Agent, on the other, shall be deemed to be in the same
proportion as the proceeds from the sale of such Notes (before deducting
expenses) received by the Company bear to the total commissions (total
discounts, in the case of a Terms Agreement) received by such Agent in respect
thereof pursuant to Section 1. The relative fault shall be determined by
reference to, among other things, whether the indemnified party failed to give
the notice required under paragraph (c) of this Section 6, including the
consequences of such failure, and whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the Company, on the
one hand, or by such Agent, on the other, and the relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, of the Company, on the one hand, or such Agent, on the other. The
Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) of this Section 6 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this paragraph (d)
of this Section 6. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this paragraph (d) of this Section 6 shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim (which shall be limited as provided in paragraph (c) of this Section 6
if the indemnifying party has assumed the defense of any such action in
accordance with the provisions thereof). Notwithstanding the provisions of this
paragraph (d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which such Notes were sold to or through
it exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
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<PAGE>
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls an
Agent within the meaning of the Act shall have the same rights to contribution
as such Agent, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement or any amendment thereto and each director of
the Company shall have the same rights to contribution as the Company. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against any other party or parties under this
paragraph (d) of this Section 6, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d) of this Section 6. The obligations of the Agents to contribute
under this paragraph (d) of this Section 6 are several in proportion to the
respective commissions received by the relevant Agents from the offering the
Notes to which the loss, claim, damage or liability (or action in respect
thereof) relates.
7. Termination.
(a) This Agreement may be terminated at any time either by the Company
as to any of the Agents or by any of the Agents insofar as this Agreement
relates to such Agent upon the giving of written notice of such termination to
such Agent or Agents or to the Company, as the case may be. In the event of
such termination, no terminating party or party with respect to which this
Agreement is terminated shall have any liability to the other parties hereto,
except as provided in second paragraph of Section 1(a) and Sections 4(c), 4(g),
4(h), 6, 8 and 11 and except that, (i) if at the time of termination an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or its Agent of the Note or Notes relating thereto has
not occurred or (ii) if the Agent or Agents shall then own any Note or Notes
purchased pursuant to a Terms Agreement, the Company's representations and
warranties stated in Section 3(b) and its obligations under the fourth paragraph
of Section 1(a) and Sections 4(a), 4(b), 4(e), 4(f), 4(i), 4(j), 4(k), 4(l),
4(m) and 4(n), with respect to clause (i) above, shall also remain in full force
and effect and not be terminated and, with respect to clause (ii) above, shall
remain in full force and effect and not be terminated until the earlier of such
resale or the expiration of 90 days from such termination.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Agent who is a party thereto, by notice given to the
Company prior to delivery of any payment for Notes to be purchased thereunder,
if prior to such time (i) trading in securities generally or of the Company on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared by either Federal or New York State authorities, (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets or the
United States is such as to make it, in the judgment of such Agent,
impracticable to market such Notes or enforce contracts for sale of such Notes,
(iv) there shall have been
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<PAGE>
any decrease in the ratings of any of the Company's debt securities by Moody's
Investors Service, Inc., Standard & Poor's Corporation or Duff & Phelps, Inc.,
or any such rating agency shall have announced publicly that it has placed any
of such debt securities on what is commonly termed a "Watch List" for possible
downgrading or (v) any condition set forth in Section 5(B) shall not have been
satisfied or waived.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Agents or the Company or any of the officers,
directors or controlling persons referred to in Section 6 hereof, and will
survive delivery of and payment for the Notes.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Company, will be mailed or
delivered or sent by facsimile transmission and confirmed to it at 500 West
Monroe Street, Chicago, Illinois 60661, attention of the Treasurer, facsimile
transmission number (312) 441-7586, and if sent to any of the Agents, will be
mailed or delivered or sent by facsimile transmission or telegraph and confirmed
to them at their respective addresses and facsimile transmission numbers, as
follows: (a) if to Merrill Lynch, Pierce, Fenner & Smith Incorporated, to it at
250 Vesey Street, 10th Floor, New York, New York 10281-1310, Attention: Scott
Primrose/MTN Product Management, facsimile transmission number (212) 449-2234;
(b) if to Chase Securities Inc., to it at 270 Park Avenue, New York, New York
10017 Attention: Medium-Term Note Desk, facsimile transmission number (212) 834-
6081; (c) if to Citicorp Securities, Inc., to it at 399 Park Avenue, New York,
New York 10043, Attention: Don Donahue, facsimile transmission number (212) 291-
3910; (d) if to First Chicago Capital Markets Inc., to it at One First National
Plaza, Suite 0595, Chicago, Illinois 60670, Attention: Evonne Taylor, Corporate
Securities Structuring, facsimile transmission number (312) 732-4172; (e) if to
Goldman, Sachs & Co., to it at 85 Broad Street, New York, New York 10004,
Attention: Credit Department-Credit Control, Medium-Term Notes, facsimile
transmission number (212) 357-8680; (f) if to J.P. Morgan Securities Inc., to it
at 60 Wall Street, New York, New York 10260, Attention: David A. Olsen,
facsimile transmission number (212) 837-5939; (g) if to Lehman Brothers Inc. to
it at Three World Financial Center, 12th Floor, New York, New York 10285-1200,
Attention: Medium-Term Note Department, facsimile transmission number (212) 528-
1718; (h) if to UBS Securities LLC, to it at 299 Park Avenue, New York, New York
10171, Attention: Richard Messina, facsimile transmission number (212) 821-3667;
(i) if to BancAmerica Robertson Stephens, to it at 231 South LaSalle Street,
17J, Chicago, Illinois, Attention: Matthew Carey, Medium Term Note Product,
facsimile transmission number (312) 974-8578; and (j) if to Credit Suisse First
Boston Corporation, to it at Eleven Madison Avenue, New York, New York 10010,
Attention: Short and Medium Term Finance, facsimile transmission number (212)
325-8183. Any party hereto may change its address or facsimile number set out
in this Section 9 by a notice given to the other parties in accordance herewith.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 6 hereof, and no
other person will have any right or obligation hereunder.
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<PAGE>
11. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
principles of conflicts of laws.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
HELLER FINANCIAL, INC.
By: Anthony O'Boyle Beirne
---------------------------------------
Title: Senior Vice President and Treasurer
------------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: Scott G. Primrose
---------------------------------------
Title: Authorized Signatory
------------------------------------
CHASE SECURITIES INC.
By: Louis P. DeCaro
---------------------------------------
Title: Managing Director
------------------------------------
CITICORP SECURITIES, INC.
By: D.J. Donaldson
---------------------------------------
Title: Vice President
------------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
By: T.H. Wall
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Title: Vice President
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19
<PAGE>
BANCAMERICA ROBERTSON STEPHENS
By: James Baldino
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Title: Managing Director
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FIRST CHICAGO CAPITAL MARKETS, INC.
By: Evonne W. Taylor
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Title: Vice President
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GOLDMAN, SACHS & CO.
By: Goldman, Sachs & Co.
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Title: Participating Manager Director
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LEHMAN BROTHERS INC.
By: Bart McDade
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Title: Managing Director
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J.P. MORGAN SECURITIES INC.
By: Melissa Ann Babb
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Title: Vice President
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UBS SECURITIES LLC
By: Richard Messina
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Title: Director
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20
<PAGE>
SCHEDULE I
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTES, SERIES H, COMMISSION SCHEDULE
Commission
Term Rate
---- ----
9 months to less than 1 year .125%
1 year to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to 30 years .750%
<PAGE>
SCHEDULE II
HELLER FINANCIAL, INC.
Medium-Term Notes, Series H
The agreements covered by the representation and warranty of the Company
set out in Section 3(b)(vii) are as follows:
1. Exchange Rate Agent Agreement between the Company and State Street
Bank and Trust Company dated as of November 17, 1997.
2. Determination Agent Agreement between the Company and State Street
Bank and Trust Company dated as of November 17, 1997.
3. Paying Agent and Securities Registrar Agreement between the Company and
State Street Bank and Trust Company dated as of November 17, 1997.
<PAGE>
EXHIBIT A
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H ADMINISTRATIVE PROCEDURES
November 17, 1997
The Medium-Term Notes, Series H due from Nine Months to Thirty Years from
Date of Issue (the "Notes") of Heller Financial, Inc. (the "Company") are to be
offered on a continuing basis. Merrill Lynch, Pierce, Fenner & Smith
Incorporated., BancAmerica Robertson Stephens, Chase Securities Inc., Citicorp
Securities, Inc., Credit Suisse First Boston Corporation on, First Chicago
Capital Markets, Inc., Goldman, Sachs & Co., Lehman Brothers, J.P. Morgan
Securities Inc. and UBS Securities LLC., as agents (the "Agents") (either acting
directly or through one or more affiliates), have agreed to use their reasonable
best efforts to solicit offers to purchase Notes from the Company. The Agents
may also purchase Notes as principals for resale. The Notes are being sold
pursuant to a Distribution Agreement between the Company and the Agents dated as
of the date hereof (the "Distribution Agreement"). The Notes will rank equally
with all other unsecured and unsubordinated debt of the Company and have been
registered with the Securities and Exchange Commission (the "Commission"). The
Notes will be issued under the senior indenture dated as of September 1, 1995
(as amended, the "Indenture"), between the Company and State Street Bank and
Trust Company ("State Street"), as trustee (in such capacity, the "Trustee").
The Company has appointed State Street as Paying Agent and Securities Registrar
under the Indenture with respect to the Notes. In addition, the Trustee has
appointed State Street as Authenticating Agent under the Indenture with respect
to the Notes.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to State Street, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note"), or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Only Notes denominated and
payable in U.S. dollars may be issued as Book-Entry Notes. An owner of a Book-
Entry Note will not be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below. The Company will advise the Agents and State
Street in writing of those persons handling administrative responsibilities with
whom the Agents and State Street are to communicate regarding orders to purchase
Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are explained
below. Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indenture, the Notes, and
the Prospectus Supplement (dated November 17, 1997) relating to the Notes shall
be used herein as therein defined. Notes for which interest is calculated on the
basis of a fixed interest rate are referred to herein as "Fixed Rate Notes".
Notes for which interest is calculated on the basis of a floating interest
<PAGE>
EXHIBIT A
rate are referred to herein as "Floating Rate Notes". To the extent the
procedures set forth below conflict with the provisions of the Notes, the
Indenture or the Distribution Agreement, the relevant provisions of the Notes,
the Indenture and the Distribution Agreement shall control.
A-2
<PAGE>
EXHIBIT A
PART I
ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, State Street will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and State Street to DTC dated as of November
17, 1997 and a Medium-Term Note Certificate Agreement between State Street and
DTC dated as of September 27, 1988, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement system ("SDFS").
ISSUANCE: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company
will issue a single global security in fully registered
form without coupons (a "Global Security") representing
up to U.S. $200,000,000 principal amount of all such
Notes that have the same tenor and terms, including (i)
in the case of Fixed Rate Notes, the same Original Issue
Date, original issue discount provisions, if any,
interest rate, Interest Payment Dates, Interest Payment
Period, redemption provisions, if any, and Stated
Maturity Date, (ii) in the case of Floating Rate Notes,
the same Original Issue Date, Basic Rate, Initial
Interest Rate, Stated Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread Multiplier, if
any, Minimum Interest Rate, if any, and Maximum Interest
Rate, if any and (iii) in the case of Currency Indexed
Notes, the same Denominated Currency, Indexed Currency,
Face Amount and Base Exchange Rate (in each case,
collectively, the "Terms"). Each Global Security will be
dated and issued as of the date of its authentication by
the Authenticating Agent. Each Global Security will bear
an interest accrual date (an "Interest Accrual Date"),
which will be (i) with respect to an original Global
Security (or any portion thereof), its original issuance
date and (ii) with respect to any Global Security (or
portion thereof) issued subsequently upon exchange of a
Global Security or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest Payment
Date to which interest has been paid or duly provided
for on the predecessor Global Security or Securities (or
if no such payment or provision has been made, the
original issuance date of the predecessor Global
Security), regardless of the date of authentication of
such subsequently issued Global
A-3
<PAGE>
EXHIBIT A
Security. No Global security will represent (i) both
fixed rate and floating rate book-entry notes or (ii)
any certificated note.
IDENTIFICATION NUMBERS: The Company has previously arranged with the CUSIP
Service Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of a series
of CUSIP numbers (including tranche numbers), which
series consists of approximately 900 CUSIP numbers and
relates to Global Securities representing Book-Entry
Notes and book-entry medium-term notes issued by the
Company with other series designations. The Company and
DTC have obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers. The Company
will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B", DTC will
notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has assigned to Global
Securities, State Street will notify the Company at any
time when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, and, if it deems
necessary, the Company will reserve additional CUSIP
numbers for assignment to Global Securities. Upon
obtaining such additional CUSIP numbers, the Company
shall deliver a list of such additional CUSIP numbers to
State Street and DTC.
REGISTRATION: Global Securities will be issued only in fully
registered form without coupons. Each Global Security
will be registered in the name of CEDE & CO., as a
nominee for DTC, on the securities register for the
Notes maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect
to such Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-
entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such
beneficial owner in such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such Note will be recorded through the records
of such Participants or through the
A-4
<PAGE>
EXHIBIT A
separate records of such Participants and one or more
indirect participants in DTC.
TRANSFERS: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants
in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
EXCHANGE: State Street may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A) Fixed
Rate Book-Entry Notes having the same Terms and for
which interest has been paid to the same date or (B)
Floating Rate Book-Entry Notes having the same Terms and
for which interest has been paid to the same date, (ii)
a date, occurring at least thirty days after such
written notice is delivered and at least thirty days
before the next Interest Payment Date for such Book-
Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Company, to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its
participants (including State Street) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange
date, State Street will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange date
and such new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On
the specified exchange date, State Street will exchange
such Global Securities for a single Global Security
bearing the new CUSIP number and a new Interest Accrual
Date and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Securities
to be exchanged exceed U.S. $200,000,000 in aggregate
principal amount, one Global Security will be
authenticated and issued to represent each U.S.
$200,000,000 of principal amount of the exchanged Global
Securities and an additional Global Security will be
authenticated and
A-5
<PAGE>
EXHIBIT A
issued to represent any remaining principal amount of
such Global Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not less
than nine months nor more than thirty years after the
settlement date for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
U.S. $1,000 or any amount in excess thereof that is an
integral multiple of U.S. $1,000. Global Securities will
be denominated in principal amounts not in excess of
U.S. $200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of U.S.
$200,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be authenticated and issued to represent
each U.S. $200,000,000 principal amount of such Book-
Entry Note or Notes and an additional Global Security
will be authenticated and issued to represent any
remaining principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
INTEREST: General. Interest, if any, on each Book-Entry Note will
accrue from the Interest Accrual Date of the Global
Security representing such Note and will be calculated
and paid in the manner described in such Note and in the
Note Prospectus (as defined in the Distribution
Agreement), as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each
payment of interest on a Book-Entry Note will include
interest accrued to but excluding the Interest Payment
Date or Stated Maturity (other than a Stated Maturity of
a Fixed Rate Book-Entry Note occurring on the 31st day
of a month, in which case such payment of interest will
include interest accrued to but excluding the 30th day
of such month). Interest payable at the Stated Maturity
of a Book-Entry Note will be payable to the Person to
whom the principal of such Note is payable. Standard &
Poor's Corporation will use the information received in
the pending deposit message described under Settlement
Procedure "C" below in order to include the amount of
any interest payable and certain other information
regarding the related Global Security
A-6
<PAGE>
EXHIBIT A
in the appropriate weekly bond report published by
Standard & Poor's Corporation.
Regular Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the regular record date
with respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding such
Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Book-Entry Notes will be made
either semiannually on March 1 and September 1 of each
year or annually on February 1 of each year and, in
either case, at Stated Maturity; provided, however, that
in the case of a Fixed Rate Book-Entry Note issued
between a regular record date and an Interest Payment
Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding
regular record date; and provided further, that any
payment otherwise required to be made in respect of a
Fixed Rate Note on a date that is not a Business Day for
such Fixed Rate Note need not be made on such date, but
may be made on the next succeeding Business Day with the
same force and effect as if made on such date, and no
additional interest shall accrue as a result of such
delayed payment.
Floating Rate Book-Entry Notes. Interest payments will
be made on Floating Rate Book-Entry Notes monthly,
quarterly, semi-annually or annually. Unless otherwise
agreed upon, interest will be payable, in the case of
Floating Rate Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each month:
with a quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December of each
year: with a semi-annual Interest Payment Period on the
third Wednesday of the two months specified pursuant to
Settlement Procedure "A" below: and with an annual
Interest Payment Period, on the third Wednesday of the
month specified pursuant to Settlement Procedure "A"
below; provided, however, that if an Interest Payment
Date for a Floating Rate Book-Entry Note would otherwise
be a day that is not a Business Day with respect to such
Floating Rate Book-
A-7
<PAGE>
EXHIBIT A
Entry Note, such Interest Payment Date will be the next
succeeding Business Day with respect to such Floating
Rate Book-Entry Note (except that in the case of a
Floating Rate Book-Entry Note for which the Base Rate is
LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day); provided further,
that in the case of a Floating Rate Book-Entry Note
issued between a regular record date and an Interest
Payment Date, the first interest payment will be made on
the Interest Payment Date following the next succeeding
regular record date; and provided further, that if the
Stated Maturity of a Floating Rate - Book Entry Note
falls on a day that is not a Business Day, the payment
of principal, premium, if any, and interest will be made
on the next succeeding Business Day, and no interest on
such payment shall accrue for the period from and after
such Stated Maturity Date.
Notice of Interest Payment and Regular Record Dates. On
the first Business Day of January, April, July and
October of each year, State Street will deliver to the
Company and, if requested by DTC, to DTC, a written
list of regular record dates and Interest Payment Dates
that will occur with respect to Book-Entry Notes during
the six-month period beginning on such first Business
Day. Promptly after each Interest Determination Date
for Floating Rate Book-Entry Notes, the Company will
notify Standard & Poor's Corporation of the interest
rates determined on such Interest Determination Date.
CALCULATION OF INTEREST: Fixed Rate Book-Entry Notes. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. Interest on Floating
Rate Book-Entry Notes, except as otherwise set forth
therein, will be calculated on the basis of actual days
elapsed and a year of 360 days, except that, in the
case of a Floating Rate Book-Entry Note for which the
Base Rate is Treasury Rate, interest will be calculated
on the basis of the actual number of days in the year.
A-8
<PAGE>
EXHIBIT A
PAYMENTS OF PRINCIPAL
AND INTEREST: Payment of Interest Only. Promptly after each regular
record date, State Street will deliver to the Company
and, if requested by DTC, to DTC, a written notice
setting forth, by CUSIP number, the amount of interest
to be paid on each Global Security on the following
Interest Payment Date (other than an Interest Payment
Date coinciding with Stated Maturity) and the total of
such amounts. DTC will confirm the amount payable on
each Global Security on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's Corporation. The Company will pay to
State Street, as Paying Agent, the total amount of
interest due on such Interest Payment Date (other than
at Stated Maturity), and State Street will pay such
amount to DTC, at the times and in the manner set forth
below under "Manner of Payment". If any Interest Payment
Date for a Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on
such payment for the period from and after such Interest
Payment Date (except that in the case of a Floating Rate
Note for which the Base Rate is LIBOR, if such Business
Day with respect to such Floating Rate Note is in the
next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day).
Payments at Stated Maturity. On or about the first
Business Day of each month, State Street will deliver to
the Company and, if requested by DTC, to DTC, a written
list of principal and interest to be paid on each Global
Security maturing (on a Stated Maturity Redemption or
Repayment Date or otherwise) in the following month.
State Street, the Company and DTC will confirm the
amounts of such principal and interest payments with
respect to each such Global Security on or about the
fifth Business Day preceding the Stated Maturity of such
Global Security. The Company will pay to State Street,
as Paying Agent, the principal amount of such of such
Global Security, together with interest due at such
Stated Maturity. State Street will pay such amount to
DTC at the times and in the manner set forth below under
"Manner of Payment". If any Stated Maturity of a Global
Security representing
A-9
<PAGE>
EXHIBIT A
Book-Entry Notes is not a Business Day, the payment due
on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Stated
Maturity. Promptly after payment to DTC of the principal
and interest due at Stated Maturity of such Global
Security, State Street, as the Authenticating Agent,
will cancel such Global Security in accordance with the
Indenture and so advise the Company. On the first
Business Day of each month, State Street will deliver to
the Trustee a written statement indicating the total
principal amount of Outstanding Global Securities as of
the immediately preceding Business Day.
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest
Payment Date or at Stated Maturity shall be paid by the
Company to State Street in immediately available funds
on such date. The Company will make such payment on such
Global Securities by instructing State Street to
withdraw funds from an account maintained by the Company
at State Street or by wire transfer to State Street. The
Company will confirm any such instructions in writing to
State Street. Prior to 10 A.M. (New York City time) on
the date of Stated Maturity or as soon as possible
thereafter, State Street will pay by separate wire
transfer (using Fedwire message entry instructions in a
form previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified by
DTC, in funds available for immediate use by DTC, each
payment of principal (together with interest thereon)
due on a Global Security on such date. On each Interest
Payment Date (other than at Stated Maturity) interest
payments shall be made to DTC in funds available for
immediate use by DTC in accordance with existing
arrangements between State Street and DTC. Thereafter on
each such date, DTC will pay, in accordance with its
SDFS operating procedures then in effect, such amounts
in funds available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. None of the
Company (as issuer or as paying agent), the Trustee or
State Street shall have any direct responsibility or
A-10
<PAGE>
liability for the payment by DTC to such
Participants of the principal of and interest on
the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any
interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
PROCEDURE FOR RATE SETTING
POSTING: The Company and the Agents will discuss from time
to time the aggregate principal amount of, the
issuance price of, and the interest rates to be
borne by, Book-Entry Notes that may be sold as a
result of the solicitation of orders by the Agents.
If the Company decides to set prices of, and rates
borne by, any Book-Entry Notes in respect of which
the Agents are to solicit orders (the setting of
such prices and rates to be referred to herein as
"posting") or if the Company decides to change
prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates
to be posted.
ACCEPTANCE AND
REJECTION OF ORDERS: Unless otherwise instructed by the Company, each
Agent will advise the Company promptly by telephone
of all orders to purchase Book-Entry Notes received
by such Agent, other than those rejected by it in
whole or in part in the reasonable exercise of its
discretion. Unless otherwise agreed by the Company
and such Agent, the Company has the right to accept
orders to purchase Book-Entry Notes and may reject
any such orders in whole or in part.
PREPARATION OF PRICING
SUPPLEMENT: If any order to purchase a Book-Entry Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such
Note and will arrange to have ten copies thereof
filed with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act
and will supply at least ten copies thereof (and
additional copies if requested) to the soliciting
Agent at the address set forth in the penultimate
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<PAGE>
EXHIBIT A
sentence of this paragraph. The Company will cause
at least one copy of each such Pricing Supplement
to be promptly delivered to the Agents so that the
Agents receive such Pricing Supplement not later
than 11:00 a.m. New York City time on the first
Business Day following the acceptance of any such
order. Such Pricing Supplement shall promptly be
delivered by courier to such Agent at the following
address: (a) if to Merrill Lynch & Co., to: Tritech
Services, 40 Colonial Drive, Piscataway, New Jersey
08854, Attention: Prospectus Operations/Nachman
Kimerling, (908) 885-2768, telecopier (908) 885-
2774/5/6; (b) if to Chase Securities Inc., to it at
270 Park Avenue, New York, New York, 10017,
Attention: Medium-Term Note Desk, facsimile
transmission number (212) 834-6081; (c) if to
Citicorp Securities Inc., to it at 399 Park Avenue,
New York, New York 10043, Attention: Don Donahue,
facsimile transmission number (212) 291-3910; (d)
if to First Chicago Capital Markets Inc., to it c/o
Operations Manager, Medium-Term Notes, One First
National Plaza, Mail Suite 0237, Chicago, Illinois
60670, Attention: Cherie McKnight, facsimile
transmission number (312) 732-7966; (e) if to
Goldman, Sachs & Co., to it at 85 Broad Street, New
York, New York 10004, Attention: Karen Robertson,
facsimile transmission number (212) 902-0658; (f)
if to J.P. Morgan Securities Inc., to it at 60 Wall
Street, New York, New York 10260, Attention: Dan
Benton, facsimile transmission number (212) 648-
5207; (g) if to Lehman Brothers Inc. by telecopy,
to it c/o ADP, Prospectus Services, 536 Broad
Hollow Road, Melville, New York 11747, facsimile
transmission number (516) 249-7942, and by hand to
it at Three World Financial Center, 9th Floor, New
York, New York 10285-0900, Attention: Brunie
Vazquez; (h) if to UBS Securities LLC, to it at 299
Park Avenue, New York, New York 10171, Attention:
Richard Messina, facsimile transmission number
(212) 821-3667; (i) if to BancAmerica Robertson
Stephens Inc., to it at 231 South LaSalle Street,
17J, Chicago, Illinois 60697, attention Matthew
Carey, Medium Term Note Product, facsimile
transmission number (312) 974-8578; and (j) if to
Credit Suisse First Boston Corporation, to it at
Eleven Madison Avenue, 5/th/ Floor, New York, New
York 10010, attention Short and Medium Term
Finance, facsimile transmission number (212) 325-
8183. The Agent that has solicited such order
A-12
<PAGE>
EXHIBIT A
will cause a Note Prospectus and Pricing Supplement
to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the Agents will provide a Pricing
Supplement and Note Prospectus to the purchaser of
the Note or its agent. Pursuant to Rule 434 ("Rule
434") of the Act, the Pricing Supplement may be
delivered separately from the Note Prospectus.
Outdated Pricing Supplements (other than those
retained for files), will be destroyed.
SUSPENSION OF SOLICITATION;
AMENDMENT OR SUPPLEMENT: The Company may instruct the Agents to suspend at
any time, for any period of time or permanently,
the solicitation of orders to purchase Notes. Upon
receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Trustee, the Agents and State
Street whether such orders may be settled and
whether copies of the Note Prospectus as in effect
at the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Note Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the
Distribution Agreement) or the Note Prospectus, it
will promptly advise the Agents, and furnish the
Agents with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Distribution
Agreement. Subject to the provisions of the
Distribution Agreement, the Company may file with
the Commission any such supplement to the Note
Prospectus relating to the Notes. The Company will
provide the Agents, the Trustee and State Street
with
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<PAGE>
EXHIBIT A
copies of any such supplement, and confirm to the
Agents that such supplement has been filed with the
Commission pursuant to the applicable paragraph of
Rule 424(b).
PROCEDURES FOR CHANGES: When the Company has determined to change the
interest rates of Notes being offered, it will
promptly advise the Agents and the Agents will
forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agents
of the new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded. Within
five Business Days after any sale of Notes, the
Company will file with the Commission a Pricing
Supplement to the Note Prospectus relating to such
Notes that reflects the applicable interest rates
and other terms and will deliver copies of such
Pricing Supplement to the Agents.
DELIVERY OF PROSPECTUS: A copy of the Note Prospectus and a Pricing
Supplement relating to a Book-Entry Note, which
pursuant to Rule 434, may be delivered separately
from the Note Prospectus, must accompany or precede
the earliest of any written offer of such Note,
confirmation of the purchase of such Note and
payment for such Note by its purchaser. If notice
of a change in the terms of the Book-Entry Notes is
received by an Agent between the time an order for
a Book-Entry Note is placed and the time written
confirmation thereof is sent by such Agent to a
customer or his agent, such confirmation shall be
accompanied by a Note Prospectus and Pricing
Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, each
Agent will deliver a Note Prospectus and Pricing
Supplement as herein described with respect to each
Book-Entry Note sold by it. State Street will make
such delivery if such Note is sold directly by the
Company to a purchaser (other than an Agent).
CONFIRMATION: For each order to purchase a Book-Entry Note
solicited by an Agent and accepted by or on behalf
of the Company, such Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth
A-14
<PAGE>
EXHIBIT A
the details set forth above and delivery and
payment instructions.
SETTLEMENT: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute
"settlement" with respect to such Note. All orders
accepted by the Company will be settled on the
third Business Day following the date of sale of
such Note pursuant to the timetable for settlement
set forth below unless the Company and the
purchaser agree to settlement on another day which
shall be no earlier than the next Business Day
following the date of sale.
SETTLEMENT PROCEDURES: Settlement Procedures with regard to each Book-
Entry Note sold by the Company through any
soliciting Agent, as agent, shall be as follows:
A. The soliciting Agent will advise the Company by
telephone (confirmed in writing) of the following
settlement information:
1. Principal amount.
2. Stated Maturity Date.
3. (a) In the case of a Fixed Rate Book-Entry
Note, the interest rate; and (b) in the case
of a Floating Rate Book-Entry Note, the Base
Rate, Initial Interest Rate (if known at such
time), Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any), Interest
Determination Dates, Calculation Date,
Calculation Agent (if other than the Company).
4. In the case of a Currency Indexed Book-Entry
Note, the Denominated Currency, Indexed
Currency, Face Amount and Base Exchange Rate.
A-15
<PAGE>
EXHIBIT A
5. Interest Payment Dates and the Interest
Payment Period.
6. Redemption provisions, if any.
7. Settlement date.
8. Price.
9. Agent's commission, determined as provided in
Schedule I of the Distribution Agreement.
10. Whether the Note is issued at an original
issue discount and, if so, the total amount of
OID, the yield to maturity and the initial
accrual period OID.
11. If the Note is an Amortizing Note, the
repayment provisions.
B. The Company will assign a CUSIP number to the
Global Security representing such Note and then
advise State Street by telephone (confirmed in
writing at any time on the same date) or
electronic transmission of the information set
forth in Settlement Procedure "A" above, such
CUSIP number and the name of the soliciting Agent.
The Company will also notify the soliciting Agent
by telephone of such CUSIP number as soon as
practicable. Each such communication by the
Company shall constitute a representation and
warranty by the Company to State Street, the
Authenticating Agent (if other than State Street),
the Trustee and the soliciting Agent that (i) such
Note is then, and at the time of issuance and sale
thereof will be, duly authorized for issuance and
sale by the Company, (ii) such Note, and the
Global Security representing such Note, will
conform with the terms of the Indenture and (iii)
upon authentication and delivery of such Global
Security, the aggregate principal amount of all
Notes issued under the Indenture will not exceed
U.S. $5,000,000,000 or the equivalent thereof in
other currencies.
A-16
<PAGE>
EXHIBIT A
C. State Street will enter a pending deposit message
through DTC's Participant Terminal System
providing the following settlement information to
DTC, the soliciting Agent, Standard & Poor's
Corporation and, upon request, the Trustee:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note
or a Floating Rate Book-Entry Note.
3. Identification as a Currency Indexed Note, if
applicable.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds the
related regular record date (which in the case
of the floating rate Notes that reset daily or
weekly, shall be the DTC Record Date which is
the date 5 calendar days immediately preceding
the applicable Interest Payment Date and in
the case of all other Notes shall be the
regular record date as defined in the Notes)
and amount of interest payable on such
Interest Payment Date.
5. The Interest Payment Period.
6. CUSIP number of the Global Security
representing such Note.
7. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
8. The number of participant accounts
maintained by DTC on behalf of State
Street, the Trustee and the Agents.
D. The Authenticating Agent will complete such Note,
stamp the appropriate legend, if not
A-17
<PAGE>
EXHIBIT A
already set forth thereon, and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to State Street's
participant account at DTC.
F. State Street will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to State
Street's participant account and credit such Note
to the soliciting Agent's participant account and
(ii) debit the soliciting Agent's settlement
account and credit State Street's settlement
account for an amount equal to the price of such
Note less the soliciting Agent's commission. The
entry of such a deliver order shall constitute a
representation and warranty by State Street to DTC
that (i) the Global Security representing such
Book-Entry Note has been issued and authenticated
and (ii) State Street is holding such Global
Security pursuant to the Medium-Term Note
Certificate Agreement between State Street and
DTC.
G. The soliciting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of such Agent for an
amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
I. State Street will wire transfer to the account of
the Company maintained at Mellon Bank, Pittsburgh,
Pennsylvania (Account No. 183-5261, in the name of
Heller Financial, Inc.), or such other bank as the
Company may designate,
A-18
<PAGE>
EXHIBIT A
funds available for immediate use in the amount
transferred to State Street in accordance with
Settlement Procedure "F".
J. Periodically, State Street will send to the
Company and the Trustee a statement setting forth
the principal amount of Notes Outstanding as of
that date and setting forth a brief description of
any sales of which the Company has advised State
Street but which have not yet been settled.
K. The soliciting Agent will confirm the purchase of
such Note to the purchaser either by transmitting
to the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
SETTLEMENT PROCEDURES
TIMETABLE: For orders of Book-Entry Notes solicited by an Agent
and accepted by the Company for settlement on the first
Business Day after the sale date, Settlement Procedures
"A" through "K" set forth above shall be completed as
soon as possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but not
later than 11:00 A.M., 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time
A-19
<PAGE>
EXHIBIT A
that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12:00
Noon and 2:00 P.M., respectively, on the second
Business Day before the settlement date. Settlement
Procedure "H" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in
the other events specified in SDFS operating procedures
in effect on the settlement date. If settlement of a
Book-Entry Note is rescheduled or canceled, State
Street will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect
by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
FAILURE TO SETTLE: If State Street fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", State Street may deliver to
DTC through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC to
debit such Note to State Street's participant account.
DTC will process the withdrawal message, provided that
State Street's participant account contains a principal
amount of the Global Security representing such Note
that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a
Global Security, the Authenticating Agent will cancel
such Global Security in accordance with the Indenture
and so advise the Company and State Street, and State
Street will make appropriate entries in its records.
The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned.
If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes
represented by a Global Security, State Street will
exchange such Book-Entry Notes for two Global
Securities, one of which shall represent the Book-Entry
Notes designated in the withdrawal message and shall be
canceled immediately after issuance and the other of
which shall represent the other Book-Entry Notes
previously represented by the surrendered Global
Security and shall bear the CUSIP number of the
surrendered Global Security.
A-20
<PAGE>
EXHIBIT A
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the soliciting Agent may
enter SDFS delivery orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "G" and
"F", respectively. Thereafter, State Street will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been
represented by a Global Security, State Street will
provide, in accordance with Settlement Procedure
"D", for the authentication and issuance of a
Global Security representing the other Book-Entry
Notes to have been represented by such Global
Security and will make appropriate entries in its
records.
TRUSTEE AND STATE STREET
NOT TO RISK FUNDS: Nothing herein shall be deemed to require the
Trustee or State Street to risk or expend its own
funds in connection with any payment to the
Company, or any Agent or the purchaser, it being
understood by all parties that payments made by the
Trustee or State Street to either the Company or an
Agent shall be made only to the extent that funds
are provided to the Trustee or State Street for
such purpose.
AUTHENTICITY OF SIGNATURES: The Company will cause the Authenticating Agent to
furnish the Agents from time to time with the
specimen signatures of each of the Authenticating
Agent's officers, employees or agents who has been
authorized by the Authenticating Agent to
authenticate Book-Entry Notes, but the Agents will
not have any obligation or liability to the Company
or the Authenticating Agent in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the
Authenticating Agent on any Book-Entry Note.
A-21
<PAGE>
EXHIBIT A
PAYMENT OF EXPENSES: Each Agent shall forward to the Company from time
to time a statement of the out-of-pocket expenses
incurred by such Agent that are reimbursable to it
pursuant to the terms of the Distribution
Agreement. The Company will remit payment to such
Agent promptly after submission of such a
statement.
ADVERTISING COSTS: The Company will determine with the Agents the
form, substance and amount of advertising that may
be appropriate in soliciting offers to purchase the
Book-Entry Notes. Advertising expenses will be paid
by the Company or reimbursed to the Agents by the
Company.
A-22
<PAGE>
EXHIBIT A
PART II
ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
ISSUANCE: Each Certificated Note will be dated and issued as
of the date of its authentication by the
Authenticating Agent. Each Certificated Note will
bear an Original Issue Date, which will be (i) with
respect to an original Certificated Note (or any
portion thereof), its original issuance date (which
will be the settlement date) and (ii) with respect
to any Certificated Note (or portion thereof)
issued subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost
or stolen Certificated Note, the Original Issue
Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
REGISTRATION: Certificated Notes will be issued only in fully
registered form without coupons.
TRANSFERS AND EXCHANGES: A Certificated Note may be presented for transfer
or exchange at Goodwin Square, 225 Asylum Street,
Hartford, Connecticut 06103 or at the office or
agency designated by State Street in The City of
New York. Certificated Notes will be exchangeable
for other Certificated Notes having identical terms
but different authorized denominations without
service charge. Certificated Notes will not be
exchangeable for Book-Entry Note.
MATURITIES: Each Certificated Note will mature on a date not
less than nine months nor more than thirty years
after the settlement date for such Note.
DENOMINATIONS: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in
any Specified Currency other than U.S. dollars will
be specified pursuant to "Settlement Procedures"
below.
INTEREST: General. Interest, if any, on each Certificated
Note will be calculated and paid in the manner
described in such Note and in the Note Prospectus,
as supplemented by the applicable Pricing
Supplement. Unless otherwise
A-23
<PAGE>
EXHIBIT A
specified herein, each payment of interest on a
Certificated Note will include interest accrued to
but excluding the Interest Payment Date or Stated
Maturity (other than a Stated Maturity of a Fixed
Rate Certificated Note occurring on the 31st day of
a month, in which case such payment of interest
will include interest accrued to but excluding the
30th day of such month).
Regular Record Dates. The regular record dates with
respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding
such Interest Payment Date.
Fixed Rate Certificated Notes. Unless otherwise
specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate Certificated
Notes will be made either semi-annually on March 1
and September 1 of each year or annually on
February 1 of each year and, in either case, at
Stated Maturity: provided, however, that in the
case of a Fixed Rate Certificated Note issued
between a regular record date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding regular record date; and provided
further, that any payment otherwise required to be
made in respect of a Fixed Rate Certificated Note
on a date that is not a Business Day for such Fixed
Rate Certificated Note need not be made on such
date, but may be made on the next succeeding
Business Day with the same force and effect as if
made on such date, and no additional interest shall
accrue as a result of such delayed payment.
Floating Rate Certificated Notes. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or annually.
Unless otherwise agreed by the Company, interest
will be payable, in the case of Floating Rate
Certificated Notes with a monthly Interest Payment
Period, on the third Wednesday of each month; with
a quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December of
each year; with a semi-annual Interest Payment
Period, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A"
below; and with an annual
A-24
<PAGE>
EXHIBIT A
Interest Payment Period, on the third Wednesday of
the month specified pursuant to Settlement
Procedure "A" below, provided, however, that if an
Interest Payment Date for a Floating Rate
Certificated Note would otherwise be a day that is
not a Business Day with respect to such Floating
Rate Certificated Note, such Interest Payment Date
will be the next succeeding Business Day with
respect to such Floating Rate Certificated Note
(except that in the case of a Floating Rate
Certificated Note for which the Base Rate is LIBOR,
if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be
the immediately preceding Business Day); provided
further, that in the case of a Floating Rate
Certificated Note issued between a regular record
date and an Interest Payment Date, the first
interest payment will be made on the Interest
Payment Date following the next succeeding regular
record date; and provided further, that if the
Stated Maturity of a Floating Rate Certificated
Note falls on a day that is not a Business Day, the
payment of principal, premium, if any, and interest
will be made on the next succeeding Business Day,
and no interest on such payment shall accrue for
the period from and after such Stated Maturity
Date.
CALCULATION OF INTEREST: Fixed Rate Certificate Note. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a 360-
day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates on
Floating Rate Certificated Notes will be determined
as set forth in the form of Notes. The Company and
State Street will confirm the amount of the Initial
Interest Payment due on any Floating Rate
Certificated Note for which the Initial Interest
Period is shorter or longer than the Index Stated
Maturity. Interest on Floating Rate Certificated
Notes, except as otherwise set forth therein, will
be calculated on the basis of actual days elapsed
and a year of 360 days, except that, in the case of
a Floating Rate Certificated Note for which the
Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of
days in the year.
A-25
<PAGE>
EXHIBIT A
PAYMENTS OF PRINCIPAL
AND INTEREST: State Street will pay the principal amount of each
Certificated Note at Stated Maturity upon
presentation of such Note to State Street. Such
payment, together with payment of interest due at
Stated Maturity of such Note, will be made in funds
available for immediate use by State Street and in
turn by the Holder of such Note. Certificated Notes
presented to State Street at Stated Maturity for
payment will be canceled by State Street, as the
Authenticating Agent in accordance with the
Indenture. All interest payments on a Certificated
Note (other than interest due at Stated Maturity)
will be made by check drawn on State Street (or
another Person appointed by State Street) and
mailed by State Street to the Person entitled
thereto as provided in such Note and the Indenture;
provided, however, that the holder of U.S.
$10,000,000 (or the equivalent thereof in other
currencies) or more of Notes with similar tenor and
terms will be entitled to receive payment by wire
transfer in U.S. dollars. Following each Regular
Record Date and Special Record Date, State Street
will furnish the Company and the Paying Agent (if
other than State Street) with a list of interest
payments to be made on the following Interest
Payment Date for each Certificated Note and the
total for all Certificated Notes. Interest at
Stated Maturity will be payable to the Person to
whom the payment of principal is payable. State
Street will provide monthly to the Company lists of
principal and interest, to the extent
ascertainable, to be paid on Certificated Notes
maturing (on a Stated Maturity, Redemption or
Repayment Date or otherwise) in the next month.
State Street will be responsible for withholding
taxes on interest paid on Certificated Notes as
required by applicable law.
If any Interest Payment Date for or the Stated
Maturity of a Certificated Note is not a Business
Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest
shall accrue on such payment for the period from
and after such Interest Payment Date or Stated
Maturity, as the case may be, except in the case of
an Interest Payment Date on a Floating Rate
Certificated Note for which the Base Rate is LIBOR,
if such Business Day is in the next
A-26
<PAGE>
EXHIBIT A
succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business
Day.
PROCEDURE FOR RATE SETTING
AND POSTING: The Company and the Agents will discuss from time
to time the aggregate principal amount of the
issuance price of, and the interest rates to be
borne by, Notes that may be sold as a result of the
solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise
the Agents of the prices and rates to be posted.
ACCEPTANCE AND REJECTION
OF ORDERS: Unless otherwise instructed by the Company, each
Agent will advise the Company promptly by telephone
of all orders to purchase Certificated Notes
received by such Agent, other than those rejected
by it in whole or in part in the reasonable
exercise of its discretion. Unless otherwise agreed
by the Company and the Agents, the Company has the
sole right to accept orders to purchase
Certificated Notes and may reject any such orders
in whole or in part.
PREPARATION OF PRICING
SUPPLEMENT: If any order to purchase a Certificated Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such
Note and will arrange to have ten copies thereof
filed with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act
and will supply at least ten copies thereof (and
additional copies if requested) to the soliciting
Agent at the address set forth in the penultimate
sentence of this paragraph. The Company will cause
at least one copy of each such Pricing Supplement
to be promptly delivered to the Agents so that the
Agents receive such Pricing Supplement not later
than the close of business on the first Business
Day following acceptance of any such order. Such
Pricing Supplement shall promptly be delivered by
courier to such Agent at the following address: (a)
if to Merrill Lynch & Co., to
A-27
<PAGE>
EXHIBIT A
Tritech Services, 40 Colonial Drive, Piscataway,
New Jersey 08854, Attention: Prospectus
Operations/Nachman Kimerling, (908) 885-2768,
telecopier (908) 885-2774/5/6; (b) if to Chase
Securities Inc., to it at 270 Park Avenue, New
York, New York 10017, Attention: Medium-Term Note
Desk, facsimile transmission number (212) 834-6081;
(c) if to Citicorp Securities Inc., to it at 399
Park Avenue, New York, New York 10043, Attention:
Don Donahue, facsimile transmission number (212)
291-3910; (d) if to First Chicago Capital Markets
Inc., to it c/o Operations Manager, Medium-Term
Notes, One First National Plaza, Mail Suite 0237,
Chicago, Illinois 60670, Attention: Cherie
McKnight, facsimile transmission number (312) 732-
7966; (e) if to Goldman, Sachs & Co., to it at 85
Broad Street, New York, New York 10004, Attention:
Karen Robertson, facsimile transmission number
(212) 902-0658; (f) if to J.P. Morgan Securities
Inc., to it at 60 Wall Street, New York, New York
10260, Attention: Dan Benton, facsimile
transmission number (212) 648-5207; (g) if to
Lehman Brothers Inc. by telecopy, to it c/o ADP,
Prospectus Services, 536 Broad Hollow Road,
Melville, New York 11747, facsimile transmission
number (516) 249-7942, and by hand to it at Three
World Financial Center, 9th Floor, New York, New
York 10285-0900, Attention: Brunie Vazquez; (h) if
to UBS Securities LLC, to it at 299 Park Avenue,
New York, New York 10171, Attention: Richard
Messina, facsimile transmission number (212) 821-
3667; (i) if to BancAmerica Robertson Stephens
Inc., to it at 231 South LaSalle Street, 17J,
Chicago, Illinois 60697, attention Matthew Carey,
Medium Term Note Product, facsimile transmission
number (312) 974-8578; and (j) if to Credit Suisse
First Boston Corporation, to it at Eleven Madison
Avenue, 5/th/ Foor, New York, New York, attention
Short and Medium Term Finance, facsimile
transmission number (212) 325-8183. The Agent that
has solicited such order will cause a Note
Prospectus and Pricing Supplement to be delivered
to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the Agent will provide Pricing Supplement
and Note Prospectus prior to the purchaser of the
Note or its agent. Pursuant to Rule 434, the
Pricing Supplement may be delivered separately from
the Note Prospectus.
A-28
<PAGE>
EXHIBIT A
Outdated Pricing Supplements (other than those
retained for files), will be destroyed.
SUSPENSION OF SOLICITATION;
AMENDMENT OR SUPPLEMENT: The Company may instruct the Agents to suspend at
any time for any period of time or permanently, the
solicitation of orders to purchase Notes. Upon
receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents, the Trustee and State
Street whether such orders may be settled and
whether copies of the Note Prospectus as in effect
at the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Note Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Note Prospectus, it
will promptly advise the Agents and furnish the
Agents with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Distribution
Agreement. Subject to the provisions of the
Distribution Agreement, the Company may file with
the Commission any supplement to the Note
Prospectus relating to the Notes. The Company will
provide the Agents, the Trustee and State Street
with copies of any such supplement, and confirm to
the Agents that such supplement has been filed with
the Commission pursuant to the applicable paragraph
of Rule 424(b).
PROCEDURE FOR RATE
CHANGES: When the Company has determined to change the
interest rates of Notes being offered, it will
promptly advise the Agents and the Agents will
forthwith
A-29
<PAGE>
EXHIBIT A
suspend solicitation of orders. The Agents will
telephone the Company with recommendations as to
the changed interest rates. At such time as the
Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of
orders. Until such time only "indications of
interest" may be recorded. Within two Business Days
after any sale of Notes, the Company will file with
the Commission a Pricing Supplement to the Note
Prospectus relating to such Notes that reflects the
applicable interest rates and other terms and will
deliver copies of such Pricing Supplement to the
Agents.
DELIVERY OF PROSPECTUS: A copy of the Note Prospectus and a Pricing
Supplement relating to a Certificated Note must
accompany or precede the earliest of any written
offer of such Note, confirmation of the purchase of
such Note and payment for such Note by its
purchaser. If notice of a change in the terms of
the Certificated Notes is received by an Agent
between the time an order for a Certificated Note
is placed and the time written confirmation thereof
is sent by such Agent to a customer of his agent,
such confirmation shall be accompanied by a Note
Prospectus and Pricing Supplement setting forth the
terms in effect when the order was placed. Subject
to "Suspension of Solicitation: Amendment or
Supplement" above, each Agent will deliver a Note
Prospectus and Pricing Supplement as herein
described with respect to each Certificated Note
sold by it. State Street will make such delivery if
such Note is sold directly by the Company to a
purchaser (other than an Agent).
CONFIRMATION: For each order to purchase a Certificated Note
solicited by an Agent and accepted by or on behalf
of the Company, such Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
SETTLEMENT: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the soliciting Agent and such
Agent's delivery of such Note against receipt of
immediately available funds shall, with respect to
such Note, constitute "settlement". All orders
accepted by the
A-30
<PAGE>
EXHIBIT A
Company will be settled on the third Business Day
following the date of sale pursuant to the
timetable for settlement set forth below, unless
the Company and the purchaser agree to settlement
on another day which shall be no earlier than the
next Business Day following the date of sale.
SETTLEMENT PROCEDURES: Settlement Procedures with regard to each
Certificated Note sold by the Company through the
Agents, as agent, shall be as follows:
A. Such soliciting Agent will advise the Company
by telephone (confirmed in writing) of the
following settlement information.
1. Name in which such Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal Amount.
5. Stated Maturity Date.
6. (a) In the case of a Fixed Rate
Certificated Note, the interest rate; and
(b) in the case of a Floating Rate
Certificated Note, the Initial Interest
Rate (if known at such time), Base Rate,
Index Stated Maturity, Interest Reset
Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), and Maximum
Interest Rate (if any), Calculation Date,
Calculation Agent.
7. In the case of a Currency Indexed
Certificated Note, the Denominated
Currency, Indexed Currency, Face Amount
and Base Exchange Rate.
A-31
<PAGE>
EXHIBIT A
8. Interest Payment Dates and the Interest
Payment Period.
9. Specified Currency and whether the option
to elect payment in a Specified Currency
applies and if the Specified Currency is
not U.S. dollars, the authorized
denominations.
10. Redemption provisions, if any.
11. Settlement date.
12. Price (including currency).
13. Agent's commission, determined as provided
in Schedule I of the Distribution
Agreement.
14. Whether the Note is issued at an original
issue discount, and, if so, the total
amount of OID, the yield to maturity and
the initial accrual period OID.
15. If the Note is an Amortizing Note, the
repayment provision.
B. The Company will advise State Street by
telephone (confirmed in writing at any time on
the sale date) or electronic transmission of
the information set forth in Settlement
Procedure "A" above and the name of the
soliciting Agent. Each such communication by
the Company shall constitute a representation
and warranty by the Company to State Street,
the Trustee and the soliciting Agent that (i)
such Note is then, and at the time of issuance
and sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) such
Note will conform with the terms of the
Indenture and (iii) upon authentication and
delivery of such Note, the aggregate principal
amount of all Notes issued under the Indenture
will not exceed U.S. $5,000,000,000 or the
equivalent thereof in other currencies.
A-32
<PAGE>
EXHIBIT A
C. The Company will deliver to State Street a pre-
printed four-ply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
Agents, State Street and the Trustee:
1. Note with customer confirmation.
2. Stub One--For Authenticating Agent.
3. Stub Two--For Soliciting Agent.
4. Stub Three--For the Company.
D. The Authenticating Agent will complete such Note
and will authenticate such Note and deliver it
(with the confirmation) and Stubs One and Two to
the soliciting Agent in the case of: (a) Merrill
Lynch, Pierce, Fenner & Smith Incorporated, to
NSCC at 55 Water Street, Concourse Level, New
York, New York 10041, Attention: Al Mitchell; (b)
Chase Securities Inc. at 55 Water Street, Room
226, New York, New York, Attention: Windows 17
and 18, (c) Citicorp Securities, Inc., at 399 Park
Avenue, New York, New York 10043, Attention: Don
Donahue; (d) First Chicago Capital Markets, Inc.,
c/o Bankers Trust, 16 Wall Street, 5th Floor,
Window 51, New York, New York, 10015, Attention:
Jim Murray; (e) Goldman, Sachs and Co. at 85 Broad
Street, New York, New York 10004, Attention: Mike
Mosely, Receive and Deliver; (f) Lehman Brothers
Inc. c/o Chemical Bank, Four New York Plaza,
Ground Floor, Receive Window, FAO Lehman Brothers,
New York, New York Attention: Jennifer Jones; (g)
J.P. Morgan Securities Inc., at 60 Wall Street,
New York, New York 10260, Attention: Maria
Sramek; (h) UBS Securities LLC, at 299 Park
Avenue, New York, New York 10171, Attention:
Richard Messina, (i) BancAmerica Robertson
Stephens Inc., at 231 South LaSalle Street,
Chicago, Illinois 60697, Attention: Matthew
Carey, Medium Term Note Product; and (j) Credit
Suisse First Boston Corporation, at Five World
Trade Center, 7/th/ Floor, New York, New York
A-33
<PAGE>
EXHIBIT A
10048, Attention: Paul Riley, and such Agent will
acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Authenticating Agent. Such delivery will be made
only against receipt of evidence that instructions
have been given by the soliciting Agent for
payment to the account of the Company at Mellon
Bank, Pittsburgh, Pennsylvania (Account No. 183-
5261, in the name of Heller Financial Inc.), or
such other bank as the Company may designate, in
funds available for immediate use, of an amount
equal to the price of such Note less such Agent's
commission.
E. The soliciting Agent will deliver such Note (with
the confirmation) to the customer against payment
in immediately payable funds. The soliciting
Agent will obtain the acknowledgment of receipt of
such Note by retaining Stub Two.
F. State Street will send Stub Three to the Company
by first-class mail. Periodically, State Street
will also send to the Company a statement setting
forth the principal amount of the Notes
Outstanding as of that date under the Indenture
and setting forth a brief description of any sales
of which the Company has advised State Street but
which have not yet been settled.
SETTLEMENT PROCEDURES
TIMETABLES: For orders of Certificated Notes by Agent, as
agent, and accepted by the Settlement Company,
Settlement Procedures "A" through "F" set forth
above shall be completed on or before the
respective times (New York City time) set forth
below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on the sale date
B 3:00 P.M. on the sale date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
A-34
<PAGE>
EXHIBIT A
FAILURE TO SETTLE: If a purchaser fails to accept delivery of and
make payment for any Certificated Note, the
soliciting Agent will notify the Company and State
Street by telephone and return such Note to the
Authenticating Agent (if other than State Street).
Upon receipt of such notice, the Company will
immediately wire transfer to the account of the
soliciting Agent an amount equal to the amount
previously credited to the account of the Company
in respect of such Note. Such wire transfer will
be made on the settlement date, if possible, and
in any event not later than the Business Day
following the settlement date. If the failure
shall have occurred for any reason other than a
default by the soliciting Agent in the performance
of its obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse such Agent or State Street, as
appropriate, on an equitable basis for its loss of
the use of the funds during the period when they
were credited to the account of the Company.
Immediately upon receipt of the Certificated Note
in respect of which such failure occurred, the
Authenticating Agent will cancel such note in
accordance with the Indenture and so advise the
Company and State Street, and State Street will
make appropriate entries in its records.
TRUSTEE AND STATE STREET
NOT TO RISK FUNDS: Nothing herein shall be deemed to require the
Trustee or State Street to risk or expend its own
funds in connection with any payment to the
Company, or any Agent or the purchaser, it being
understood by all parties that payments made by
the Trustee or State Street to either the Company
or an Agent shall be made only to the extent that
funds are provided to the Trustee or State Street
for such purpose.
AUTHENTICITY TO SIGNATURES: The Company will cause the Authenticating Agent to
furnish the Agents from time to time with the
specimen signatures of each of the Authenticating
Agent's officers, employees or agents who has been
authorized by the Authenticating Agent to
authenticate Certificated Notes, but the Agents
will have no obligation or liability to the
Company or the Authenticating Agent in respect of
the authenticity of the signature of any officer,
employee or agent of the Company or the
Authenticating Agent on any Certificated Note.
A-35
<PAGE>
EXHIBIT A
PAYMENT OF EXPENSES: Each Agent shall forward to the Company from time
to time a statement of the out-of-pocket expenses
incurred by such Agent that are reimbursable to it
pursuant to the terms of the Distribution
Agreement. The Company will remit payment to the
Agents promptly after submission of such a
statement.
ADVERTISING COSTS: The Company will determine with the Agents the
form, substance and amount of advertising that may
be appropriate in soliciting orders to purchase the
Certificated Notes. Advertising expenses will be
paid by the Company or reimbursed to the Agents by
the Company.
A-36
<PAGE>
EXHIBIT B
HELLER FINANCIAL, INC.
MEDIUM TERM NOTES, SERIES H
Due From 9 Months to 30 Years from Date of Issue
TERMS AGREEMENT
_________________, 19__
Heller Financial, Inc.
500 West Monroe Street
Chicago, Illinois 60661
Attention: Treasurer
Subject in all respects to the terms and conditions of the Distribution
Agreement dated November __, 1997 between Merrill Lynch, Pierce, Fenner & Smith
Incorporated, BancAmerica Robertson Stephens, Chase Securities Inc., Citicorp
Securities, Inc., Credit Suisse First Boston Corporation, First Chicago Capital
Markets, Inc., Goldman, Sachs & Co., Lehman Brothers Inc., J.P. Morgan
Securities Inc. and UBS Securities LLC and you (the "Agreement"), the
undersigned agrees to purchase the following Notes of Heller Financial, Inc.:
Aggregate Principal Amount:
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Date(s):
If Floating Rate Note:
Base Rate:
Initial Interest Rate:
Interest Reset Period(s):
Interest Payment Period(s):
Interest Payment Date(s):
Interest Determination Date(s):
<PAGE>
EXHIBIT B
Index Maturity:
Spread, if any:
Spread Multiplier, if any:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Calculation Agent:
Stated Maturity Date:
Purchase Price: __% of Principal Amount
Settlement Date and Time:
Currency of Denomination:
Currency of Payment:
If Currency Indexed Note:
Face Amount:
Indexed Currency:
Base Exchange Rate:
Determination Agent:
If Amortizing Note:
Repayment provisions:
Optional Redemption, if any:
Initial Redemption Date:
B-2
<PAGE>
EXHIBIT B
Redemption Price: initially % of Principal Amount and declining by
% of the Principal Amount on each anniversary of the Initial Redemption Date
until the Redemption Price is 100% of the Principal Amount.
Optional Repayment, if any:
Optional Repayment Dates:
Optional Repayment Prices:
Place for Delivery of Notes and Payment Therefor:
Method of Payment:
Modification, if any, in the requirements to deliver the documents specified in
Section 5(B)(b) of the Agreement:
Period during which additional Notes may not be sold pursuant to Section
4(m) of the Agreement:
Other Provisions:
[_________________________]
By:_______________________
Accepted:
HELLER FINANCIAL, INC.
By:_______________________
Title:____________________
B-3
<PAGE>
EXHIBIT C
FORM OF OPINION OF COUNSEL TO
HELLER FINANCIAL, INC.
The opinion of counsel for the Company, to be delivered pursuant to Section
4(j), 5(A)(b) or 5(B)(b) of the Distribution Agreement, shall be to the effect
set forth below. In addition, such opinion shall cover such other matters as the
Agent may reasonably require. All references to the "Registration Statement"
shall be to the Registration Statement as amended as of the date of such
opinion, and all references to the "Note Prospectus" shall be to the Note
Prospectus as amended and supplemented as of the date of such opinion.
(i) 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 under the laws of such State to own its properties
and conduct its business as described in the Note Prospectus; is duly qualified
to do business as a foreign corporation in good standing in each state or other
jurisdiction in which, in the opinion of such counsel, such qualification is
required, or if in any jurisdiction the Company is not so qualified, the failure
so to qualify does not, considering all such cases in the aggregate, involve a
material risk to the business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole; all of the
issued and outstanding shares of capital stock of each subsidiary of the
Company, other than those which, considered in the aggregate as a single
subsidiary, would not constitute a significant subsidiary (as defined in Rule 1-
02(v) of Regulation S-X promulgated by the Commission), which are owned by the
Company, are owned by the Company free and clear of all claims, liens,
encumbrances and security interests; each of such subsidiaries of the Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is
qualified to do business and is in good standing in each state or other
jurisdiction in the United States in which, in the opinion of such counsel, such
qualification is required, or if in any jurisdiction any such subsidiary is not
so qualified, the failure so to qualify does not, considering all such cases in
the aggregate, involve a material risk to the business, properties, financial
position or results of operations of the Company and its subsidiaries, taken as
a whole;
(ii) The Indenture has been duly authorized, executed, and delivered,
has been qualified under the Trust Indenture Act, and constitutes a valid and
legally binding instrument in accordance with its terms; the Notes have been
duly authorized, and, when executed and authenticated as specified in the
Indenture and delivered pursuant to the provisions of this Agreement will
constitute, valid and legally binding obligations of the Company in accordance
with their terms and the terms of the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Notes and the Indenture conform to the description thereof in the Note
Prospectus;
(iii) The Registration Statement has become effective under the Act
and to the best knowledge of such counsel no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or, to the knowledge of such counsel,
threatened by the Commission;
<PAGE>
EXHIBIT C
(iv) The Registration Statement and the Note Prospectus, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act, the Trust Indenture Act and the rules
and regulations thereunder; such counsel does not believe that the Registration
Statement, at the time it became effective and as of the date of the opinion, or
the Note Prospectus or any amendment or supplement thereto, as of the date of
the Distribution Agreement or the date of the opinion, contained or contains an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and the documents incorporated by reference in the Registration Statement or
Note Prospectus, when they became effective under the Act or were filed with the
Commission under the Exchange Act, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data included in any of the documents mentioned in
this clause;
(v) To the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Note Prospectus, and there is
no contract or other document of a character required to be described in the
Registration Statement or Note Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements included or
incorporated in the Note Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly summarize such matters;
(vi) The Distribution Agreement and any Terms Agreement have been
duly authorized, executed and delivered by the Company;
(vii) The Exchange Rate Agent Agreement and the Determination Agent
Agreement, each dated as of the date hereof and entered into by the Company and
State Street Bank and Trust Company, as Exchange Rate Agent and Determination
Agent, respectively, have each been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery by the
party thereto other than the Company) constitute the valid and legally binding
obligations of the Company, enforceable in accordance with their respective
terms subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(viii) The Paying Agent and Securities Registrar Agreement dated as
of the date hereof and entered into by the Company and State Street Bank and
Trust Company, has been duly authorized, executed and delivered by the Company
and (assuming the due authorization, execution and delivery by the party thereto
other than the Company)
C-2
<PAGE>
EXHIBIT C
constitutes the valid and legally binding obligation of the Company, enforceable
in accordance with its terms subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(ix) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection with the
issuance or sale of the Notes by the Company, except such as have been obtained
under the Act and the Trust Indenture Act and such as may be required under
state securities laws in connection with the sale of the Notes;
(x) None of the issuance and sale of the Notes, the performance of
the obligations of the Company under the Notes, the Indenture, this Agreement
and any Terms Agreement, the consummation of any of the other transactions
contemplated in this Agreement and any Terms Agreement or the fulfillment of the
terms of this Agreement and any Terms Agreement will conflict with, result in a
breach of, or constitute a default under the charter or by-laws of the Company
or the terms of any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is a party or bound,
or any order or regulation known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any of
its subsidiaries.
C-3
<PAGE>
EXHIBIT D
FORM OF LETTER OF
ARTHUR ANDERSEN LLP
INDEPENDENT ACCOUNTANTS TO THE COMPANY
All references to the "Registration Statement" shall be to the
Registration Statement, as amended as of the date of such letter, and all
references to the "Note Prospectus" shall be to the Note Prospectus as amended
or supplemented as of the date of such letter.
(1) In their opinion, the audited financial statements and financial
statement schedules of the Company and its consolidated subsidiaries included or
incorporated in the Registration Statement and the Note Prospectus and reported
on by them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(2) On the basis of a reading of the amounts included or incorporated
in the Registration Statement and the Note Prospectus in response to Item 301 of
Regulation S-K promulgated by the Commission and of the latest unaudited
financial statements made available by the Company and its subsidiaries, their
limited review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited interim financial
information; carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes (or drafts thereof where approved
minutes were not available) of the meetings of the stockholders, directors and
executive committees of the Company; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements included or incorporated in
the Registration Statement and the Note Prospectus, nothing came to their
attention which caused them to believe that:
(a) The amounts in the "Selected Financial Data" included or
incorporated in the Registration Statement and the Note Prospectus, do not agree
with the corresponding amounts in the audited or the unaudited financial
statements from which such amounts were derived, except that, with respect to
the amounts representing the ratio of earnings to fixed charges for each period
presented, such amounts are not accurately derived from worksheets prepared by
the Company;
(b) Any unaudited financial statements of the Company and its
subsidiaries included or incorporated in the Registration Statement and the Note
Prospectus do not comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; or such unaudited
financial statements are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
<PAGE>
EXHIBIT D
audited financial statements included or incorporated in the Registration
Statement and the Note Prospectus; or
(c) With respect to the period subsequent to the date of the most
recent financial statements included or incorporated in the Registration
Statement and the Note Prospectus, there was, at a specified date not more than
five business days prior to the date of the letter, any change in the capital
stock or any increase in the total short-term or total long-term debt of the
Company and its consolidated subsidiaries or there were, as of the month-end
date prior to the date of the letter for which financial statements of the
Company and its consolidated subsidiaries are available, any decreases in its
consolidated total assets or its stockholders' equity, in each case as compared
with the amounts shown on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Note Prospectus, or for the
period from the date of the most recent financial statements included or
incorporated in the Registration Statement and the Note Prospectus to such
month-end date there were any decreases, as compared with the corresponding
period in the preceding year, in total revenue or income before income taxes or
in the total income of the Company and its consolidated subsidiaries, except in
all instances for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Agent; or
(d) The amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Note Prospectus
do not agree with the amounts set forth in the unaudited financial statements
for the same periods or were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited financial statements
included or incorporated in the Registration Statement and the Note Prospectus;
and
(3) They have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company) set forth or incorporated in the Registration Statement and the Note
Prospectus, and in Exhibit 12 to the Registration Statement, including the
information included or incorporated in Items 1 and 7 of the Company's annual
report on Form 10-K, incorporated therein, or in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included or
incorporated in any of the Company's quarterly reports on Form 10-Q incorporated
therein, agrees with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
D-2
<PAGE>
===============================================================
HELLER FINANCIAL, INC.
AND
STATE STREET BANK AND TRUST COMPANY
Trustee
______________________
SECOND SUPPLEMENTAL INDENTURE
______________________
Dated as of November 17, 1997
______________________
Senior Securities
===============================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE dated as of November 17, 1997 between HELLER
FINANCIAL, INC., a Delaware corporation (the "Company"), and STATE STREET BANK
AND TRUST COMPANY, as Trustee (the "Trustee").
PRELIMINARY STATEMENTS
A. The Company has entered into an Indenture dated as of September 1,
1995, with State Street Bank and Trust Company, as Trustee, as successor to
Shawmut Bank Connecticut, National Association, as amended by a First
Supplemental Indenture, dated as of October 13, 1995, pursuant to which the
Company, from time to time, will issue Senior Securities (as amended, the
"Indenture"). The Company and the Trustee now wish further to amend the
Indenture as set forth herein and below.
B. All things necessary to make this Second Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
In consideration of the above statements, and other good and valuable
consideration the receipt and adequacy of which is hereby acknowledged, the
parties agree that all the Securities are to be executed, authenticated and
delivered subject to the further covenants and conditions hereinafter set forth;
and the Company, for itself and its successors, does hereby covenant and agree
to and with the successor Trustee and its successors in such trust, for the
benefit of those who shall hold the Securities, or any of them, as follows:
TERMS AND CONDITIONS
1. Amendments to the Indenture. The terms of the Indenture are hereby amended
as follows:
The definition of "Exchange Rate Agent" in Section 1.01 of the Standard
Provisions is hereby deleted in its entirety and there is inserted in its place
the following new definition:
"Exchange Rate Agent" means the bank, banking corporation or trust
company, if any, from time to time selected by the Company for
purposes of Section 3.12.
2. Additional Provisions.
a. All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Indenture.
b. Except as amended hereby, the terms of the Indenture shall remain
unchanged.
<PAGE>
IN WITNESS WHEREOF, HELLER FINANCIAL, INC. has caused this Second
Supplemental Indenture to be signed in its corporate name by its authorized
officer, and its corporate seal to be affixed hereto, and the same to be
attested by the signature of its Secretary or an Assistant Secretary, and STATE
STREET BANK AND TRUST COMPANY, in evidence of its acceptance of the trust hereby
created, has caused this Second Supplemental Indenture to be signed in its
corporate name by one of its Authorized Officers, and its corporate seal to be
affixed hereto, and the same to be attested by one of its Assistant Secretaries,
as of the day and year first above written.
HELLER FINANCIAL, INC.
By: Anthony O'B. Beirne
---------------------------------
Its: Senior Vice President & Treasurer
---------------------------------
[SEAL]
Attest:
Mary L. Riedesel
- -------------------------------
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: Mark A. Forgetta
---------------------------------
Its: Vice President
---------------------------------
[SEAL]
Attest:
R. Elovecky
- --------------------------------
2
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 17th day of November, 1997, before me personally came Anthony O'B.
Beirne, to me known, who, being by me duly sworn, did depose and say that he is
an authorized officer of HELLER FINANCIAL, INC., one of the corporations
described in and which executed the above instrument; that he knows the seal of
such corporation; that the seal affixed to such instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of such
corporation; and that he signed his name thereto by like authority.
Mark J. Ohringer
--------------------------
Notary Public
[SEAL]
STATE OF Connecticut )
) ss.:
COUNTY OF Hartford )
On the ______ day of November, 1997, before me personally came Mark A
Forgetta, to me known, who, being by me duly sworn, did depose and say that he
is an authorized officer of STATE STREET BANK AND TRUST COMPANY, one of the
corporations described in and which executed the above instrument; that he knows
the seal of such corporation; that the seal affixed to such instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
such corporation; and that he signed his name thereto by some like authority.
Susan P. McNally
--------------------------
Notary Public
[SEAL]
3
<PAGE>
[Face of Note]
CUSIP NO.
REGISTERED NO. FIXR PRINCIPAL AMOUNT
$_______________
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H
(Fixed Rate)
If the registered owner of this Note (as indicated below) is The Depository
Trust Company (the "Depository") or a nominee of the Depository, this Note is a
global Note and the following legend is applicable: Unless this certificate is
presented by an authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of CEDE & CO., or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, CEDE & CO., has an
interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPLETED UNDER THE APPROXIMATE METHOD BELOW)
WILL BE COMPLETED, OR A REFERENCE FOR SUCH INFORMATION WILL BE
PROVIDED, SOLELY FOR PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
<PAGE>
The following summary of terms is subject to the information set forth on
the reverse hereof:
ISSUE PRICE: SPECIFIED CURRENCY:
ORIGINAL ISSUE DATE: OPTION TO RECEIVE PAYMENTS IN
SPECIFIED CURRENCY: [ ] YES [ ] NO
STATED MATURITY DATE: OPTIONAL REDEMPTION:[ ] YES [ ] NO
AUTHORIZED DENOMINATIONS: INITIAL REDEMPTION DATE:
INTEREST RATE: REDEMPTION PRICE: Initially % of Principal
Amount and declining by % of the Principal
Amount on each anniversary of the Initial
INTEREST PAYMENT DATES: Redemption Date until the Redemption Price is
100% of the Principal Amount.
DISCOUNT NOTE: [ ] YES [ ] NO
TOTAL AMOUNT OF OID: OPTION TO ELECT REPAYMENT: [ ] YES [ ] NO
ORIGINAL YIELD TO MATURITY: OPTIONAL REPAYMENT DATES:
INITIAL ACCRUAL PERIOD OID: OPTIONAL REPAYMENT PRICES:
DEPOSITORY: REPAYMENT PROVISIONS (If applicable):
OTHER PROVISIONS: RECOGNIZED FOREIGN EXCHANGE DEALERS:
PAYING AGENT: State Street Bank and Trust
Company Goodwin Square, 225 Asylum Street
Hartford, Connecticut 06103
(Attn: Corporate Trust Window,
Reference Heller Financial)
-2-
<PAGE>
HELLER FINANCIAL, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ___________________, or registered
assigns, the principal sum of ______________________ on the Stated Maturity Date
shown above, and to pay interest thereon from and including the Original Issue
Date shown above or from and including the most recent Interest Payment Date to
which interest has been paid, as the case may be. Interest will be paid on the
Interest Payment Dates shown above, commencing with the first such Interest
Payment Date next succeeding the Original Issue Date shown above (except as
provided below), at the rate per annum specified above, until the principal
hereof is paid or made available for payment, and interest shall accrue on any
overdue principal and on any overdue installment of interest (to the extent that
the payment of such interest shall be legally enforceable) at the rate per annum
in effect at the time such principal or installment of interest, as the case may
be, was due and payable; provided, however, that any payment otherwise required
to be made in respect of a Fixed Rate Note on a date that is not a Business Day
for such Fixed Rate Note need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on such
date, and no additional interest shall accrue as a result of such delayed
payment. The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the regular record date for such interest, which
shall be the fifteenth day (whether or not a Business Day) next preceding such
Interest Payment Date; provided, however, that interest payable at Maturity will
be payable to the Person to whom principal shall be payable. The first payment
of interest on any Note originally issued between a regular record date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding regular record date to the registered owner on such regular
record date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such regular record date and may either be paid to the Person
in whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a special record date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes of this series not less than 10 days prior to such special record date, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes of this series may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
-3-
<PAGE>
If this Note is denominated in a Specified Currency other than U.S.
dollars, then the Holder may, by delivery of a written request to the Paying
Agent (which shall initially be State Street Bank and Trust Company, at Goodwin
Square, 225 Asylum Street, Hartford, Connecticut 06103 or at such other address
as it may designate as its office or agency in The City of New York) received by
the Paying Agent on or prior to the applicable record date or at least 15 days
prior to Maturity, as the case may be, elect to receive all such payments in the
Specified Currency. Such election will remain in effect until revoked by written
notice to the Paying Agent received not later than on or prior to the applicable
record date or at least 15 days prior to Maturity, as the case may be. In
addition, if bid quotations for U.S. dollars of the type specified on the
reverse side hereof are not available, the Paying Agent will be unable to
exchange the Specified Currency for United States dollars and payments of
principal and interest will be made in the Specified Currency. If the Specified
Currency is unavailable due to the imposition of exchange controls or to other
circumstances beyond the Company's control, payments will be made in U.S.
dollars as described on the reverse side hereof.
Payments in U.S. dollars of interest on this Note (other than interest
payable at Maturity or upon earlier redemption or repayment) will be made by
mailing a check to the Holder at the address of the Holder appearing in the
Securities Register on the applicable record date. Notwithstanding the
foregoing, if the Holder holds U.S.$10,000,000 or more in aggregate principal
amount of Notes of like tenor and terms (or is the Holder of the equivalent
thereof in a Specified Currency other than U.S. dollars), such Holder shall be
entitled to receive such payments in U.S. dollars by wire transfer of
immediately available funds, but only if appropriate payment instructions have
been received in writing by the Paying Agent not less than 15 calendar days
prior to the applicable Interest Payment Date. Simultaneously with the election
by the Holder to receive payments in a Specified Currency other than U.S.
dollars (by written request to the Paying Agent, as provided above), the Holder
shall provide appropriate payment instructions to the Paying Agent, and all such
payments will be made in immediately available funds to an account maintained by
the payee in the Specified Currency. Principal and any premium and interest
payable at Maturity or upon earlier redemption or repayment in respect of this
Note will be paid in immediately available funds upon surrender of this Note
accompanied by wire instructions at the office of the Paying Agent.
If the registered owner of this Note (as indicated above) is the Depository
or a nominee of the Depository, this Note is a global Note and the following
legend is applicable except as specified on the reverse hereof: THIS GLOBAL NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A NOMINEE
-4-
<PAGE>
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY
THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE
OF SUCH SUCCESSOR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
HELLER FINANCIAL, INC.
By: _____________________________
Its:
[Seal] Attest: __________________________
Its:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in
the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY, as Trustee
and Authenticating Agent
By:_______________________________________________
Authorized Officer
-5-
<PAGE>
[Reverse of Note]
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H
This Note is one of a duly authorized issue of Securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
a senior indenture, dated as of September 1, 1995, as amended (herein called the
"Indenture"), between the Company and State Street Bank and Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the Securities of the series
designated on the face hereof.
Interest on this Note will be payable either semiannually on each March 1
and September 1 or annually on each February 1 (the "Interest Payment Dates" or
"Interest Payment Date") as specified on the face hereof and, in either case, at
Maturity or upon earlier redemption or repayment.
Interest payments on each Interest Payment Date for this Note will include
accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to, but excluding, such Interest Payment Date.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, payment of the principal of and interest
on this Note shall be made in the coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, unless the registered holder of this Note on the relevant record
date or at Maturity, as the case may be, has transmitted to the Paying Agent at
Goodwin Square, 225 Asylum Street, Hartford, Connecticut 06103, or at such other
address as it may designate as its office or agency in The City of New York, on
or prior to such record date or the date 15 days prior to Maturity, as the case
may be, such Holder's election to receive payment of the principal of and
interest on this Note in such Specified Currency. Such election may be in
writing (mailed or hand delivered) or by facsimile transmission. Any such
election made with respect to this Note by the Holder shall remain in effect
with respect to any further payments of interest and principal,
-6-
<PAGE>
and premium, if any, with respect to this Note payable to such Holder, unless
such election is revoked on or prior to the relevant record date or the date 15
days prior to Maturity, as the case may be. If the Specified Currency for this
Note is other than U.S. dollars, the Company will appoint an agent (initially
State Street Bank and Trust Company) (the "Exchange Rate Agent") to determine
the exchange rate for converting all payments in respect of such Note into U.S.
dollars in the manner described in the following paragraph. In the absence of
manifest error, all determinations by the Exchange Rate Agent from time to time
of currency exchange rates shall be final and binding on the Company and the
Holder hereof. Until the Notes are paid or payment thereof is duly provided for,
the Company will, at all times, maintain a Paying Agent in The City of New York
capable of performing the duties described herein to be performed by the Paying
Agent. The Company will notify the Holder of this Note, in accordance with the
Indenture, of any change in the Paying Agent or its address.
If the Specified Currency shown on the face hereof is other than U.S.
dollars and if the Holder has not made the election described in the immediately
preceding paragraph, payment in respect of this Note shall be made in U.S.
dollars based upon the exchange rate as determined by the Exchange Rate Agent
based on the highest firm bid quotation expressed in U.S. dollars received by
such Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers in The City of New York selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the purchase by the quoting dealer, for settlement on such payment date, of
the aggregate amount of the Specified Currency payable to all Holders of Notes
denominated in such Specified Currency who have elected to receive payment in
U.S. dollars on such payment date. Except as otherwise provided below, if no
such bid quotations are available, payments will be made in the Specified
Currency. All currency exchange costs associated with any payment in U.S.
dollars on this Note shall be borne by the Holder hereof by deductions from such
payment.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, and such Specified Currency is not
available due to the imposition of exchange controls of other circumstances
beyond the control of the Company, the Company shall be entitled to satisfy its
obligations to the Holder of this Note by making such payment in U.S. dollars on
the basis of the most recently available exchange rate. Any payment made under
such circumstances in U.S. dollars where the required payment is other than U.S.
dollars will not constitute an Event of Default.
-7-
<PAGE>
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit amounts used in or resulting from any such
calculation in respect of the Notes will be rounded to the nearest one-hundredth
of a unit (with five one-thousandths being rounded upward).
If so specified on the face hereof, the Company may at its option redeem
this Note in whole or from time to time in part on or after the date designated
as the Initial Redemption Date on the face hereof at prices declining from a
specified premium, if any, to par, together with accrued interest to the date of
redemption. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption at least 30 but not more than 60 days prior to the
date of redemption. In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof. If less than all of the Notes
with like tenor and terms to this Note are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
If so specified on the face hereof, this Note will be repayable prior to
Maturity at the option of the Holder on the Optional Repayment Dates shown on
the face hereof at the Optional Repayment Prices shown on the face hereof
together with accrued interest to the date of repayment. In order for this Note
to be repaid, the Paying Agent must receive at least 30 but not more than 45
days prior to an Optional Repayment Date (i) this Note with the form below
entitled "Option to Elect Repayment" duly completed or (ii) a facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States of America setting forth the name of the Holder of
this Note, the principal amount of this Note, the principal amount of this Note
to be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, with the form below entitled "Option to
Elect Repayment" duly completed, will be received by the Paying Agent not later
than five Business Days after the date of such facsimile transmission or letter.
If the procedure described in clause (ii) of the preceding sentence is followed,
this Note with such form duly completed must be received by the Paying Agent by
such fifth Business Day. Any tender of this Note for repayment shall be
irrevocable. The repayment option may be exercised by the Holder of this Note
for less than the entire principal amount of the Note provided that the
principal amount of the Note remaining outstanding after
-8-
<PAGE>
repayment is an authorized denomination. Upon such partial repayment this Note
shall be cancelled and a new Note or Notes for the remaining principal amount
thereof shall be issued in the name of the Holder of this Note.
This Note will not be subject to any sinking fund.
Notwithstanding anything herein to the contrary, if this Note is an
Original Issue Discount Note, the amount payable in the event of redemption or
repayment prior to the Stated Maturity Date hereof in lieu of the principal
amount due at the Stated Maturity Date hereof shall be the Amortized Face Amount
of this Note as of the redemption date or the date of repayment as the case may
be. The "Amortized Face Amount" of this Note shall be the amount equal to (a)
the Issue Price (as set forth on the face hereof) plus (b) that portion of the
difference between the Issue Price and the principal amount hereof that has
accrued at the Yield to Maturity (as set forth on the face hereof) (computed in
accordance with generally accepted United States bond yield computation
principles) at the date as of which the Amortized Face Amount is calculated, but
in no event shall the Amortized Face Amount of this Note exceed its principal
amount.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holder of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of at least a majority in principal amount of the Notes at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency, herein prescribed.
-9-
<PAGE>
As provided in the Indenture and subject to certain limitations therein set
forth and to the limitations described below, if applicable, the transfer of
this Note is registrable in the Securities Register upon surrender of this Note
for registration of transfer at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York or at such
other office or agency maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar (which shall initially be State Street Bank
and Trust Company, at Goodwin Square, 225 Asylum Street, Hartford, Connecticut
06103 or at such other address as it may designate as its office or agency in
The City of New York) duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series and of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in global or certificated
registered form, without coupons, in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth and to the limitations described below,
if applicable, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
If this Note is a global Note (as specified on the face hereof), this Note
is exchangeable for Notes in certificated registered form only if the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for this global Note or if at any time the Depository ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and a successor depositary registered under the Exchange Act is
not appointed by the Company within 90 days, provided that the definitive Notes
so issued in exchange for this permanent global Note shall be in denominations
of $1,000 and any integral multiple of $1,000 in excess thereof and be of like
aggregate principal amount and tenor as the portion of this permanent global
Note to be exchanged, and provided further that, unless the Company agrees
otherwise, Notes of this series in certificated registered form will be issued
in exchange for this permanent global Note, or any portion hereof, only if such
Notes in certificated registered form are requested by written notice to the
Trustee or the Securities Registrar by or on behalf of a person who is
beneficial owner of an interest hereof given through the Holder hereof. Except
as provided above, owners of beneficial interests in this permanent global Note
will not be entitled to receive physical delivery of Notes
-10-
<PAGE>
in certificated registered form and will not be considered the Holders thereof
for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
Except as otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
No recourse for the payment of the principal or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in the Indenture or
any Supplemental Indenture thereto or in any Note, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule or law or by the enforcement of any assessment or penalty or otherwise, all
such liability being by the acceptance hereof and as a condition of and as part
of the consideration for the issue hereof, expressly waived and released.
-11-
<PAGE>
OPTION TO ELECT REPAYMENT
If you want to elect to have this Note repaid by the Company pursuant to
the terms concerning repayment, if any, specified on the face hereof, check this
box [ ]
$____________________
Optional Repayment Date:____________________
Date:________________ Your signature:____________________________________
(Sign exactly as your
name appears on the
face of this Note)
Signature of Guarantee:___________________________________________________
-12-
<PAGE>
-----------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _____________Custodian______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
___________________________________
(State)
Additional abbreviations may also be used though not in the above list.
----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------
- --------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
__________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
Dated: _____________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
-13-
<PAGE>
[Face of Note]
CUSIP NO.
REGISTERED NO. FIXRCI FACE AMOUNT
$_____________
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H
(Fixed Rate/Currency Indexed)
If the registered owner of this Note (as indicated below) is The Depository
Trust Company (the "Depository") or a nominee of the Depository, this Note is a
global Note and the following legend is applicable: Unless this certificate is
presented by an authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of CEDE & CO., or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, CEDE & CO., has an
interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPLETED UNDER THE APPROXIMATE METHOD BELOW)
WILL BE COMPLETED, OR A REFERENCE FOR SUCH INFORMATION WILL BE
PROVIDED, SOLELY FOR PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
-1-
<PAGE>
The following summary of terms is subject to the information set forth on
the reverse hereof:
ISSUE PRICE: DENOMINATED CURRENCY:
ORIGINAL ISSUE DATE: OPTION TO RECEIVE PAYMENTS IN
DENOMINATED CURRENCY: [ ] YES
MATURITY DATE: [ ] NO
INTEREST RATE: OPTIONAL REDEMPTION: [ ] YES
[ ] NO
INDEXED CURRENCY: INITIAL REDEMPTION DATE:
BASE EXCHANGE RATE: REDEMPTION PRICE: Initially ___%
of Face Amount and declining
DETERMINATION AGENT: by % of the Face Amount on
each anniversary of the Initial
AUTHORIZED DENOMINATIONS: Redemption Date until the
Redemption Price is 100%
INTEREST PAYMENT DATES: of the Face Amount.
DISCOUNT NOTE: [ ] YES [ ] NO
TOTAL AMOUNT OF OID: OPTION TO ELECT REPAYMENT: [ ] YES
[ ] NO
ORIGINAL YIELD TO MATURITY: OPTIONAL REPAYMENT DATES:
INITIAL ACCRUAL PERIOD OID: OPTIONAL REPAYMENT PRICES:
DEPOSITORY: REPAYMENT PROVISIONS (If applicable):
RECOGNIZED FOREIGN EXCHANGE DEALERS:
OTHER PROVISIONS: REFERENCE DEALERS:
PAYING AGENT: State Street Bank and Trust
Company, Goodwin Square, 225 Asylum Street
Hartford, Connecticut 06103
(Attn: Corporate Trust Window,
Reference Heller Financial)
-2-
<PAGE>
HELLER FINANCIAL, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ___________________, or registered
assigns, the principal sum of ______________________ (the "Face Amount"), plus
or minus an amount, determined as referenced in the immediately succeeding
paragraph, on the Stated Maturity Date shown above, and to pay interest on the
Face Amount from and including the Original Issue Date shown above or from and
including the most recent Interest Payment Date to which interest has been paid,
as the case may be. Interest will be paid on the Interest Payment Dates shown
above, commencing with the first such Interest Payment Date next succeeding the
Original Issue Date shown above (except as provided below), at the rate per
annum specified above, until the principal hereof is paid or made available for
payment, and interest shall accrue on any overdue principal and on any overdue
installment of interest (to the extent that the payment of such interest shall
be legally enforceable) at the rate per annum in effect at the time such
principal or installment of interest, as the case may be, was due and payable;
provided, however, that any payment otherwise required to be made in respect of
a Fixed Rate Note on a date that is not a Business Day for such Fixed Rate Note
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on such date, and no additional
interest shall accrue as a result of such delayed payment. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the regular record date for such interest, which shall be the fifteenth day
(whether or not a Business Day) next preceding such Interest Payment Date;
provided, however, that interest payable at Maturity will be payable to the
Person to whom principal shall be payable. The first payment of interest on any
Note originally issued between a regular record date and an Interest Payment
Date will be made on the Interest Payment Date following the next succeeding
regular record date to the registered owner on such regular record date. Except
as otherwise provided in the Indenture, any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
regular record date and may either be paid to the Person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
special record date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such special record date, or be paid at any time
in any other lawful
-3-
<PAGE>
manner not inconsistent with the requirements of any securities exchange on
which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Except as provided below, the principal amount of this Note will be payable
in the Denominated Currency specified above in an amount equal to the Face
Amount hereof, plus or minus an amount determined by reference to the difference
between the Base Exchange Rate specified above and the rate at which the
Denominated Currency can be exchanged for the Indexed Currency specified above
as determined on the second Exchange Rate Day (defined on the reverse hereof)
prior to the Stated Maturity Date by the Determination Agent specified above,
which determination shall be made in the manner described on the reverse hereof.
If this Note is denominated in a Denominated Currency other than U.S.
dollars, then the Holder may, by delivery of a written request to the Paying
Agent (which shall initially be State Street Bank and Trust Company, at Goodwin
Square, 225 Asylum Street, Hartford, Connecticut 06103 or at such other address
as it may designate as its office or agency in The City of New York) received by
the Paying Agent on or prior to the applicable record date or at least 15 days
prior to Maturity, as the case may be, elect to receive all such payments in the
Denominated Currency. Such election will remain in effect until revoked by
written notice to the Paying Agent received not later than on or prior to the
applicable record date or at least 15 days prior to Maturity, as the case may
be. In addition, if bid quotations for U.S. dollars of the type specified on the
reverse side hereof are not available, the Paying Agent will be unable to
exchange the Denominated Currency for United States dollars and payments of
principal and interest will be made in the Denominated Currency. If the
Denominated Currency is unavailable due to the imposition of exchange controls
or to other circumstances beyond the Company's control, payments will be made in
U.S. dollars as described on the reverse side hereof.
Payments in U.S. dollars of interest on this Note (other than interest
payable at Maturity or upon earlier redemption or repayment) will be made by
mailing a check to the Holder at the address of the Holder appearing in the
Securities Register on the applicable record date. Notwithstanding the
foregoing, if the Holder holds U.S.$10,000,000 or more in aggregate principal
amount of Notes of like tenor and terms (or is the Holder of the equivalent
thereof in a Denominated Currency other than U.S. dollars), such Holder shall be
entitled to receive such payments in U.S. dollars by wire transfer of
immediately available funds, but only if appropriate payment instructions have
been received in writing by the Paying Agent not less than 15 calendar days
prior to the applicable Interest Payment Date. Simultaneously
-4-
<PAGE>
with the election by the Holder to receive payments in a Denominated Currency
other than U.S. dollars (by written request to the Paying Agent, as provided
above), the Holder shall provide appropriate payment instructions to the Paying
Agent, and all such payments will be made in immediately available funds to an
account maintained by the payee in the Denominated Currency. Principal and any
premium and interest payable at Maturity or upon earlier redemption or repayment
in respect of this Note will be paid in immediately available funds upon
surrender of this Note accompanied by wire instructions at the office of the
Paying Agent.
If the registered owner of this Note (as indicated above) is the Depository
or a nominee of the Depository, this Note is a global Note and the following
legend is applicable except as specified on the reverse hereof: THIS GLOBAL NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A NOMINEE OF
THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
* * *
-5-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
HELLER FINANCIAL, INC.
By:___________________________________
Its:
[Seal] Attest:_______________________________
Its:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated herein
and referred to in the within-
mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY
as Trustee and Authenticating Agent
BY:___________________________________________
Authorized Officer
-6-
<PAGE>
[Reverse of Note]
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H
This Note is one of a duly authorized issue of Securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
a senior indenture, dated as of September 1, 1995, as amended (herein called the
"Indenture"), between the Company and State Street Bank and Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the Securities of the series
designated on the face hereof.
Except as specified below, the principal of this Note will be payable by
the Company in the Denominated Currency at the Stated Maturity Date in an amount
equal to the Face Amount of this Note, plus or minus an amount determined by the
Determination Agent by reference to the difference between the Base Exchange
Rate and the rate at which the Denominated Currency can be exchanged for the
Indexed Currency as determined on the second Exchange Rate Day prior to the
Stated Maturity Date of this Note (the "Determination Date") by the
Determination Agent based upon the arithmetic mean of the open market spot offer
quotations for the Indexed Currency (spot bid quotations for the Denominated
Currency) obtained by the Determination Agent from the Reference Dealers (as
hereinafter defined) in The City of New York at 11:00 a.m., New York City time,
on the Determination Date, for an amount of Indexed Currency equal to the Face
Amount of this Note multiplied by the Base Exchange Rate, with the Denominated
Currency for settlement at the Stated Maturity Date (such rate of exchange, as
so determined, is hereafter referred to as the "Spot Rate"). If such quotations
from the Reference Dealers are not available on the Determination Date due to
circumstances beyond the control of the Company, the Spot Rate shall be
determined by the Determination Agent on the basis of the most recently
available quotations from the Reference Dealers. The principal amount of this
Note determined by the Determination Agent to be payable at the Stated Maturity
Date will be payable to the Holder hereof in the manner set forth herein. As
used herein, the term
-7-
<PAGE>
"Reference Dealers" shall mean the three banks or firms specified by the Company
on the date of issuance hereof or, if any of them shall be unwilling or unable
to provide the requested quotations, such other major money center bank or banks
in The City of New York selected by the Company, in consultation with the
Determination Agent, to act as Reference Dealer or Dealers in replacement
therefor. Unless otherwise specified above, the term "Exchange Rate Day" shall
mean any day which is a Business Day in the City of New York and, (a) if the
Denominated Currency or Indexed Currency is the Canadian dollar, in Toronto,
Canada, (b) if the Denominated Currency or Indexed Currency is the Japanese yen,
in Tokyo, Japan, (c) if the Denominated Currency or Indexed Currency is the
pound sterling, in London, England, (d) if the Denominated Currency or Indexed
Currency is the Australian dollar, in Melbourne, Australia, (e) if the
Denominated Currency or the Indexed Currency is the ECU, in Brussels, Belgium,
and/or (f) if the Denominated Currency or the Indexed Currency is any other
currency or currency unit (other than the U.S. dollar), in the principal
financial center of the country of such Denominated Currency or Indexed
Currency.
In the absence of manifest error, the determination by the Determination
Agent of the Spot Rate and the principal amount of this Note payable at the
Stated Maturity Date shall be final and binding on the Company and the Holder of
this Note.
Unless otherwise specified on the face hereof, the formulae to be used by
the Determination Agent to determine the principal amount of this Note payable
at the Stated Maturity Date will be as follows:
If the Spot Rate exceeds or equals the Base Exchange Rate, the principal
amount of this Note payable at the Stated Maturity Date shall equal:
Face Amount + (Face Amount x Spot Rate - Base Exchange Rate
Spot Rate ).
If the Base Exchange Rate exceeds the Spot Rate, the principal amount of
this Note payable at the Stated Maturity Date (which shall, in no event, be less
than zero) shall equal:
Face Amount - (Face Amount x Base Exchange Rate - Spot Rate
Spot Rate ).
Unless otherwise specified on the face hereof, on the basis of the
aforesaid determinations by the Determination Agent and the formulae and
limitations set forth above, (i) if the Base Exchange Rate equals the Spot Rate,
then the principal amount of this Note payable at the Stated Maturity Date will
be equal to the Face Amount hereof; (ii) if the Spot Rate exceeds the Base
-8-
<PAGE>
Exchange Rate (i.e., the Denominated Currency has appreciated against the
Indexed Currency during the term of this Note), then the principal amount so
payable would be greater than (but no greater than twice) the Face Amount
hereof; (iii) if the Spot Rate is less than the Base Exchange Rate (i.e., the
Denominated Currency has depreciated against the Indexed Currency during the
term of this Note) but is greater than one-half of the Base Exchange Rate, then
the principal amount so payable would be less than the Face Amount hereof; and
(iv) if the Spot Rate is less than or equal to one-half of the Base Exchange
Rate, then the Spot Rate will be deemed to be one-half of the Base Exchange Rate
and no principal amount of this Note will be payable at the Stated Maturity
Date. Unless otherwise specified on the face hereof, in the event of any
redemption or repayment of this Note prior to the Stated Maturity Date, the term
"Stated Maturity Date" would refer to the redemption or repayment date.
Interest on this Note will be payable either semiannually on each March 1
and September 1 or annually on each February 1 (the "Interest Payment Dates" or
"Interest Payment Date") as specified on the face hereof and, in either case, at
Maturity or upon earlier redemption or repayment.
Interest payments on each Interest Payment Date for this Note will include
accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to, but excluding, such Interest Payment Date.
If the Denominated Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, payment of the principal of and interest
on this Note shall be made in the coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, unless the registered holder of this Note on the relevant record
date or at Maturity, as the case may be, has transmitted to the Paying Agent at
Goodwin Square, 225 Asylum Street, Hartford, Connecticut 06103, or at such other
address as it may designate as its office or agency in The City of New York, on
or prior to such record date or the date 15 days prior to Maturity, as the case
may be, such Holder's election to receive payment of the principal of and
interest on this Note in such Denominated Currency. Such election may be in
writing (mailed or hand delivered) or by facsimile transmission. Any such
election made with respect to this Note by the Holder shall remain in effect
with respect to any further payments of interest and principal, and premium, if
any, with respect to this Note payable to such Holder, unless such election is
revoked on or prior to the relevant record date or the date 15 days prior to
Maturity, as
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<PAGE>
the case may be. If the Denominated Currency for this Note is other than U.S.
dollars, the Company will appoint an agent (initially State Street Bank and
Trust Company) (the "Exchange Rate Agent") to determine the exchange rate for
converting all payments in respect of such Note into U.S. dollars in the manner
described in the following paragraph. In the absence of manifest error, all
determinations by the Exchange Rate Agent from time to time of currency exchange
rates shall be final and binding on the Company and the Holder hereof. Until the
Notes are paid or payment thereof is duly provided for, the Company will, at all
times, maintain a Paying Agent in The City of New York capable of performing the
duties described herein to be performed by the Paying Agent. The Company will
notify the Holder of this Note, in accordance with the Indenture, of any change
in the Paying Agent or its address.
If the Denominated Currency shown on the face hereof is other than U.S.
dollars and if the Holder has not made the election described in the immediately
preceding paragraph, payment in respect of this Note shall be made in U.S.
dollars based upon the exchange rate as determined by the Exchange Rate Agent
based on the highest firm bid quotation expressed in U.S. dollars received by
such Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers in The City of New York selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the purchase by the quoting dealer, for settlement on such payment date, of
the aggregate amount of the Denominated Currency payable to all Holders of Notes
denominated in such Denominated Currency who have elected to receive payment in
U.S. dollars on such payment date. Except as otherwise provided below, if no
such bid quotations are available, payments will be made in the Denominated
Currency. All currency exchange costs associated with any payment in U.S.
dollars on this Note shall be borne by the Holder hereof by deductions from such
payment.
If the Denominated Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, and such Denominated Currency is not
available due to the imposition of exchange controls of other circumstances
beyond the control of the Company, the Company shall be entitled to satisfy its
obligations to the Holder of this Note by making such payment in U.S. dollars on
the basis of the most recently available exchange rate. Any payment made under
such circumstances in U.S. dollars where the required payment is other than U.S.
dollars will not constitute an Event of Default.
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred
-10-
<PAGE>
thousandth of a percentage point (with five one-millionths of a percentage point
being rounded upward) and all currency or currency unit amounts used in or
resulting from any such calculation in respect of the Notes will be rounded to
the nearest one-hundredth of a unit (with five one-thousandths being rounded
upward).
If so specified on the face hereof, the Company may at its option redeem
this Note in whole or from time to time in part on or after the date designated
as the Initial Redemption Date on the face hereof at prices declining from a
specified premium, if any, to par, together with accrued interest to the date of
redemption. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption at least 30 but not more than 60 days prior to the
date of redemption. In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof. If less than all of the Notes
with like tenor and terms to this Note are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
If so specified on the face hereof, this Note will be repayable prior to
Maturity at the option of the Holder on the Optional Repayment Dates shown on
the face hereof at the Optional Repayment Prices shown on the face hereof
together with accrued interest to the date of repayment. In order for this Note
to be repaid, the Paying Agent must receive at least 30 but not more than 45
days prior to an Optional Repayment Date (i) this Note with the form below
entitled "Option to Elect Repayment" duly completed or (ii) a facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States of America setting forth the name of the Holder of
this Note, the principal amount of this Note, the principal amount of this Note
to be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, with the form below entitled "Option to
Elect Repayment" duly completed, will be received by the Paying Agent not later
than five Business Days after the date of such facsimile transmission or letter.
If the procedure described in clause (ii) of the preceding sentence is followed,
this Note with such form duly completed must be received by the Paying Agent by
such fifth Business Day. Any tender of this Note for repayment shall be
irrevocable. The repayment option may be exercised by the Holder of this Note
for less than the entire principal amount of the Note provided that
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<PAGE>
the principal amount of the Note remaining outstanding after repayment is an
authorized denomination. Upon such partial repayment this Note shall be
cancelled and a new Note or Notes for the remaining principal amount thereof
shall be issued in the name of the Holder of this Note.
This Note will not be subject to any sinking fund.
Notwithstanding anything herein to the contrary, if this Note is an
Original Issue Discount Note, the amount payable in the event of redemption or
repayment prior to the Stated Maturity Date hereof in lieu of the principal
amount due at the Stated Maturity Date hereof shall be the Amortized Face Amount
of this Note as of the redemption date or the date of repayment as the case may
be. The "Amortized Face Amount" of this Note shall be the amount equal to (a)
the Issue Price (as set forth on the face hereof) plus (b) that portion of the
difference between the Issue Price and the principal amount hereof that has
accrued at the Yield to Maturity (as set forth on the face hereof) (computed in
accordance with generally accepted United States bond yield computation
principles) at the date as of which the Amortized Face Amount is calculated but
in no event shall the Amortized Face Amount of this Note exceed its principal
amount.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holder of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of at least a majority in principal amount of the Notes at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional,
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<PAGE>
to pay the principal of and interest on this Note at the times, places and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth and to the limitations described below, if applicable, the transfer of
this Note is registrable in the Securities Register upon surrender of this Note
for registration of transfer at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York or at such
other office or agency maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar (which shall initially be State Street Bank
and Trust Company, at Goodwin Square, 225 Asylum Street, Hartford, Connecticut
or at such address as it may designate as its office or agency in The City of
New York) duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes of this series are issuable only in global or certificated
registered form, without coupons, in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth and to the limitations described below,
if applicable, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
If this Note is a global Note (as specified on the face hereof), this Note
is exchangeable for Notes in certificated registered form only if the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for this global Note or if at any time the Depository ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and a successor depositary registered under the Exchange Act is
not appointed by the Company within 90 days, provided that the definitive Notes
so issued in exchange for this permanent global Note shall be in denominations
of $1,000 and any integral multiple of $1,000 in excess thereof and be of like
aggregate principal amount and tenor as the portion of this permanent global
Note to be exchanged, and provided further that, unless the Company agrees
otherwise, Notes of this series in certificated registered form will be issued
in exchange for this permanent global Note, or any portion hereof, only if such
Notes in certificated registered form are requested
-13-
<PAGE>
by written notice to the Trustee or the Securities Registrar by or on behalf of
a person who is beneficial owner of an interest hereof given through the Holder
hereof. Except as provided above, owners of beneficial interests in this
permanent global Note will not be entitled to receive physical delivery of Notes
in certificated registered form and will not be considered the Holders thereof
for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
Except as otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
No recourse for the payment of the principal or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in the Indenture or
any Supplemental Indenture thereto or in any Note, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule or law or by the enforcement of any assessment or penalty or otherwise, all
such liability being by the acceptance hereof and as a condition of and as part
of the consideration for the issue hereof, expressly waived and released.
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<PAGE>
OPTION TO ELECT REPAYMENT
If you want to elect to have this Note repaid by the Company pursuant to
the terms concerning repayment, if any, specified on the face hereof, check this
box [ ]
$_________________
Optional Repayment Date:_________________
Date:____________________ Your signature:___________________
(Sign exactly as your
name appears on the
face of this Note)
Signature of Guarantee:
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _______________Custodian__________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
______________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
-------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________
________________________________________
________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
___________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
Dated: ____________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
-16-
<PAGE>
[Face of Note]
CUSIP NO.
REGISTERED NO. FLR PRINCIPAL AMOUNT
$_______________
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H
(Floating Rate)
If the registered owner of this Note (as indicated below) is The Depository
Trust Company (the "Depository") or a nominee of the Depository, this Note is a
global Note and the following legend is applicable: Unless this certificate is
presented by an authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of CEDE & CO., or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, CEDE & CO., has an
interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPLETED UNDER THE APPROXIMATE METHOD BELOW)
WILL BE COMPLETED, OR A REFERENCE FOR SUCH INFORMATION WILL BE
PROVIDED, SOLELY FOR PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
-1-
<PAGE>
The following summary of terms is subject to the information set forth on
the reverse hereof:
ISSUE PRICE: SPECIFIED CURRENCY:
ORIGINAL ISSUE DATE: OPTION TO RECEIVE PAYMENTS IN SPECIFIED
CURRENCY: [ ] YES [ ] NO
STATED MATURITY DATE: OPTIONAL REDEMPTION:
[ ] YES [ ] NO
BASE RATE: INITIAL REDEMPTION DATE:
INITIAL INTEREST RATE: REDEMPTION PRICE: Initially
___% of Principal Amount and
declining by ___% of the
INDEX MATURITY: Principal Amount on each
anniversary of the Initial
Redemption Date until the
SPREAD (PLUS OR MINUS): Redemption Price is 100% of
the Principal Amount.
DISCOUNT NOTE: [ ] YES [ ] NO
SPREAD MULTIPLIER: TOTAL AMOUNT OF OID:
AUTHORIZED DENOMINATIONS: ORIGINAL YIELD TO MATURITY:
CALCULATION AGENT: INITIAL ACCRUAL PERIOD OID:
MAXIMUM INTEREST RATE: OPTION TO ELECT REPAYMENT: [ ] YES [ ] NO
MINIMUM INTEREST RATE: OPTIONAL REPAYMENT DATES:
INTEREST RESET PERIOD: OPTIONAL REPAYMENT PRICES:
INTEREST RESET DATES: DEPOSITORY:
INTEREST PAYMENT PERIOD: REPAYMENT PROVISIONS (If applicable):
INTEREST PAYMENT DATES: RECOGNIZED FOREIGN EXCHANGE DEALERS:
INTEREST DETERMINATION DATE(S):
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<PAGE>
OTHER PROVISIONS: PAYING AGENT: State Street
Bank and Trust Company
Goodwin Square, 225 Asylum Street
Hartford, Connecticut 06103
(Attn: Corporate Trust Window,
Reference Heller Financial)
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<PAGE>
HELLER FINANCIAL, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ___________________, or registered
assigns, the principal sum of ______________________ on the Stated Maturity Date
shown above, and to pay interest thereon from and including the Original Issue
Date shown above or from and including the most recent Interest Payment Date to
which interest has been paid, as the case may be. If any Interest Payment Date
for any Floating Rate Note would otherwise be a day that is not a Business Day,
such Interest Payment Date shall be postponed to the next day that is a Business
Day except, in the case of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Stated Maturity Date of a Floating Rate Note
falls on a day that is not a Business Day, the payment of principal, premium, if
any, and interest will be made on the next succeeding Business Day, and no
interest on such payment shall accrue for the period from and after such Stated
Maturity Date. Interest will be paid on the Interest Payment Dates shown
above, commencing with the first such Interest Payment Date next succeeding the
Original Issue Date shown above (except as provided below), at the rate per
annum determined in accordance with the provisions on the reverse hereof,
depending on the Base Rate specified above and the Spread, if any, or Spread
Multiplier, if any, until the principal hereof is paid or made available for
payment, and interest shall accrue on any overdue principal and on any overdue
installment of interest (to the extent that the payment of such interest shall
be legally enforceable) at the rate per annum in effect at the time such
principal or installment of interest, as the case may be, was due and payable.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more predecessor Notes) is registered at the close of
business on the regular record date for such interest, which shall be the
fifteenth day (whether or not a Business Day) next preceding such Interest
Payment Date; provided, however, that interest payable at Maturity will be
payable to the Person to whom principal shall be payable. The first payment of
interest on any Note originally issued between a regular record date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding regular record date to the registered owner on such regular
record date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such regular record date and may either be paid to the Person
in whose name this Note (or one or more
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<PAGE>
predecessor Notes) is registered at the close of business on a special record
date for the payment of such defaulted interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes of this series not less than
10 days prior to such special record date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
If this Note is denominated in a Specified Currency other than U.S.
dollars, then the Holder may, by delivery of a written request to the Paying
Agent (which shall initially be State Street Bank and Trust Company, at Goodwin
Square, 225 Asylum Street, Hartford, Connecticut 06103 or at such other address
as it may designate as its office or agency in The City of New York) received by
the Paying Agent on or prior to the applicable record date or at least 15 days
prior to Maturity, as the case may be, elect to receive all such payments in the
Specified Currency. Such election will remain in effect until revoked by written
notice to the Paying Agent received not later than on or prior to the applicable
record date or at least 15 days prior to Maturity, as the case may be. In
addition, if bid quotations for U.S. dollars of the type specified on the
reverse side hereof are not available, the Paying Agent will be unable to
exchange the Specified Currency for United States dollars and payments of
principal and interest will be made in the Specified Currency. If the Specified
Currency is unavailable due to the imposition of exchange controls or to other
circumstances beyond the Company's control, payments will be made in U.S.
dollars as described on the reverse side hereof.
Payments in U.S. dollars of interest on this Note (other than interest
payable at Maturity or upon earlier redemption or repayment) will be made by
mailing a check to the Holder at the address of the Holder appearing in the
Securities Register on the applicable record date. Notwithstanding the
foregoing, if the Holder holds U.S.$10,000,000 or more in aggregate principal
amount of Notes of like tenor and terms (or is the Holder of the equivalent
thereof in a Specified Currency other than U.S. dollars), such Holder shall be
entitled to receive such payments in U.S. dollars by wire transfer of
immediately available funds, but only if appropriate payment instructions have
been received in writing by the Paying Agent not less than 15 calendar days
prior to the applicable Interest Payment Date. Simultaneously with the election
by the Holder to receive payments in a Specified Currency other than U.S.
dollars (by written request to the Paying Agent, as provided above), the Holder
shall provide appropriate payment instructions to the Paying Agent, and all
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<PAGE>
such payments will be made in immediately available funds to an account
maintained by the payee in the Specified Currency. Principal and any premium and
interest payable at Maturity or upon earlier redemption or repayment in respect
of this Note will be paid in immediately available funds upon surrender of this
Note accompanied by wire instructions at the office of the Paying Agent.
If the registered owner of this Note (as indicated above) is the Depository
or a nominee of the Depository, this Note is a global Note and the following
legend is applicable except as specified on the reverse hereof: THIS GLOBAL NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A NOMINEE OF
THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
HELLER FINANCIAL, INC.
By:___________________________________
Its:
[Seal] Attest:_______________________________
Its:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated herein
and referred to in the within-
mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee and Authenticating Agent
By:________________________________________________
Authorized Officer
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<PAGE>
[Reverse of Note]
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H
This Note is one of a duly authorized issue of Securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
a senior indenture, dated as of September 1, 1995, as amended (herein called the
"Indenture"), between the Company and State Street Bank and Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the Securities of the series
designated on the face hereof.
Commencing with the first Interest Reset Date specified on the face hereof
following the Original Issue Date, the rate at which interest on this Note is
payable shall be reset daily, weekly, monthly, quarterly, semiannually or
annually as shown on the face hereof under "Interest Reset Period"; provided,
however, that (i) the interest rate in effect from the Original Issue Date to
the first Interest Reset Date specified on the face hereof will be the Initial
Interest Rate and (ii) the interest rate in effect hereon for the 10 days
immediately prior to the Maturity hereof shall be that in effect on the 10th day
preceding the Maturity hereof. Each such reset rate shall be applicable on and
after the Interest Reset Date to which it relates to but not including the next
succeeding Interest Reset Date or until Maturity, as the case may be. Unless
otherwise specified on the face hereof, the Interest Reset Date will be, if the
interest rate on this Note is to be reset daily, each Business Day; if the
interest rate on this Note is to be reset weekly, Wednesday of each week, unless
the Base Rate of this Note is the Treasury Rate, in which case the Interest
Reset Date will be Tuesday of each week (except that if in any week an auction
of Treasury bills falls on a Tuesday, the Interest Reset Date will be on
Wednesday of that week); if the interest
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<PAGE>
rate on this Note is to be reset monthly, the third Wednesday of each month; if
the interest rate on this Note is to be reset quarterly, the third Wednesday of
March, June, September and December; if the interest rate on this Note is to be
reset semiannually, the third Wednesday of each of two months specified on the
face hereof; and if the interest rate on this Note is to be reset annually, the
third Wednesday of the month specified on the face hereof. Unless otherwise
specified on the face hereof, if any Interest Reset Date specified on the face
hereof would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next day that is a Business Day, except that if
the rate of interest on this Note shall be determined in accordance with the
provisions of the heading "Determination of LIBOR" below, and such Business Day
is in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. Subject to applicable provisions of law and
except as specified herein, on each Interest Reset Date the rate of interest on
this Note shall be the rate determined in accordance with the provisions of the
applicable heading below.
Determination of Commercial Paper Rate. If the Base Rate on this Note is
the Commercial Paper Rate, the interest rate with respect to this Note shall
equal (a) the Money Market Yield (calculated as described below) of the rate on
each Interest Determination Date (as defined below) for commercial paper having
the Index Maturity shown on the face hereof, as such rate is published by the
Board of Governors of the Federal Reserve System in "Statistical Release H.
15(519), Selected Interest Rates", or any successor publication of the Board of
Governors of the Federal Reserve System, under the heading "Commercial Paper-
Nonfinancial", or if such rate is not published by 3:00 p.m., New York City
time, on the Calculation Date (as defined below) pertaining to such Interest
Determination Date, as published by the Federal Reserve Bank of New York in its
daily statistical release, "Composite 3:30 p.m. Quotations for the U.S.
Government Securities" under the heading "Commercial Paper", or (b) if such rate
is not published by 3:00 p.m., New York City time, on such Calculation Date, the
Money Market Yield of the arithmetic mean of the offered rates, as of 11:00
a.m., New York City time, on such Interest Determination Date, of three leading
dealers of commercial paper in The City of New York selected by the Calculation
Agent specified on the face hereof for commercial paper having the Index
Maturity shown on the face hereof placed for an industrial issuer whose bond
rating is "AA", or the equivalent, from a nationally recognized securities
rating agency, adjusted in each of the above cases by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned above, the interest rate in effect hereon to
which such
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<PAGE>
Interest Determination Date relates shall be the interest rate in effect hereon
on such Interest Determination Date.
"Money Market Yield" shall be the yield (expressed as a percentage rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point)
calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
--------------
360 - (D X M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of LIBOR. If the Base Rate on this Note is LIBOR, the
interest rate payable with respect to this Note (as determined by the
Calculation Agent specified on the face hereof) will be determined in accordance
with the following provisions:
(i) With respect to an Interest Determination Date, LIBOR will be, as
specified in the applicable Pricing Supplement, either: (a) the
arithmetic mean of the offered rates for deposits in U.S. dollars
having the Index Maturity designated in the applicable Pricing
Supplement, commencing on the second London Banking Day
immediately following that Interest Determination Date, that
appears on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, on that Interest Determination Date, if at least two such
offered rates appear on the Reuters Screen LIBO Page ("LIBOR
Reuters"), or (b) the rate for deposits in U.S. dollars having
the Index Maturity designated in the applicable Pricing
Supplement, commencing on the second London Banking Day
immediately following that Interest Determination Date, that
appears on the Telerate Page 3750 as of 11:00 a.m., London time,
on that Interest Determination Date ("LIBOR Telerate"). "Reuters
Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks).
"Telerate Page 3750" means the display designated as page "3750"
on the Telerate Service (or such other page as may replace page
3750 on that
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<PAGE>
service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying
London interbank offered rates for U.S. dollar deposits). If
neither LIBOR Reuters nor LIBOR Telerate is specified in the
applicable Pricing Supplement, LIBOR will be determined as if
LIBOR Telerate had been specified. If fewer than two offered
rates appear on the Reuters Screen LIBO Page, or if no rate
appears on the Telerate Page 3750, as applicable, LIBOR in
respect of that Interest Determination Date will be determined as
if the parties had specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on which fewer
than two offered rates appear on the Reuters Screen LIBO Page, as
specified in (i)(a) above, or on which no rate appears on
Telerate Page 3750, as specified in (i)(b) above, as applicable,
LIBOR will be determined on the basis of the rates at which
deposits in U.S. dollars having the Index Maturity designated in
the applicable Pricing Supplement are offered at approximately
11:00 a.m., London time, on that Interest Determination Date by
four major banks in the London interbank market selected by the
Calculation Agent ("Reference Banks") to prime banks in the
London interbank market commencing on the second London Banking
Day immediately following that Interest Determination Date and in
a principal amount equal to an amount of not less than $1,000,000
that is representative for a single transaction in such market at
such time. The Calculation Agent will request the principal
London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are
provided, LIBOR in respect of that Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than
two quotations are provided, LIBOR in respect of that Interest
Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 a.m., New York City time, on that
Interest Determination Date by three major banks in The City of
New York selected by the Calculation Agent for loans in U.S.
dollars to leading European banks having the Index Maturity
designated in the applicable Pricing Supplement
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<PAGE>
commencing on the second London Banking Day immediately following
that Interest Determination Date and in a principal amount equal
to an amount of not less than $1,000,000 that is representative
for a single transaction in such market at such time; provided,
however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence,
LIBOR with respect to such Interest Determination Date will be
the rate of LIBOR in effect on such date.
Determination of Treasury Rate. If the Base Rate on this Note is the
Treasury Rate, the interest rate payable with respect to this Note shall equal
the rate for the most recent auction of direct obligations of the United States
("Treasury bills") having the Index Maturity shown on the face hereof as
published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates", or any successor
publication of the Board of Governors of the Federal Reserve System, under the
heading "U.S. Government Securities - Treasury bills - auction average
(investment)" on each Interest Determination Date or, if not so published by
3:00 p.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 days or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury, in either case, adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof, or, by multiplication by the
Spread Multiplier, if any, specified on the face hereof. In the event that the
results of the auction of Treasury bills having the Index Maturity shown on the
face hereof are not otherwise published or reported as provided above by 3:00
p.m., New York City time, on such Calculation Date or no such auction is held in
a particular week, then the rate of interest hereon shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 p.m., New York City time, on such Interest Determination
Date, of three leading primary United States government securities dealers
selected by the Calculation Agent, for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity shown on the face hereof,
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof, or by the multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate in
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<PAGE>
effect hereon to which such Interest Determination Date relates shall be the
Treasury Rate in effect hereon on such Interest Determination Date.
Determination of Federal Funds Rate. If the Base Rate on this Note is the
Federal Funds Rate, the interest rate payable with respect to this Note shall
equal the rate published in H.15(519) under the heading "Federal Funds
(Effective)" on the Calculation Date pertaining to an Interest Determination
Date or, if not so published by 3:00 p.m., New York City time, on such
Calculation Date, the rate as published in Composite Quotations under the
heading "Federal Funds/Effective Rate". If neither of such rates is published
by 3:00 p.m., New York City time, on such Calculation Date, the Federal Funds
Rate will be calculated by the Calculation Agent and will be the arithmetic mean
on such Interest Determination Date calculated by the Calculation Agent of the
rates for the last transaction of not less than $1,000,000 in overnight Federal
Funds arranged by three leading brokers of Federal Funds transactions in The
City of New York (which may include one or more of the Agents under a
Distribution Agreement dated as of the date hereof between the Company and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase Securities Inc.,
BancAmerica Robertson Stephens, Citicorp Securities, Inc., Credit Suisse First
Boston Corporation, First Chicago Capital Markets, Goldman, Sachs & Co., Lehman
Brothers Inc., J. P. Morgan Securities Inc. and UBS Securities LLC) selected by
the Calculation Agent, prior to 9:00 a.m., New York City time, on such Interest
Determination Date; provided, however, that if the brokers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Rate will be the Federal Funds Rate in effect on such Interest
Determination Date.
Determination of Prime Rate. If the Base Rate on this Note is the Prime
Rate, the "Prime Rate" means, with respect to any Interest Determination Date,
the rate on such date as such rate is published in H.15(519) under the heading
"Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New York
City time, on the related Calculation Date, then the Prime Rate shall be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 Page (as hereinafter defined) as such
bank's prime rate or base lending rate as in effect on such Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Interest Determination Date, then the Prime Rate shall be
the arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by a 360-day year as of the close of business on
such Interest Determination Date by four major money center banks in The City
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<PAGE>
of New York selected by the Calculation Agent. If fewer than four such
quotations are so provided, then the Prime Rate shall be the arithmetic mean of
four prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Interest
Determination Date as furnished in The City of New York by the major money
center banks, if any, that have provided such quotations, and by as many
substitute banks or trust companies as necessary in order to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any state
thereof, each having total equity capital of at least $500 million and being
subject to supervision or examination by a Federal or State authority, selected
by the Calculation Agent to provide such rate or rates; provided, however, that
if the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Interest Determination Date will be the Prime Rate in effect on such Interest
Determination Date. "Reuters Screen USPRIME1" means the display designated as
page "USPRIME1" on the Reuters Monitor Money Rates Service (or such other page
as may replace the USPRIME1 page on that service for the purpose of displaying
prime rates or base lending rates of major U.S. banks).
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. The Calculation Agent shall
calculate the interest rate on this Note in accordance with the foregoing on or
before each Calculation Date.
The interest rate on this Note will in no event be higher than the maximum
rate permitted by New York law as the same may be modified by United States law
of general applicability.
The "Interest Determination Date" pertaining to an Interest Reset Date if
this Note has as a Base Rate the Commercial Paper Rate, the Federal Funds Rate
or the Prime Rate will be the second Business Day next preceding such Interest
Reset Date. The Interest Determination Date pertaining to an Interest Reset Date
if this Note has as a Base Rate the LIBOR Rate will be the second London Banking
Day next preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date if this Note has as a Base Rate the
Treasury Rate will be the day of the week in which such Interest Reset Date
falls on which Treasury bills of the Index Maturity specified on the face of
this Note are auctioned, provided that if an auction of Treasury bills is held
on a Friday instead of the following Monday or Tuesday because such Monday is a
legal holiday, such Friday will
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<PAGE>
be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week.
The "Calculation Date", where applicable, pertaining to an Interest
Determination Date is the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day, or (ii) the Business Day immediately preceding the
applicable Interest Payment or Stated Maturity Date (or earlier redemption or
repayment).
Upon request of the Holder of this Note, the Calculation Agent will provide
the interest rate then in effect and, if determined, the interest rate that will
become effective on the next Interest Reset Date with respect to this Note. The
Paying Agent and the Trustee shall not be responsible for performing any of the
functions of the Calculation Agent under this Note.
Interest on this Note will be payable monthly, quarterly, semiannually or
annually (the "Interest Payment Period") as specified on the face hereof.
Unless otherwise provided on the face hereof, the date or dates on which
interest will be payable (each an "Interest Payment Date") will be, in the case
of a monthly Interest Payment Period, the third Wednesday of each month; in the
case of a quarterly Interest Payment Period, the third Wednesday of March, June,
September and December; in the case of a semiannual Interest Payment Period, the
third Wednesday of each of the two months specified on the face hereof; and in
the case of an annual Interest Payment Period, the third Wednesday of the month
specified on the face hereof. If any Interest Payment Date specified on the
face hereof would otherwise be a day that is not a Business Day, the Interest
Payment Date shall be postponed to the next day that is a Business Day, except
that if the rate of interest on this Note shall be determined in accordance with
the provisions of the heading "Determination of LIBOR" above, and such Business
Day is in the next succeeding calendar month, such Interest Payment Date shall
be the immediately preceding Business Day. "Business Day" means any day that is
not a Saturday or Sunday and that, in The City of London, is not a day on which
banking institutions are generally authorized or obligated by law to close.
Interest payments on each Interest Payment Date for this Note (except if
the interest rate on this Note resets daily or weekly) will include accrued
interest from and including the Original Issue Date or from and including the
last date in respect of which interest has been paid, as the case may be, to,
but excluding, such Interest Payment Date. If the interest rate on this Note
resets daily or weekly, interest payments will
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<PAGE>
include accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to, and including, the regular record date immediately preceding the
applicable Interest Payment Date, and at Maturity the interest payments will
include accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to, but excluding, the Stated Maturity Date.
Accrued interest hereon from the Original Issue Date or from the last date
to which interest hereon has been paid, as the case may be, shall be an amount
calculated by multiplying the face amount by an accrued interest factor. Such
accrued interest factor shall be computed by adding the interest factor
calculated for each day from the Original Issue Date or from the last date to
which interest shall have been paid, as the case may be, to the date for which
accrued interest is being calculated. The interest factor (expressed as a
decimal) for each such day will be computed by dividing the interest rate
applicable to such day by 360, in the case of Notes that have the Commercial
Paper Rate, the LIBOR Rate, the Federal Funds Rate or the Prime Rate as a Base
Rate, or by the actual number of days in the year in the case of Notes that have
the Treasury Rate as a Base Rate. The interest rate in effect on each day will
be (i) if such day is an Interest Reset Date, the interest rate with respect to
the Interest Determination Date pertaining to such Interest Reset Date, or (ii)
if such day is not an Interest Reset Date, the interest rate with respect to the
Interest Determination Date pertaining to the next preceding Interest Reset
Date, subject in either case to any Maximum or Minimum Interest Rate limitation
specified on the face hereof and to any adjustment by a Spread or Spread
Multiplier specified on the face hereof; provided, however, that (a) the
interest rate in effect for the period from the Original Issue Date to the first
Interest Reset Date will be the Initial Interest Rate specified on the face
hereof and (b) the interest rate in effect for the ten calendar days immediately
prior to Maturity will be that in effect on the tenth calendar day preceding
Maturity.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, payment of the principal of and interest
on this Note shall be made in the coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, unless the registered holder of this Note on the relevant record
date or at Maturity, as the case may be, has transmitted to the Paying Agent at
Goodwin Square, 225 Asylum Street, Hartford, Connecticut 06103, or at such other
address as it may designate
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<PAGE>
as its office or agency in The City of New York, on or prior to such record date
or the date 15 days prior to Maturity, as the case may be, such Holder's
election to receive payment of the principal of and interest on this Note in
such Specified Currency. Such election may be in writing (mailed or hand
delivered) or by facsimile transmission. Any such election made with respect to
this Note by the Holder shall remain in effect with respect to any further
payments of interest and principal, and premium, if any, with respect to this
Note payable to such Holder, unless such election is revoked on or prior to the
relevant record date or the date 15 days prior to Maturity, as the case may be.
If the Specified Currency for this Note is other than U.S. dollars, the Company
will appoint an agent (initially State Street Bank and Trust Company) (the
"Exchange Rate Agent") to determine the exchange rate for converting all
payments in respect of such Note into U.S. dollars in the manner described in
the following paragraph. In the absence of manifest error, all determinations by
the Exchange Rate Agent from time to time of currency exchange rates shall be
final and binding on the Company and the Holder hereof. Until the Notes are paid
or payment thereof is duly provided for, the Company will, at all times,
maintain a Paying Agent in The City of New York capable of performing the duties
described herein to be performed by the Paying Agent. The Company will notify
the Holder of this Note, in accordance with the Indenture, of any change in the
Paying Agent or its address.
If the Specified Currency shown on the face hereof is other than U.S.
dollars and if the Holder has not made the election described in the immediately
preceding paragraph, payment in respect of this Note shall be made in U.S.
dollars based upon the exchange rate as determined by the Exchange Rate Agent
based on the highest firm bid quotation expressed in U.S. dollars received by
such Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers in The City of New York selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the purchase by the quoting dealer, for settlement on such payment date, of
the aggregate amount of the Specified Currency payable to all Holders of Notes
denominated in such Specified Currency who have elected to receive payment in
U.S. dollars on such payment date. Except as otherwise provided below, if no
such bid quotations are available, payments will be made in the Specified
Currency. All currency exchange costs associated with any payment in U.S.
dollars on this Note shall be borne by the Holder hereof by deductions from such
payment.
-17-
<PAGE>
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, and such Specified Currency is not
available due to the imposition of exchange controls of other circumstances
beyond the control of the Company, the Company shall be entitled to satisfy its
obligations to the Holder of this Note by making such payment in U.S. dollars on
the basis of the most recently available exchange rate. Any payment made under
such circumstances in U.S. dollars where the required payment is other than U.S.
dollars will not constitute an Event of Default.
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit amounts used in or resulting from any such
calculation in respect of the Notes will be rounded to the nearest one-hundredth
of a unit (with five one-thousandths being rounded upward).
If so specified on the face hereof, the Company may at its option redeem
this Note in whole or from time to time in part on or after the date designated
as the Initial Redemption Date on the face hereof at prices declining from a
specified premium, if any, to par together with accrued interest to the date of
redemption. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption at least 30 but not more than 60 days prior to the
date of redemption. In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof. If less than all of the Notes
with like tenor and terms to this Note are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
If so specified on the face hereof, this Note will be repayable prior to
Maturity at the option of the Holder on the Optional Repayment Dates shown on
the face hereof at the Optional Repayment Prices shown on the face hereof
together with accrued interest to the date of repayment. In order for this Note
to be repaid, the Paying Agent must receive at least 30 but not more than 45
days prior to an Optional Repayment Date (i) this Note with the form below
entitled "Option to Elect Repayment" duly completed or (ii) a facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States of America setting forth the name of the Holder of
this Note, the principal amount of this
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<PAGE>
Note, the principal amount of this Note to be repaid, the certificate number or
a description of the tenor and terms of this Note, a statement that the option
to elect repayment is being exercised thereby and a guarantee that this Note,
with the form below entitled "Option to Elect Repayment" duly completed, will be
received by the Paying Agent not later than five Business Days after the date of
such facsimile transmission or letter. If the procedure described in clause (ii)
of the preceding sentence is followed, this Note with such form duly completed
must be received by the Paying Agent by such fifth Business Day. Any tender of
this Note for repayment shall be irrevocable. The repayment option may be
exercised by the Holder of this Note for less than the entire principal amount
of the Note provided that the principal amount of the Note remaining outstanding
after repayment is an authorized denomination. Upon such partial repayment this
Note shall be cancelled and a new Note or Notes for the remaining principal
amount thereof shall be issued in the name of the Holder of this Note.
This Note will not be subject to any sinking fund.
Notwithstanding anything herein to the contrary, if this Note is an
Original Issue Discount Note, the amount payable in the event of redemption or
repayment prior to the Stated Maturity Date hereof in lieu of the principal
amount due at the Stated Maturity Date hereof shall be the Amortized Face Amount
of this Note as of the redemption date or the date of repayment as the case may
be. The "Amortized Face Amount" of this Note shall be the amount equal to (a)
the Issue Price (as set forth on the face hereof) plus (b) that portion of the
difference between the Issue Price and the principal amount hereof that has
accrued at the Yield to Maturity (as set forth on the face hereof) (computed in
accordance with generally accepted United States bond yield computation
principles) at the date as of which the Amortized Face Amount is calculated, but
in no event shall the Amortized Face Amount of this Note exceed its principal
amount.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holder of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of at least a majority in principal amount of the Notes at the
time Outstanding of each series to be
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<PAGE>
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Notes of each series at the
time Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth and to the limitations described below, if applicable, the transfer of
this Note is registrable in the Securities Register upon surrender of this Note
for registration of transfer at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York or at such
other office or agency maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar (which shall initially be State Street Bank
and Trust Company, at Goodwin Square, 225 Asylum Street, Hartford, Connecticut
06103 or at such other address as it may designate as its office or agency in
The City of New York) duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series and of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in global or certificated
registered form, without coupons, in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth and to the limitations described below,
if applicable, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
If this Note is a global Note (as specified on the face hereof), this Note is
exchangeable for Notes in certificated
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<PAGE>
registered form only if the Depository notifies the Company that it is unwilling
or unable to continue as Depository for this global Note or if at any time the
Depository ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and a successor
depositary registered under the Exchange Act is not appointed by the Company
within 90 days, provided that the definitive Notes so issued in exchange for
this permanent global Note shall be in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof and be of like aggregate principal amount
and tenor as the portion of this permanent global Note to be exchanged, and
provided further that, unless the Company agrees otherwise, Notes of this series
in certificated registered form will be issued in exchange for this permanent
global Note, or any portion hereof, only if such Notes in certificated
registered form are requested by written notice to the Trustee or the Securities
Registrar by or on behalf of a person who is beneficial owner of an interest
hereof given through the Holder hereof. Except as provided above, owners of
beneficial interests in this permanent global Note will not be entitled to
receive physical delivery of Notes in certificated registered form and will not
be considered the Holders thereof for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
Except as otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
No recourse for the payment of the principal or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in the Indenture or
any Supplemental Indenture thereto or in any Note, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past,
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<PAGE>
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule or law or by the enforcement of any
assessment or penalty or otherwise, all such liability being by the acceptance
hereof and as a condition of and as part of the consideration for the issue
hereof, expressly waived and released.
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<PAGE>
OPTION TO ELECT REPAYMENT
If you want to elect to have this Note repaid by the Company pursuant to
the terms concerning repayment, if any, specified on the face hereof, check this
box [ ]
$____________________
Optional Repayment Date:____________________
Date:________________ Your signature:________________________________
(Sign exactly as your
name appears on the face of
this of this Note)
Signature of Guarantee:______________________________________________
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<PAGE>
-------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ______________Custodian______________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________________________
____________________________________________
____________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: ______________________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN
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<PAGE>
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
-25-
<PAGE>
[Face of Note]
CUSIP NO.
REGISTERED NO. FLRCI FACE AMOUNT
$_______________
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H
(Floating Rate/Currency Indexed)
If the registered owner of this Note (as indicated below) is The Depository
Trust Company (the "Depository") or a nominee of the Depository, this Note is a
global Note and the following legend is applicable: Unless this certificate is
presented by an authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of CEDE & CO., or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, CEDE & CO., has an
interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPLETED UNDER THE APPROXIMATE METHOD BELOW)
WILL BE COMPLETED, OR A REFERENCE FOR SUCH INFORMATION WILL
BE PROVIDED, SOLELY FOR PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
-1-
<PAGE>
The following summary of terms is subject to the information set forth on
the reverse hereof:
ISSUE PRICE: DENOMINATED CURRENCY:
ORIGINAL ISSUE DATE: OPTION TO RECEIVE PAYMENTS IN
STATED MATURITY DATE: DENOMINATED CURRENCY:
[ ] YES [ ] NO
INDEXED CURRENCY: OPTIONAL REDEMPTION:
[ ] YES [ ] NO
BASE EXCHANGE RATE: INITIAL REDEMPTION DATE:
DETERMINATION AGENT: REDEMPTION PRICE:
Initially ___% of Face Amount
AUTHORIZED DENOMINATIONS: and declining by ___%
of the Face Amount on each
BASE RATE: anniversary of the Initial
Redemption Date until the
Redemption Price is 100% of the
INITIAL INTEREST RATE: Face Amount.
INDEX MATURITY:
SPREAD (PLUS OR MINUS): DISCOUNT NOTE: [ ] YES [ ] NO
SPREAD MULTIPLIER: TOTAL AMOUNT OF OID:
CALCULATION AGENT: INITIAL ACCRUAL PERIOD OID:
ORIGINAL YIELD TO MATURITY:
MAXIMUM INTEREST RATE: OPTION TO ELECT REPAYMENT:
[ ] YES [ ] NO
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<PAGE>
MINIMUM INTEREST RATE: OPTIONAL REPAYMENT DATES:
INTEREST RESET PERIOD: OPTIONAL REPAYMENT PRICES:
INTEREST RESET DATES: DEPOSITORY:
INTEREST PAYMENT PERIOD: REPAYMENT PROVISIONS (If applicable):
INTEREST PAYMENT DATES: RECOGNIZED FOREIGN EXCHANGE DEALERS:
INTEREST DETERMINATION DATE(S):
OTHER PROVISIONS: REFERENCE DEALERS:
PAYING AGENT: State Street
Bank and Trust Company
Goodwin Square, 225 Asylum Street
Hartford, Connecticut 06103
(Attn: Corporate Trust Window,
Reference Heller Financial)
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<PAGE>
HELLER FINANCIAL, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ___________________, or registered
assigns, the principal sum of ______________________ (the "Face Amount"), plus
or minus an amount, determined as described in the immediately succeeding
paragraph, on the Stated Maturity Date shown above, and to pay interest on the
Face Amount from and including the Original Issue Date shown above or from and
including the most recent Interest Payment Date to which interest has been paid,
as the case may be. If any Interest Payment Date for any Floating Rate Note
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be postponed to the next day that is a Business Day except, in the case of
a LIBOR Note, if such Business Day is in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding Business Day. If
the Stated Maturity Date of a Floating Rate Note falls on a day that is not a
Business Day, the payment of principal, premium, if any, and interest will be
made on the next succeeding Business Day, and no interest on such payment shall
accrue for the period from and after such Stated Maturity Date. Interest will
be paid on the Interest Payment Dates shown above, commencing with the first
such Interest Payment Date next succeeding the Original Issue Date shown above
(except as provided below), at the rate per annum determined in accordance with
the provisions on the reverse hereof, depending on the Base Rate specified above
and the Spread, if any, or Spread Multiplier, if any, until the principal hereof
is paid or made available for payment, and interest shall accrue on any overdue
principal and on any overdue installment of interest (to the extent that the
payment of such interest shall be legally enforceable) at the rate per annum in
effect at the time such principal or installment of interest, as the case may
be, was due and payable. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more predecessor Notes)
is registered at the close of business on the regular record date for such
interest, which shall be the fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date; provided, however, that interest payable
at Maturity will be payable to the Person to whom principal shall be payable.
The first payment of interest on any Note originally issued between a regular
record date and an Interest Payment Date will be made on the Interest Payment
Date following the next succeeding regular record date to the registered owner
on such regular record date. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be
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<PAGE>
payable to the Holder on such regular record date and may either be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Notes of this series not less than 10 days prior to such special
record date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Except as provided below, the principal amount of this Note will be payable
in the Denominated Currency specified above in an amount equal to the Face
Amount hereof, plus or minus an amount determined by reference to the difference
between the Base Exchange Rate specified above and the rate at which the
Denominated Currency can be exchanged for the Indexed Currency specified above
as determined on the second Exchange Rate Day (defined on the reverse hereof)
prior to the Stated Maturity Date by the Determination Agent specified above,
which determination shall be made in the manner described on the reverse hereof.
If this Note is denominated in a Denominated Currency other than U.S.
dollars, then the Holder may, by delivery of a written request to the Paying
Agent (which shall initially be State Street Bank and Trust Company, at Goodwin
Square, 225 Asylum Street, Hartford, Connecticut 06103 or at such other address
as it may designate as its office or agency in The City of New York) received by
the Paying Agent on or prior to the applicable record date or at least 15 days
prior to Maturity, as the case may be, elect to receive all such payments in the
Denominated Currency. Such election will remain in effect until revoked by
written notice to the Paying Agent received not later than on or prior to the
applicable record date or at least 15 days prior to Maturity, as the case may
be. In addition, if bid quotations for U.S. dollars of the type specified on the
reverse side hereof are not available, the Paying Agent will be unable to
exchange the Denominated Currency for United States dollars and payments of
principal and interest will be made in the Denominated Currency. If the
Denominated Currency is unavailable due to the imposition of exchange controls
or to other circumstances beyond the Company's control, payments will be made in
U.S. dollars as described on the reverse side hereof.
Payments in U.S. dollars of interest on this Note (other than interest
payable at Maturity or upon earlier redemption or repayment) will be made by
mailing a check to the Holder at the address of the Holder appearing in the
Securities Register on the
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<PAGE>
applicable record date. Notwithstanding the foregoing, if the Holder holds
U.S.$10,000,000 or more in aggregate principal amount of Notes of like tenor and
terms (or is the Holder of the equivalent thereof in a Denominated Currency
other than U.S. dollars), such Holder shall be entitled to receive such payments
in U.S. dollars by wire transfer of immediately available funds, but only if
appropriate payment instructions have been received in writing by the Paying
Agent not less than 15 calendar days prior to the applicable Interest Payment
Date. Simultaneously with the election by the Holder to receive payments in a
Denominated Currency other than U.S. dollars (by written request to the Paying
Agent, as provided above), the Holder shall provide appropriate payment
instructions to the Paying Agent, and all such payments will be made in
immediately available funds to an account maintained by the payee in the
Denominated Currency. Principal and any premium and interest payable at Maturity
or upon earlier redemption or repayment in respect of this Note will be paid in
immediately available funds upon surrender of this Note accompanied by wire
instructions at the office of the Paying Agent.
If the registered owner of this Note (as indicated above) is the Depository
or a nominee of the Depository, this Note is a global Note and the following
legend is applicable except as specified on the reverse hereof: THIS GLOBAL NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A NOMINEE OF
THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
* * *
-6-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
HELLER FINANCIAL, INC.
By:______________________________
Its:
[Seal] Attest:__________________________
Its:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated herein
and referred to in the within-
mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee and Authenticating Agent
By:___________________________________________________
Authorized Officer
-7-
<PAGE>
[Reverse of Note]
HELLER FINANCIAL, INC.
MEDIUM-TERM NOTE, SERIES H
This Note is one of a duly authorized issue of Securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
a senior indenture, dated as of September 1, 1995, as amended (herein called the
"Indenture"), between the Company and State Street Bank and Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the Securities of the series
designated on the face hereof.
Except as specified below, the principal of this Note will be payable by
the Company in the Denominated Currency at the Stated Maturity Date in an amount
equal to the Face Amount of this Note, plus or minus an amount determined by the
Determination Agent by reference to the difference between the Base Exchange
Rate and the rate at which the Denominated Currency can be exchanged for the
Indexed Currency as determined on the second Exchange Rate Day prior to the
Stated Maturity Date of this Note (the "Determination Date") by the
Determination Agent based upon the arithmetic mean of the open market spot offer
quotations for the Indexed Currency (spot bid quotations for the Denominated
Currency) obtained by the Determination Agent from the Reference Dealers (as
hereinafter defined) in The City of New York at 11:00 a.m., New York City time,
on the Determination Date, for an amount of Indexed Currency equal to the Face
Amount of this Note multiplied by the Base Exchange Rate, with the Denominated
Currency for settlement at the Stated Maturity Date (such rate of exchange, as
so determined, is hereafter referred to as the "Spot Rate"). If such quotations
from the Reference Dealers are not available on the Determination Date due to
circumstances beyond the control of the Company, the Spot Rate shall be
determined by the Determination Agent on the basis of the most recently
available quotations from the Reference Dealers. The principal amount of this
Note determined by the Determination Agent to be payable at the Stated Maturity
Date
-8-
<PAGE>
will be payable to the Holder hereof in the manner set forth herein. As used
herein, the term "Reference Dealers" shall mean the three banks or firms
specified by the Company on the date of issuance hereof or, if any of them shall
be unwilling or unable to provide the requested quotations, such other major
money center bank or banks in The City of New York selected by the Company, in
consultation with the Determination Agent, to act as Reference Dealer or Dealers
in replacement therefor. Unless otherwise specified above, the term "Exchange
Rate Day" shall mean any day which is a Business Day in the City of New York
and, (a) if the Denominated Currency or Indexed Currency is the Canadian dollar,
in Toronto, Canada, (b) if the Denominated Currency or Indexed Currency is the
Japanese yen, in Tokyo, Japan, (c) if the Denominated Currency or Indexed
Currency is the pound sterling, in London, England, (d) if the Denominated
Currency or Indexed Currency is the Australian dollar, in Melbourne, Australia,
(e) if the Denominated Currency or the Indexed Currency is the ECU, in Brussels,
Belgium, and/or (f) if the Denominated Currency or the Indexed Currency is any
other currency or currency unit (other than the U.S. dollar), in the principal
financial center of the country of such Denominated Currency or Indexed
Currency.
In the absence of manifest error, the determination by the Determination
Agent of the Spot Rate and the principal amount of this Note payable at the
Stated Maturity Date shall be final and binding on the Company and the Holder of
this Note.
Unless otherwise specified on the face hereof, the formulae to be used by
the Determination Agent to determine the principal amount of this Note payable
at the Stated Maturity Date will be as follows:
If the Spot Rate exceeds or equals the Base Exchange Rate, the
principal amount of this Note payable at the Stated Maturity Date shall
equal:
Face Amount + (Face Amount x Spot Rate - Base Exchange Rate
Spot Rate ).
If the Base Exchange Rate exceeds the Spot Rate, the principal amount
of this Note payable at the Stated Maturity Date (which shall, in no event,
be less than zero) shall equal:
Face Amount - (Face Amount x Base Exchange Rate - Spot Rate
Spot Rate ).
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<PAGE>
Unless otherwise specified on the face hereof, on the basis of the
aforesaid determinations by the Determination Agent and the formulae and
limitations set forth above, (i) if the Base Exchange Rate equals the Spot Rate,
then the principal amount of this Note payable at the Stated Maturity Date will
be equal to the Face Amount hereof; (ii) if the Spot Rate exceeds the Base
Exchange Rate (i.e., the Denominated Currency has appreciated against the
Indexed Currency during the term of this Note), then the principal amount so
payable would be greater than (but no greater than twice) the Face Amount
hereof; (iii) if the Spot Rate is less than the Base Exchange Rate (i.e., the
Denominated Currency has depreciated against the Indexed Currency during the
term of this Note) but is greater than one-half of the Base Exchange Rate, then
the principal amount so payable would be less than the Face Amount hereof; and
(iv) if the Spot Rate is less than or equal to one-half of the Base Exchange
Rate, then the Spot Rate will be deemed to be one-half of the Base Exchange Rate
and no principal amount of this Note will be payable at the Stated Maturity
Date. Unless otherwise specified on the face hereof, in the event of any
redemption or repayment of this Note prior to the Stated Maturity Date, the term
"Stated Maturity Date" would refer to the redemption or repayment date.
Commencing with the first Interest Reset Date specified on the face hereof
following the Original Issue Date, the rate at which interest on this Note is
payable shall be reset daily, weekly, monthly, quarterly, semiannually or
annually as shown on the face hereof under "Interest Reset Period"; provided,
however, that (i) the interest rate in effect from the Original Issue Date to
the first Interest Reset Date specified on the face hereof will be the Initial
Interest Rate and (ii) the interest rate in effect hereon for the 10 days
immediately prior to the Maturity hereof shall be that in effect on the 10th day
preceding the Maturity hereof. Each such reset rate shall be applicable on and
after the Interest Reset Date to which it relates to but not including the next
succeeding Interest Reset Date or until Maturity, as the case may be. Unless
otherwise specified on the face hereof, the Interest Reset Date will be, if the
interest rate on this Note is to be reset daily, each Business Day; if the
interest rate on this Note is to be reset weekly, Wednesday of each week, unless
the Base Rate of this Note is the Treasury Rate, in which case the Interest
Reset Date will be Tuesday of each week (except that if in any week an auction
of Treasury bills falls on a Tuesday, the Interest Reset Date will be on
Wednesday of that week); if the interest rate on this Note is to be reset
monthly, the third Wednesday of each month; if the interest rate on this Note is
to be reset quarterly, the third Wednesday of March, June, September and
December; if the interest rate on this Note is to be reset semiannually, the
third
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Wednesday of each of two months specified on the face hereof; and if the
interest rate on this Note is to be reset annually, the third Wednesday of the
month specified on the face hereof. If any Interest Reset Date specified on the
face hereof would otherwise be a day that is not a Business Day, such Interest
Reset Date shall be postponed to the next day that is a Business Day, except
that if the rate of interest on this Note shall be determined in accordance with
the provisions of the heading "Determination of LIBOR" below, and such Business
Day is in the next succeeding calendar month, such Interest Reset Date shall be
the immediately preceding Business Day. Subject to applicable provisions of law
and except as specified herein, on each Interest Reset Date the rate of interest
on this Note shall be the rate determined in accordance with the provisions of
the applicable heading below.
Determination of Commercial Paper Rate. If the Base Rate on this Note is
the Commercial Paper Rate, the interest rate with respect to this Note shall
equal (a) the Money Market Yield (calculated as described below) of the rate on
each Interest Determination Date (as defined below) for commercial paper having
the Index Maturity shown on the face hereof, as such rate is published by the
Board of Governors of the Federal Reserve System in "Statistical Release H.
15(519), Selected Interest Rates", or any successor publication of the Board of
Governors of the Federal Reserve System, under the heading "Commercial Paper-
Nonfinancial", or if such rate is not published by 3:00 p.m., New York City
time, on the Calculation Date (as defined below) pertaining to such Interest
Determination Date, as published by the Federal Reserve Bank of New York in its
daily statistical release, "Composite 3:30 p.m. Quotations for the U.S.
Government Securities" under the heading "Commercial Paper", or (b) if such rate
is not published by 3:00 p.m., New York City time, on such Calculation Date, the
Money Market Yield of the arithmetic mean of the offered rates, as of 11:00
a.m., New York City time, on such Interest Determination Date, of three leading
dealers of commercial paper in The City of New York selected by the Calculation
Agent specified on the face hereof for commercial paper having the Index
Maturity shown on the face hereof placed for an industrial issuer whose bond
rating is "AA", or the equivalent, from a nationally recognized securities
rating agency, adjusted in each of the above cases by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned above, the interest rate in effect hereon to
which such Interest Determination Date relates shall be the interest rate in
effect hereon on such Interest Determination Date.
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"Money Market Yield" shall be the yield (expressed as a percentage rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point)
calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
-----------------
360 - (D X M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of LIBOR. If the Base Rate on this Note is LIBOR, the
interest rate payable with respect to this Note (as determined by the
Calculation Agent specified on the face hereof) will be determined in accordance
with the following provisions:
(i) With respect to an Interest Determination Date, LIBOR will be, as
specified in the applicable Pricing Supplement, either: (a) the
arithmetic mean of the offered rates for deposits in U.S. dollars
having the Index Maturity designated in the applicable Pricing
Supplement, commencing on the second London Banking Day
immediately following that Interest Determination Date, that
appear on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, on that Interest Determination Date, if at least two such
offered rates appear on the Reuters Screen LIBO Page ("LIBOR
Reuters"), or (b) the rate for deposits in U.S. dollars having
the Index Maturity designated in the applicable Pricing
Supplement, commencing on the second London Banking Day
immediately following that Interest Determination Date, that
appears on the Telerate Page 3750 as of 11:00 a.m., London time,
on that Interest Determination Date ("LIBOR Telerate"). "Reuters
Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks).
"Telerate Page 3750" means the display designated as page "3750"
on the Telerate Service (or such other page as may replace page
3750 on that service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of
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displaying London interbank offered rates for U.S. dollar
deposits). If neither LIBOR Reuters nor LIBOR Telerate is
specified in the applicable Pricing Supplement, LIBOR will be
determined as if LIBOR Telerate had been specified. If fewer
than two offered rates appear on the Reuters Screen LIBO Page, or
if no rate appears on the Telerate Page 3750, as applicable,
LIBOR in respect of that Interest Determinate Date will be
determined as if the parties had specified the rate described in
(ii) below.
(ii) With respect to an Interest Determination Date on which fewer
than two offered rates appear on the Reuters Screen LIBO Page, as
specified in (i)(a) above, or on which no rate appears on
Telerate Page 3750, as specified in (i)(b) above, as applicable,
LIBOR will be determined on the basis of the rates at which
deposits in U.S. dollars having the Index Maturity designated in
the applicable Pricing Supplement are offered at approximately
11:00 a.m., London time, on that Interest Determination Date by
four major banks in the London interbank market selected by the
Calculation Agent ("Reference Banks") to prime banks in the
London interbank market commencing on the second London Banking
Day immediately following that Interest Determination Date and in
a principal amount equal to an amount of not less than
$1,000,000 that is representative for a single transaction in
such market at such time. The Calculation Agent will request the
principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations
are provided, LIBOR in respect of that Interest Determination
Date will be the arithmetic mean of such quotations. If fewer
than two quotations are provided, LIBOR in respect of that
Interest Determination Date, will be the arithmetic mean of the
rates quoted at approximately 11:00 a.m., New York City time, on
that Interest Determination Date by three major banks in The City
of New York selected by the Calculation Agent for loans in U.S.
dollars to leading European banks having the Index Maturity
designated in the applicable Pricing Supplement commencing on the
second London Banking Day immediately following that Interest
Determination Date and in a principal amount equal to an amount
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of not less than $1,000,000 that is representative for a single
transaction in such market at such time; provided, however, that
if the banks selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, LIBOR with respect to
such Interest Determination Date will be the rate of LIBOR in
effect on such date.
Determination of Treasury Rate. If the Base Rate on this Note is the
Treasury Rate, the interest rate payable with respect to this Note shall equal
the rate for the most recent auction of direct obligations of the United States
("Treasury bills") having the Index Maturity shown on the face hereof as
published by the Board of Governors of the Federal Reserve System in
"Statistical Release H. 15(519), Selected Interest Rates", or any successor
publication of the Board of Governors of the Federal Reserve System, under the
heading "U.S. Government Securities - Treasury bills - auction average
(investment)" on each Interest Determination Date or, if not so published by
3:00 p.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 days or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury, in either case, adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof, or, by multiplication by the
Spread Multiplier, if any, specified on the face hereof. In the event that the
results of the auction of Treasury bills having the Index Maturity shown on the
face hereof are not otherwise published or reported as provided above by 3:00
p.m., New York City time, on such Calculation Date or no such auction is held in
a particular week, then the rate of interest hereon shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 p.m., New York City time, on such Interest Determination
Date, of three leading primary United States government securities dealers
selected by the Calculation Agent, for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity shown on the face hereof,
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof, or by the multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence; the Treasury Rate in effect hereon to which such Interest
Determination Date relates shall be the Treasury Rate in effect hereon on such
Interest Determination Date.
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Determination of Federal Funds Rate. If the Base Rate on this Note is the
Federal Funds Rate, the interest rate payable with respect to this Note shall
equal the rate published in H.15(519) under the heading "Federal Funds
(Effective)" on the Calculation Date pertaining to an Interest Determination
Date or, if not so published by 3:00 p.m., New York City time, on such
Calculation Date, the rate as published in Composite Quotations under the
heading "Federal Funds/Effective Rate". If neither of such rates is published
by 3:00 p.m., New York City time, on such Calculation Date, the Federal Funds
Rate will be calculated by the Calculation Agent and will be the arithmetic mean
on such Interest Determination Date calculated by the Calculation Agent of the
rates for the last transaction of not less than $1,000,000 in overnight Federal
Funds arranged by three leading brokers of Federal Funds transactions in The
City of New York (which may include one or more of the Agents under a
Distribution Agreement dated as of the date hereof between the Company and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, BancAmerica Robertson
Stephens, Chase Securities, Inc., Citicorp Securities, Inc., Credit Suisse First
Boston Corporation, First Chicago Capital Markets, Goldman, Sachs & Co., Lehman
Brothers Inc., J. P. Morgan Securities Inc. and UBS Securities LLC) selected by
the Calculation Agent, prior to 9:00 a.m., New York City time, on such Interest
Determination Date; provided, however, that if the brokers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Rate will be the Federal Funds Rate in effect on such Interest
Determination Date.
Determination of Prime Rate. If the Base Rate on this Note is the Prime
Rate, the "Prime Rate" means, with respect to any Interest Determination Date,
the rate on such date as such rate is published in H.15(519) under the heading
"Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New York
City time, on the related Calculation Date, then the Prime Rate shall be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 Page (as hereinafter defined) as such
bank's prime rate or base lending rate as in effect on such Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Interest Determination Date, then the Prime Rate shall be
the arithmetic mean of the prime rates quoted on the basis of
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<PAGE>
the actual number of days in the year divided by a 360-day year as of the close
of business on such Interest Determination Date by four major money center banks
in The City of New York selected by the Calculation Agent. If fewer than four
such quotations are so provided, then the Prime Rate shall be the arithmetic
mean of four prime rates quoted on the basis of the actual number of days in the
year divided by a 360-day year as of the close of business on such Interest
Determination Date as furnished in The City of New York by the major money
center banks, if any, that have provided such quotations, and by as many
substitute banks or trust companies as necessary in order to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any state
thereof, each having total equity capital of at least $500 million and being
subject to supervision or examination by a Federal or State authority, selected
by the Calculation Agent to provide such rate or rates; provided, however, that
if the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Interest Determination Date will be the Prime Rate in effect on such Interest
Determination Date. "Reuters Screen USPRIME1" means the display designated as
page "USPRIME1" on the Reuters Monitor Money Rates Service (or such other page
as may replace the USPRIME1 page on that service for the purpose of displaying
prime rates or base lending rates of major U.S. banks).
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. The Calculation Agent shall
calculate the interest rate on this Note in accordance with the foregoing on or
before each Calculation Date.
The interest rate on this Note will in no event be higher than the maximum
rate permitted by New York law as the same may be modified by United States law
of general applicability.
The "Interest Determination Date" pertaining to an Interest Reset Date if
this Note has as a Base Rate the Commercial Paper Rate, the Federal Funds Rate
or the Prime Rate will be the second Business Day next preceding such Interest
Reset Date. The Interest Determination Date pertaining to an Interest Reset Date
if this Note has as a Base Rate the LIBOR Rate will be the second London Banking
Day next preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date if this Note has as a Base Rate the
Treasury Rate will be the day of the week in which such Interest Reset Date
falls on which Treasury bills of the Index Maturity specified on the face of
this Note are auctioned, provided that if an auction of Treasury bills is held
on a Friday instead of the following Monday or Tuesday because such Monday is a
legal holiday, such Friday will be the Interest Determination Date pertaining to
the Interest Reset Date occurring in the next succeeding week.
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<PAGE>
The "Calculation Date", where applicable, pertaining to an Interest
Determination Date is the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day, or (ii) the Business Day immediately preceding the
applicable Interest Payment or Stated Maturity Date (or earlier redemption or
repayment).
Upon request of the Holder of this Note, the Calculation Agent will provide
the interest rate then in effect and, if determined, the interest rate that will
become effective on the next Interest Reset Date with respect to this Note. The
Paying Agent and the Trustee will not be responsible for performing any of the
functions of the Calculation Agent under this Note.
Interest on this Note will be payable monthly, quarterly, semiannually or
annually (the "Interest Payment Period") as specified on the face hereof.
Unless otherwise provided on the face hereof, the date or dates on which
interest will be payable (each an "Interest Payment Date") will be, in the case
of a monthly Interest Payment Period, the third Wednesday of each month; in the
case of a quarterly Interest Payment Period, the third Wednesday of March, June,
September and December; in the case of a semiannual Interest Payment Period, the
third Wednesday of each of the two months specified on the face hereof; and in
the case of an annual Interest Payment Period, the third Wednesday of the month
specified on the face hereof. If any Interest Payment Date specified on the
face hereof would otherwise be a day that is not a Business Day, the Interest
Payment Date shall be postponed to the next day that is a Business Day, except
that if the rate of interest on this Note shall be determined in accordance with
the provisions of the heading "Determination of LIBOR" above, and such Business
Day is in the next succeeding calendar month, such Interest Payment Date shall
be the immediately preceding Business Day. "Business Day" means any day that is
not a Saturday or Sunday and that, in The City of London, is not a day on which
banking institutions are generally authorized or obligated by law to close.
Interest payments on each Interest Payment Date for this Note (except if the
interest rate on this Note resets daily or weekly) will include accrued interest
from and including the Original Issue Date or from and including the last date
in respect of which interest has been paid, as the case may be, to, but
excluding, such Interest Payment Date. If the interest rate on this Note resets
daily or weekly, interest payments will include accrued interest from and
including the Original Issue Date or from and including the last date in respect
of which interest has been paid, as the case may be, to, and including,
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the regular record date immediately preceding the applicable Interest Payment
Date, and at Maturity the interest payments will include accrued interest from
and including the Original Issue Date or from and including the last date in
respect of which interest has been paid, as the case may be, to, but excluding,
the Stated Maturity Date.
Accrued interest hereon from the Original Issue Date or from the last date
to which interest hereon has been paid, as the case may be, shall be an amount
calculated by multiplying the face amount by an accrued interest factor. Such
accrued interest factor shall be computed by adding the interest factor
calculated for each day from the Original Issue Date or from the last date to
which interest shall have been paid, as the case may be, to the date for which
accrued interest is being calculated. The interest factor (expressed as a
decimal) for each such day will be computed by dividing the interest rate
applicable to such day by 360, in the case of Notes that have the Commercial
Paper Rate, the LIBOR Rate, the Federal Funds Rate or the Prime Rate as a Base
Rate, or by the actual number of days in the year in the case of Notes that have
the Treasury Rate as a Base Rate. The interest rate in effect on each day will
be (i) if such day is an Interest Reset Date, the interest rate with respect to
the Interest Determination Date pertaining to such Interest Reset Date, or (ii)
if such day is not an Interest Reset Date, the interest rate with respect to the
Interest Determination Date pertaining to the next preceding Interest Reset
Date, subject in either case to any Maximum or Minimum Interest Rate limitation
specified on the face hereof and to any adjustment by a Spread or Spread
Multiplier specified on the face hereof; provided, however, that (a) the
interest rate in effect for the period from the Original Issue Date to the first
Interest Reset Date will be the Initial Interest Rate specified on the face
hereof and (b) the interest rate in effect for the ten calendar days immediately
prior to Maturity will be that in effect on the tenth calendar day preceding
Maturity.
If the Denominated Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, payment of the principal of and interest
on this Note shall be made in the coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, unless the registered holder of this Note on the relevant record
date or at Maturity, as the case may be, has transmitted to the Paying Agent at
Goodwin Square, 225 Asylum Street, Hartford, Connecticut 06103, or at such other
address as it may designate as its office or agency in The City of New York, on
or prior to such record date or the date 15 days prior to Maturity, as the case
may be, such Holder's election to receive payment of the
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principal of and interest on this Note in such Denominated Currency. Such
election may be in writing (mailed or hand delivered) or by facsimile
transmission. Any such election made with respect to this Note by the Holder
shall remain in effect with respect to any further payments of interest and
principal, and premium, if any, with respect to this Note payable to such
Holder, unless such election is revoked on or prior to the relevant record date
or the date 15 days prior to Maturity, as the case may be. If the Denominated
Currency for this Note is other than U.S. dollars, the Company will appoint an
agent (initially State Street Bank and Trust Company) (the "Exchange Rate
Agent") to determine the exchange rate for converting all payments in respect of
such Note into U.S. dollars in the manner described in the following paragraph.
In the absence of manifest error, all determinations by the Exchange Rate Agent
from time to time of currency exchange rates shall be final and binding on the
Company and the Holder hereof. Until the Notes are paid or payment thereof is
duly provided for, the Company will, at all times, maintain a Paying Agent in
The City of New York capable of performing the duties described herein to be
performed by the Paying Agent. The Company will notify the Holder of this Note,
in accordance with the Indenture, of any change in the Paying Agent or its
address.
If the Denominated Currency shown on the face hereof is other than U.S.
dollars and if the Holder has not made the election described in the immediately
preceding paragraph, payment in respect of this Note shall be made in U.S.
dollars based upon the exchange rate as determined by the Exchange Rate Agent
based on the highest firm bid quotation expressed in U.S. dollars received by
such Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers in The City of New York selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the purchase by the quoting dealer, for settlement on such payment date, of
the aggregate amount of the Denominated Currency payable to all Holders of Notes
denominated in such Denominated Currency who have elected to receive payment in
U.S. dollars on such payment date. Except as otherwise provided below, if no
such bid quotations are available, payments will be made in the Denominated
Currency. All currency exchange costs associated with any payment in U.S.
dollars on this Note shall be borne by the Holder hereof by deductions from such
payment.
If the Denominated Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, and such Denominated Currency is not
available due to the imposition of
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exchange controls of other circumstances beyond the control of the Company, the
Company shall be entitled to satisfy its obligations to the Holder of this Note
by making such payment in U.S. dollars on the basis of the most recently
available exchange rate. Any payment made under such circumstances in U.S.
dollars where the required payment is other than U.S. dollars will not
constitute an Event of Default.
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit amounts used in or resulting from any such
calculation in respect of the Notes will be rounded to the nearest one-hundredth
of a unit (with five one-thousandths being rounded upward).
If so specified on the face hereof, the Company may at its option redeem
this Note in whole or from time to time in part on or after the date designated
as the Initial Redemption Date on the face hereof at prices declining from a
specified premium, if any, to par, together with accrued interest to the date of
redemption. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption at least 30 but not more than 60 days prior to the
date of redemption. In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof. If less than all of the Notes
with like tenor and terms to this Note are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
If so specified on the face hereof, this Note will be repayable prior to
Maturity at the option of the Holder on the Optional Repayment Dates shown on
the face hereof at the Optional Repayment Prices shown on the face hereof
together with accrued interest to the date of repayment. In order for this Note
to be repaid, the Paying Agent must receive at least 30 but not more than 45
days prior to an Optional Repayment Date (i) this Note with the form below
entitled "Option to Elect Repayment" duly completed or (ii) a facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States of America setting forth the name of the Holder of
this Note, the principal amount of this Note, the principal amount of this Note
to be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is
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being exercised thereby and a guarantee that this Note, with the form below
entitled "Option to Elect Repayment" duly completed, will be received by the
Paying Agent not later than five Business Days after the date of such facsimile
transmission or letter. If the procedure described in clause (ii) of the
preceding sentence is followed, this Note with such form duly completed must be
received by the Paying Agent by such fifth Business Day. Any tender of this Note
for repayment shall be irrevocable. The repayment option may be exercised by the
Holder of this Note for less than the entire principal amount of the Note
provided that the principal amount of the Note remaining outstanding after
repayment is an authorized denomination. Upon such partial repayment this Note
shall be cancelled and a new Note or Notes for the remaining principal amount
thereof shall be issued in the name of the Holder of this Note.
This Note will not be subject to any sinking fund.
Notwithstanding anything herein to the contrary, if this Note is an
Original Issue Discount Note, the amount payable in the event of redemption or
repayment prior to the Stated Maturity Date hereof in lieu of the principal
amount due at the Stated Maturity Date hereof shall be the Amortized Face Amount
of this Note as of the redemption date or the date of repayment as the case may
be. The "Amortized Face Amount" of this Note shall be the amount equal to (a)
the Issue Price (as set forth on the face hereof) plus (b) that portion of the
difference between the Issue Price and the principal amount hereof that has
accrued at the Yield to Maturity (as set forth on the face hereof) (computed in
accordance with generally accepted United States bond yield computation
principles) at the date as of which the Amortized Face Amount is calculated but
in no event shall the Amortized Face Amount of this Note exceed its principal
amount.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holder of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of at least a majority in principal amount of the Notes at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders
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of all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth and to the limitations described below, if applicable, the transfer of
this Note is registrable in the Securities Register upon surrender of this Note
for registration of transfer at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York or at such
other office or agency maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar (which shall initially be State Street Bank
and Trust Company, at Goodwin Square, 225 Asylum Street, Hartford, Connecticut
06103 or at such address as it may designate as its office or agency in The City
of New York) duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in global or certificated
registered form, without coupons, in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth and to the limitations described below,
if applicable, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
If this Note is a global Note (as specified on the face hereof), this Note
is exchangeable for Notes in certificated registered form only if the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for this global Note or if at any time the Depository ceases to be a
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<PAGE>
clearing agency registered under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and a successor depositary registered under the Exchange
Act is not appointed by the Company within 90 days, provided that the definitive
Notes so issued in exchange for this permanent global Note shall be in
denominations of $1,000 and any integral multiple of $1,000 in excess thereof
and be of like aggregate principal amount and tenor as the portion of this
permanent global Note to be exchanged, and provided further that, unless the
Company agrees otherwise, Notes of this series in certificated registered form
will be issued in exchange for this permanent global Note, or any portion
hereof, only if such Notes in certificated registered form are requested by
written notice to the Trustee or the Securities Registrar by or on behalf of a
person who is beneficial owner of an interest hereof given through the Holder
hereof. Except as provided above, owners of beneficial interests in this
permanent global Note will not be entitled to receive physical delivery of Notes
in certificated registered form and will not be considered the Holders thereof
for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
Except as otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
No recourse for the payment of the principal or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in the Indenture or
any Supplemental Indenture thereto or in any Note, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution,
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<PAGE>
statute or rule or law or by the enforcement of any assessment or penalty or
otherwise, all such liability being by the acceptance hereof and as a condition
of and as part of the consideration for the issue hereof, expressly waived and
released.
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<PAGE>
OPTION TO ELECT REPAYMENT
If you want to elect to have this Note repaid by the Company pursuant to
the terms concerning repayment, if any, specified on the face hereof, check this
box [ ]
$__________________
Optional Repayment Date:__________________
Date: ______________ Your signature:________________________________
(Sign exactly as your
name appears on the
face of this Note)
Signature of Guarantee:______________________________________________
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<PAGE>
--------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ____________Custodian________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
__________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
___________________________________________
___________________________________________
___________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
______________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
Dated:____________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN
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<PAGE>
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
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<PAGE>
Exhibit 8
(312)902-5200
November 17, 1997
Heller Financial, Inc.
500 West Monroe Street
Chicago, Illinois 60661
Ladies and Gentlemen:
We have acted as special tax counsel for Heller Financial, Inc. (the
"Company") in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"), of
a Prospectus Supplement dated November 17, 1997 (the "Prospectus Supplement"),
supplementing the Prospectus dated October 30, 1997 (the "Prospectus"). The
Prospectus Supplement and Prospectus are part of the Company's Registration
Statement on Form S-3 (No. 333-38545), which was declared effective by the
Securities and Exchange Commission on October 30, 1997. The Prospectus
Supplement relates to up to $2,500,000,000 in aggregate principal amount of the
Company's Medium-Term Notes, Series H (the "Notes"), due from nine months to
thirty years from the date of issue. You have requested that we provide our
opinion as to the accuracy of the description in the Prospectus Supplement of
certain federal tax consequences relating to ownership of the Notes and that we
also confirm our opinion within the Prospectus Supplement regarding certain
federal tax consequences to alien holders of the Notes.
We have examined the Prospectus Supplement, the Prospectus and such other
documents as we have deemed necessary to render our opinions expressed below and
within the Prospectus Supplement.
We hereby confirm our opinion with respect to the federal tax consequences
to alien holders of the Notes as set forth under the caption "United States
Alien Holders" in the section entitled "Certain United States Tax
Considerations" in the Prospectus Supplement. Moreover, it is our opinion that
the discussion of "Certain United States Tax Considerations" (excluding the
discussion under the caption "United States Alien Holders") in the Prospectus
Supplement is accurate in all material respects.
Our opinion expressed above is limited to the federal tax laws of the
United States of America, and we do not express any opinion concerning any other
laws. This opinion is given as of the date hereof, and we assume no obligation
to advise you of changes that may hereafter be brought to our attention.
We hereby consent to the filing of this opinion as an exhibit to a Current
Report on Form 8-K of the Company, to the references to this opinion within the
Prospectus Supplement and to the reference to our name as special tax counsel to
the Company under the heading "Legal Matters" in the Prospectus. In giving this
consent, we do not concede that we are experts within the meaning of the Act or
the rules and regulations thereunder, or that this consent is required by
Section 7 of the Act.
Very truly yours,
KATTEN MUCHIN & ZAVIS
