<PAGE>
As filed with the Securities and Exchange Commission on February 9, 2000
Registration No. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------
HELLER FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
---------------
Delaware 610 36-1208070
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Code Number) Identification No.)
incorporation or
organization)
500 West Monroe Street, Chicago, Illinois 60661, (312) 441-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
DEBRA H. SNIDER, ESQ.
Executive Vice President, General Counsel and Secretary
Heller Financial, Inc.
500 West Monroe Street, Chicago, Illinois 60661, (312) 441-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
LAWRENCE D. LEVIN, ESQ.
MARK D. WOOD, ESQ.
Katten Muchin Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661
(312) 902-5200
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, please check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective date
registration statement for the same offering: [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Proposed maximum
Title of each class of Amount maximum aggregate Amount of
securities to be to be offering price offering registration
registered registered per unit price(1) fee
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<S> <C> <C> <C> <C>
7.375% Notes Due
November 1, 2009...... $600,000,000 100% $600,000,000 $158,400
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</TABLE>
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(f)(2) of the Securities Act of 1933.
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
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<PAGE>
SUBJECT TO COMPLETION, DATED FEBRUARY 9, 2000
PROSPECTUS
OFFER TO EXCHANGE
$600,000,000 aggregate principal amount of 7.375% Notes due November 1, 2009
which have been registered under the Securities Act of 1933
for
$600,000,000 aggregate principal amount of outstanding
unregistered 7.375% Notes due November 1, 2009
The exchange offer will expire at 5:00 p.m.,
New York City time, on , 2000, unless extended
----------------
We are offering to exchange up to $600,000,000 aggregate principal amount of
7.375% notes due November 1, 2009, which have been registered under the
Securities Act of 1933, for an equal aggregate principal amount of our
outstanding unregistered 7.375% notes due November 1, 2009. We are offering to
issue the registered notes to satisfy our obligations contained in a
registration rights agreement that we entered into when we issued the
unregistered notes to initial purchasers that resold the unregistered notes
pursuant to Rule 144A and Regulation S under the Securities Act. We will not
receive any proceeds from the issuance of the registered notes in the exchange
offer.
The terms of the registered notes are substantially the same in all material
respects to the terms of the unregistered notes, except that the registered
notes (1) have been registered under the Securities Act and, therefore, will
not bear legends restricting their transfer under the Securities Act and (2)
will not have registration rights or contain provisions regarding payment of
additional interest under circumstances relating to the timing of the exchange
offer or the filing of a registration statement.
We do not intend to list the notes on any securities exchange or quotation
system.
----------------
Neither the Securities and Exchange Commission nor any State securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
----------------
The date of this Prospectus is , 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary................. 1
Where You Can Find More
Information....................... 4
Cautionary Note Regarding Forward-
Looking Statements................ 5
Use of Proceeds.................... 6
Recent Development................. 6
Capitalization..................... 7
Selected Financial Data............ 8
Ratio of Earnings to Fixed Charges. 9
</TABLE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
The Company......................... 10
Description of the Registered Notes. 10
The Exchange Offer.................. 18
United States Federal Income Tax
Consequences....................... 27
Plan of Distribution................ 27
Legal Opinions...................... 28
Independent Public Accountants...... 28
</TABLE>
----------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information. If you receive any unauthorized information, you should
not rely on it. We are not making an offer of the notes in any place where the
offer is not permitted. You should not assume that the information contained or
incorporated by reference in this prospectus is accurate as of any date other
than the date on the front cover of this prospectus.
i
<PAGE>
PROSPECTUS SUMMARY
This summary contains basic information about the exchange offer and the
registered notes. It may not contain all the information that is important to
you. To fully understand the terms of the exchange offer and the registered
notes, you should read this entire prospectus carefully.
The Exchange Offer
Unregistered Notes........ On November 8, 1999, we completed our offering
of $600,000,000 aggregate principal amount of
our unregistered 7.375% Notes due November 1,
2009. All of the unregistered notes are
currently outstanding.
The Exchange Offer........ We are offering to issue up to $600,000,000
aggregate principal amount of our 7.375% Notes
due November 1, 2009, which have been
registered under the Securities Act, in
exchange for an equal aggregate principal
amount of our outstanding unregistered notes
that are validly tendered and not withdrawn
before the expiration date. We are offering the
registered notes to satisfy our obligations
under a registration rights agreement we
entered into with the initial purchasers of the
unregistered notes. These initial purchasers
resold the unregistered notes pursuant to Rule
144A and Regulation S under the Securities Act.
We will issue the registered notes on or
promptly after the expiration date.
Denominations of We will issue the registered notes only in
Registered Notes.......... denominations of $1,000 of principal amount or
integral multiples of $1,000.
Procedures for
Participating in the
Exchange Offer............
If you wish to participate in the exchange
offer, you must complete, sign and date the
accompanying letter of transmittal in
accordance with its instructions. Then you must
deliver the letter of transmittal, the
unregistered notes you tender for exchange and
any other required documentation to the
exchange agent before the expiration date. By
signing the letter of transmittal you will
represent to, and agree with, us that (1) you
are acquiring the registered notes in the
ordinary course of your business; (2) you are
not engaged in, do not intend to engage in, and
have no arrangement or understanding with
anyone to participate in a distribution of the
registered notes; and (3) you are not an
affiliate, as defined in Rule 405 under the
Securities Act, of us.
If you are a broker-dealer that will receive
registered notes for your own account in
exchange for unregistered notes that you
acquired as a result of market-making or other
trading activities, you must deliver a
prospectus in connection with any resale of the
registered notes.
Special Procedures for
Beneficial Owners.........
If you beneficially own unregistered notes that
are held through a broker, dealer, commercial
bank, trust company or other nominee and you
wish to tender your unregistered notes in the
exchange offer, you should contact the
registered holder promptly and instruct it to
surrender the unregistered notes on your
behalf.
1
<PAGE>
Guaranteed Delivery If you cannot deliver your unregistered notes,
Procedures................ the letter of transmittal or any other required
documents before the expiration date, then you
must surrender your unregistered notes
according to the guaranteed delivery procedures
described under "The Exchange Offer--Guaranteed
Delivery Procedures."
Expiration Date........... The exchange offer will expire at 5:00 p.m.,
New York City time, on , 2000, unless
we extend it. The term expiration date means
that time and date, or if we extend the
exchange offer, the latest time and date to
which we extend the exchange offer.
Exchange Agent............ State Street Bank and Trust Company is the
exchange agent for the exchange offer.
Withdrawal Rights......... If you decide to tender your unregistered notes
pursuant to the exchange offer, you may
withdraw them at any time before the expiration
date.
Federal Income Tax Your exchange of unregistered notes for
Consequences.............. registered notes pursuant to the exchange offer
will not result in a taxable gain or loss to
you.
Failure to Exchange Your
Unregistered Notes........
If you fail to exchange your unregistered notes
for registered notes in the exchange offer,
your unregistered notes will continue to be
subject to transfer restrictions and you will
not have any further rights under the
registration rights agreement, including any
right to require us to register your
unregistered notes or to pay any additional
interest as liquidated damages.
To the extent that we accept tendered
unregistered notes in the exchange offer, your
ability to sell untendered, and tendered but
unaccepted, unregistered notes could be
adversely affected. There may be no trading
market for the unregistered notes.
Use of Proceeds........... We will not receive any proceeds from the
issuance of the registered notes.
2
<PAGE>
The Registered Notes
Registered Notes.......... The terms of the registered notes are
substantially the same in all material respects
to the terms of the unregistered notes, except
that the registered notes (1) have been
registered under the Securities Act and,
therefore, will not bear legends restricting
their transfer under the Securities Act and (2)
will not have registration rights or contain
provisions regarding payment of additional
interest under circumstances relating to the
timing of the exchange offer or the filing of a
registration statement. The registered notes
and the unregistered notes will be governed by
the same indenture.
Maturity Date............. November 1, 2009
Interest Payment Dates.... May 1 and November 1 of each year, beginning
May 1, 2000.
Ranking................... The registered notes are our senior unsecured
obligations and rank (1) equally with our other
existing and future senior unsecured debt and
(2) senior to all our existing and future
subordinated debt.
Redemption................ We cannot redeem the registered notes before
maturity.
Absence of a Public
Market for the Registered
Notes.....................
There is currently no established trading
market for the registered notes. A liquid
trading market for the registered notes may not
develop. We do not intend to apply for listing
of the registered notes on any securities
exchange or quotation system.
3
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
following locations:
. the public reference room of the SEC, Room 1024, Judiciary Plaza, 450
Fifth Street N.W., Washington, DC 20549;
. the public reference facilities at the SEC's regional offices at Seven
World Trade Center, 13th Floor, New York, New York 10048 or Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661;
. the offices of the New York Stock Exchange, 20 Broad Street, New York,
New York 10005; or
. the offices of the Chicago Stock Exchange, One Financial Plaza, 440 South
LaSalle Street, Chicago, Illinois 60605.
Some of these locations may charge a modest fee for copies. You may obtain
information on the operation of the SEC public reference room in Washington,
D.C. by calling the SEC at 1-800-SEC-0330. In addition, you may access any
document we file with the SEC on its web site located at http://www.sec.gov.
We are incorporating by reference other documents into this prospectus. This
means that we are disclosing important information by referring you to another
document we file separately with the SEC. The information incorporated by
reference is considered to be part of this prospectus, except for any
information superseded by information in this prospectus. The information we
file later with the SEC will automatically update and supersede the information
contained in this prospectus or incorporated by reference from earlier filings.
We incorporate by reference the documents listed below and any future filings
we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until we complete or terminate the exchange offer.
. the Annual Report on Form 10-K for our fiscal year ended December 31,
1998, as amended by the Form 10-K/A we filed March 12, 1999;
. the Quarterly Reports on Form 10-Q for our fiscal quarters ended March
31, 1999, June 30, 1999 and September 30, 1999; and
. the two Current Reports on Form 8-K dated January 20, 1999, the Current
Report on Form 8-K dated April 20, 1999, as amended by the Form 8-K/A we
filed April 21, 1999, and the Current Reports on Form 8-K dated April 20,
1999, April 22, 1999, April 23, 1999, July 12, 1999, July 20, 1999, July
21, 1999, July 23, 1999, July 28, 1999, October 5, 1999, October 6, 1999,
October 18, 1999, October 20, 1999, January 19, 2000 and January 20,
2000.
We will provide a copy of the information we incorporate by reference in
this prospectus to you at no cost. To request a copy of any or all of this
information, you should write or telephone us at Heller Financial, Inc.,
Attention: Treasurer, 500 West Monroe Street, Chicago, Illinois 60661, (312)
441-7000.
4
<PAGE>
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in it includes
or will include forward-looking statements, as defined in Section 27A of the
Securities Act and Section 21E of the Exchange Act, that reflect our current
expectations regarding our future results of operations, performance and
achievements. We intend for these forward-looking statements to be covered by
the safe harbor provisions of the Private Securities Litigation Reform Act of
1995. We have tried to identify these forward-looking statements by using words
such as "anticipates," "believes," "estimates," "expects," "plans," "intends"
and similar expressions. These forward-looking statements are based on
information currently available to us and are subject to risks, uncertainties
and contingencies which could cause our actual results, performance or
achievements for 2000 and beyond to differ materially from those expressed in,
or implied by, these statements.
The risks, uncertainties and contingencies include, but are not limited to,
the following:
. the success or failure of our efforts to implement our business strategy;
. effects of economic conditions in the real estate markets, the capital
markets or other markets or industries that we serve and the performance
of our borrowers;
. changes in the volume and mix of interest earning assets, the level of
interest rates earned on those assets, the volume of interest-bearing
liabilities and the level of interest rates paid on those interest-
bearing liabilities;
. currency exchange rate fluctuations, economic conditions and competition
in international markets, and other international factors;
. actions of our competitors and our ability to respond to those actions;
. the cost of our capital, which depends in part on our portfolio quality,
ratings, prospects and outlook and general market conditions;
. the adequacy of our allowance for losses of receivables;
. our ability to attract and retain qualified and experienced management,
sales and credit personnel; and
. changes in governmental regulations, tax rates and similar matters.
You should not place undue reliance on any forward-looking statements.
Except as otherwise required by federal securities laws, we assume no
obligation to publicly update or revise any forward-looking statements, whether
as a result of new information, future events, changed circumstances or
otherwise.
5
<PAGE>
USE OF PROCEEDS
This exchange offer is intended to satisfy obligations that we have under
the registration rights agreement. We will not receive any proceeds from the
issuance of the registered notes. In consideration for issuing the registered
notes in the exchange offer, we will receive an equal principal amount of
unregistered notes. We will retire and cancel tendered unregistered notes that
we accept in exchange for the registered notes. We cannot reissue those
unregistered notes. Accordingly, issuance of the registered notes will not
result in any increase in our outstanding debt.
RECENT DEVELOPMENT
On December 1, 1999, we sold the assets of our Commercial Services unit,
constituting our domestic factoring business, to The CIT Group, Inc. for
approximately $454 million in cash. The sale consisted of $911 million of
factored accounts receivable and the assumption of $577 million of liabilities
due to factoring clients. The transaction resulted in a pre-tax gain of $79
million and an after-tax gain of $48 million.
6
<PAGE>
CAPITALIZATION
The following table shows our capitalization on a consolidated basis as of
September 30, 1999. The as adjusted column reflects our issuance of
$600,000,000 aggregate principal amount of unregistered notes in November 1999.
Assuming all of the issued and outstanding unregistered notes are validly
tendered and accepted by us, we will issue an equal aggregate principal amount
of registered notes in the exchange offer. You should read this table along
with our consolidated financial statements and related notes incorporated by
reference in this prospectus.
<TABLE>
<CAPTION>
September 30,
1999
-----------------
As
Actual Adjusted
------- --------
(in millions)
<S> <C> <C>
Senior Debt:
Commercial paper and short-term borrowings................. $ 5,159 5,159
Notes and debentures....................................... 8,253 8,853
------- ------
Total senior debt........................................ 13,412 14,012
Minority interest............................................ 11 11
Stockholders' equity:
Cumulative Perpetual Senior Preferred Stock, Series A, $.01
par value, 5,000,000 shares authorized, issued and
outstanding............................................... 125 125
Fixed Rate Noncumulative Perpetual Senior Preferred Stock,
Series C, 1,500,000 shares authorized, issued and
outstanding............................................... 150 150
Fixed Rate Noncumulative Perpetual Senior Preferred Stock,
Series D, $.01 par value, 1,250,000 shares authorized,
issued and outstanding.................................... 125 125
Class A Common Stock, $0.25 par value, 500,000,000 shares
authorized, 46,320,888 shares issued and 46,014,033 shares
outstanding*.............................................. 12 12
Class B Common Stock, $0.25 par value, 300,000,000 shares
authorized and 51,050,000 shares issued and outstanding... 13 13
Additional paid-in capital................................. 1,627 1,627
Retained earnings.......................................... 240 240
Treasury stock (306,855 shares)............................ (8) (8)
Accumulated other comprehensive income..................... (23) (23)
------- ------
Total stockholders' equity............................... $ 2,261 2,261
------- ------
Total capitalization..................................... $17,693 17,693
======= ======
</TABLE>
- --------
* Excludes, as of September 30, 1999, (1) 3,196,398 shares of class A common
stock issuable upon the exercise of options and (2) 2,819,154 shares of
class A common stock reserved for issuance with respect to awards that may
be granted in the future under the Heller Financial, Inc. 1998 Stock
Incentive Plan.
7
<PAGE>
SELECTED FINANCIAL DATA
In the table below, we derived the following selected financial data for,
and as of the end of, the five years in the period ended December 31, 1998 from
our audited consolidated financial statements. We derived the financial data
for the nine-month periods ended, and as of, September 30, 1999 and 1998 from
our unaudited consolidated condensed financial statements. These unaudited
consolidated condensed financial statements include, in our opinion, all
adjustments, consisting only of normal recurring items, necessary for a fair
presentation of our financial position and results of operations for the
covered periods. You should read the following information along with our
consolidated financial statements and related notes incorporated by reference
in this prospectus. The selected financial data presented below include the
results of our Commercial Services unit before its sale to The CIT Group, Inc.
on December 1, 1999, as described under "Recent Development."
<TABLE>
<CAPTION>
Nine Months Ended
September 30, Year Ended December 31,
------------------ ------------------------------------------
1999(1) 1998 1998(2)(3) 1997(3) 1996 1995 1994
------------------ ---------- ------- ------ ------ ------
(unaudited) (in millions, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Selected Results of
Operations:
Interest income......... $ 846 $ 776 $ 1,047 $ 924 $ 807 $ 851 $ 702
Interest expense........ 481 463 624 516 452 464 336
-------- -------- ------- ------- ------ ------ ------
Net interest income... 365 313 423 408 355 387 366
Fees and other income... 209 151 206 206 79 148 117
Factoring commissions... 89 90 124 104 55 50 53
Income of international
joint ventures......... 25 22 30 36 44 35 21
-------- -------- ------- ------- ------ ------ ------
Operating revenues.... 688 576 783 754 533 620 557
Operating expenses...... 326 290 399 357 247 216 195
Provision for losses.... 95 59 77 164 103 223 188
Restructuring charge.... -- -- 17 -- -- -- --
-------- -------- ------- ------- ------ ------ ------
Income before income
taxes and minority
interest............... 267 227 290 233 183 181 174
Income tax provision.... 91 78 93 66 43 49 51
Minority interest....... 1 3 4 9 7 7 5
-------- -------- ------- ------- ------ ------ ------
Net income.............. $ 175 $ 146 $ 193 $ 158 $ 133 $ 125 $ 118
======== ======== ======= ======= ====== ====== ======
Dividends on preferred
stock.................. $ 21 $ 15 $ 21 $ 14 $ 10 $ 10 $ 10
======== ======== ======= ======= ====== ====== ======
Basic and diluted net
income applicable to
common stock........... $ 1.68 $ 1.80 $ 2.23 $ 2.82 $ 2.41 $ 2.25 $ 2.12
======== ======== ======= ======= ====== ====== ======
Pro forma net income
applicable to common
stock (4)
--Basic............... $ 1.68 $ 1.46 $ 1.92 $ 1.60
======== ======== ======= =======
--Diluted............. $ 1.68 $ 1.45 $ 1.91 $ 1.60
======== ======== ======= =======
<CAPTION>
September 30, December 31,
------------------ ------------------------------------------
1999(1) 1998 1998(2)(3) 1997(3) 1996 1995 1994
------------------ ---------- ------- ------ ------ ------
(unaudited) (in millions)
<S> <C> <C> <C> <C> <C> <C> <C>
Selected Balance Sheet
Data:
Receivables............. $ 14,591 $ 12,789 $11,854 $10,722 $8,529 $8,085 $7,616
Allowance for losses of
receivables............ (310) (312) (271) (261) (225) (229) (231)
Equity and real estate
investment............. 722 611 652 488 419 428 399
Debt securities......... 512 319 365 311 251 152 69
Operating leases........ 404 166 321 195 135 113 166
Investment in
international joint
ventures............... 225 228 235 198 272 233 174
Total assets............ 17,693 14,772 14,366 12,861 9,926 9,638 8,476
======== ======== ======= ======= ====== ====== ======
Commercial paper and
short-term borrowings.. 5,159 3,847 3,681 3,432 2,745 2,223 2,451
Long-term debt.......... 8,253 7,192 6,768 6,004 4,761 5,145 3,930
-------- -------- ------- ------- ------ ------ ------
Total senior debt..... $ 13,412 $ 11,039 $10,449 $ 9,436 $7,506 $7,368 $6,381
======== ======== ======= ======= ====== ====== ======
Total liabilities..... $ 15,421 $ 12,973 $12,394 $11,096 $8,402 $8,208 $7,107
Preferred stock......... 400 275 400 275 125 125 125
Common equity........... 1,861 1,516 1,562 1,403 1,342 1,259 1,205
-------- -------- ------- ------- ------ ------ ------
Total stockholders'
equity................. $ 2,261 $ 1,791 $ 1,962 $ 1,678 $1,467 $1,384 $1,330
</TABLE>
8
<PAGE>
(1) The financial data presented for 1999 reflect our purchase of all of the
outstanding stock of HealthCare Financial Partners, Inc. in July 1999. As a
result of this purchase, HealthCare was reported on a consolidated basis
with us as of the date of acquisition. Goodwill related to this transaction
totaled approximately $235 million on a preliminary basis.
(2) The financial data presented for 1998 reflect our purchase of the domestic
technology leasing assets of the Dealer Products Group of Dana Commercial
Credit Corporation and the stock of the Dealer Products Group's
international subsidiaries in November 1998. As a result of this purchase,
we consolidated the acquired assets and international subsidiaries of the
Dealer Products Group as of the date of acquisition. Goodwill related to
this acquisition totaled $190 million. The consolidation of the Dealer
Products Group assets and subsidiaries resulted in an increase of
approximately $625 million in total assets as of December 31, 1998 as
compared to December 31, 1997. This acquisition had a minimal favorable
impact on our 1998 net income, as our 1998 results include only one month
of Dealer Products Group operations.
(3) The financial data presented for 1998 and 1997 reflect our purchase,
through our subsidiary, Heller International Group, of our joint venture
partner's interest in Factofrance Heller, S.A. in April 1997 for $174
million. As a result of this purchase, Factofrance was reported on a
consolidated basis with us as of the date of acquisition. The premium
related to this purchase was allocated as follows: $78 million to goodwill
and $18 million to a noncompetition agreement. Our consolidation of
Factofrance resulted in increases of $2 billion in total assets, $94
million in operating revenues and $59 million in operating expenses during
1997 as compared to 1996.
(4) Pro forma to adjust for the impact of our initial public offering of class
A common stock in May 1998 and assumes that shares issued in connection
with the offering have been outstanding since the beginning of 1998 and
1997.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for the periods indicated below was
as follows:
<TABLE>
<CAPTION>
Year Ended December 31,
Nine Months Ended ---------------------------------------------------------------------
September 30, 1999 1998 1997 1996 1995 1994
------------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
1.55 1.46 1.44 1.40 1.38 1.51
</TABLE>
For purposes of computing our ratio of earnings to fixed charges, earnings
includes income before income taxes, our minority interest in Heller
International Group, Inc. income and fixed charges. Fixed charges includes
interest on all indebtedness and one third of annual rentals, the approximate
portion representing interest.
9
<PAGE>
THE COMPANY
General
We are a leading diversified commercial financial services company. We
provide a broad array of financial products and services to mid-sized and small
businesses in the United States and select international markets.
Primary Business Segments
We deliver our products and services principally through two business
segments:
. Domestic Commercial Finance; and
. International Factoring and Asset Based Finance.
Domestic Business
Our Domestic Commercial Finance segment is made up of the following five
business units:
. Corporate Finance, which provides collateralized cash flow and asset
based lending;
. Real Estate Finance, which primarily provides secured real estate
financing;
. Leasing Services, which provides debt and lease financing of small and
large ticket equipment sourced directly or through manufacturers,
distributors and dealers;
. Small Business Finance, which provides financing to small businesses,
primarily under U.S. Small Business Administration loan programs; and
. Healthcare Finance, which provides asset based and related financing to
healthcare providers with a primary focus on long-term care, hospitals
and physician practices.
On December 1, 1999, we sold our Commercial Services unit, which constituted
our domestic factoring business.
International Business
Our International Factoring and Asset Based Finance segment, known as Heller
International Group, provides factoring services and financings secured
primarily by receivables, inventory and equipment. It does so through wholly-
owned subsidiaries and joint ventures which provide financing to small and mid-
sized companies primarily in Europe, but also in Asia and Latin America.
DESCRIPTION OF THE REGISTERED NOTES
General
We will issue the registered notes under an indenture dated as of September
1, 1995, as amended, between us and State Street Bank and Trust Company, as
trustee. We issued the unregistered notes under the same indenture. Both the
registered notes and the unregistered notes will be treated as a single class
of securities under the indenture. We have summarized below the general terms
and provisions of the indenture. For a complete description of the terms of the
indenture, you should read the summary below and the copy of the indenture that
we filed as an exhibit to the registration statement of which this prospectus
is a part. The terms of the registered notes are substantially the same in all
material respects to the terms of the unregistered notes, except the transfer
restrictions, registration rights and additional interest provisions relating
to the unregistered notes do not apply to the registered notes.
The registered notes are limited in aggregate principal amount to
$600,000,000. We will issue the registered notes in denominations of $1,000 of
principal amount and integral multiples of $1,000. The notes constitute a
single series of our senior debt securities that are our direct, unconditional
and unsecured
10
<PAGE>
obligations and will rank (1) equally, without preference among themselves,
with all of our other present and future unsecured and unsubordinated
obligations and (2) senior to our present and future subordinated obligations.
State Street Bank and Trust Company will also initially be the securities
registrar and paying agent for the registered notes. As of September 30, 1999,
the aggregate principal amount of our senior debt outstanding was $13.4 billion
and we had no outstanding subordinated debt or junior subordinated debt.
The registered notes will mature and become due and payable, at 100% of
their principal amount plus any accrued and unpaid interest, on November 1,
2009. We cannot redeem or prepay the registered notes before their scheduled
maturity. There is no sinking fund.
Interest
The registered notes will bear interest at a rate of 7.375% per annum. We
pay interest semi-annually in arrears on each May 1 and November 1, each an
interest payment date. If any of these semi-annual interest payment dates falls
on a day that is not a business day, we will postpone the interest payment date
to the next business day unless that business day is in the next calendar
month, in which case the interest payment date will be the immediately
preceding business day. We will compute interest on the registered notes on the
basis of a 360-day year comprised of twelve 30-day months.
The first payment of interest on the registered notes will accrue from, and
including, November 8, 1999 to, but excluding, May 1, 2000. Interest will then
accrue from, and including, the immediately preceding interest payment date to
which interest has been paid or duly provided for to, but excluding, the next
interest payment date or the maturity date, as the case may be.
If the maturity date of the registered notes falls on a day that is not a
business day, we will pay principal and interest on the next business day, but
we will consider that payment as being made on the date that the payment was
due to you. Accordingly, no interest will accrue on the payment for the period
from and after the maturity date to the date on which we make the payment to
you.
We will pay interest on a registered note on any interest payment date to
the person in whose name the note is registered at the close of business on the
fifteenth calendar day, whether or not a business day, immediately preceding
the interest payment date. However, we will pay interest on the maturity date
to the person to whom the principal is payable. We will pay principal of, and
interest on, the registered notes at the office or agency that we maintain for
that purpose in the Borough of Manhattan, The City of New York, which initially
will be the office of an affiliate of the paying agent. At your option,
however, we will pay interest on certificated registered notes by check mailed
to the person entitled to the interest.
When we use the term business day, we mean any day except a Saturday, a
Sunday or a legal holiday in The City of New York, Boston, Massachusetts or
Hartford, Connecticut on which banking institutions are authorized or required
by law, regulation or executive order to close.
Restrictions on Liens
Under the indenture we may not, and we may not permit any restricted
subsidiary to, create, incur or assume any lien on any of our property or any
restricted subsidiary's property to secure indebtedness for money borrowed,
incurred, issued, assumed or guaranteed by us or any restricted subsidiary,
unless the lien:
. equally and ratably secures our debt securities under the indenture and
the indebtedness, subject in the case of subordinated debt or junior
subordinated debt to subordination with respect to rights of payment;
. is on property or shares of stock of a corporation at the time it merges
into or consolidates with us or a restricted subsidiary or becomes a
restricted subsidiary;
. is on property at the time it was acquired by us or a restricted
subsidiary;
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. secures indebtedness incurred to finance all or part of a purchase price
or cost of construction of our property or a restricted subsidiary's
property;
. secures indebtedness of a restricted subsidiary that is owed to us or
another restricted subsidiary;
. is on property of a person at the time substantially all of that person's
assets are transferred or leased to us or a restricted subsidiary;
. is in favor of the government and is for taxes or assessments or secures
payments under a contract or statute;
. arises out of a judgment, decree or other court order or is in connection
with other proceedings;
. is on our receivables or cash as a basis for the issuance of bankers'
acceptances or letters of credit in connection with the financing of
customers' operations by us or a restricted subsidiary;
. is on property, or related receivables, acquired by us or a restricted
subsidiary by repossession, foreclosure or like proceedings and secures
indebtedness to finance all or part of the cost of maintenance,
improvement or construction of the property;
. is created in favor of the U.S. Small Business Administration on property
owned by a restricted subsidiary organized as a small business investment
company;
. extends, renews or replaces a lien described above; or
. secures our indebtedness and indebtedness of our restricted subsidiaries
and the sum of that indebtedness and the other indebtedness of us and our
restricted subsidiaries secured by liens on our property and our
restricted subsidiaries' property, excluding indebtedness secured by
liens described above or existing as of the date of the applicable
indenture, does not exceed 10% of our consolidated net tangible assets.
We do not have to comply with the foregoing restrictions on liens if the
holders of a majority in principal amount of each series of our debt securities
outstanding under the indenture which are affected by the imposition of the
applicable lien waive compliance either generally or in that instance.
Restrictions on Amount of Debt
Under the indenture and other indentures we have with the trustee, we may
incur unlimited amounts of senior debt, subordinated debt and junior
subordinated debt. However, under other indentures, we have agreed not to
permit the aggregate principal amount of all debt reflected on our consolidated
balance sheets to exceed ten times our consolidated stockholder's equity. The
other indentures are of varying terms, the longest of which is currently
scheduled to expire on May 15, 2002. We may terminate or amend these
restrictions in the other indentures prior to that date.
Mergers Consolidations and Transfers of Assets
Under the indenture, we may not consolidate with, or merge into, any other
corporation or convey, transfer or lease most or all of our property and assets
to any person, unless:
. the corporation formed by the consolidation, the corporation into which
we merge or the person who acquires most or all of our property and
assets is organized and existing under the laws of a U.S. jurisdiction
and agrees to assume the payment of the principal of, and any interest
and premium on, the registered notes and the performance of covenants in
the applicable indenture;
. the transaction will not result in the occurrence and continuation of an
event of default or an event which after notice and/or lapse of time
would become an event of default; and
. we satisfy other conditions listed in the indenture.
We will be discharged from all of our obligations and covenants under the
indenture and the registered notes if we engage in a merger, consolidation or
transfer of assets that satisfies all of these conditions.
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Events of Default, Notice and Waiver
The indenture provides that the following events are events of default with
respect to the registered notes:
. failure to pay the principal of, and any premium on, the registered
notes;
. failure to pay any installment of interest on the registered notes for 30
days after becoming due;
. failure to perform any other covenant in the indenture for 60 days after
being given written notice;
. any event of default with respect to another series of debt securities
issued under the indenture;
. a default under any (1) bond, debenture, note or other evidence of
indebtedness for money that we borrowed, issued, assumed or guaranteed
with unpaid principal over $2,000,000 or (2) mortgage, indenture or
instrument under which we may issue, secure or evidence any indebtedness
for money that we borrowed that caused another series of issued debt
securities or that indebtedness to become due and payable prior to
maturity, without discharge of that issued debt securities or
indebtedness or rescission of the acceleration for 60 days after we
receive written notice from the trustee or the holders of at least 25% in
aggregate principal amount of the outstanding series of debt securities
in default requesting discharge or rescission, unless we contest the
default in good faith after that time; or
. bankruptcy, insolvency, reorganization or court appointment of a
receiver, liquidator or trustee.
The trustee must notify you of any event of default with respect to the
registered notes that it knows about within 90 days of the event, unless the
default has been cured or waived or the trustee determines in good faith,
except with respect to a default in the payment of principal, interest or
premium, that it is in your best interest to withhold the notice. If an event
of default for the registered notes occurs and is continuing, the trustee or
the holders of at least 25% in aggregate principal amount of the outstanding
registered notes may declare the principal and any accrued but unpaid interest
due and payable immediately.
The holders of at least a majority in principal amount of the registered
notes may, on behalf of the holders of all the notes, waive any past default,
except (1) failure to pay the principal and any premium or interest when due
and (2) failure to perform any covenant or provision of the indenture that
cannot be amended or modified without the unanimous consent of the holders of
the registered notes.
Under the indenture, the holders of the registered notes:
. agree to indemnify the trustee when exercising any right or power of any
holders;
. may, with certain exceptions, direct the time, method and place of (1)
any proceeding for any remedy available to the trustee and (2) any
exercise of the trustee's trusts or powers;
. may, upon satisfaction of specified conditions, including notice and
indemnity to the trustee, institute suit for the enforcement of their
rights under the indenture; and
. have the absolute right to receive principal and any interest and premium
when due and to enforce that right by instituting a suit.
We are required to provide the trustee with annual statements regarding our
fulfillment of our obligations under the indenture.
Modification of the Indenture
With the consent of the holders of a majority in principal amount of each
series of debt securities affected thereby outstanding under the indenture, we
may enter into a supplemental indenture with the trustee to amend or modify
provisions of the indenture. We may not, however, without the unanimous consent
of the holders of each series of debt securities affected thereby outstanding
under the applicable indenture:
. modify the payment terms of principal or interest;
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. reduce the percentage of holders from whom we must obtain consent to
modify or amend the indenture or to waive our compliance with covenants;
or
. subordinate the indebtedness evidenced by the notes to other
indebtedness.
Satisfaction and Discharge
Under the indenture, we will be discharged from our obligations with respect
to the registered notes before their maturity when:
. we have irrevocably deposited with the trustee sufficient funds or direct
or fully guaranteed obligations of the applicable government to pay the
principal of, and any interest and premium on, the registered notes to
maturity;
. we have paid all other sums payable with respect to the registered notes;
. if the deposit is more than one year prior to maturity, we have delivered
to the trustee an opinion of tax counsel to the effect that the deposit
and discharge will not result in recognition by the holders of the notes
of any income, gain or loss for federal income tax purposes that they
would otherwise not recognize; and
. we have delivered to the trustee an opinion of counsel as to other
matters.
If we are discharged from our obligations as to the registered notes before
their maturity, you will no longer be entitled to benefits of the indenture,
except for (1) registration of transfer or exchange of the registered notes and
(2) replacement of lost, stolen or mutilated debt securities. In that event,
you may look only to the deposited funds or obligations for payment. However,
if the trustee is unable to apply any deposited money or obligations by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting the
application, or by reason of the trustee's inability to convert any deposited
money or government obligations into the proper currency or currency unit, our
obligations under the indenture will be reinstated until the trustee is able to
apply the deposited money or obligations.
The Trustee
State Street Bank and Trust Company serves as trustee under the indenture,
as well as an indenture for our subordinated debt securities and an indenture
for our junior subordinated debt securities. Each indenture limits the right of
the trustee, as a creditor of ours, to obtain payment of claims in certain
cases and to realize on certain property received with respect to any of the
claims. The trustee may engage in other transactions, except that, if it
acquires any conflicting interest, it must eliminate the conflict or resign.
The trustee is trustee with respect to outstanding senior debt securities
previously issued under the indenture and may from time to time perform certain
other services for, including extending lines of credit to, us in the ordinary
course of business. The trustee is also serving as exchange agent in the
exchange offer.
Certain Definitions
The following terms used in this prospectus and the indenture have the
following definitions:
. "Consolidated net tangible assets" means the total of all assets
reflected on our consolidated balance sheet, prepared in accordance with
generally accepted accounting principles, at their net book values, after
deducting related depreciation, depletion, amortization and all other
valuation reserves which, in accordance with those principles, should be
set aside in connection with the business conducted, but excluding
goodwill, unamortized debt discount and all other like segregated
intangible assets, and amounts on the asset side of our consolidated
balance sheet for our capital stock, less the aggregate of our current
liabilities and our consolidated subsidiaries reflected on our
consolidated balance sheet, all as determined in accordance with
generally accepted accounting principles. For purposes of this
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definition, "current liabilities" include all indebtedness for money
borrowed, incurred, issued, assumed or guaranteed by us, credit balances
of factoring clients and other payables and accruals, in each case payable
on demand or due within one year of the date of determination of
consolidated net tangible assets, all as reflected on our consolidated
balance sheet, prepared in accordance with generally accepted accounting
principles.
. "Debt" means all liabilities, whether issued or assumed, in respect of
money borrowed, whether or not evidenced by notes, debentures or other
like written obligations to pay money, and all guarantees in respect of
money borrowed by third persons, whether or not evidenced by notes,
debentures or other like written obligations of those third persons to
pay money.
. "Junior subordinated debt" means all of our debt which is by its terms
made subordinate and junior to our senior debt and subordinated debt.
. "Lien" means any mortgage, pledge, security interest or lien.
. "Restricted subsidiary" means any of our subsidiaries or any subsidiary
of a restricted subsidiary (1) which is primarily engaged in the finance
business, (2) which conducts its finance business primarily in the U.S.
and (3) of which we and/or a restricted subsidiary own 51% or more of
each class of its voting stock.
. "Senior debt" means all of our debt which is not by its terms made
subordinate or junior in right of payment from our general assets to any
of our other debt.
. "Subordinated debt" means all of our debt which is by its terms made
subordinate or junior in right of payment to any of our other debt,
except our junior subordinated debt.
. "Subsidiary" means any corporation of which we and/or one or more of
our subsidiaries own more than 50% of the voting stock, other than
directors' qualifying shares.
Book-Entry, Delivery and Form
The registered notes will intially be represented by one or more
certificates in registered global form. Global notes will be deposited with,
or on behalf of, The Depository Trust Company (DTC) in New York, New York and
registered in the name of Cede & Co., DTC's nominee. Except as described
below, a global note may be transferred, in whole or in part, only to another
nominee of DTC or to a successor to DTC or its nominee.
Depositary Procedures
DTC has advised us that it is a:
. limited-purpose trust company organized under the laws of the State of
New York;
. banking organization within the meaning of the laws of the State of New
York;
. member of the Federal Reserve System;
. clearing corporation within the meaning of the New York Uniform
Commercial Code; and
. clearing agency registered pursuant to the provisions Section 17A of the
Securities Exchange Act.
DTC was created to hold securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants
through electronic book-entry changes in their accounts, thereby eliminating
the need for physical movement of securities certificates. DTC's participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and other organizations. Banks, brokers, dealers and trust
companies that clear through, or maintain a custodial relationship with, a
participant, either directly or indirectly, also have access to DTC's book-
entry system.
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Upon the issuance of the global notes, DTC will credit, on its book-entry
registration and transfer system, the accounts of the applicable participants
with the principal amounts of the global notes held by or through the
participants. The records of DTC will show ownership and effect the transfer
of ownership of the global notes by its participants. The records of the
participants will show ownership and effect the transfer of ownership of the
global notes by persons holding beneficial interests in the global notes
through them.
So long as DTC or its nominee is the registered owner of the global notes,
it will be considered the sole owner and holder of the notes for all purposes
under the indenture. Except as described below, if you own a beneficial
interest in global notes, you will not:
. be entitled to have the registered notes represented by the global notes
registered in your name;
. receive or be entitled to receive physical delivery of a certificate in
definitive form representing the registered notes represented by the
global notes; or
. be considered the owner or holder of the registered notes represented by
the global notes under the applicable indenture for any purpose,
including with respect to the giving of any directions, approvals or
instructions to the trustee.
Therefore, if you are required by state law to take physical delivery of the
notes in definitive form, you may not be able to own, transfer or pledge
beneficial interests in the global notes. In addition, the lack of a physical
certificate evidencing your beneficial interests in the global notes may limit
your ability to pledge the interests to a person or entity that is not a
participant in DTC.
If you own beneficial interests in a global note, you will have to rely on
the procedures of DTC and, if you are not a participant in DTC, the procedures
of the participant through which you hold your beneficial interests, to
exercise your rights as a holder under the indenture. DTC has advised us that
it will take any action permitted to be taken by a holder of beneficial
interests in the global notes only at the direction of one or more of the
participants to whose accounts the interests are credited. We understand that,
under existing industry practice, when a beneficial owner of a global note
wants to give any notice or take any action that a registered holder is
entitled to take, at our request or under the indenture, DTC will authorize
the participant to give the notice or take the action, and the participant
will authorize its beneficial owners to give the notice or take the action.
Accordingly, we and the trustee will treat as a holder anyone designated as
such in writing by DTC for purposes of obtaining any consents or directions
required under the indenture.
We will pay the principal of, and interest on, the global notes through the
trustee or paying agent to DTC or its nominee, as the registered holder of the
global notes, in immediately available funds. We expect DTC or its nominee,
upon receipt of any payments, to immediately credit each participant's account
with payments in amounts proportionate to that participant's beneficial
interest as shown on the records of DTC or its nominee. We also expect each
participant to pay each owner of beneficial interests in the global notes held
through that participant in accordance with standing customer instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in street name. These payments will be
the sole responsibility of the participants.
We will not, and the trustee and paying agent will not, assume any
responsibility or liability for any aspect of the records relating to,
payments made on account of, or actions taken with respect to the beneficial
ownership interests in global notes, or for any other aspect of the
relationship between DTC and its participants or between the participants and
the owners of beneficial interests. We, the trustee and the paying agent may
conclusively rely on instructions from DTC for all purposes. We obtained the
above information about DTC and its book-entry systems from sources we believe
are reliable, but we take no responsibility for the accuracy of the
information. Although DTC has agreed to the procedures to facilitate transfers
of interests in the global notes among participants in DTC, it is under no
obligation to perform or to continue to perform these procedures. These
procedures may be changed or discontinued at any time. We take no
responsibility for the performance by DTC or its participants of their
respective obligations under the rules and procedures governing their
operations.
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Exchange of Global Notes for Certificated Notes
We will exchange beneficial interests in global notes for certificated notes
only if:
. DTC notifies us that it is unwilling or unable to continue as depositary
for the global notes;
. DTC ceases to be a clearing agency registered under the Securities
Exchange Act;
. we decide at any time not to have the registered notes represented by
global notes and so notify the trustee; or
. an event of default has occurred and is continuing with respect to the
registered notes.
If there is an exchange, we will issue certificated notes in authorized
denominations and registered in the names which DTC directs.
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THE EXCHANGE OFFER
Purpose of the Exchange Offer
We issued the unregistered notes on November 8, 1999 to the initial
purchasers pursuant to a purchase agreement, dated November 3, 1999, between us
and the initial purchasers. The initial purchasers subsequently sold the
unregistered notes (1) to qualified institutional buyers, as defined in Rule
144A under the Securities Act, in reliance on Rule 144A and (2) outside the
United States in accordance with Regulation S under the Securities Act. As a
condition to the initial sale of the unregistered notes, we and the initial
purchasers entered into the registration rights agreement. Pursuant to the
registration rights agreement, we agreed that we would:
. use our reasonable best efforts to file with the SEC by March 7, 2000,
which is 120 days after the initial issuance of the notes, a
registration statement relating to an offer to exchange the unregistered
notes for the registered notes;
. use our reasonable best efforts to cause the exchange offer registration
statement to be declared effective under the Securities Act by May 6,
2000, which is 180 days after the initial issuance of the registered
notes;
. commence the exchange offer promptly after the exchange offer
registration statement has been declared effective;
. use our reasonable best efforts to keep the exchange offer registration
statement effective until the closing of the exchange offer; and
. use our reasonable best efforts to cause the exchange to be completed
within 60 days after the SEC declares the exchange offer registration
statement effective.
We also agreed to issue and exchange registered notes for all unregistered
notes validly tendered and not withdrawn before the expiration date. For a
complete description of the terms of the registration rights agreement, you
should read the copy of the registration rights agreement that we filed as an
exhibit to the registration statement of which this prospectus is a part. The
registration statement of which this prospectus is a part is intended to
satisfy some of our obligations under the registration rights agreement.
If, (1) because of any change in law, SEC rules or regulations or the
applicable interpretations of the staff of the SEC, we are not permitted to
effect the exchange offer, (2) for any other reason the exchange offer has not
been consummated by July 5, 2000, which is 240 days after the initial issuance
of the notes, or (3) the exchange offer has been completed and, in the written
opinion of counsel for holders of the registered notes, a shelf registration
statement must be filed and a prospectus must be delivered by a holder of the
registered notes in connection with its reoffering or resale of the registered
notes, then in addition to, or instead of, effecting the registration of the
registered notes under the exchange offer registration statement, we will use
our reasonable best efforts to:
. file a shelf registration statement covering resales of the notes within
120 days after the determination described in clause (1), the last date
described in clause (2) or our receipt of the opinion described in
clause (3) above, as applicable;
. cause the shelf registration statement to be declared effective under
the Securities Act within 180 days after the determination described in
clause (1), the last date described in clause (2) or our receipt of the
opinion described in clause (3) above, as applicable; and
. keep the shelf registration statement continuously effective until the
earlier of (1) the expiration of the period referred to in Rule 144(k)
under the Securities Act, or similar successor rule, with respect to the
notes or (2) such time as all of the notes have been sold under the
shelf registration statement or otherwise cease to be registrable
securities within the meaning of the registration rights agreement.
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Terms of the Exchange Offer
Upon the terms and subject to the conditions described in this prospectus
and in the accompanying letter of transmittal, we will accept any and all
unregistered notes validly tendered and not withdrawn before the expiration
date.
We will issue $1,000 principal amount of registered notes in exchange for
each $1,000 principal amount of outstanding unregistered notes validly tendered
and not withdrawn pursuant to the exchange offer. You may tender unregistered
notes in denominations of $1,000 of principal amount and integral multiples of
$1,000.
The form and terms of the registered notes are substantially the same in all
material respects as the form and terms of the unregistered notes, except that:
. the registered notes will be registered under the Securities Act and,
therefore, they will not bear legends restricting their transfer;
. holders of the registered notes will not be entitled to any of the
registration rights of holders of unregistered notes under the
registration rights agreement, which rights will terminate upon our
consummation of the exchange offer; and
. the registered notes will not contain provisions regarding the payment
of additional interest under circumstances related to the timing of the
exchange offer or the filing of a registration statement.
The registered notes will evidence the same indebtedness as the unregistered
notes which they replace, and will be issued under, and be entitled to the
benefits of, the indenture, which also authorized the issuance of the
unregistered notes. Both the registered notes and the unregistered notes will
be treated as a single class of securities under the indenture.
As of the date of this prospectus, $600,000,000 aggregate principal amount
of the unregistered notes is outstanding, all of which is registered in the
name of Cede & Co., as nominee for DTC. Solely for reasons of administration,
we have fixed the close of business on , 2000 as the record date
for the exchange offer for purposes of determining the persons to whom this
prospectus and the letter of transmittal will be mailed initially. There will
be no fixed record date for determining holders of the unregistered notes
entitled to participate in the exchange offer.
Holders of the unregistered notes do not have any appraisal or dissenters'
rights under the Delaware General Corporation Law or the indenture in
connection with the exchange offer. We intend to conduct the exchange offer in
accordance with the provisions of the registration rights agreement and the
applicable requirements of the Securities Act and the related rules and
regulations of the SEC.
We will be deemed to have accepted validly tendered unregistered notes if
and when we have given oral or written notice of our acceptance to State Street
Bank and Trust Company, the exchange agent. The exchange agent will act as
agent for the tendering holders of unregistered notes for the purpose of
receiving the registered notes from us.
If you tender unregistered notes in the exchange offer, you will not be
required to pay brokerage commissions or fees or, except as described below
under "--Fees and Expenses", transfer taxes for the exchange of unregistered
notes. We will pay all charges and expenses, other than transfer taxes
described below under "--Fees and Expenses" in connection with the exchange
offer.
Expiration Date; Extensions; Amendments
The expiration date is 5:00 p.m., New York City time, on , 2000,
unless we, in our sole discretion, extend the exchange offer. If we extend the
exchange offer, the expiration date will be the latest date and time to which
we extend the exchange offer. If we extend the exchange offer, we will, before
9:00 a.m.,
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New York City time, on the next business day after the previously scheduled
expiration date, (1) notify the exchange agent of any extension by oral or
written notice and (2) issue a press release or other public announcement which
will include disclosure of the approximate number of unregistered notes
deposited to date.
We reserve the right, in our sole discretion:
. to delay accepting any unregistered notes;
. to extend the exchange offer; or
. if, in the opinion of our counsel, the consummation of the exchange
offer would violate any applicable law, rule or regulation or any
applicable interpretation of the staff of the SEC, to terminate or amend
the exchange offer by giving oral or written notice of the delay,
extension, termination or amendment to the exchange agent.
Any delay in acceptance, extension, termination or amendment will be followed
as promptly as practicable by a press release or other public announcement. We
will have no obligation to publish, advertise or otherwise communicate any
public announcement of any delay, extension, amendment or termination of the
exchange offer that we choose to make, other than by making a timely release to
an appropriate news agency.
If the exchange offer is amended in a manner determined by us to constitute
a material change, we will promptly disclose that amendment by means of a
prospectus supplement that we will distribute to the registered holders of the
unregistered notes. We will also extend the exchange offer for a period of five
to ten business days, depending upon the significance of the amendment and the
manner of disclosure to the holders, if the exchange offer would otherwise
expire during that five to ten business day period.
Interest on the Registered Notes
The registered notes will accrue interest at the rate of 7.375% from the
most recent date to which interest has been paid on the unregistered notes or,
if no interest has been paid, from November 8, 1999. We will pay interest on
the unregistered notes semi-annually in arrears on May 1 and November 1 of each
year, beginning on May 1, 2000.
The unregistered notes and the registration rights agreement provide that
if:
. we do not file with the SEC a registration statement which we are
required to file under the registration rights agreement on or before
the date specified in the registration rights agreement;
. the SEC does not declare a registration statement effective on or before
the date specified in the registration rights agreement;
. we do not consummate the exchange offer within 60 days after the
effective date of the exchange offer registration statement; or
. we have filed, and the SEC has declared effective, a shelf registration
statement and at any time before the expiration of the period referred
to in Rule 144(k) under the Securities Act, or similar successor rule,
with respect to the unregistered notes, other than after all the
unregistered notes have been disposed of under the shelf registration
statement or cease to be registrable securities under the registration
rights agreement, the shelf registration statement ceases to be
effective, or fails to be usable for its intended purpose without being
succeeded within two business days by a post-effective amendment which
cures the failure and that is itself immediately declared effective;
then, as liquidated damages, the annual interest rate of the unregistered notes
will be increased by 0.25 percent until we remedy the relevant failure. The
registered notes will not contain any provision like this regarding the payment
of additional interest.
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Resale of the Registered Notes
Based upon interpretations by the staff of the SEC described in no-action
letters issued to third parties in similar exchange offers, we believe that if
you (1) exchange unregistered notes for registered notes in the ordinary course
of business, (2) are not participating, do not intend to participate, and have
no arrangement or understanding with any person to participate in a
distribution of the registered notes, and (3) are not an affiliate of us within
the meaning of Rule 405 of the Securities Act, then you can resell registered
notes to the public without further registration under the Securities Act and
without delivering to the purchasers of the registered notes a prospectus that
satisfies the requirements of Section 10 of the Securities Act. You will be
required to represent to us in the accompanying letter of transmittal that you
meet the conditions exempting you from the registration and prospectus delivery
requirements.
You should note that we have not asked the SEC to consider this exchange
offer in the context of a no-action letter. Therefore, we cannot be certain
that the SEC will treat this exchange offer in the same way it has treated
other exchange offers in the past.
If you intend to acquire registered notes in the exchange offer for the
purpose of distributing registered notes or if you are an affiliate of us, you:
. cannot rely on the interpretation of the staff of the SEC described in
the no-action letters issued to third parties in similar exchange offers;
. cannot tender your notes in the exchange offer; and
. must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any resale of the unregistered
notes, unless an exemption from those requirements is otherwise
available.
Any broker-dealer that acquired unregistered notes for its own account as a
result of market-making or other trading activities must deliver a prospectus
meeting the requirements of Section 10 of the Securities Act in connection with
any resale of registered notes that it receives in the exchange offer. A
broker-dealer may use this prospectus, as it may be amended or supplemented
from time to time, to fulfill this prospectus delivery requirement. We have
agreed in the registration rights agreement to make this prospectus, as it may
be amended or supplemented from time to time, available to any broker-dealer
that requests copies of this prospectus in the letter of transmittal for use in
connection with any resale of the registered notes for a period of up to 180
days after the expiration date. See "Plan of Distribution" for more information
about broker-dealers.
Procedures for Tendering
To tender unregistered notes in the exchange offer, you must:
. complete, sign and date the letter of transmittal;
. have the signatures on the letter of transmittal guaranteed if required
by the letter of transmittal; and
. deliver the letter of transmittal to the exchange agent for receipt
before the expiration date or comply with the guaranteed delivery
procedures described below under "--Guaranteed Delivery Procedures."
In addition, either:
. certificates for your unregistered notes must be received by the exchange
agent along with the letter of transmittal;
. a timely confirmation of a book-entry transfer of the unregistered notes
into the exchange agent's account at DTC pursuant to the procedures for
book-entry transfer described below under "--Book-Entry Transfer" must be
received by the exchange agent before the expiration date; or
. you must comply with the guaranteed delivery procedures described below
under "--Guaranteed Delivery Procedures."
21
<PAGE>
If you do not withdraw your tender of unregistered notes before the
expiration date, it will constitute an agreement between you and us to tender
the unregistered notes in accordance with the terms, and subject to the
conditions, described in this prospectus and the letter of transmittal.
The method of delivery of unregistered notes, the letter of transmittal and
all other required documents to the exchange agent is at your election and
risk. We recommend that you use an overnight or hand delivery service or
registered mail, properly insured, return receipt requested. In all cases, you
should allow sufficient time to assure delivery to the exchange agent before
the expiration date. Do not send the letter of transmittal or any unregistered
notes to us.
If you are a beneficial owner of unregistered notes that are held through a
broker, dealer, commercial bank, trust company or other nominee and wish to
tender, you should contact your intermediary promptly and instruct the
intermediary to tender unregistered notes on your behalf. If you wish to tender
unregistered notes on your own behalf, you must, before completing and
executing the letter of transmittal and delivering your unregistered notes:
. make appropriate arrangements to register ownership of the unregistered
notes in your name; or
. obtain a properly completed bond power from the registered holder.
The transfer of registered ownership may take considerable time and may not be
completed before the expiration date.
Signatures and Guarantee of Signatures
Signatures on a letter of transmittal or a notice of withdrawal described
below under "--Withdrawal of Tenders," as the case may be, must be guaranteed
by an eligible institution, unless the unregistered notes are tendered:
. by a registered holder who has not completed the box titled "Special
Delivery Instruction" on the letter of transmittal; or
. for the account of an eligible institution.
In the event that signatures on a letter of transmittal or a notice of
withdrawal, as the case may be, are required to be guaranteed, the guarantee
must be made by an eligible institution, which is:
. a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc.;
. a commercial bank or trust company having an office or correspondent in
the United States; or
. an eligible guarantor institution within the meaning of Rule 17Ad-15
under the Exchange Act.
If the letter of transmittal is signed by a person other than the registered
holder of any unregistered notes listed in the letter of transmittal, those
unregistered notes must be endorsed or accompanied by a properly completed bond
power, signed by the registered holder exactly as the registered holder's name
appears on the unregistered notes.
In connection with any tender of unregistered notes in definitive
certificated form, if the letter of transmittal or any unregistered notes or
bond power is signed by a trustee, executor, administrator, guardian, attorney-
in-fact, officer of a corporation or other person acting in a fiduciary or
representative capacity, that person should so indicate when signing, and,
unless waived by us, submit with the letter of transmittal evidence
satisfactory to us of their authority to so act.
The exchange agent and DTC have confirmed that any financial institution
that is a participant in DTC's system may utilize DTC's automated tender offer
program to tender unregistered notes.
22
<PAGE>
Acceptance of Tenders
All questions as to the validity, form, eligibility, including time of
receipt, acceptance and withdrawal of tendered unregistered notes will be
determined by us in our sole discretion, which determination will be final and
binding. We reserve the absolute right:
. to reject any and all unregistered notes not properly tendered and any
unregistered notes our acceptance of which would, in the opinion of our
counsel, be unlawful; and
. to waive any defects or irregularities of tender as to particular
unregistered notes.
Our interpretation of the terms and conditions of the exchange offer,
including the instructions in the letter of transmittal, will be final and
binding on all parties. Unless waived, you must cure any defects or
irregularities in connection with tenders of unregistered notes within the time
period we determine. Although we intend to notify holders of defects or
irregularities in connection with tenders of unregistered notes, neither we,
the exchange agent nor any other person will incur any liability for failure to
give this notification. Tenders of unregistered notes will not be deemed to
have been made until any defects or irregularities have been cured or waived.
While we do not currently intend to acquire any unregistered notes that are
not tendered in the exchange offer or to file a registration statement to
permit resales of any unregistered notes that are not tendered pursuant to the
exchange offer, we reserve the right in our sole discretion to purchase or make
offers for any unregistered notes that remain outstanding after the expiration
date and, to the extent permitted by applicable law, purchase unregistered
notes in the open market, in privately negotiated transactions or otherwise.
The terms of any future purchases or offers could differ from the terms of the
exchange offer.
Effect of Tendering Unregistered Notes
By tendering unregistered notes pursuant to the exchange offer, you will be
representing to us that, among other things:
. you are acquiring the registered notes in the ordinary course of your
business;
. you are not participating, do not intend to participate, and have no
arrangement or understanding with any person to participate in the
distribution of the registered notes;
. you are not an affiliate, as defined in Rule 405 under the Securities
Act, of us;
. you acknowledge and agree that if you are participating in the exchange
offer for the purpose of distributing the registered notes or are an
affiliate of us, you must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a
secondary resale of the registered notes, and you understand that you
cannot rely on the interpretations of the staff of the SEC described in
their no-action letters issued to third parties in similar exchange
offers; and
. you understand that a secondary resale transaction described above and
any resales of registered notes obtained by you in exchange for
unregistered notes acquired by you directly from us should be covered by
an effective registration statement containing the selling security
holder information required by Item 507 or Item 508, as applicable, of
Regulation S-K of the SEC.
If you are a broker-dealer that will receive registered notes for your own
account in exchange for unregistered notes that were acquired as a result of
market-making or other trading activities, you must acknowledge in the letter
of transmittal that you will deliver a prospectus in connection with any resale
of your registered notes. However, by so acknowledging and by delivering a
prospectus, you will not be deemed to admit that you are an underwriter within
the meaning of the Securities Act. See "Plan of Distribution."
23
<PAGE>
Return of Unregistered Notes
If any tendered unregistered notes are not accepted or if unregistered notes
are withdrawn or are submitted for a greater principal amount than you desire
to exchange, those unaccepted, withdrawn or otherwise non-exchanged
unregistered notes will be returned without expense to the person who tendered
them or, in the case of unregistered notes tendered by book-entry transfer into
the exchange agent's account at DTC pursuant to the book-entry transfer
procedures described below, the unregistered notes will be credited to an
account maintained with DTC as promptly as practicable.
Book-Entry Transfer
The exchange agent will make a request to establish an account with respect
to the unregistered notes at DTC for purposes of the exchange offer within two
business days after the date of this prospectus. Any financial institution that
is a participant in DTC's systems may make book-entry delivery of unregistered
notes by causing DTC to transfer such unregistered notes into the exchange
agent's account at DTC in accordance with DTC's procedures for transfer.
However, although delivery of unregistered notes may be effected through book-
entry transfer at DTC, you must deliver the letter of transmittal with any
required signature guarantees and any other required documents to the exchange
agent before the expiration date or pursuant to the guaranteed delivery
procedures described below under "--Guaranteed Delivery Procedures." Delivery
of documents to DTC does not constitute delivery to the exchange agent.
Guaranteed Delivery Procedures
If you wish to tender your unregistered notes and (1) certificates
representing your unregistered notes are not immediately available, (2) you
cannot complete the procedures for book-entry transfer on a timely basis, or
(3) you cannot deliver your unregistered notes, the letter of transmittal or
any other required documents to the exchange agent before the expiration date,
you may still tender unregistered notes in the exchange offer if:
. the tender is made through an eligible institution;
. before the expiration date, the exchange agent receives from the eligible
institution, by facsimile transmission, mail or hand delivery, a properly
completed and duly executed notice of guaranteed delivery substantially
in the form provided by us (1) containing the name and address of the
holder, the certificate number(s) of the unregistered notes, if
applicable, and the principal amount of unregistered notes tendered, (2)
stating that the tender is being made thereby and (3) guaranteeing that,
within three New York Stock Exchange trading days after the expiration
date, the letter of transmittal, the certificate(s) representing the
unregistered notes in proper form for transfer or a book-entry
confirmation, as the case may be, and any other required documents will
be deposited by the eligible institution with the exchange agent; and
. the properly executed letter of transmittal, as well as the
certificate(s) representing all tendered unregistered notes in proper
form for transfer or a book-entry confirmation, as the case may be, and
all other required documents are received by the exchange agent within
three New York Stock Exchange trading days after the expiration date.
Upon your request, the exchange agent will send you a notice of guaranteed
delivery if you wish to tender your unregistered notes according to the
guaranteed delivery procedures described above.
Withdrawal of Tenders
Except as otherwise provided in this prospectus, you may withdraw your
tender of unregistered notes at any time before the expiration date.
To withdraw a tender of unregistered notes in the exchange offer, the
exchange agent must receive a written or facsimile transmission notice of
withdrawal before the expiration date. A notice of withdrawal must:
. specify the name of the person having deposited the unregistered notes to
be withdrawn;
24
<PAGE>
. identify the unregistered notes to be withdrawn, including the
certificate number or numbers, if applicable, and principal amount of the
unregistered notes; and
. be signed by the holder in the same manner as the original signature on
the letter of transmittal by which the unregistered notes were tendered,
including any required signature guarantees.
If unregistered notes have been tendered pursuant to the procedure for book-
entry transfer described above, any notice of withdrawal must specify the name
and number of the account at DTC to be credited with the withdrawn unregistered
notes and otherwise comply with the procedures of DTC. All questions as to the
validity, form and eligibility, including time of receipt, of notices will be
determined by us, in our sole discretion, which determination will be final and
binding on all parties. Any unregistered notes so withdrawn will be deemed not
to have been validly tendered for purposes of the exchange offer, and no
registered notes will be issued unless the unregistered notes so withdrawn are
validly re-tendered. Properly withdrawn unregistered notes may be re-tendered
by following one of the procedures described above under "--Procedures for
Tendering" at any time before the expiration date.
Exchange Agent
We have appointed State Street Bank and Trust Company as exchange agent for
the exchange offer. You should direct questions and requests for assistance,
requests for additional copies of this prospectus or the letter of transmittal
and requests for a copy of the notice of guaranteed delivery and other required
documents to the following address, facsimile number or telephone number:
By Hand/Overnight By Facsimile:
Courier/Registered or
Certified Mail:
State Street Bank and Trust Company617-662-1548
Attn: Ralph Jones
Corporate Trust Department, 5th Floor
Confirm by Telephone:
2 Avenue de Lafayette
Boston, Massachusetts 02111 617-662-1523
State Street Bank and Trust Company also serves as trustee under the indenture.
Fees and Expenses
We will pay the expenses of soliciting tenders in the exchange offer. The
principal solicitation is being made by mail. However, additional solicitation
may be made by facsimile transmission, e-mail, telephone or in person by our
officers and regular employees or those of our affiliates.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or others soliciting
acceptances of the exchange offer. We will, however, pay the exchange agent
reasonable and customary fees for its services and reimburse it for its related
reasonable out-of-pocket expenses.
We will pay the expenses to be incurred in connection with the exchange
offer, including registration fees, fees and expenses of the exchange agent and
the trustee, accounting and legal fees, and printing costs. We estimate that
these expenses will be approximately $100,000.
We will pay any and all transfer taxes applicable to the exchange of
unregistered notes pursuant to the exchange offer. If, however, a transfer tax
is imposed for any reason other than the exchange of the unregistered notes
pursuant to the exchange offer, then the amount of any transfer taxes, whether
imposed on the registered holder or any other persons, will be payable by you.
If you do not submit satisfactory evidence of payment of these taxes or
exemption from these taxes with the letter of transmittal, the amount of those
transfer taxes will be billed directly to you.
25
<PAGE>
Consequence of Failure to Exchange
Participation in the exchange offer is voluntary. You are urged to consult
your financial and tax advisors in making your decisions on what action to
take.
Unregistered notes that are not exchanged for the registered notes pursuant
to the exchange offer will remain restricted securities within the meaning of
Rule 144(a)(3)(iv) under the Securities Act. Accordingly, those unregistered
notes may not be offered, sold, pledged or otherwise transferred, except:
. to a person that the seller reasonably believes is a qualified
institutional buyer, within the meaning of Rule 144A, purchasing for its
own account or for the account of a qualified institutional buyer in a
transaction meeting the requirements of Rule 144A;
. in an offshore transaction complying with Rule 903 or Rule 904 of
Regulation S under the Securities Act;
. pursuant to an exemption from registration under the Securities Act
provided by Rule 144, if available;
. pursuant to an effective registration statement under the Securities Act;
or
. pursuant to another available exemption from the registration
requirements of the Securities Act,
and, in each case, in accordance with all other applicable securities laws.
Accounting Treatment
For accounting purposes, we will recognize no gain or loss as a result of
the exchange offer. The expenses of the exchange offer will be amortized over
the remaining term of the registered notes.
26
<PAGE>
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is based upon current provisions of the Internal
Revenue Code of 1986, applicable Treasury regulations, proposed Treasury
regulations, judicial authority and administrative rulings and practice. We
cannot assure you that the Internal Revenue Service will agree with these
conclusions, and no ruling form the IRS has been or will be sought.
Legislative, judicial or administrative changes or interpretations may be
forthcoming that could alter or modify the statements in this prospectus. Any
changes or interpretations may or may not be retroactive and could affect the
tax consequences to you. Certain holders, including insurance companies, tax-
exempt organizations, financial institutions, broker-dealers, foreign
corporations and persons who are not citizens or residents of the United
States, may be subject to special rules not discussed below.
The exchange of unregistered notes for registered notes should not be
treated as a taxable transaction for U.S. federal income tax purposes because
the registered notes do not differ materially in kind or in extent from the
unregistered notes. Rather, the registered notes you receive should be treated
as a continuation of your investment in the unregistered notes. As a result:
. you should not recognize taxable gain or loss upon the receipt of
registered notes in exchange for unregistered notes in the exchange
offer;
. the holding period for a new registered note received in the exchange
offer will include the holding period of the tendered unregistered note;
and
. the adjusted tax basis of a registered note immediately after the
exchange will be the same as the adjusted tax basis of the tendered
unregistered note.
You should consult your own tax advisors concerning the tax consequences of
exchanging your unregistered notes for registered notes, including the
applicability and effect of state, local, or foreign tax laws.
PLAN OF DISTRIBUTION
Each broker-dealer that receives registered notes for its own account in
exchange for unregistered notes acquired by the broker-dealer as a result of
market-making or other trading activities must acknowledge that it will deliver
a prospectus in connection with any resale of those registered notes. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of registered notes received in
exchange for those unregistered notes. We have agreed in the registration
rights agreement that for a period of up to 180 days after the expiration date,
we will make this prospectus, as amended or supplemented, available to any
broker-dealer that requests copies of this prospectus in the letter of
transmittal for use in connection with any resale of those unregistered notes.
We will not receive any proceeds from any sale of registered notes by
broker-dealers or any other persons. Registered notes received by broker-
dealers for their own account pursuant to the exchange offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions or through the writing of options on the registered
notes, or a combination of these methods of resale, at market prices prevailing
at the time of resale, prices related to the prevailing market prices or
negotiated prices. Any resale of registered notes may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any broker-dealer and/or the
purchasers of any registered notes. Any broker or dealer that participates in a
distribution of registered notes may be deemed to be an underwriter within the
meaning of the Securities Act, and any profit on any of these resales of
registered notes and any commissions or concessions received by these persons
may be deemed to be underwriting compensation under the Securities Act. The
letter of transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an underwriter within the meaning of the Securities Act.
27
<PAGE>
The registered notes constitute new issues of securities with no established
public trading market. We do not intend to apply for listing of the registered
notes on any securities exchange or quotation system. We have been advised by
the initial purchasers that they intend to make a market in the registered
notes, but they are not obligated to do so and their market making may be
interrupted or discontinued at any time. A liquid trading market for the notes
may not develop.
Any unregistered notes not tendered or accepted in the exchange offer will
remain outstanding. To the extent that unregistered notes are tendered and
accepted in the exchange offer, your ability to sell untendered, and tendered
but unaccepted, unregistered notes could be adversely affected. Following
consummation of the exchange offer, the unregistered notes will continue to be
subject to the existing restrictions on their transfer. We will have no further
obligation to the holders of the unregistered notes under the registration
rights agreement to provide for the registration under the Securities Act of
the unregistered notes. There may be no trading market for the unregistered
notes.
We will not receive any proceeds from the exchange offer. No underwriter is
being used in connection with the exchange offer. We have agreed to (1) pay the
expenses incident to the exchange offer, other than commissions or concessions
of any brokers or dealers, and (2) indemnify the holders of the notes and the
initial purchasers against certain liabilities, including liabilities under the
Securities Act.
LEGAL OPINIONS
Mark J. Ohringer, Esq., our Deputy General Counsel, will pass upon the
validity of the registered notes for us. Mr. Ohringer is one of our full-time
employees and currently owns or has the right to acquire approximately 15,500
shares of our class A common stock.
INDEPENDENT PUBLIC ACCOUNTANTS
The consolidated financial statements and schedules included in our Annual
Report on Form 10-K for the year ended December 31, 1998, as amended on Form
10-K/A, and incorporated by reference in this prospectus have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report thereon.
28
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[LOGO OF HELLER FINANCIAL, INC.]
----------------
PROSPECTUS
----------------
OFFER TO EXCHANGE
7.375% Notes due November 1, 2009
which have been registered under the Securities Act of 1933
for
all outstanding unregistered
7.375% Notes due November 1, 2009
, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
The Registrant, a Delaware corporation, is empowered by Section 145 of the
Delaware General Corporation Law, subject to the procedures and limitations
stated therein, to indemnify any person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in the defense of any threatened, pending or completed action,
suit or proceeding in which such person is made a party by reason of his being
or having been a director or officer of the Registrant. The statute provides
that indemnification pursuant to its provisions is not exclusive of other
rights of indemnification to which a person may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors, or otherwise. The
Registrant's Amended and Restated By-Laws provide for indemnification by the
Registrant of its directors and officers to the full extent permitted by the
Delaware General Corporation Law. Also, as permitted by the Delaware General
Corporation Law, the Registrant's Restated Certificate of Incorporation
eliminates the personal liability of each director of the Registrant to the
Registrant or its stockholders for monetary damages arising out of or resulting
from any breach of such director's fiduciary duty as a director, except where
such director breached his duty of loyalty to the Registrant or its
stockholders, failed to act in good faith, engaged in intentional misconduct or
a knowing violation of the law, paid an unlawful dividend, approved an unlawful
stock purchase or redemption, or obtained an improper personal benefit. The
Registrant has purchased a directors' and officers' liability insurance policy
which entitles it to be reimbursed for certain indemnity payments it is
required to permitted to make to its directors and officers. Under the
registration rights agreement, each holder of unregistered notes agrees to
indemnify the Registrant, its directors and its officers that sign this
registration statement against certain liabilities under the Securities Act.
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits.
<TABLE>
<C> <S>
Amended and Restated Certificate of Incorporation of the
*4.1 Registrant.
*4.2 Amended and Restated By-Laws of the Registrant.
Registrant's Standard Multiple-Series Indenture Provisions
**4.3 dated February 5, 1987.
***4.4 Indenture dated as of September 1, 1995 between the Registrant
and State Street Bank and Trust Company.
****4.5 First Supplemental Indenture dated as of October 13, 1995
between the Registrant and State Street Bank and Trust
Company.
*****4.6 Second Supplemental Indenture dated as of November 17, 1997
between the Registrant and State Street Bank and Trust
Company.
******4.7 Third Supplemental Indenture dated as of August 16, 1999
between the Registrant and State Street Bank and Trust
Company.
4.8 Purchase Agreement dated as of November 3, 1999, among the
Registrant and Warburg Dillon Reed LLC, Chase Securities Inc.,
Credit Suisse First Boston Corporation and Salomon Smith
Barney Inc. (the "Initial Purchasers").
4.9 Registration Rights Agreement dated as of November 3, 1999,
among the Registrant and the Initial Purchasers.
4.10 Form of 7.375% Notes due November 1, 2001 (the "Notes").
5 Opinion of Mark J. Ohringer, Esq., Deputy General Counsel of
the Registrant, as to the legality of the Notes being
registered.
******12 Computation of ratio of earnings to fixed charges.
23.1 Consent of Arthur Andersen LLP, independent auditors.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
Consent of Mark J. Ohringer, Esq. (contained in his opinion
23.2 filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page hereof).
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of State Street Bank and Trust
Company under the Indenture.
99.1 Form of Letter of Transmittal for the Notes.
99.2 Form of Notice of Guaranteed Delivery for the Notes.
99.3 Form of Letter to Clients.
99.4 Form of Letter to Nominees.
Guidelines for Certificate of Taxpayer Identification Number on
99.5 Substitute Form W-9.
</TABLE>
- --------
* Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the period ended March 31, 1998 (File No. 1-6157).
** Incorporated by reference to the Registrant's Registration Statement on
Form S-3, File No. 33-11757 (filed February 5, 1987).
*** Incorporated by reference to the Registrant's Registration Statement on
Form S-3, File No. 333-38545 (filed October 23, 1997).
**** Incorporated by reference to the Registrant's Current Report on Form 8-K
(File No. 1-6157, filed October 18, 1995).
*****Incorporated by reference to the Registrant's Current Report on Form 8-K
(File No. 1-6157, filed December 4, 1997).
******Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the period ended September 30, 1999 (File No. 1-6157).
(b) Financial Statement Schedules.
None
Item 22. Undertakings.
The undersigned Registrant hereby undertakes:
(1) that, for purposes of determining any liability under the Securities
Act of 1933, as amended (the "Securities Act"), each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof;
(2) to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this
form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request;
(3) to supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective;
(4) that insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment
II-2
<PAGE>
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois on the 9th of February, 2000.
Heller Financial, Inc.
/s/ Richard J. Almeida
By: _________________________________
Richard J. Almeida
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Lauralee E. Martin, Debra H. Snider and Mark J. Ohringer and each of them her
or his true and lawful attorneys-in-fact and agents, with full power of
substitution, to sign on his behalf, individually and in each capacity stated
below, all amendments and post-effective amendments to this Registration
Statement on Form S-4 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933 and all amendments thereto) and to
file the same, with all exhibits thereto and any other documents in connection
therewith, with the Commission under the Securities Act, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as each might or could do in
person, hereby ratifying and confirming each act that said attorneys-in-fact
and agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on February 9, 2000.
/s/ Richard J. Almeida /s/ Dennis P. Lockhart
_____________________________________ _____________________________________
Richard J. Almeida Dennis P. Lockhart
Chairman, Chief Executive Officer Director and President of Heller
(Principal Executive Officer) and International Group, Inc.
Director
/s/ Takashi Makimoto
/s/ Michael A. Conway _____________________________________
_____________________________________ Takashi Makimoto
Michael A. Conway Director
Director
/s/ Lauralee E. Martin
/s/ Soichi Hirabayashi _____________________________________
_____________________________________ Lauralee E. Martin
Soichi Hirabayashi Executive Vice President and Chief
Director Financial Officer (Principal
Financial Officer)
/s/ Lawrence G. Hund
_____________________________________ /s/ Frank S. Ptak
Lawrence G. Hund _____________________________________
Executive Vice President and Frank S. Ptak
Controller (Principal Accounting Director
Officer)
II-4
<PAGE>
/s/ Takaaki Kato /s/ Masahiro Sawada
_____________________________________ _____________________________________
Takaaki Kato Masahiro Sawada
Director Director
/s/ Mark Kessel /s/ Kenichiro Tanaka
_____________________________________ _____________________________________
Mark Kessel Kenichiro Tanaka
Director Director
/s/ Tetsuo Kumon /s/ Frederick Wolfert
_____________________________________ _____________________________________
Tetsuo Kumon Frederick Wolfert
Director
Director
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- -------
<C> <S> <C>
4.8 Purchase Agreement dated as of November 3, 1999, among the
Registrant and Warburg Dillon Reed LLC, Chase Securities Inc.,
Credit Suisse First Boston Corporation and Salomon Smith
Barney Inc. (the "Initial Purchasers").
4.9 Registration Rights Agreement dated as of November 3, 1999,
among the Registrant and the Initial Purchasers.
4.10 Form of 7.375% Notes due November 1, 2009 (the "Notes").
5 Opinion of Mark J. Ohringer, Esq., Deputy General Counsel of
the Registrant, as to the legality of the Notes being
registered.
23.1 Consent of Arthur Andersen LLP, independent auditors.
23.2 Consent of Mark J. Ohringer, Esq. (contained in his opinion
filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page hereof).
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of State Street Bank and Trust
Company under the Indenture.
99.1 Form of Letter of Transmittal for the Notes.
99.2 Form of Notice of Guaranteed Delivery for the Notes.
99.3 Form of Letter to Clients.
99.4 Form of Letter to Nominees.
99.5 Guidelines for Certificate of Taxpayer Identification Number
on Substitute Form W-9.
</TABLE>
<PAGE>
EXHIBIT 4.8
HELLER FINANCIAL, INC.
(a Delaware corporation)
7 3/8% Notes Due November 1, 2009
PURCHASE AGREEMENT
Warburg Dillon Read LLC
Chase Securities Inc.
Credit Suisse First Boston Corporation
Salomon Smith Barney Inc.
c/o Warburg Dillon Read LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Ladies and Gentlemen:
Heller Financial, Inc. (the "Company"), a Delaware corporation, and the
several initial purchasers named in Schedule I hereto (the "Initial Purchasers")
confirm their agreement as follows: (1) the Company will issue and sell to the
Initial Purchasers $400,000,000 aggregate principal amount of 7 3/8% Notes Due
November 1, 2009 (the "Securities"), (2) the Company will issue and deliver to
Warburg Dillon Read LLC ("WDR") $200,000,000 aggregate principal amount of the
Securities and cash consideration in exchange for $200,000,000 aggregate
principal amount of the Company's Amended and Restated Floating Rate Notes due
August 15, 2009 (the "Old Notes") and (3) WDR will sell to the Initial
Purchasers $200,000,000 aggregate principal amount of the Securities, in each
case upon the terms set forth herein. The Securities will be entitled to the
benefits of a Registration Rights Agreement dated the date hereof among the
Company and the Initial Purchasers (the "Registration Rights Agreement").
The Securities will be offered by the Initial Purchasers without
registration under the Securities Act of 1933, as amended (the "Act"), in
reliance upon an exemption from the registration requirements of the Act. In
connection with the resale of the Securities by the Initial Purchasers, the
Company has prepared an offering memorandum dated the date hereof (together with
all information incorporated by reference therein and any Additional Issuer
Information (as defined in Section 5 (e)) furnished by the Company prior to the
completion of the distribution of the Securities, the "Offering Memorandum"),
setting forth certain information concerning the Company and the Securities.
The Company hereby confirms that it has authorized the use of the Offering
Memorandum in connection with the offer and sale of the Securities by the
Initial Purchasers. Unless stated to the contrary, all references herein to the
Offering Memorandum are
<PAGE>
to the Offering Memorandum dated as of the date hereof and are not meant to
include any amendment or supplement thereto subsequent to the date hereof.
The Company understands that the Initial Purchasers propose to make
offerings ("Exempt Resales") of the Securities only on the terms and in the
manner set forth in the Offering Memorandum and Section 3 hereof, as soon as the
Initial Purchasers deem advisable after this Agreement has been executed and
delivered only to (i) persons in the United States whom the Initial Purchasers
reasonably believe to be "qualified institutional buyers" ("QIBs") as defined in
Rule 144A under the Act, as such rule may be amended from time to time ("Rule
144A"), or, if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to the Initial Purchasers that each such account is a QIB, to whom
notice has been given that such sale or delivery is being made in reliance on
Rule 144A, and, in each case, in transactions under Rule 144A and (ii) non-U.S.
persons to whom offers and sales of the Securities may be made in reliance upon
Regulation S under the Act ("Regulation S"), in transactions meeting the
requirements of Regulation S.
When used herein, the term "Operative Documents" shall refer to this
Agreement, the Registration Rights Agreement, the Securities, and the Indenture
with respect to the Securities, dated as of September 1, 1995, between the
Company and State Street Bank and Trust Company, as successor to Shawmut Bank
Connecticut, National Association, as Trustee (the "Indenture Trustee") as
amended by the First Supplemental Indenture dated as of October 13, 1995, the
Second Supplemental Indenture dated as of November 17, 1997 and the Third
Supplemental Indenture dated as of August 16, 1999 (as amended, the
"Indenture").
1. The Company represents and warrants to, and agrees with the Initial
Purchasers that:
(a) The Offering Memorandum and any amendments or supplements thereto
did not and will not, as of its date, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not be made to the Initial Purchasers with regard to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by, or on behalf of, the
Initial Purchasers;
(b) The consolidated historical financial statements, together with
related schedules and notes, included or incorporated by reference in the
Offering Memorandum (and any amendment or supplement thereto), present
fairly the consolidated financial position of the Company and its
subsidiaries, at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated in
accordance with generally accepted accounting principles consistently
applied throughout such periods; and there has been no material adverse
change not in the ordinary course of
2
<PAGE>
business in the consolidated financial position of the Company since
December 31, 1998, except as disclosed in the Offering Memorandum (and any
amendment or supplement thereto);
(c) Each of the Company and its "significant subsidiaries" (as defined
in Rule 1-02(w) of Regulation S-X promulgated by the Securities and
Exchange Commission) is a company duly incorporated and validly existing
under the laws of the jurisdiction of its incorporation, and has the
corporate power and authority to conduct its business in each jurisdiction
where it carries on business;
(d) The issue of the Securities and the performance of the obligations
of the Company under the Operative Documents have been duly authorized by
the Company and, upon due execution, issue, authentication (in accordance
with the terms of the Indenture) and delivery (to WDR in exchange for the
Old Notes or to the Initial Purchasers against payment therefor, as the
case may be), in the case of the Securities, and the due execution and
delivery, in the case of the other Operative Documents, the Operative
Documents will constitute legal, valid and binding obligations of the
Company enforceable in accordance with their respective terms, except as
enforcement thereby may be limited by the laws of bankruptcy, insolvency,
reorganization and receivership, moratorium and other laws of general
applicability relating to or affecting creditors' rights, and by general
equity principles, whether applied by a court of law or equity, and except
that rights to indemnity and contribution under this Agreement and the
Registration Rights Agreement may be limited by applicable law or public
policy;
(e) The issue and exchange, or sale, of the Securities by the Company,
the execution and delivery of the other Operative Documents by the Company,
and the performance of the obligations under the Operative Documents by the
Company will not violate the provisions of the organizational documents of
the Company and will not result in any breach of the terms of, or
constitute a default under, any instrument, deed, indenture, mortgage, bond
or agreement to which the Company is a party or by which it or its property
is bound and will not infringe or constitute a default under any laws or
regulations of any governmental or regulatory body having jurisdiction over
the Company, except as would not have a material adverse effect on the
business, financial condition or results of operation of the Company and
its subsidiaries, taken as a whole;
(f) All consents and approvals of any court, government department or
other regulatory body required by the Company for the execution and
delivery of the Operative Documents and the issue and exchange, or sale, of
the Securities and the performance of the obligations assumed under the
terms of the Securities and the Operative Documents have been obtained and
are in full force and effect (except as may be required under applicable
state securities or Blue Sky laws);
3
<PAGE>
(g) No event has occurred in relation to the Company which would
constitute (after the issue of the Securities) an Event of Default under
the Securities or which with the giving of notice or lapse of time or other
condition would (after the issue of the Securities) constitute such an
Event of Default;
(h) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning
of Rule 144A) as securities which are listed on a national securities
exchange registered under Section 6 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or quoted in a U.S. automated inter-dealer
quotation system;
(i) Neither the Company, nor any affiliate of the Company, nor any
person acting on its or their behalf (other than the Initial Purchaser, as
to which the Company makes no representation) has offered or sold the
Securities by means of any general solicitation or general advertising
within the meaning of Rule 502(c) under the Act or, with respect to
Securities sold outside the United States to non-U.S. persons (as defined
in Rule 902 under the Act), by means of any directed selling efforts within
the meaning of Rule 902 under the Act and the Company, any affiliate of the
Company and any person acting on its or their behalf has complied with and
will implement the "offering restriction" within the meaning of such Rule
902;
(j) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Offering Memorandum, will not be, an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended;
and
(k) Assuming compliance by the Initial Purchasers with their
representations and warranties contained herein, it is not necessary in
connection with the offer, sale and/or delivery of the Securities to the
Initial Purchasers in the manner contemplated by this Agreement to register
the Securities under the Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
2. On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions herein set
forth, (a) the Company agrees to issue and deliver to the Initial Purchasers for
the benefit of WDR $200,000,000 aggregate principal amount of Securities and to
pay to WDR an amount in cash equal to 0.408% of $200,000,000 (or $816,000), and
WDR agrees to deliver to the Company, in exchange for such Securities and cash
consideration, the Old Notes, (b) the Company agrees to issue and sell to the
several Initial Purchasers, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Company, the respective aggregate principal amount
of Securities set forth in Column A of Schedule I hereto opposite its name at a
purchase price of 99.592% of the principal amount thereof, (c) WDR agrees to
issue and sell to the several Initial Purchasers, and each Initial Purchaser
agrees, severally and not jointly, to purchase from WDR, the respective
4
<PAGE>
aggregate principal amount of Securities set forth in Column B of Schedule I
hereto opposite its name at a purchase price of 99.592% of the principal amount
thereof and (d) the Company agrees to pay to the Initial Purchasers a placement
fee of 0.60% of the $600,000,000 aggregate principal amount of the Securities as
compensation for placing the Securities (the "Placement Fee"). In addition, the
Company shall pay to WDR at the Time of Delivery (as defined below) all accrued
and unpaid interest on the Old Notes.
3. Each Initial Purchaser, severally and not jointly, hereby represents
and warrants to, and agrees with the Company that:
(a) it (i) is a QIB, (ii) has not and will not solicit offers for, or
offer or sell, the Securities by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the Act, or
in any manner involving a public offering within the meaning of Section
4(2) of the Act and (iii) will solicit offers for the Securities only from,
and will offer, sell or deliver the Securities, as part of their initial
offering, only to (A) persons in the United States whom the Initial
Purchaser reasonably believes to be QIBs or, if any such person is buying
for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to the Initial
Purchaser that each such account is a QIB, to whom notice has been given
that such sale or delivery is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A and (B) to non-U.S. persons to
whom offers and sales of the Securities may be made in reliance upon
Regulation S, in transactions meeting the requirements of Regulation S;
(b) in connection with sales outside the United States, it will not
offer, sell or deliver Securities to, or for the account or benefit of,
"U.S. persons" (as defined in Rule 902 under the Act) (i) as part of the
Initial Purchaser's distribution at any time or (ii) otherwise until the
expiration of the applicable "distribution compliance period" within the
meaning of Rule 903(b)(3) of Regulation S, which is currently 40 days after
the later of the commencement of the offering of the Securities and the
Time of Delivery, and it will send to each dealer to whom it sells
Securities during such period a confirmation or other notice setting forth
the restrictions on offers and sales of the Securities within the United
States or to, or for the account or benefit of, U.S. persons;
(c) it has (a) not offered or sold and, prior to the date six months
after the date of issue of the Securities, will not offer or sell any
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995, (b) complied,
and will comply, with all applicable provisions of the Financial Services
Act 1986 of the United Kingdom with respect to anything done by it in
relation to the Securities in, from or otherwise involving the
5
<PAGE>
United Kingdom, and (c) only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with the issuance of the Securities to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 of the United Kingdom or is a
person to whom the document may otherwise lawfully be issued or passed on;
4. (a) The Securities to be purchased by the Initial Purchasers hereunder
will be represented by one or more global certificates in book-entry form which
will be deposited by, or on behalf of, the Company with, and shall be registered
in the name of, The Depository Trust Company ("DTC") or its designated
custodian. The Company will deliver the Securities to the Initial Purchasers
against (i) delivery by WDR of the Old Notes and (ii) payment by the Initial
Purchasers of the purchase price referred to in clause (b) of Section 2 hereof
for $400,000,000 aggregate principal amount of Securities, less : (x) the
Placement Fee, (y) 0.408% of $200,000,000 (or $816,000) and (z) all accrued and
unpaid interest on the Old Notes, by electronic transfer to the order of the
Company in federal (same day) funds ("Wire Transfer"), by causing DTC to credit
the Securities to the respective accounts of the Initial Purchasers at DTC. The
Company will cause the certificates representing the Securities to be made
available to WDR for checking at least twenty-four hours prior to the Time of
Delivery at the office of the Indenture Trustee or its designated custodian (the
"Designated Office"). The time and date of such delivery and payment shall be
9:30 a.m., New York City time, on November 8, 1999 or such other time and date
as WDR and the Company may agree upon in writing. Such time and date are herein
called the "Time of Delivery."
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross-
receipts for the Securities and any additional documents reasonably requested by
WDR pursuant to Section 7(a) hereof, will be delivered at such time and date at
the offices of Shearman & Sterling (the "Closing Location"). The Securities will
be delivered at the Designated Office at the Time of Delivery.
5. The Company agrees with the Initial Purchasers:
(a) To prepare the Offering Memorandum in a form approved by you; and,
before amending or supplementing the Offering Memorandum, to furnish the
Initial Purchaser a copy of such proposed amendment or supplement;
(b) To cooperate with the Initial Purchasers and counsel to the
Initial Purchasers to qualify the Securities for offering and sale under
the state securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the Exempt Resales, provided that in connection therewith the Company shall
not be required to register or qualify as a foreign corporation, or to take
any action that would subject it to taxation or service of process in any
jurisdiction;
6
<PAGE>
(c) Prior to 3:00 p.m., New York City time, on the New York Business
Day (as defined below) next succeeding the date of this Agreement and from
time to time, to furnish the Initial Purchasers, in New York City, with
copies of the Offering Memorandum and each amendment or supplement thereto,
together with any independent accountants' report contained in the Offering
Memorandum, and any amendment or supplement containing amendments to the
financial statements covered by such report, signed by the accountants, and
additional copies thereof in such quantities as you may from time to time
reasonably request, and if, at any time prior to the consummation of any
Exempt Resale, any event shall have occurred as a result of which the
Offering Memorandum as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when the Offering Memorandum is delivered, not
misleading, or, if for any other reason it shall be necessary or desirable,
during such same period to amend or supplement the Offering Memorandum, to
notify you and upon your request to prepare and furnish without charge to
the Initial Purchasers and to any dealer in securities as many copies as
you may from time to time reasonably request of the amended Offering
Memorandum or supplement to the Offering Memorandum which will correct such
statement or omission. For the purposes of this Section 5, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close;
(d) The Company will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United States or to any
U.S. person of any Securities or any substantially similar security issued
by the Company, within six months subsequent to the date on which the
distribution of the Securities has been completed (as notified to the
Company by WDR), is made under restrictions and other circumstances
reasonably designed not to affect the status of the offer and sale of the
Securities in the United States contemplated by this Agreement as
transactions exempt from the registration provisions of the Act;
(e) The Company agrees with the Initial Purchasers that at any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act,
upon the request of any holder of Securities ("Securityholder"), the
Company shall promptly furnish to such Securityholder or to a prospective
purchaser of a Security designated by such Securityholder, as the case may
be, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Act ("Additional Issuer Information") in order to permit
compliance by such Securityholder with Rule 144A in connection with the
resale of such Security by such Securityholder; and
(f) During the period of time after the Time of Delivery described in
Rule 144(k) under the Act, which is currently two years, the Company will
not, and will not
7
<PAGE>
permit any of its "affiliates" (as defined in Rule 144 under the Act) to,
resell any of the Securities which constitute "restricted securities" under
Rule 144 that have been acquired by any of them except pursuant to an
effective registration statement under the Act.
6. The Company covenants and agrees with the Initial Purchasers that the
Company will pay or cause to be paid all expenses incident to the performance of
the Company's obligations under this Agreement, including the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and all other expenses of the
Company in connection with the preparation, printing and filing of the Offering
Memorandum and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Initial Purchasers and dealers; (ii) the
cost of printing or producing the Operative Documents, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, exchange or sale, and delivery of the Securities, except
as otherwise provided in this Agreement; (iii) all expenses in connection with
the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Initial Purchaser in connection with such
qualification; (iv) any fees charged by securities rating services for rating
the Securities; (v) the cost of printing any certificates for the Securities;
(vi) the fees and expenses of the Indenture Trustee and any agent of the
Indenture Trustee and the reasonable fees and disbursements of counsel for the
Indenture Trustee in connection with the Operative Documents; and (vii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Agreement.
Except as provided in this Section and Sections 8 and 11 hereof, the Initial
Purchaser will pay all of its own costs and expenses, including the fees of its
counsel, transfer taxes on resale of any of the Securities by it and any
advertising expenses connected with any offers it may make.
7. The obligations of WDR in respect of the Old Notes and of the Initial
Purchasers hereunder shall be subject, in WDR's discretion, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery, true and correct in all material
respects, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Initial Purchasers shall have received from their counsel,
Shearman & Sterling, such opinion or opinions, dated the Time of Delivery,
with respect to the issuance and exchange, or sale, of the Securities and
other related matters as WDR may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(b) There shall have been no material adverse change in the condition
of the Company and its subsidiaries, taken as a whole, from that set forth
in or contemplated by the Offering Memorandum; and you shall have received
on the Time of Delivery a
8
<PAGE>
certificate, dated the Time of Delivery and signed by an executive officer
of the Company, to the foregoing effect.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Time of Delivery, there shall not have occurred any
downgrading of, nor shall any notice have been given of any review with a
negative implication with respect to, the rating accorded any of the
Company's securities by any of Standard & Poor's Ratings Services, a
Division of The McGraw-Hill Companies or Moody's Investors Service, Inc.
(d) The Initial Purchasers shall have received on the Time of Delivery
the opinion of Mark J. Ohringer, Deputy General Counsel of the Company,
dated the Time of Delivery, to the effect that:
(i) The Company and each of its significant subsidiaries are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which its respective ownership or
lease of property or the conduct of their respective businesses
requires such qualification (other than those jurisdictions in which
the failure to so qualify would not have a material adverse effect on
the Company or the Company and its subsidiaries taken as a whole);
(ii) Each of the Operative Documents (other than this Agreement
and the Securities) has been duly authorized, executed and delivered
by the Company and constitutes a legal, valid and binding obligation
of the Company enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization and receivership, moratorium and other laws of general
applicability relating to or affecting creditors' rights, and by
general equity principles, whether applied by a court of law or
equity, and except that rights to indemnity and contribution under the
Registration Rights Agreement may be limited by applicable law or
public policy;
(iii) The Securities have been duly authorized and, when duly
executed by the Company, authenticated by the Indenture Trustee and
delivered in exchange for the Old Notes to WDR, or delivered to and
paid for by, the Initial Purchasers, as the case may be, in accordance
with the terms of the Indenture and this Agreement, will be legal,
valid and binding obligations of the Company enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization and receivership, moratorium
and other laws of general applicability relating to or affecting
creditors' rights, and by general equity principles, whether applied
by a court of law or equity;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding obligation
of the Company
9
<PAGE>
enforceable in accordance with its terms, except as the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization and receivership, moratorium and other laws of general
applicability relating to or affecting creditors' rights, and by
general equity principles, whether applied by a court of law or
equity, and except that rights to indemnity and contribution under
this Agreement may be limited by applicable law or public policy;
(v) To such counsel's knowledge, no authorization, consent or
approval of, or registration or filing with, any governmental or
public body or regulatory authority is required on the part of the
Company for the issuance of the Securities in accordance with the
Indenture or the exchange or sale of the Securities in accordance with
this Agreement, other than compliance with the securities or Blue Sky
laws of various jurisdictions;
(vi) The execution and delivery of the Operative Documents, the
issuance of the Securities in accordance with the Indenture, and the
exchange or sale of the Securities in accordance with this Agreement
do not and will not result in the violation by the Company of any of
the terms or provisions of the organization certificate or by-laws of
the Company or, to such counsel's knowledge, of any written indenture,
mortgage or other agreement or instrument known to such counsel, by
which the Company is bound, except for those violations which would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(vii) To such counsel's knowledge, the execution and delivery of
the Operative Documents to which the Company is a party and the
issuance of the Securities in accordance with the Indenture do not and
will not result in any violation by the Company of federal law or the
laws of the State of Delaware that are generally applicable to
transactions of the type contemplated by the Operative Documents,
except for those violations which would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole and
except to the extent that rights to indemnity and contribution under
the Operative Documents may be limited by applicable law or public
policy;
(viii) The documents incorporated by reference in the Offering
Memorandum (other than the financial, statistical and accounting data
contained therein or omitted therefrom), at the time they were filed
with the Commission, appear on their face to have been appropriately
responsive in all material respects to the requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder; and
(ix) The statements set forth in the Offering Circular
under the captions "Description of the Notes," "Exchange Offer;
Registration Rights" and
10
<PAGE>
"Unites States Federal Income Tax Consequences," insofar as such
statements constitute a summary of the documents referred to therein,
constitute fair summaries of such documents.
(e) You shall have received on the Time of Delivery the confirmation
by Katten Muchin & Zavis, counsel for the Company, dated the Time of
Delivery, to the effect that they have participated in conferences with
officers and other representatives of the Company, representatives of the
independent certified public accountants of the Company, and
representatives of the Initial Purchasers and their counsel at which
conferences the contents of the Offering Memorandum and any amendment
thereof or supplement thereto and related matters were discussed and,
although such counsel has not independently verified and is not passing
upon and does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Offering Memorandum, or any
amendment thereof or supplement thereto, on the basis of the foregoing,
relying as to materiality upon the opinions of officers and representatives
of the Company, no facts have come to the attention of such counsel which
would lead such counsel to believe that the Offering Memorandum or any
amendment or supplement thereto, at any time from the date thereof through
the Time of Delivery, contained any 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, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel need
express no view with respect to financial, statistical and accounting data
included in the Offering Memorandum).
(f) The Initial Purchasers shall have received, on the Time of
Delivery, a letter, dated the Time of Delivery, in form and substance
satisfactory to you, from Arthur Andersen LLP, independent accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Offering Memorandum.
As to matters of fact, such counsel listed in subsections (a), (d) and (e)
above may rely, to the extent such counsel deems proper, on opinions of local
counsel or certificates of responsible officers and other representatives of the
Company and its subsidiaries, certificates of public officials, and certificates
or other written statements of officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing
of the Company and its subsidiaries.
8. The Company agrees to indemnify and hold harmless each Initial
Purchaser and each person, if any, who controls any Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Offering Memorandum (or any amendment or supplement thereto), or caused by any
11
<PAGE>
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by, or on behalf of, any Initial Purchaser
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any Offering Memorandum shall not inure to the benefit
of any Initial Purchaser from whom the person asserting any such losses, claims,
damages and liabilities purchased Securities, or any person controlling such
Initial Purchaser, if copies of the most recent Offering Memorandum (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) were not sent by, or delivered on behalf of, such Initial
Purchaser to such person prior to the written confirmation of the sale of the
Securities to such person, if such Offering Memorandum (as amended and
supplemented) would have cured the misstatement or alleged misstatement or
omission or alleged omission giving rise to such loss, claim, damage or
liability.
Each Initial Purchaser agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and its officers and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to such Initial Purchaser, but only with reference to information
relating to such Initial Purchaser furnished in writing by, or on behalf of,
such Initial Purchaser expressly for use in the Offering Memorandum.
In case any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or instituted involving any person in respect of
which indemnity may be sought pursuant to either of the three preceding
paragraphs, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding; provided, however, that in the event the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time (not to be less than 30 days) after notice of any such proceeding, the
indemnified party shall then be entitled to retain counsel reasonably
satisfactory to itself and the indemnifying party shall pay the reasonable fees
and disbursements of such counsel related to the proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them (but in such case only to the extent
reasonably determined by counsel to the indemnified party to be necessary to
protect the interests of the
12
<PAGE>
indemnified party) or (iii) the indemnifying party shall have failed to employ
counsel reasonably satisfactory to the indemnified party pursuant to the next
preceding sentence. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to local counsel) for all such indemnified parties. Such firm shall
be designated in writing by the Initial Purchasers in the case of parties
indemnified pursuant to the second preceding paragraph and by the Company in the
case of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnity to the extent provided in this Section 8 the indemnified party from
and against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld, effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in this Section 8 is unavailable to the
Initial Purchasers or other indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Initial Purchasers on the other from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Initial Purchasers on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other shall be deemed to be in the same proportion as the
aggregate principal amount of the Securities, less the Placement Fee, bears to
the Placement Fee. The relative fault of the Company and of the Initial
Purchasers shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who is not guilty of
such fraudulent misrepresentation.
9. (a) This Agreement shall be subject to termination in your absolute
discretion, by written notice given to the Company, if (a) prior to the Time of
Delivery (i) trading in securities on the New York Stock Exchange or the
American Stock Exchange shall have been suspended
13
<PAGE>
or materially limited, (ii) trading in any securities of the Company shall have
been suspended on any national securities exchange in the United States or in
any over-the-counter market in the United States, (iii) a general moratorium on
banking activities in New York shall have been declared by federal or New York
State authorities, (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in the financial markets or other calamity or crisis,
any of which is material and adverse or (v) there shall have occurred any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects or properties of the Company
and its subsidiaries, considered as one enterprise, not arising in the ordinary
course of business and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event either singly or together make it, in the
reasonable judgment of WDR, impracticable to market the Securities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Sections 6 and 11 hereof
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Initial Purchasers, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Initial Purchaser or any controlling person of such Initial Purchaser, or
the Company or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If the Securities are not delivered by or on behalf of the Company as
provided herein because of failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement
other than by reason of default by the Initial Purchasers, the Company will
reimburse the Initial Purchasers for all out-of-pocket expenses approved in
writing by the Initial Purchasers, including fees and disbursements of counsel,
reasonably incurred by the Initial Purchasers in making preparations for the
purchase, exchange or sale, and delivery of the Securities, but the Company
shall then be under no further liability to the Initial Purchasers except as
provided in Section 6 hereof; provided that in such event no provision of this
Agreement shall affect the obligations of the Company under the Old Notes.
12. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Initial Purchasers shall be delivered or sent by mail,
telex or facsimile transmission to WDR at 677 Washington Boulevard, Stamford,
Connecticut 06901, Attention: John Doherty (fax: (203) 719-3160); and if to
the Company shall be delivered or sent by mail or facsimile transmission to the
Company at Heller Financial, Inc., 500 West Monroe Street, Chicago, Illinois
60661, Attention: Treasurer (fax: 312-441-7586), with a copy to Corporate
Legal Services (fax: 312-441-7456). Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14
<PAGE>
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Initial Purchasers, the Company and, to the extent provided in Section 8
hereof, the officers and directors of the Company and each person who controls
the Company or the Initial Purchasers, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from an Initial Purchaser shall be deemed a successor or assign by
reason merely of such purchase.
14. The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it brought by any Initial Purchaser or by any person who
controls such Initial Purchaser arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in any New York court,
(ii) waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the jurisdiction of such courts in any such suit, action or
proceeding.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
15
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Initial Purchasers and the Company as of the date above written.
Very truly yours,
Heller Financial, Inc.
By: /s/ Kurt J. Roemer
------------------------------------
Name: Kurt J. Roemer
Title: Senior Vice President,
Assistant Treasurer
Confirmed and accepted as of the date hereof:
Warburg Dillon Read LLC
Chase Securities Inc.
Credit Suisse First Boston Corporation
Salomon Smith Barney Inc.
By: Warburg Dillon Read LLC
Acting on behalf of itself and
the several Initial Purchasers named in
Schedule I hereto.
By: /s/ Bruce J. Widas
----------------------------------------
Name: Bruce J. Widas
Title: Managing Director
Capital Markets
By: /s/ John Doherty
----------------------------------------
Name: John Doherty
Title: Associate Director
Debt Capital Markets
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Initial Purchaser Principal Amount of Securities to be Purchased
- ----------------------------------------------------------------------------------------
A B TOTAL
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
Warburg Dillon Read LLC $250,000,000 $200,000,000 $450,000,000
- ----------------------------------------------------------------------------------------
Chase Securities Inc. 50,000,000 0 50,000,000
- ----------------------------------------------------------------------------------------
Credit Suisse First Boston Corporation 50,000,000 0 50,000,000
- ----------------------------------------------------------------------------------------
Salomon Smith Barney Inc. 50,000,000 0 50,000,000
- ----------------------------------------------------------------------------------------
Total: $400,000,000 $200,000,000 $600,000,000
- ----------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 4.9
________________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
Dated November 3, 1999
among
HELLER FINANCIAL, INC.
and
WARBURG DILLON READ LLC
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
and
SALOMON SMITH BARNEY INC.
________________________________________________________________________________
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into November 3, 1999, among HELLER FINANCIAL, INC., a Delaware
corporation (the "Company"), and WARBURG DILLON READ LLC ("WDR"), CHASE
SECURITIES INC., CREDIT SUISSE FIRST BOSTON CORPORATION and SALOMON SMITH BARNEY
INC. (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
November 3, 1999, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the issuance by the Company of an aggregate of
$600,000,000 principal amount of the Company's 7 3/8% Notes Due November 1, 2009
(the "Securities"). The Company shall deliver to WDR an aggregate of
$200,000,000 principal amount of the Securities in exchange for an aggregate of
$200,000,000 principal amount of the Company's Amended and Restated Floating
Rate Note Due August 15, 2009 and deliver to the Initial Purchasers an aggregate
of $400,000,000 principal amount of the Securities against payment therefor. In
order to induce the Initial Purchasers to enter into the Placement Agreement,
the Company has agreed to provide the registration rights set forth in this
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
-----------
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
--------
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
--------
from time to time.
"Closing Date" shall mean November 8, 1999.
------------
"Company" shall have the meaning set forth in the preamble and shall
-------
also include the Company's successors.
"Exchange Offer" shall mean the exchange offer by the Company of
--------------
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
<PAGE>
2
"Exchange Offer Registration" shall mean a registration under the 1933
---------------------------
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean a registration
-------------------------------------
statement on Form S-4 (or, if applicable, on another appropriate form)
relating to an offering of Exchange Securities pursuant to an Exchange
Offer and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Exchange Securities" shall mean notes issued by the Company under the
-------------------
Indenture containing terms identical to the Securities (except that the
Exchange Securities will not contain restrictions on transfer or terms
regarding the payment of additional interest as provided in Section 2(d)
hereof) and to be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer.
"Holder" shall mean WDR, for so long as it owns any Registrable
------
Securities, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Securities under
the Indenture; provided that for purposes of Sections 4 and 5 of this
--------
Agreement, the term "Holder" shall include Participating Broker-Dealers (as
defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the Securities dated
---------
as of September 1, 1995 between the Company and State Street Bank and Trust
Company, as successor to Shawmut Bank Connecticut, National Association, as
trustee, as supplemented by the First Supplemental Indenture dated as of
October 13, 1995, the Second Supplemental Indenture dated as of November
17, 1997 and the Third Supplemental Indenture dated as of August 16, 1999,
and as the same may be amended from time to time in accordance with the
terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
----------------
aggregate principal amount of outstanding Registrable Securities; provided
--------
that whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities
held by the Company or any of its affiliates (as such term is defined in
Rule 405 under the 1933 Act) (other than WDR or subsequent Holders of
Registrable Securities if such subsequent Holders are deemed to be such
affiliates solely by reason of their holding of such Registrable
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage or amount.
<PAGE>
3
"Person" shall mean an individual, partnership, limited liability
------
company, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
----------
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such prospectus,
and in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
------------------
"Registrable Securities" shall mean the Securities; provided, however,
---------------------- -------- -------
that the Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
exchanged for Exchange Securities pursuant to an Exchange Offer
Registration Statement or disposed of pursuant to a Shelf Registration
Statement, as applicable, (ii) when such Securities have been sold to the
public pursuant to Rule 144 under the 1933 Act or are saleable pursuant to
Rule 144(k) under the 1933 Act (or any similar provisions then in force,
but not Rule 144A) or (iii) when such Securities shall have ceased to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for
any underwriters or Holders in connection with blue sky qualification of
any of the Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus (including any amendments or supplements thereto), any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for WDR)
<PAGE>
4
and (viii) the fees and disbursements of the independent public accountants
of the Company, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the
Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by a
Holder.
"Registration Statement" shall mean any registration statement of the
----------------------
Company that covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement and all amendments
and supplements to any such Registration Statement, including post-
effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
---
"Shelf Registration" shall mean a registration effected pursuant to
------------------
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
----------------------------
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities (but no other
securities unless approved by the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities that are covered by
such Shelf Registration Statement) on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the Securities under
-------
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
-----------
"Underwritten Registration" or "Underwritten Offering" shall mean a
------------------------- ---------------------
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
"WDR" shall have the meaning set forth in the preamble.
---
2. Registration Under the 1933 Act.
-------------------------------
<PAGE>
5
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company shall use its reasonable
best efforts (1) to cause to be filed an Exchange Offer Registration Statement
within 120 days following the Closing Date covering the offer by the Company to
the Holders to exchange all of the Registrable Securities for an equal aggregate
principal amount of Exchange Securities and (2) to cause such Exchange Offer
Registration Statement to become effective within 180 days following the Closing
Date. The Company shall use its reasonable best efforts to have the Exchange
Offer Registration Statement remain effective until the closing of the Exchange
Offer. The Company shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement has been declared effective by the SEC and use its
reasonable best efforts to have the Exchange Offer consummated not later than 60
days after such effective date. The Company shall commence the Exchange Offer by
mailing the related exchange offer Prospectus and accompanying documents to each
Holder stating, in addition to such other disclosures as are required by
applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of
at least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal, to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice a telegram, facsimile
transmission or letter (to be received no later than the Exchange Date)
setting forth the name of such Holder, the principal amount of Registrable
Securities delivered for exchange and a statement that such Holder is
withdrawing his election to have such Securities exchanged.
As soon as practicable after the last Exchange Date, the Company
shall:
<PAGE>
6
(i) accept for exchange Registrable Securities or portions thereof
validly tendered and not validly withdrawn pursuant to the Exchange Offer;
and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, an Exchange Security equal in
principal amount to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company shall use its reasonable best efforts to complete the Exchange Offer
as provided above and shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other applicable laws and regulations in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate applicable law or any
applicable interpretation of the Staff of the SEC. The Company shall inform WDR
(on behalf of the Initial Purchasers) of the names and addresses of the Holders
to whom the Exchange Offer is made, and WDR (on behalf of the Initial
Purchasers) shall have the right, subject to applicable law, to contact such
Holders and otherwise facilitate the tender of Registrable Securities in the
Exchange Offer.
(b) If:
(i) the Company determines that the Exchange Offer Registration
provided for in Section 2(a) above is not available or may not be
consummated as soon as practicable after the last Exchange Date because it
would violate applicable law or the applicable interpretations of the Staff
of the SEC,
(ii) the Exchange Offer is not for any other reason consummated
within 240 days following the Closing Date or
(iii) the Exchange Offer has been completed and in the written opinion
of counsel for the Holders a Shelf Registration Statement must be filed and
a Prospectus must be delivered by any Holder in connection with any
reoffering or resale of Registrable Securities,
the Company shall use its reasonable best efforts to (x) file with the SEC
within 120 days of such determination, date or notice of such opinion of counsel
being given to the Company, as the case may be, a Shelf Registration Statement
providing for the resale by the Holders (other than those who fail to comply
with the paragraph immediately following clause (p) of Section 3) of all of
their Registrable Securities and to (y) have such Shelf Registration Statement
declared effective by the SEC within 180 days of such determination, date or
notice of such opinion of counsel being given to the Company, as the case may
be. If the Company is
<PAGE>
7
required to file a Shelf Registration Statement solely as a result of the
matters referred to in clause (iii) of the preceding sentence, the Company shall
use its reasonable best efforts to file and have declared effective by the SEC
both an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Securities and a Shelf Registration Statement (which
may be a combined Registration Statement with the Exchange Offer Registration
Statement) with respect to reoffers and resales of Registrable Securities held
by the Holders who must deliver the related Prospectus. The Company agrees to
use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective until the expiration of the period referred to in Rule
144(k) with respect to the Registrable Securities or such shorter period that
will terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be Registrable Securities within the meaning of this
Agreement. The Company further agrees to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use its reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter practicable. The
Company agrees to furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or Section 2(b). Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been declared
-------- -------
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume. As provided for in
the Securities, if:
(i) the Exchange Offer Registration Statement and, if a Shelf
Registration Statement is required hereby, the Shelf Registration Statement
is not filed with the SEC on or prior to the date specified for such filing
in Section 2(a) and Section 2(b), respectively,
<PAGE>
8
(ii) the Exchange Offer Registration Statement and, if a Shelf
Registration Statement is required hereby, the Shelf Registration Statement
is not declared effective on or prior to the date specified for such
effectiveness in Section 2(a) and Section 2(b), respectively,
(iii) the Exchange Offer is not consummated on or prior to the date
specified in Section 2(a), or
(iv) the Company has filed, and the SEC has declared effective, the
Shelf Registration Statement and at any time prior to the expiration of the
period referred to in Rule 144(k) with respect to the Registrable
Securities, other than after all the Registrable Securities have been
disposed of under the Shelf Registration Statement or cease to be
Registrable Securities, the Shelf Registration Statement ceases to be
effective, or fails to be usable for its intended purpose without being
succeeded within two business days by a post-effective amendment which
cures the failure and that is itself immediately declared effective,
then in the case of any failure set forth in (i) - (iv) above, the per annum
interest rate on the Securities will increase by 0.25% until the date that the
relevant failure is remedied.
(e) Without limiting the remedies available to the Holders, the
Company acknowledges that any failure by the Company to comply with its
obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations under Section 2(a)
and Section 2(b) hereof.
3. Registration Procedures.
-----------------------
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall as expeditiously as possible; provided, however, that the Company
-------- -------
shall not be required to take actions more promptly than required by Sections
2(a) and 2(b):
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Company and (y) shall, in the case of a Shelf Registration, be
available for the resale of the Registrable Securities by the selling
Holders thereof and (z) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and use its
reasonable
<PAGE>
9
best efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the 1933 Act; to
keep each Prospectus current during the period described under Section 4(3)
and Rule 174 under the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel
for the Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and, subject to Section 3(i),
the Company consents to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by each of the selling
Holders of Registrable Securities and any such Underwriters in connection
with the offering and sale of the Registrable Securities covered by, and in
the manner described in, such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities covered
by a Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC, to
cooperate with such Holders in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. and do any
and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
--------
however, that the Company shall not be required to (i) qualify as a foreign
-------
corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3(d), (ii) file
any general consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the Initial
Purchasers promptly and,
<PAGE>
10
if requested by any such Holder or counsel, confirm such advice in writing
(i) when a Registration Statement has become effective and when any post-
effective amendment thereto has been filed and becomes effective, (ii) of
any request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of
the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of
a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be
true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (v) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any
statement made in such Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of
any changes in such Shelf Registration Statement or Prospectus in order to
make the statements therein not misleading and (vi) of any determination by
the Company that a post-effective amendment to a Registration Statement
would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and enable such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders may
reasonably request at least two business days prior to the closing of any
sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use its reasonable best
efforts to prepare and
<PAGE>
11
file with the SEC a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company agrees to notify the Holders to suspend
use of the Prospectus as promptly as practicable after the occurrence of
such an event, and the Holders hereby agree to suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such document to
WDR (on behalf of the Initial Purchasers) and its counsel (and, in the case
of a Shelf Registration Statement, the Holders and their counsel) and make
such of the representatives of the Company as shall be reasonably requested
by WDR (on behalf of the Initial Purchasers) or its counsel (and, in the
case of a Shelf Registration Statement, the Holders or their counsel)
available for discussion of such document, and shall not at any time file
or make any amendment to the Shelf Registration Statement, any Prospectus
or any amendment of or supplement to a Shelf Registration Statement or a
Prospectus, of which WDR (on behalf of the Initial Purchasers) and its
counsel (and, in the case of a Shelf Registration Statement, the Holders
and their counsel) shall not have previously been advised and furnished a
copy or to which WDR (on behalf of the Initial Purchasers) or its counsel
(and, in the case of a Shelf Registration Statement, the Holders or their
counsel) shall reasonably object;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of the
applicable Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be,
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its reasonable
best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a
timely manner;
<PAGE>
12
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities, any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, counsel for the Holders and accountants designated
by the Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and properties of the
Company, and cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such
representative, Underwriter, counsel for the Holders or accountant in
connection with a Shelf Registration Statement;
(n) use its reasonable best efforts to cause the Exchange Securities
to continue to be rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule 436(g)(2) under the 1933
Act), if the Registrable Securities have been rated;
(o) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those reasonably requested by the Holders of a majority of the
Registrable Securities being sold thereunder) in order to expedite or
facilitate the disposition of such Registrable Securities thereunder
including, but not limited to, pursuant to an Underwritten Offering and in
such connection, (i) to the extent possible, make such representations and
warranties to the Holders and any Underwriters of such Registrable
Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in
each case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company (which counsel
and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders of a majority in principal amount of the
Registrable Securities being sold under such Shelf Registration Statement,
such Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii)
obtain "cold comfort" letters from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountant of any subsidiary of the
<PAGE>
13
Company, or of any business acquired by the Company for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold under such Shelf
Registration Statement or the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued validity of
the representations and warranties of the Company made pursuant to clause
(i) above and to evidence compliance with any customary conditions
contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing. No Holder of Registrable Securities may include its Registrable
Securities in such Shelf Registration Statement unless and until such Holder
furnishes such information to the Company. Each Holder including Registrable
Securities in a Shelf Registration Statement shall agree to furnish promptly to
the Company all information regarding such Holder and the proposed distribution
by such Holder of such Registrable Securities required to make the information
previously furnished to the Company by such Holder not materially misleading.
In connection with an Exchange Offer Registration, each Holder
exchanging Securities for Exchange Securities shall be required to represent
that (i) the Exchange Securities are being obtained in the ordinary course of
business of the Person receiving such Exchange Securities, whether or not such
Person is a Holder, (ii) neither such Holder nor any such other Person has an
arrangement or understanding with any Person to participate in the distribution
of Exchange Securities, (iii) other than as set forth in Section 4, if the
Holder is not a broker-dealer, or is a broker-dealer but will not receive
Exchange Securities for its own account in exchange for Securities, neither the
Holder nor any such other Person is engaged in or intends to participate in a
distribution of the Exchange Securities and (iv) neither the Holder nor any such
other Person is an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act or, if such Person is an "affiliate", that such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 3(e)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the
<PAGE>
14
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Company shall give any
such notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Company shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company may give such notice so long as there are no more
than 60 days during any 365 day period in which such suspensions are in effect.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the Underwritten Offering will be selected by the Majority Holders of
the Registrable Securities included in such Underwritten Offering; provided that
--------
such Underwriters shall be reasonably acceptable to the Company.
4. Participation of Broker-Dealers in Exchange Offer.
--------------------------------------------------
(a) The parties hereto understand that the Staff of the SEC has taken
the position that any broker-dealer that receives Exchange Securities for its
own account in the Exchange Offer in exchange for Securities that were acquired
by such broker-dealer as a result of market-making or other trading activities
(a "Participating Broker-Dealer"), may be deemed to be an "underwriter" within
the meaning of the 1933 Act and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities.
The Company understands that it is currently the Staff's position that
if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the 1933 Act in connection with resales of Exchange Securities for their
own accounts, so long as the Prospectus otherwise meets the requirements of the
1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf
<PAGE>
15
Registration shall also apply to an Exchange Offer Registration to the extent,
and with such reasonable modifications thereto as may be, reasonably requested
by the Initial Purchasers or by one or more Participating Broker-Dealers, in
each case as provided in clause (ii) below, in order to expedite or facilitate
the disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above;
provided that:
- --------
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(i), for a period exceeding 180 days
after the last Exchange Date (as such period may be extended pursuant to
the penultimate paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in
Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request in writing to the Company by the Initial Purchasers
or with the reasonable request in writing to the Company by one or more
broker-dealers who certify to the Initial Purchasers and the Company in
writing that they anticipate that they will be Participating Broker-
Dealers; and provided further that, in connection with such application of
-------- -------
the Shelf Registration procedures set forth in Section 3 to an Exchange
Offer Registration, the Company shall be obligated (x) to deal only with
one entity representing the Participating Broker-Dealers, which shall be
WDR unless it elects not to act as such representative, (y) to pay the fees
and expenses of only one counsel representing the Participating Broker-
Dealers, which shall be counsel to the Initial Purchasers unless such
counsel elects not to so act and (z) to cause to be delivered only one, if
any, "cold comfort" letter with respect to the Prospectus in the form
existing on the last Exchange Date and with respect to each subsequent
amendment or supplement, if any, effected during the period specified in
clause (i) above.
(c) the Initial Purchasers shall have no liability to the Company,
other than as Holders in accordance with the terms hereof, or to any other
Holder with respect to any request that they may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder and each Person, if any, who controls the Initial
Purchasers or any
<PAGE>
16
Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act, or is under common control with, or is controlled by, the Initial
Purchasers or any Holder (each, a "Participant"), from and against all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by a Participant in connection with defending
or investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) forming a part of such Registration
Statement, or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Initial Purchasers or any Holder furnished to the Company in
writing by the Initial Purchasers or any selling Holder expressly for use
therein; provided that the foregoing indemnity with respect to any Prospectus
--------
shall not inure to the benefit of any Holder from whom the Person asserting any
such losses, claims, damages or liabilities purchased Securities, or any Person
controlling such Holder, if a copy of the final Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent by, or delivered on behalf of, such Holder to such Person
at or prior to the written confirmation of the sale of the Securities to such
Person, if the final Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability. In connection
with any Underwritten Offering permitted by Section 3, the Company will also
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in such Underwritten Offering,
their officers and directors and each Person who controls such Persons (within
the meaning of the 1933 Act and the 1934 Act) to the same extent as provided
above with respect to the indemnification of the Holders, if requested in
connection with any Registration Statement for such Underwritten Offering.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Initial Purchasers and the other selling Holders,
and each of their respective directors, officers who sign the Registration
Statement and each Person, if any, who controls the Company, the Initial
Purchasers and any other selling Holder within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company to the Initial Purchasers and the Holders
pursuant to Section 5(a), but only with reference to information relating to
such Holder furnished to the
<PAGE>
17
Company in writing by such Holder expressly for use in any Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the
"indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Initial Purchasers and all
Persons, if any, who control the Initial Purchasers within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement and
each Person, if any, who controls the Company within the meaning of either such
Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all Persons, if any, who
control any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such case
involving the Initial Purchasers and Persons who control the Initial Purchasers,
such firm shall be designated in writing by WDR. In such case involving the
Holders and such Persons who control Holders, such firm shall be designated in
writing by the Majority Holders. In all other cases, such firm shall be
designated by the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
<PAGE>
18
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 5(d) are several
in proportion to the respective principal amount of Registrable Securities of
the applicable Holder that were registered pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
--- ----
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Securities
were sold by such Holder exceeds the amount of any damages that such Holder 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
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any Person controlling the Initial
Purchasers or any Holder, or by or on behalf of the Company, its officers or
directors or any Person controlling the Company, (iii) acceptance of any of the
Exchange Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement.
<PAGE>
19
6. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not entered into, and
--------------------------
on or after the date of this Agreement will not enter into, any agreement which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment, modification,
-------- -------
supplement, waiver or consent to any departure from the provisions of Section 5
hereof or this paragraph (b) shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to
a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 6(c),
which address initially is, with respect to the Initial Purchasers, the address
set forth in the Purchase Agreement; and (ii) if to the Company, initially at
the Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
<PAGE>
20
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of, and be binding upon, the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders of Registrable Securities; provided that nothing
--------
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Securities. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof. WDR
shall have no liability or obligation to the Company with respect to any failure
by any other Holder to comply with, or any breach by any other Holder of, any of
the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not, and
---------------------------------
shall use its best efforts to cause its affiliates (as defined in Rule 405 under
the 1933 Act) not to, purchase and then resell or otherwise transfer any
Securities.
(f) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and WDR, on the other hand, shall be bound by all of the terms and
provisions of this Agreement and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate 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.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
-------------
the State of New York.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HELLER FINANCIAL, INC.
By /s/ Kurt J. Roemer
-----------------------------------
Name: Kurt J. Roemer
Title: Senior Vice President,
Assistant Treasurer
Confirmed and accepted as of
the date first above written:
Warburg Dillon Read LLC
Chase Securities Inc.
Credit Suisse First Boston Corporation
Salomon Smith Barney Inc.
By: WARBURG DILLON READ LLC
Acting on behalf of itself and
the several Initial Purchasers.
By /s/ Bruce J. Widas
-------------------------------------
Name: Bruce J. Widas
Title: Managing Director
Capital Markets
By /s/ John Doherty
-------------------------------------
Name: John Doherty
Title: Associate Director
Debt Capital Markets
<PAGE>
EXHIBIT 4.10
HELLER FINANCIAL, INC.
7.375% NOTE DUE NOVEMBER 1, 2009
No.__ US $___________
CUSIP No. 423328BM4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), 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.
HELLER FINANCIAL, INC., a Delaware corporation (hereinafter called the
"Company," which term shall include any successor corporation under the
Indenture referred to herein), for value received, hereby promises to pay to
CEDE & CO., or its registered assigns, the principal sum of $___________ (______
___________ DOLLARS), at the office or agency of the Company maintained for such
purpose in the Borough of Manhattan, The City of New York, on November 1, 2009
(the "Maturity Date") in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest (computed on the basis of a 360-day year of
twelve 30-day months) thereon from November 8, 1999, or from and including the
most recent Interest Payment Date (as hereinafter defined) to which interest has
been paid or duly provided for, semi-annually on May 1 and November 1 of each
year, commencing May 1, 2000, through the Maturity Date (each an "Interest
Payment Date"), until the principal hereof is paid or has been duly provided
for, at the rate of 7.375% per annum at such office or agency of the Company in
the Borough of Manhattan, The City of New York, in like coin or currency;
provided, however, that at the option of the Company, interest may be paid by
check to the Holder hereof entitled thereto at such Holder's last address as it
appears on the Securities Register, and principal may be paid by check to the
Holder hereof or other Person entitled thereto against surrender of this Note.
If any Interest Payment Date does not fall on a Business Day (as defined
below), the interest payment shall be postponed to the next day that is a
Business Day, and no interest on such payment
<PAGE>
shall accrue for the period from and after such Payment Date. However, if such
Business Day is in the next succeeding calendar month, such Interest Payment
Date shall be the immediately preceding day that is a Business Day.
"Business Day" is any day which is not a Saturday or Sunday or a legal
holiday in New York, New York, Boston, Massachusetts or Hartford, Connecticut on
which banking institutions are authorized or required by law, regulation or
executive order to close.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the fifteenth day immediately preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Interest
Payment Date and may be paid to the Person in whose name this Note (or one or
more Predecessor Securities) is registered at the close of business on a record
date not more than 15 days and not less than 10 days prior to the date fixed by
the Trustee for payment of such defaulted interest and not less than 10 days
after the receipt by the Trustee from the Company of notice of the proposed
payment, notice of which record date shall be given to Holders of Notes not less
than 10 days prior to such record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
If the Maturity Date is a day that is not a Business Day, payment of
principal and interest on the Maturity Date shall be postponed to the next
Business Day and, if paid on that Business Day, such payment shall be deemed
timely made.
Additional provisions of this Note are set forth on the reverse hereof and
such provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Note shall not be valid or become obligatory for any purpose, or be
entitled to any benefit under the Indenture, until the certificate of
authentication thereon shall have been signed by the Trustee.
2
<PAGE>
WITNESS the Company has caused this instrument to be duly executed under
its corporate seal.
THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
Dated: [November 8, 1999]
HELLER FINANCIAL, INC.
By: __________________________________
Name:
Title:
(Seal)
ATTEST:
__________________________
__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated and referred to in
the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY, as
Trustee,
By: __________________________________
Name:
Title:
3
<PAGE>
(Reverse of Note)
HELLER FINANCIAL, INC.
7.375% NOTE DUE NOVEMBER 1, 2009
This Note is one of a duly authorized issue of debentures, notes or other
evidences of indebtedness (hereinafter call the "Securities") of the Company,
all such Securities issued and to be issued under the Indenture for Senior
Securities dated as of September 1, 1995 (herein, together with all indentures
supplemental thereof, called the "Indenture") between the Company and State
Street Bank and Trust Company, as successor to Shawmut Bank Connecticut,
National Association, as Trustee (the "Trustee," which term shall include any
successor entity under the Indenture). Reference is hereby made to the Indenture
for a specific explanation of the rights and limitation of rights thereunder of
the Holders of the Securities (including the Notes) and of the rights,
obligations, duties and immunities of the Trustee and the Company with respect
thereto. As provided in the Indenture, the Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest, if any, at different
rates, may be subject to different redemption provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as provided or
permitted in the Indenture. This Note is one of a series designated on the face
hereof (the "Notes").
All capitalized terms used but not defined in this Note have the meanings
assigned to them in the Indenture.
If any Event of Default with respect to the Notes, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
This Note is not subject to redemption prior to the Maturity Date. The
Notes do not provide for any sinking fund.
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 Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series of Securities to be affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of any series at the time Outstanding on
behalf of the Holders of all the Securities 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 with respect to such series.
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
4
<PAGE>
of any Note issued upon the transfer herefor or in exchange 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, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is transferable on the Securities Register of the
Company, upon surrender of this Note for registration of transfer at the offices
or agencies of the Company to be maintained by the Trustee for that purpose in
the Borough of Manhattan, the City of New York, duly endorsed by, or accompanied
by an assignment in the form attached hereto and by such other documents
satisfactory to the Company and the Securities Registrar duly executed by the
Holder herefor or his attorney duly authorized in writing, and thereupon one or
more new Notes of the same class is authorized denominations evidencing the same
aggregate principal amount will be issued to the designated transferee or
transferees. The Securities Registrar initially appointed under the Indenture
for the Notes is State Street Bank and Trust Company.
The Notes are issuable only in fully registered form without coupons in
denominations of $100,000 and any integral multiples thereof. As provided in
the Indenture and subject to certain limitations therein set forth, the Notes
are exchangeable for certificates representing a like aggregate principal amount
of Notes of a like tenor and of a different authorized denominations, as
requested by the Holder surrendering the same.
This Security is exchangeable by the Company for certificated Notes in
registered form only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and a successor shall not be
appointed as provided in the Indenture within 90 days after the Company receives
such notice or becomes aware of such ineligibility, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for certificated
Notes in registered form or (z) an Event of Default, or an event which with the
passage of time or the giving of notice would become an Event of Default, with
respect to the Notes represented hereby has occurred and is continuing, provided
that the certificated Notes so issued by the Company 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 certificated Notes of this series in registered form will
be exchanged for or on behalf of the persons identified by the Depositary as the
beneficial owners of such Notes, as provided in the Indenture. 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.
5
<PAGE>
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or in this 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 indirectly through
the Company or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment, penalty or by
any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as a condition of and
as part of the consideration for the issue hereof.
The Company will be discharged from its obligations under the Notes and the
Notes will be canceled, subject to the terms of the Indenture, upon the payment
of all sums payable with respect to the Notes or upon the irrevocable deposit
with the Trustee of cash or Government Obligations (or a combination thereof)
sufficient for such payment in accordance with Article VI of the Indenture.
The Note shall for all purposes be governed by, and construed in accordance
with, the laws of the State of New York.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the Person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note be overdue and notwithstanding
any notation of ownership or other writing hereon, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription of 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
______________________________________________
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 of Assignee)
the within instrument of HELLER FINANCIAL, INC. and does hereby irrevocably
constitute and appoint ____________________________________________________
___________________________________________________________________ Attorney to
transfer said instrument on the books of the within-named 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 by enlargement or any change whatever.
7
<PAGE>
EXHIBIT 5
[Heller Financial, Inc. Letterhead]
February 9, 2000
Heller Financial, Inc.
500 West Monroe Street
Chicago, Illinois 60661
Re: Registration Statement on Form S-4
----------------------------------
Ladies and Gentlemen:
I have acted as counsel for Heller Financial, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing of a registration
statement on Form S-4 (the "Registration Statement") with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act").
The Registration Statement relates to the Company's offer to exchange up to
$600,000,000 principal amount of its 7.375% Notes due November 1, 2009, which
are being registered under the Act, for an equal principal amount of the
Company's issued and outstanding unregistered 7.375% Notes due November 1, 2009
(the "Unregistered Notes"). This opinion is being furnished in accordance with
the requirements of Item 601(b)(5) of Regulation S-K under the Act (the
"Registered Notes").
In connection with this opinion, I have relied as to matters of fact,
without investigation, upon certificates of public officials and others and upon
affidavits, certificates and written statements of directors, officers and
employees of, and the accountants and the Trustee (as defined below) for, the
Company. While I have relied as to matters of fact on such certificates and
statements without investigation, no facts have come to my attention that cause
me to believe that any of the representations contained in such certificates and
statements were not accurate. I have also examined originals or copies,
certified or otherwise identified to my satisfaction, of such instruments,
documents and records as I have deemed relevant and necessary to examine for the
purpose of this opinion, including (a) the Registration Statement, (b) records
of proceedings of the Board of Directors of the Company, (c) the Indenture dated
as of September 1, 1995 between the Company and State Street Bank and Trust
Company, as trustee (the "Trustee"), as amended (the "Indenture"), (d) the
Registration Rights Agreement dated as of November 3, 1999 between the Company
and Warburg Dillon Read LLC, Chase Securities Inc., Credit Suisse First Boston
Corporation and Salomon Smith Barney Inc. (the "Registration Rights Agreement")
and (e) the form of global certificate representing the Registered Notes.
In connection with this opinion, I have assumed the legal capacity of all
natural persons, the accuracy and completeness of all documents and records that
I have reviewed, the genuineness of all signatures, the authenticity of the
documents submitted to me as originals and the conformity
<PAGE>
Page 2
to authentic original documents of all documents submitted to me as certified,
conformed or reproduced copies.
Based upon and subject to the foregoing, it is my opinion that the
Registered Notes (i) have been duly authorized and (ii) when executed by an
authorized officer of the Company, authenticated and registered by an authorized
officer of the Trustee in accordance with the terms of the Indenture and
delivered in exchange for the Unregistered Notes in accordance with the terms of
the Indenture and Registration Rights Agreement, will constitute valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and to general equitable principles.
My opinion expressed above is limited to the General Corporation Law of the
State of Delaware, the applicable provisions of the Delaware constitution and
the reported judicial decisions interpreting such laws and I do not express any
opinion concerning any other laws. This opinion is given as of the date hereof
and I assume no obligation to advise you of changes that may hereafter be
brought to my attention.
I hereby consent to use of our name under the heading "Legal Matters" in
the Prospectus forming a part of the Registration Statement and to use of this
opinion for filing as Exhibit 5 to the Registration Statement. In giving this
consent, I do not thereby admit that I am included in the category of persons
whose consent is required under Section 7 of the Act or the related rules and
regulations thereunder.
Very truly yours,
/S/ Mark J. Ohringer
--------------------
Mark J. Ohringer
Deputy General Counsel
<PAGE>
[Letterhead of Arthur Andersen LLP]
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 18, 1999
(except with respect to the matters discussed in Note 25, as to which the date
is February 15, 1999) included in Heller Financial, Inc.'s Form 10-K/A for the
year ended December 31, 1998 and to all references to our firm included in this
registration statement.
/s/ Arthur Andersen LLP
Chicago, Illinois
February 9, 2000
<PAGE>
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
Heller Financial, Inc.
(Exact name of obligor as specified in its charter)
Delaware 36-1208070
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 West Monroe Street, Chicago, Illinois, 60661
(Address of principal executive offices) (Zip Code)
Heller Financial, Inc. 7.375% Notes due November 1, 2009
(Title of indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System,
Washington, D.C., Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1) filed
with the Registration Statement of Morse Shoe, Inc. (File
No. 22-17940) and is incorporated herein by reference
thereto.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-
17940) and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is
on file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement
of Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
1
<PAGE>
5. A copy of each indenture referred to in Item 4. if the obligor
is in default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or examining
authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the February 2, 2000.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Kathy A. Larimore
-----------------------------------
NAME Kathy A. Larimore
TITLE Assistant Vice President
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by Heller
Financial, Inc. of its 7.375% Notes due November 1, 2009, we hereby consent
that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Kathy A. Larimore
-------------------------------------
NAME Kathy A. Larimore
TITLE Assistant Vice President
Dated: February 2, 2000
3
<PAGE>
Exhibit 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business September 30, 1999,
------------------
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.................................... 1,510,845
Interest-bearing balances............................................................. 14,076,224
Securities................................................................................ 14,318,348
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary................................................... 8,365,790
Loans and lease financing receivables:
Loans and leases, net of unearned income ............................. 7,916,057
Allowance for loan and lease losses................................... 92,091
Allocated transfer risk reserve....................................... 0
Loans and leases, net of unearned income and allowances............................... 7,823,966
Assets held in trading accounts........................................................... 1, 739,144
Premises and fixed assets................................................................. 531,098
Other real estate owned................................................................... 0
Investments in unconsolidated subsidiaries................................................ 603
Customers' liability to this bank on acceptances outstanding.............................. 125,222
Intangible assets......................................................................... 236,931
Other assets.............................................................................. 1,468,218
------------
Total assets.............................................................................. 50,196,389
============
LIABILITIES
Deposits:
In domestic offices................................................................... 10,235,475
Noninterest-bearing................................................ 7,515,809
Interest-bearing................................................... 2,719,666
In foreign offices and Edge subsidiary................................................ 21,827,096
Noninterest-bearing................................................ 47,540
Interest-bearing................................................... 21,779,556
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary................................................... 11,976,613
Demand notes issued to the U.S. Treasury.................................................. 431,057
Trading liabilities................................................................... 1,250,459
Other borrowed money...................................................................... 180,568
Subordinated notes and debentures......................................................... 0
Bank's liability on acceptances executed and outstanding.................................. 125,222
Other liabilities......................................................................... 1,313,563
Total liabilities......................................................................... 47,340,053
------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................. 0
Common stock.............................................................................. 29,931
Surplus................................................................................... 492,756
Undivided profits and capital reserves/Net unrealized holding gains (losses).............. 2,373,416
Net unrealized holding gains (losses) on available-for-sale securities................ (35,467)
Cumulative foreign currency translation adjustments....................................... (4,300)
Total equity capital...................................................................... 2,856,336
------------
Total liabilities and equity capital..................................................... 50,196,389
------------
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE>
HELLER FINANCIAL
LETTER OF TRANSMITTAL
Tender of
7.375% Notes due November 1, 2009
which have been Registered under the Securities Act of 1933
in Exchange for
Unregistered 7.375% Notes due November 1, 2009
of
HELLER FINANCIAL, INC.
Pursuant to the Prospectus dated , 2000
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2000, UNLESS EXTENDED. THE TERM EXPIRATION DATE MEANS THAT TIME AND DATE OR,
IF WE EXTEND THE EXCHANGE OFFER, THE LATEST TIME AND DATE TO WHICH WE EXTEND
THE EXCHANGE OFFER. WE WILL NOTIFY THE HOLDERS OF THE UNREGISTERED NOTES OF
ANY EXTENSION BY PRESS RELEASE OR OTHER PUBLIC NOTICE BEFORE 9:00 A.M., NEW
YORK CITY TIME, ON THE NEXT BUSINESS DAY AFTER THE PREVIOUSLY SCHEDULED
EXPIRATION DATE. YOU MAY WITHDRAW UNREGISTERED 7.375% NOTES DUE NOVEMBER 1,
2009 TENDERED IN THE EXCHANGE OFFER AT ANY TIME BEFORE THE EXPIRATION DATE.
Deliver To The Exchange Agent:
State Street Bank and Trust Company
By Hand/Overnight Courier/Registered By Facsimile: 617-662-1548
or Certified Mail:
Confirm by Telephone: 617-662-1523
State Street Bank and Trust Company
Attn: Ralph Jones Corporate Trust
Department, 5th Floor 2 Avenue de
Lafayette Boston, Massachusetts
02111
Delivery of this Letter of Transmittal to an address or facsimile number
other than the one listed above will not constitute a valid delivery. You
should read the instructions accompanying this Letter of Transmittal carefully
before completing this Letter of Transmittal.
<PAGE>
The undersigned hereby acknowledges that the undersigned has received and
reviewed Heller's Prospectus dated , 2000 and this Letter of
Transmittal, which together constitute Heller's offer to exchange its 7.375%
Notes due November 1, 2009, which have been registered under the Securities Act
of 1933, for an equal principal amount of its outstanding unregistered 7.375%
Notes due November 1, 2009. Heller currently has $600,000,000 aggregate
principal amount of unregistered notes outstanding. The terms of the registered
notes are substantially the same in all material respects as those of the
unregistered notes, except that the registered notes (1) have been registered
under the Securities Act and, therefore, will not bear legends restricting
their transfer under the Securities Act and (2) will not have registration
rights or contain provisions regarding payment of additional interest under
circumstances relating to the timing of the exchange offer or the filing of a
registration statement.
You should use this Letter of Transmittal if either (1) you are forwarding
certificates representing unregistered notes with this Letter of Transmittal or
(2) you are delivering unregistered notes by book-entry transfer to the account
maintained by State Street Bank and Trust Company, as the exchange agent, at
The Depository Trust Company (DTC) pursuant to the procedures described in the
Prospectus under the caption "The Exchange Offer--Book-Entry Transfer." If (1)
your certificates for unregistered notes are not immediately available, (2) you
cannot complete the procedure for book-entry transfer on a timely basis, or (3)
you cannot deliver your unregistered notes, this Letter of Transmittal or any
other required documents to the exchange agent before the expiration date, you
must tender your unregistered notes according to the guaranteed delivery
procedures described in the Prospectus under the caption "The Exchange Offer--
Guaranteed Delivery Procedures" and in Instruction 3 to this Letter of
Transmittal. Delivery of documents to DTC does not constitute delivery to the
exchange agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the exchange offer. If you wish to tender your unregistered notes in the
exchange offer, you must complete this Letter of Transmittal in its entirety.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE COMPLETING THIS LETTER OF TRANSMITTAL.
THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
YOU SHOULD DIRECT QUESTIONS ABOUT THE EXCHANGE OFFER AND REQUESTS FOR
ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL TO THE
EXCHANGE AGENT AT THE TELEPHONE NUMBER, FACSIMILE NUMBER OR ADDRESS LISTED ON
THE COVER OF THIS LETTER OF TRANSMITTAL.
2
<PAGE>
List below the unregistered notes to which this Letter of Transmittal
relates. If the space below is inadequate, list the certificates numbers and
principal amounts on a separate signed schedule and affix the list to this
Letter of Transmittal. Tenders of unregistered notes will be accepted only in
denominations of $1,000 of principal amount or integral multiples of $1,000.
BOX A: DESCRIPTION OF UNREGISTERED NOTES TENDERED
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Aggregate
Principal Amount
of
Name(s) and Address(es) of Registered Unregistered
Holder(s), Notes
exactly as Names(s) appear(s) on Represented by
Certificates Certificates(s)
for Unregistered Notes or a Securities or Principal Amount
Position Listing Certificate Book-Entry of Unregistered
(Please fill in, if blank) Number(s)* Confirmation Notes Tendered**
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
Totals:
- ----------------------------------------------------------------------------------------
</TABLE>
* Need not be completed if you are tendering unregistered notes by book-
entry transfer.
** Unless you indicate otherwise, you will be deemed to have tendered the
entire aggregate principal amount of unregistered notes represented by the
certificate(s).
[_]CHECK HERE IF YOU HAVE ENCLOSED CERTIFICATES FOR TENDERED UNREGISTERED
NOTES.
[_]CHECK HERE IF YOU ARE DELIVERING TENDERED UNREGISTERED NOTES BY BOOK-
ENTRY TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT WITH DTC AND COMPLETE THE
FOLLOWING:
Name of Tendering Institution: ___________________________________________
Account Number: __________________________________________________________
Transaction Code Number: _________________________________________________
[_]CHECK HERE IF YOU ARE DELIVERING TENDERED UNREGISTERED NOTES PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s) of Unregistered Notes: ___________________
Date of Execution of Notice of Guaranteed Delivery: ______________________
Window Ticket Number, if any: ____________________________________________
Name of Eligible Institution that Guaranteed Delivery: ___________________
If delivered by Book-Entry Transfer:
Name of Tendering Institution: __________________________________________
Account Number: _________________________________________________________
Transaction Code Number: ________________________________________________
[_]CHECK HERE IF YOU ARE A BROKER-DEALER WHO HOLDS UNREGISTERED NOTES
ACQUIRED FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER
TRADING ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS TO THE
PROSPECTUS.
Name: ____________________________________________________________________
Address: _________________________________________________________________
Aggregate Principal Amount of Unregistered Notes so held: $ ______________
3
<PAGE>
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen at Heller Financial, Inc.:
Subject to the terms and conditions of the exchange offer, the undersigned
hereby tenders to Heller for exchange the aggregate principal amount of
unregistered notes indicated in Box A. Subject to, and effective upon, the
acceptance for exchange of the unregistered notes tendered in accordance with
this Letter of Transmittal, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, Heller all right, title and interest in and
to the tendered unregistered notes. The undersigned hereby irrevocably
constitutes and appoints the exchange agent as the agent and attorney-in-fact
of the undersigned, with full knowledge that the exchange agent also acts as
Heller's agent in connection with the exchange offer, with respect to the
tendered unregistered notes with full power of substitution, to:
. deliver certificates representing the unregistered notes or transfer
ownership of the unregistered notes on the account books maintained by
DTC, as the case may be, to Heller and deliver all accompanying evidences
of transfer and authenticity to, or upon the order of, Heller; and
. present the unregistered notes for transfer on Heller's books and receive
all benefits and otherwise exercise all rights of beneficial ownership of
the unregistered notes, for Heller's account, all in accordance with the
terms of the exchange offer.
This power of attorney shall be deemed to be irrevocable and coupled with an
interest.
The undersigned hereby represents and warrants (1) that the undersigned has
full power and authority to tender, exchange, assign and transfer the
unregistered notes tendered by this Letter of Transmittal, (2) that the
undersigned has full power and authority to acquire the registered notes
issuable upon the exchange of the tendered unregistered notes and (3) that
Heller will acquire good and unencumbered title to the unregistered notes
tendered by this Letter of Transmittal, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claim,
when Heller accepts the same for exchange.
The undersigned acknowledges that this exchange offer is being made in
reliance upon interpretations contained in several no-action letters issued to
third parties by the staff of the SEC. These no-action letters indicate that
the registered notes issued in exchange for the unregistered notes pursuant to
the exchange offer may be offered for resale, resold and otherwise transferred
by holders, other than any holder that is an affiliate of Heller within the
meaning of Rule 405 under the Securities Act, without compliance with the
registration and prospectus delivery provisions of the Securities Act, if the
registered notes are acquired in the ordinary course of the holders' business
and the holders are not engaging, do not intend to engage, and have no
arrangement or understanding with any person to participate in a distribution
of the registered notes. The SEC, however, has not considered this exchange
offer in the context of a no-action letter. There can be no assurance that the
staff of the SEC would make a similar determination with respect to the
exchange offer as it has in other circumstances.
The undersigned hereby
. represents that (1) any registered notes acquired in exchange for
unregistered notes tendered by this Letter of Transmittal are being
acquired in the ordinary course of business of the person receiving the
registered notes, whether or not that person is the holder of the
unregistered notes, (2) neither the undersigned nor any such other
person is engaging, intends to engage, or has an arrangement or
understanding with any person to participate in a distribution of the
registered notes, and (3) neither the undersigned nor any such other
person is an affiliate of Heller; or
. acknowledges and understands that if the undersigned or the person
receiving the registered notes is an affiliate of Heller, or is
participating in the exchange offer for the purpose of distributing the
registered notes, that holder (1) cannot rely on the position of the
staff of the SEC in the applicable no-action letters and (2) in the
absence of an exemption, must comply with the registration and
prospectus delivery requirements of the Securities Act in connection
with any resale transaction of the registered notes.
4
<PAGE>
The undersigned acknowledges that failure to comply with these requirements in
such instance could result in that holder incurring liability under the
Securities Act for which that holder is not indemnified by Heller. If the
undersigned or the person receiving the registered notes is a broker-dealer
that is receiving registered notes for its own account in exchange for
unregistered notes that were acquired as a result of market-making or other
trading activities, other than unregistered notes acquired directly from
Heller, the undersigned also acknowledges that it or that other person may be
deemed to be an underwriter within the meaning of the Securities Act and,
therefore, will deliver a prospectus in connection with any resale of the
registered notes. However, the undersigned will not be deemed, by so
acknowledging and by delivering a prospectus, to admit that the undersigned or
such other person is an underwriter with respect to the registered notes within
the meaning of the Securities Act.
Heller has agreed, subject to the provisions of the registration rights
agreement among Heller and the initial purchasers of the unregistered notes,
that the Prospectus, as amended or supplemented from time to time, may be used
by a participating broker-dealer in connection with resales of registered notes
received in exchange for unregistered notes that were acquired by that
participating broker-dealer for its own account as a result of market-making or
other trading activities, for a period ending 180 days after the expiration
date.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the exchange agent or Heller to be necessary or desirable
to complete the exchange, assignment and transfer of the unregistered notes
tendered by this Letter of Transmittal, including the transfer of the
unregistered notes on the account books maintained by DTC.
For purposes of the exchange offer, Heller will be deemed to have accepted
for exchange validly tendered unregistered notes, when, as and if Heller gives
oral or written notice thereof to the exchange agent. Any tendered unregistered
notes that are not accepted for exchange pursuant to the exchange offer for any
reason will be returned, without expense, to the undersigned at the address
shown below or at a different address as may be indicated in Box E entitled
"Special Delivery Instructions" as promptly as practicable after the expiration
date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, executors, administrators, successors, assigns, trustees in
bankruptcy and other legal representatives.
The undersigned acknowledges that Heller's acceptance of properly tendered
unregistered notes pursuant to the procedures described under the caption "The
Exchange Offer--Procedures for Tendering" in the Prospectus and in the
instructions to this Letter of Transmittal will constitute a binding agreement
between the undersigned and Heller upon the terms and subject to the conditions
of the exchange offer, subject only to withdrawal of the tenders on the terms
described in the Prospectus under the caption "The Exchange Offer--Withdrawal
of Tenders."
Unless the undersigned indicates otherwise in Box D entitled "Special
Issuance Instructions," please (1) issue the certificates representing any
registered notes in the name or credit the undersigned's account at DTC, as the
case may be, indicated in Box A with respect to the registered notes issued in
exchange for the unregistered notes accepted for exchange and (2) return any
certificates representing any unregistered notes in the name or credit the
undersigned's account at DTC, as the case may be, indicated in Box A with
respect to any unregistered notes not tendered or not exchanged. Similarly,
unless the undersigned indicates otherwise in Box E entitled "Special Delivery
Instructions," please mail or deliver the certificates representing the
registered notes issued in exchange for the unregistered notes accepted for
exchange, any certificates representing any unregistered notes not tendered or
not exchanged and any accompanying documents to the undersigned at the address
indicated in Box A. In the event that both Box D and Box E are completed,
please issue the registered notes issued in exchange for the unregistered notes
accepted for exchange in the name(s) of, and return any unregistered notes not
tendered or not exchanged to, the person(s) or the account at DTC so indicated.
The undersigned recognizes that you have no obligation pursuant to the "Special
Issuance Instructions" and "Special Delivery Instructions" to transfer any
unregistered notes from the name of the registered holder(s) if you do not
accept for exchange any of the unregistered notes so tendered for exchange.
5
<PAGE>
BOX B: PLEASE SIGN HERE WHETHER OR NOT
UNREGISTERED NOTES ARE BEING PHYSICALLY DELIVERED HEREBY
(See Instruction 6)
(Please complete accompanying Substitute Form W-9 on reverse side)
The below line(s) must be signed by the registered holder(s) of
unregistered notes exactly as its name(s) appear(s) on the certificate(s)
for the tendered unregistered notes or on a securities position listing, or
by person(s) authorized to become holder(s) by a properly completed bond
power from the holder(s), a copy of which must be transmitted with this
Letter of Transmittal. If unregistered notes to which this Letter of
Transmittal relate are held of record by two or more joint holders, then all
such holders must sign this Letter of Transmittal. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative
capacity, then that person must (1) set forth his or her full title below
and (2) unless waived by Heller, submit evidence satisfactory to Heller of
that person's authority to so act.
X ___________________________________________________________________________
Signature of Holder Date
X ___________________________________________________________________________
Signature of Holder Date
Name(s) _____________________________________________________________________
(Please Type or Print)
------------------------------------------------------------------------
(Please Type or Print)
Capacity: ___________________________________________________________________
Address: ____________________________________________________________________
------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number: _____________________________________________
Taxpayer Identification or Social Security Number: __________________________
BOX C: SIGNATURE GUARANTEE
(See Instruction 6)
The undersigned hereby guarantees the signature(s) which appear on this
Letter of Transmittal:
Name of Firm: _______________________________________________________________
(Please Type or Print)
Authorized Signature: _______________________________________________________
Name: _______________________________________________________________________
(Please Type or Print)
Title: ______________________________________________________________________
(Please Type or Print)
Address, Include Zip Code: __________________________________________________
Area Code and Telephone Number: _____________________________________________
Dated: ______________________________________________________________________
6
<PAGE>
BOX D: SPECIAL ISSUANCE BOX E: SPECIAL DELIVERY
INSTRUCTIONS INSTRUCTIONS (See Instructions 5,
(See Instructions 5, 6 and 7) 6 and 7)
To be completed ONLY (1) if
certificates for (a) unregistered To be completed ONLY if
notes not tendered or not certificates for (a) unregistered
exchanged or (b) registered notes notes not tendered or not
issued in exchange for exchanged or (b) registered notes
unregistered notes accepted for issued in exchange for
exchange are to be issued in the unregistered notes accepted for
name of someone other than the exchange are to be mailed or
person(s) whose signature(s) delivered to an address other than
appear(s) in Box A, or (2) if that indicated in Box A.
unregistered notes tendered by
book-entry transfer which are not
accepted for exchange, or
registered notes issued in
exchange for unregistered notes
accepted for exchange, are to be
credited to an account maintained
at DTC other than the account
indicated in Box A.
Mail or deliver certificate(s) to:
Name: _____________________________
(Please Type or Print)
Address: __________________________
-----------------------------------
(Include Zip Code)
[_] Issue certificate(s) to:
Name(s): __________________________
(Please Type or Print)
-----------------------------------
(Please Type or Print)
Address: __________________________
-----------------------------------
(Include Zip Code)
-----------------------------------
(Tax Identification or Social
Security No.)
[_] Credit book-entry transfers to
DTC account set forth below:
-----------------------------------
(DTC Account Number)
- -------------------------------------
Please note that the person named
in this Special Issuance
Instructions must be the person
who completes the Substitute Form
W-9.
If you have completed Box D or Box E above, you MUST have the signatures on
this Letter of Transmittal guaranteed in Box C.
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Certificates for Unregistered
Notes or Book-Entry Confirmations. You must deliver to the exchange agent at
its address listed on the front cover of this Letter of Transmittal before the
expiration date (a) certificates representing the unregistered notes that you
are tendering for exchange or confirmation of a book-entry transfer to the
exchange agent's account at DTC of unregistered notes tendered by book-entry
transfer, (b) a properly completed and executed copy of this Letter of
Transmittal, including the attached Substitute Form W-9, and (c) any other
documents required by this Letter of Transmittal. You choose, at your own risk,
the method of delivery of any tendered certificates for unregistered notes,
this Letter of Transmittal and all other required documents to the exchange
agent. Heller recommends that you use an overnight or hand delivery service or
registered mail, appropriately insured, return receipt requested. In all cases,
you should allow sufficient time to assure delivery to the exchange agent
before the expiration date. Except as otherwise provided below, the delivery
will be deemed made only when actually received or confirmed by the exchange
agent. Do not send this Letter of Transmittal or unregistered notes to Heller.
2. Book-Entry Delivery. The exchange agent will make a request to establish
an account with respect to the unregistered notes to be tendered in connection
with the exchange offer at DTC within two business days after the date of the
mailing of the Prospectus. Any financial institution that is a participant in
DTC's system may make book-entry transfer of unregistered notes by causing DTC
to transfer those unregistered notes into the exchange agent's account at DTC
in accordance with DTC's procedures for transfer. Confirmation of a book-entry
transfer of unregistered notes to the exchange agent's account at DTC must be
received by the exchange agent before the expiration date in order for the
tender of the unregistered notes to be effective. Although you may effect the
delivery of unregistered notes through book entry transfer at DTC before the
expiration date, you must also deliver a completed and signed Letter of
Transmittal with any required signature guarantees to the exchange agent before
the expiration date. You should not send this Letter of Transmittal or any of
the other required documents included with this Letter of Transmittal to DTC
because a delivery to DTC of the documents will not constitute a delivery to
the exchange agent.
3. Guaranteed Delivery Procedures. If (a) your certificates for unregistered
notes are not immediately available, (b) you cannot complete the procedures for
book-entry transfer on a timely basis, or (c) you cannot deliver your
certificates, this Letter of Transmittal or any other required documents to the
exchange agent before the expiration date, you may tender your unregistered
notes according to the guaranteed delivery procedures described in "The
Exchange Offer--Guaranteed Delivery Procedures" section of the Prospectus.
Pursuant to these procedures:
. this tender must be made by or through an eligible institution, which is
a firm that is a member of a registered national securities exchange or
of the National Association of Securities Dealers Inc., a commercial bank
or trust company having an office or correspondent in the United States
or an eligible guarantor institution within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934;
. before the expiration date, the exchange agent must receive from the
eligible institution a properly completed and executed Notice of
Guaranteed Delivery, by facsimile transmission, mail or hand delivery,
(a) listing the name and address of the holder of the unregistered notes,
the certificate number(s) of the unregistered notes or the name and
number of the holder's account at DTC, as the case may be, and the
principal amount of unregistered notes tendered, (b) stating that the
tender is being made thereby and (c) guaranteeing that the exchange agent
will receive, within three (3) New York Stock Exchange (NYSE) trading
days after the expiration date, this Letter of Transmittal, the
certificates for tendered unregistered notes or a book-entry
confirmation, as the case may be, and any other documents required by
this Letter of Transmittal; and
. the exchange agent must receive this Letter of Transmittal, properly
completed and executed, the certificates for tendered unregistered notes
in proper form for transfer or book-entry confirmation, as the
8
<PAGE>
case may be, and all other documents required by this Letter of
Transmittal within three (3) NYSE trading days after the expiration date.
If you wish to tender unregistered notes pursuant to the guaranteed delivery
procedures described above, you must ensure that the exchange agent receives
the Notice of Guaranteed Delivery before the expiration date. Upon request of
the exchange agent, Heller will send a Notice of Guaranteed Delivery to holders
who wish to tender their unregistered notes according to the guaranteed
delivery procedures set forth above.
4. Tender by Registered Holder. Only the registered holder of the
unregistered notes may tender unregistered notes in the exchange offer. If you
are the beneficial owner, but not the registered holder, of unregistered notes
and wish to tender those unregistered notes in the exchange offer, you should
arrange with the registered holder to complete, execute and deliver this Letter
of Transmittal on your behalf. Otherwise, you must, before completing and
executing this Letter of Transmittal and tendering those unregistered notes,
either make appropriate arrangements to register ownership of the unregistered
notes in your name or obtain a properly completed bond power from the
registered holder.
5. Partial Tenders (Not Applicable to Holders of Unregistered Notes who
Tender by Book-Entry Transfer). Tenders of unregistered notes will be accepted
only in denominations of $1,000 of principal amount or integral multiples of
$1,000. If you choose to tender less than all of the principal amount of
unregistered notes represented by a submitted certificate described in Box A,
you should fill in the principal amount of unregistered notes represented by
that certificate that you wish to tender in the column of Box A entitled
"Principal Amount of Unregistered Notes Tendered." Unless you indicate
otherwise, you will be deemed to have tendered the entire principal amount of
unregistered notes delivered to the exchange agent. Certificates for the
balance of unregistered notes not tendered will be sent to you at your
registered address unless otherwise provided in Box D and/or Box E, promptly
after the unregistered notes are accepted for exchange.
6. Signatures on this Letter of Transmittal; Bond Powers and Endorsements;
Guarantee of Signatures.
(a) If this Letter of Transmittal is signed by the registered holder(s)
of the unregistered notes tendered by this Letter of Transmittal, the
signature(s) must correspond exactly with the name(s) on the face of the
certificates representing the unregistered notes or on a securities
position listing.
(b) If any tendered unregistered notes are held of record by two or more
joint owners, each holder must sign this Letter of Transmittal.
(c) If any tendered unregistered notes are registered in different names
on several certificates or securities position listings, each registered
holder must complete, sign and deliver a separate Letter of Transmittal.
(d) If this Letter of Transmittal is signed by the registered holder(s)
of unregistered notes specified in Box A and tendered by this Letter of
Transmittal and the certificates for registered notes issued in exchange
for those unregistered notes are to be issued, or any untendered
unregistered notes are to be reissued, to the registered holder and neither
Box D or E has been completed, then you should not endorse any tendered
unregistered notes nor provide a separate bond power. In any other case,
you must either properly endorse the tendered unregistered notes or
transmit a properly completed separate bond power with this Letter of
Transmittal, with the signatures on the endorsement or bond power
guaranteed by an eligible institution. If this Letter of Transmittal is
signed by a person other than the registered holder(s) of the unregistered
notes tendered with this Letter of Transmittal, the unregistered notes must
be endorsed or accompanied by appropriate bond powers, in each case signed
as the name of the registered holder(s) appear(s) on the unregistered
notes. Endorsements on unregistered notes or signatures on bond powers
required by this Instruction 6 must be guaranteed by an eligible
institution.
9
<PAGE>
(e) If this Letter of Transmittal or any unregistered notes or bond
powers are signed by a trustee, executor, administrator, guardian,
attorney-in-fact, or officer of a corporation or other person acting in a
fiduciary or representative capacity, then that person must indicate the
capacity in which he or she is acting when signing, and, unless waived by
Heller, must submit evidence satisfactory to Heller of his or her authority
to so act.
No signature guarantee is required if (a) this Letter of Transmittal is
signed by the registered holder(s) of the unregistered notes tendered with this
Letter of Transmittal and neither Box D or E has been completed, or (b)
unregistered notes are tendered for the account of an eligible institution. In
all other cases, all signatures on this Letter of Transmittal must be
guaranteed by an eligible institution.
7. Special Issuance and Delivery Instructions. You should indicate in Box D
and/or E, as applicable, the name and address or account at DTC to which
registered notes or substitute unregistered notes for principal amounts not
tendered or not accepted for exchange are to be issued, sent or credited, if
different from the name, address or account at DTC listed in Box A. In the case
of issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated.
8. Transfer Taxes. Heller will pay any and all transfer taxes applicable to
the exchange of unregistered notes pursuant to the exchange offer. If, however,
registered notes, or unregistered notes for principal amounts not tendered or
accepted for exchange, are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered holder of the
unregistered notes tendered by this Letter of Transmittal, or if tendered
unregistered notes are registered in the name of a person other than the person
signing this Letter of Transmittal, or if a transfer tax is imposed for any
reason other than the exchange of unregistered notes pursuant to the exchange
offer, then the amount of any transfer taxes, whether imposed on the registered
holder or any other persons, will be payable by the tendering holder. If
satisfactory evidence of payment of, or an exemption from, these transfer taxes
is not submitted with this Letter of Transmittal, the amount of these transfer
taxes will be billed directly to the tendering holder.
Except as provided in this Instruction 8, it will not be necessary for
transfer tax stamps to be affixed to the unregistered notes specified in this
Letter of Transmittal.
9. Substitute Form W-9. Federal income tax law requires that you must
provide the exchange agent with your correct taxpayer identification number
(TIN), which, in the case of an individual, is your social security number. If
the exchange agent is not provided with the correct TIN, you may be subject to
a $50 penalty imposed by the Internal Revenue Service. In addition, payments to
you with respect to unregistered notes exchanged pursuant to the exchange offer
may be subject to 31% backup withholding. Certain holders, including
corporations, financial institutions and certain foreign individuals, may not
be subject to these backup withholding and reporting requirements. These
holders should nevertheless complete the attached Substitute Form W-9 and write
"exempt" on the face to avoid possible erroneous backup withholding. A foreign
person may qualify as an exempt recipient by submitting a properly completed
IRS Form W-8, signed under penalties of perjury, attesting to that person's
exempt status. Foreign investors should consult their tax advisors regarding
the need to complete IRS Form W-8 and any other forms that may be required.
To avoid backup withholding, you must provide your correct TIN by completing
the Substitute Form W-9 attached to this Letter of Transmittal, certifying that
the TIN provided is correct, and that (a) you have not been notified by the IRS
that you are subject to backup withholding as a result of failure to report all
interest or dividends, or (b) the IRS has notified you that you are no longer
subject to backup withholding. If the unregistered notes are registered in more
than one name or are not in the name of the actual owner, see the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for information on which TIN to report.
Backup withholding is not an additional federal income tax. Rather, the
federal income tax liability of a person subject to backup withholding will be
reduced by the amount of tax withheld. If backup withholding results in an
overpayment of taxes, a refund may be obtained from the IRS.
10
<PAGE>
Please read the Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 included with this Election Form and consult your
own tax advisors for additional important information on how to complete the
Substitute Form W-9.
Heller reserves the right, in its sole discretion, to take whatever steps
are necessary to comply with its obligation regarding backup withholding.
10. Validity of Tenders. Heller will determine, in its sole discretion, all
questions as to the validity, form, eligibility, including time of receipt, and
acceptance of withdrawal of tendered unregistered notes, which determination
will be final and binding. Heller reserves the right to reject any and all
tenders of unregistered notes that it determines are not valid or its
acceptance of which may, in the opinion of Heller's counsel, be unlawful.
Heller also reserves the right to waive any defects or irregularities in
tenders of unregistered notes of any holder who seeks to tender unregistered
notes in the exchange offer, whether or not Heller waives similar defects or
irregularities in the case of other holders. Heller's interpretation of the
terms and conditions of the exchange offer, including this Letter of
Transmittal and its instructions, will be final and binding on all parties.
Unless waived, you must cure any defects or irregularities in connection with
tenders of unregistered notes within the time period determined by Heller.
Heller will use its reasonable efforts to give notification of defects or
irregularities with respect to tenders of unregistered notes, but will not
incur any liability for failure to give such notification. Tenders of
unregistered notes will not be deemed to have been validly made until all
defects or irregularities with respect to the tender have been cured or waived.
Any unregistered notes received by the exchange agent that are not validly
tendered or as to which the defects or irregularities have not been cured or
waived will be returned by the exchange agent to the tendering holders, unless
otherwise provided in this Letter of Transmittal, as soon as practicable
following the expiration date.
11. Mutilated, Lost, Stolen or Destroyed Certificates. If your certificates
representing unregistered notes have been mutilated, lost, stolen or destroyed,
you should contact the exchange agent at the telephone number, facsimile number
or address listed on the cover of this Letter of Transmittal for further
instructions.
12. Requests for Assistance or Additional Copies. You should direct
questions relating to the exchange offer and requests for additional copies of
the Prospectus or this Letter of Transmittal to the exchange agent at the
address, telephone number or facsimile number listed on the cover of this
Letter of Transmittal.
13. Acceptance of Tendered Unregistered Notes and Issuance of Registered
Notes; Return of Unregistered Notes. Subject to the terms and conditions of the
exchange offer, Heller will accept for exchange all validly tendered
unregistered notes as soon as practicable after the expiration date and will
issue registered notes as soon as practicable after that. For purposes of the
exchange offer, Heller will be deemed to have accepted tendered unregistered
notes when, as and if it has given notice thereof to the exchange agent. Unless
you indicate otherwise in Box D or Box E, any tendered unregistered notes that
are not exchanged pursuant to the exchange offer for any reason will be
returned to you at the address specified in Box A or credited to the account at
DTC specified in Box A, without expense to you.
14. Withdrawal. Except as otherwise provided in this Letter of Transmittal,
you may withdraw your tender of unregistered notes at any time before the
expiration date. In order for a withdrawal to be effective before that time,
the exchange agent must receive a notice of withdrawal at its address listed on
the cover of this Letter of Transmittal before the expiration date. Any notice
of withdrawal must specify the name of the person having deposited the
unregistered notes to be withdrawn and the aggregate principal amount of
unregistered notes to be withdrawn. If certificates for the unregistered notes
have been delivered to the exchange agent, you must submit the serial numbers
shown on the particular certificates for the unregistered notes to be withdrawn
and the signature on the notice of withdrawal must be guaranteed by an eligible
institution, except in the case of unregistered notes tendered for the account
of an eligible institution. If unregistered notes have been tendered pursuant
to the procedures for book-entry transfer described in "The Exchange Offer--
Book-Entry Transfer" section of the Prospectus, the notice of withdrawal must
specify the name and number of the account at DTC to be credited with the
withdrawal of unregistered notes and
11
<PAGE>
otherwise comply with the procedures of DTC. Withdrawals of tenders of notes
may not be rescinded. Unregistered notes properly withdrawn will not be deemed
to have been validly tendered for purposes of the exchange offer. No registered
notes will be issued with respect to properly withdrawn unregistered notes
unless the withdrawn unregistered notes are validly re-tendered. You may re-
tender properly withdrawn unregistered notes at any subsequent time before the
expiration date by following the procedures described in the Prospectus under
"The Exchange Offer--Procedures for Tendering."
All questions as to the validly, form and eligibility, including time of
receipt, of withdrawal notices will be determined by Heller, in its sole
discretion, which determination will be final and binding on all parties.
Neither Heller, any employees, agents, affiliates or assigns of Heller, the
exchange agent nor any other person will be under any duty to give any
notification of any irregularities in any notice of withdrawal or incur any
liability for failure to give such notification. Any unregistered notes which
you tender and withdraw will be returned to you, without expense to you, as
promptly as practicable after withdrawal.
IMPORTANT: This Letter of Transmittal, properly completed and duly executed,
together with certificates or a book-entry confirmation representing tendered
unregistered notes or the Notice of Guaranteed Delivery, must be received by
the exchange agent before 5:00 p.m., New York City time, on , 2000,
unless extended.
12
<PAGE>
(TO BE COMPLETED BY ALL TENDERING HOLDERS (SEE INSTRUCTION 9)) PAYOR'S NAME:
STATE STREET BANK AND TRUST COMPANY
SUBSTITUTE Part I--Taxpayer
Form W-9 Identification No.-
Department of the For All Accounts
Treasury
--------------------------
Internal Revenue Enter your taxpayer Social Security number
Service identification number OR _______________________
Payer's Request in the appropriate Employer identification
for box. For most number
individuals and sole
proprietors, this is
your social security
number. For other
entities, it is your
Employer
Identification
Number. If you do not
have a number, see
How to Obtain a TIN
in the enclosed
Guidelines.
Taxpayer ---------------------------------------------------------
Identification
Number ("TIN") and Part II--For Payees Exempt from Backup Withholding,
Certification see enclosed Guidelines and complete as instructed
therein.
- --------------------------------------------------------------------------------
Certification--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me, and either (a) I
have mailed or delivered an application to receive a Taxpayer Identification
Number to the appropriate Internal Revenue Service Center or Social Security
Administration Office or (b) I intend to mail or deliver an application in
the near future). I understand that if I do not provide a Taxpayer
Identification Number within sixty (60) days, 31% of all reportable payments
made to me thereafter will be withheld until I provide a number;
Note: If the account
is in more than one
name, see the chart
on page 2 of the
enclosed Guidelines
to determine what
number to enter.
(2) I am not subject to backup withholding either because (a) I am exempt
from backup withholding, (b) I have not been notified by the Internal Revenue
Service ("IRS") that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or (c) the IRS has notified me
that I am no longer subject to backup withholding; and
(3) Any other information provided on this form is true, correct and
complete.
- --------------------------------------------------------------------------------
SIGNATURE _______________________________________ DATE _____________________
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding
because of underreporting interest or dividends on your tax return. However, if
after being notified by the IRS that you were subject to backup withholding,
you received another notification from the IRS that you were no longer subject
to backup withholding, do not cross out item (2). (Also see the instructions in
the enclosed Guidelines.)
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU WITH RESPECT TO THE EXCHANGE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
13
<PAGE>
HELLER FINANCIAL LOGO
NOTICE OF GUARANTEED DELIVERY
of
7.375% Notes due November 1, 2009
which have been Registered Under the Securities Act of 1933
in Exchange for
Unregistered 7.375% Notes due November 1, 2009
of
HELLER FINANCIAL, INC.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2000, UNLESS EXTENDED. THE TERM EXPIRATION DATE MEANS THAT TIME AND DATE OR,
IF WE EXTEND THE EXCHANGE OFFER, THE LATEST TIME AND DATE TO WHICH WE EXTEND
THE EXCHANGE OFFER. YOU MAY WITHDRAW UNREGISTERED 7.375% NOTES DUE NOVEMBER
1, 2009 TENDERED IN THE EXCHANGE OFFER AT ANY TIME BEFORE THE EXPIRATION
DATE.
You must use this form or a substantially equivalent form to accept Heller's
offer to exchange its 7.375% Notes due November 1, 2009, which have been
registered under the Securities Act of 1993, for an equal principal amount of
its outstanding unregistered 7.375% Notes due November 1, 2009, pursuant to the
guaranteed delivery procedures described under the caption "The Exchange
Offer--Guaranteed Delivery Procedures" of Heller's Prospectus dated
, 2000 and Instruction 3 to the related Letter of Transmittal, if (1) your
certificates for unregistered notes to be exchanged are not immediately
available, (2) you cannot complete the procedures for book-entry transfer on a
timely basis, or (3) you cannot deliver your unregistered notes to be tendered
for exchange, the Letter of Transmittal or any other required documents to
State Street Bank and Trust Company, the exchange agent, before the expiration
date. If you choose to tender unregistered notes pursuant to these guaranteed
delivery procedures, you must ensure that the exchange agent receives this
Notice of Guaranteed Delivery before the expiration date.
The Exchange Agent for the Exchange Offer is:
State Street Bank and Trust Company
By Hand/Overnight Courier/Registered or Certified Mail:
State Street Bank and Trust Company
Attn: Ralph Jones
Corporate Trust Department, 5th Floor
2 Avenue de Lafayette
Boston, Massachusetts 02111
By Facsimile:
617-662-1548
Confirm by Telephone:
617-662-1523
Delivery of this Notice of Guaranteed Delivery to an address or facsimile
number other than the one listed above will not constitute a valid delivery.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an eligible institution under the instructions to the Letter of
Transmittal, the signature guarantee must appear in the applicable space
provided in Box C entitled "Signature Guarantee" on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tender(s) for exchange to Heller, upon the terms and
subject to the conditions set forth in the Prospectus and related Letter of
Transmittal, receipt of which is hereby acknowledged, the principal amount of
unregistered notes indicated below pursuant to the guaranteed delivery
procedures described in the Prospectus under the caption "The Exchange Offer--
Guaranteed Delivery Procedures" and Instruction 3 to the Letter of Transmittal.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery will survive the death or incapacity of the undersigned,
and every obligation of the undersigned under this Notice of Guaranteed
Delivery will be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
The undersigned hereby tenders the unregistered notes listed below:
<TABLE>
<CAPTION>
Aggregate Principal Amount of
Unregistered Notes Represented
Certificate Number(s) by Certificate(s) or Book- Aggregate Principal Amount of
of Unregistered Notes* Entry Confirmation Unregistered Notes Tendered
- --------------------------------------------------------------------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
*If you will deliver unregistered notes by book-entry transfer at the
Depository Trust Company, insert DTC account number.
This Notice of Guaranteed Delivery must be signed by the holder(s) of
unregistered notes exactly as their name(s) appear on certificates for
unregistered notes or on a security position listing, or by person(s)
authorized to become holder(s) by endorsements or bond powers transmitted
with this Notice of Guaranteed Delivery.
- --------------------------------------------------------------------------------
PLEASE SIGN AND COMPLETE
Signatures of Registered Holder(s): _ Date: _______________________________
------------------------------------- Address: ____________________________
------------------------------------- -------------------------------------
(Include Zip Code)
Name(s) of Registered Holder(s): ____
------------------------------------- Area Code and Telephone No.: ________
-------------------------------------
Taxpayer Identification Number or
Social Security Number: _____________
- --------------------------------------------------------------------------------
Name and capacity, if signing in a fiduciary orrepresentative capacity: _____
2
<PAGE>
GUARANTEE OF DELIVERY
(This must be completed)
(Not to be used for signature guarantee)
The undersigned, which is a member of a registered national securities
exchange or of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the
United States, or otherwise an eligible guarantor institution within the
meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934,
guarantees to deliver to the exchange agent at its address listed on the
cover of this Notice of Guaranteed Delivery (1) the Letter of Transmittal,
(2) either the certificates for tendered unregistered notes in proper form
for transfer or confirmation of the book-entry transfer of the unregistered
notes into the exchange agent's account at DTC and (3) any other required
documents, all by 5:00 p.m., New York City time, within three (3) New York
Stock Exchange trading days following the expiration date, as described in
the Prospectus under the caption "The Exchange Offer-- Guaranteed Delivery
Procedures" and in Instruction 3 to the Letter of Transmittal.
Name of Firm: _______________________ -------------------------------------
Address: ____________________________ Authorized Signature
------------------------------------- Name: _______________________________
(Include Zip Code) Title: ______________________________
(Please type or print)
Area Code and Telephone Number:
------------------------------------- Date: _______________________________
DO NOT SEND UNREGISTERED NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. YOU
SHOULD SEND UNREGISTERED NOTES, A PROPERLY COMPLETED AND EXECUTED LETTER OF
TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT.
3
<PAGE>
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. Delivery of this Notice of Guaranteed Delivery. A properly completed and
duly executed copy of this Notice of Guaranteed Delivery and any other
documents required by this Notice of Guaranteed Delivery must be received by
the exchange agent at its address listed on the cover of this Notice of
Guaranteed Delivery before the expiration date. You may choose, at your sole
risk, the method of delivery of this Notice of Guaranteed Delivery and any
other required documents to the exchange agent. The delivery will be deemed
made only when actually received or confirmed by the exchange agent. Heller
recommends that you use an overnight or hand delivery service or registered
mail, appropriately insured, return receipt requested. In all cases, you should
allow sufficient time to assure delivery to the exchange agent before the
expiration date. For a description of the guaranteed delivery procedures, see
Instruction 3 of the Letter of Transmittal.
2. Signatures on this Notice of Guaranteed Delivery. If this Notice of
Guaranteed Delivery is signed by the registered holder(s) of the tendered
unregistered notes, the signature(s) must correspond with the name(s) on the
face of the certificates for the unregistered notes or on a securities position
listing. If this Notice of Guaranteed Delivery is signed by a person other than
the registered holder(s) of any tendered unregistered notes, this Notice of
Guaranteed Delivery must be accompanied by appropriate bond powers, signed as
the name of the registered holder(s) appears on the certificates for the
unregistered notes or on a securities position listing. If this Notice of
Guaranteed Delivery is signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, then that person should so indicate when
signing and, unless waived by Heller, submit with the Letter of Transmittal
evidence satisfactory to Heller of that person's authority to so act.
3. Requests for Assistance or Additional Copies. You should direct questions
relating to the exchange offer and requests for additional copies of the
Prospectus, the Letter of Transmittal or this Notice of Guaranteed Delivery to
the exchange agent at the address, telephone number or facsimile number listed
on the cover of this Notice of Guaranteed Delivery.
4
<PAGE>
HELLER FINANCIAL LOGO
Tender of
7.375% Notes due November 1, 2009
which have been Registered Under the Securities Act of 1933
in Exchange for
Unregistered 7.375% Notes due November 1, 2009
of
HELLER FINANCIAL, INC.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2000, UNLESS EXTENDED. THE TERM EXPIRATION DATE MEANS THAT TIME AND DATE OR,
IF WE EXTEND THE EXCHANGE OFFER, THE LATEST TIME AND DATE TO WHICH WE EXTEND
THE EXCHANGE OFFER. YOU MAY WITHDRAW UNREGISTERED 7.375% NOTES DUE NOVEMBER
1, 2009 TENDERED IN THE EXCHANGE OFFER AT ANY TIME BEFORE THE EXPIRATION
DATE.
To Our Clients:
Enclosed for your consideration is a Prospectus dated , 2000 of
Heller Financial Inc. and a Letter of Transmittal relating to Heller's offer to
exchange its 7.375% Notes due November 1, 2009, which have been registered
under the Securities Act of 1933, for an equal principal amount of its
outstanding unregistered 7.375% Notes due November 1, 2009, upon the terms and
subject to the conditions described in the Prospectus and the Letter of
Transmittal. As described in the Prospectus, the terms of the registered notes
are substantially the same in all material respects to those of the
unregistered notes, except that the registered notes (1) will be registered
under the Securities Act and, therefore, will not bear legends restricting
their transfer under the Securities Act and (2) will not have registration
rights or contain provisions regarding the payment of additional interest under
circumstances relating to the timing of the exchange offer or the filing of a
registration statement.
The enclosed materials are being forwarded to you as the beneficial owner of
unregistered notes held by us for your own account or benefit but not
registered in your name. A tender of the unregistered notes pursuant to the
exchange offer can be made only by us as the registered holder of record and
pursuant to your instructions. The Letter of Transmittal is furnished to you
for your information only and cannot be used by you to tender for exchange
unregistered notes held by us and registered in our name for your account.
Therefore, Heller urges you, as beneficial owner of unregistered notes that are
registered in our name, to contact us promptly if you wish to tender
unregistered notes in the exchange offer.
Accordingly, we request instructions as to whether you wish to tender for
exchange any or all of the unregistered notes held by us for your account or
benefit, pursuant to the terms and conditions of the exchange offer described
in the Prospectus and the Letter of Transmittal. We urge you to read carefully
the Prospectus and the Letter of Transmittal before instructing us whether to
exchange your unregistered notes. We also request that you confirm that we may,
on your behalf, make the representations contained in the Letter of
Transmittal.
<PAGE>
Your instructions to us should be forwarded as promptly as possible in order
to permit us to exchange unregistered notes on your behalf in accordance with
the provisions of the exchange offer before the expiration date. Unregistered
notes tendered in the exchange offer may be withdrawn at any time before the
expiration date.
Your attention is directed to the following:
1. The exchange offer is for the exchange of registered notes for an
equal principal amount of unregistered notes, of which $600,000,000
aggregate principal amount is issued and outstanding as of this date.
Tenders of unregistered notes will be accepted only in denominations of
$1,000 of principal amount and integral multiples of $1,000.
2. THE EXCHANGE OFFER IS NOT CONDITIONED UPON ANY MINIMUM AGGREGATE
PRINCIPAL AMOUNT OF UNREGISTERED NOTES BEING TENDERED BY THE HOLDERS OF THE
UNREGISTERED NOTES.
3. Heller has agreed to pay the expenses of the exchange offer.
4. Any transfer taxes incident to the transfer of unregistered notes
from the tendering holder to Heller will be paid by Heller, except as
provided in the Prospectus and the Letter of Transmittal.
The exchange offer is not being made to, nor will exchanges be accepted from
or on behalf of, holders of unregistered notes residing in any jurisdiction in
which the making of the exchange offer or acceptance of the exchange offer
would not be in compliance with the laws of that jurisdiction.
If you wish to have us exchange any or all of your unregistered notes held
by us for your account or benefit, please so instruct us by completing,
executing, detaching and returning to us the instruction form that appears
below. An envelope in which to return your instructions to us is enclosed. If
you authorize the exchange of your unregistered notes, we will tender all your
unregistered notes for exchange, unless you indicate otherwise in the
instruction form.
Very truly yours,
2
<PAGE>
INSTRUCTIONS
The undersigned acknowledge(s) receipt of your letter, the enclosed
Prospectus dated , 2000 and the related Letter of Transmittal relating
to the offer by Heller Financial, Inc. to exchange its 7.375% Notes due
November 1, 2009 which have been registered under the Securities Act of 1933
for an equal principal amount of its outstanding unregistered 7.375% Notes due
November 1, 2009.
You are instructed to tender the principal amount of unregistered notes
indicated below, or, if no number is indicated below, all my (our) unregistered
notes, that are held by you for the account or benefit of the undersigned, upon
the terms and subject to the conditions described in the Prospectus and the
Letter of Transmittal.
SIGN HERE
Principal amount of unregistered _____________________________________
notes to be tendered for exchange*
_____________________________________
Signature(s)
$ _____________________________________
_____________________________________
_____________________________________
Print Name(s) and Address(es)
_____________________________________
_____________________________________
Area Code and Telephone Number(s)
_____________________________________
Name and Capacity, if Signing in a
Representative or Fiduciary Capacity
_____________________________________
Tax Identification or Social
Dated: ______________________________ Security Number(s)
- --------
* I (we) understand that if I (we) sign this instruction form without
indicating a principal amount of unregistered notes in the space provided,
all unregistered notes held by you for my (our) account or benefit will be
tendered for exchange.
<PAGE>
HELLER FINANCIAL LOGO
Tender of
7.375% Notes due November 1, 2009
which have been Registered under the Securities Act of 1933
in Exchange for
Unregistered 7.375% Notes due November 1, 2009
of
HELLER FINANCIAL, INC.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 2000, UNLESS EXTENDED. THE TERM EXPIRATION DATE MEANS THAT TIME
AND DATE, OR IF WE EXTEND THE EXCHANGE OFFER, THE LATEST TIME AND DATE TO
WHICH WE EXTEND THE EXCHANGE OFFER. YOU MAY WITHDRAW UNREGISTERED 7.375%
NOTES DUE NOVEMBER 1, 2009 TENDERED IN THE EXCHANGE OFFER AT ANY TIME BEFORE
THE EXPIRATION DATE.
To Brokers, Dealers, Commercial Banks, Trust Companies
and other Nominees:
Heller Financial, Inc. is offering upon the terms and conditions set forth
in its enclosed Prospectus dated , 2000 and related Letter of
Transmittal, which together constitute Heller's offer to exchange its 7.375%
Notes due November 1, 2009, which have been registered under the Securities Act
of 1933, for an equal principal amount of its outstanding unregistered 7.375%
Notes due November 1, 2009. As described in the Prospectus, the terms of the
registered notes are substantially the same in all material respects to those
of the unregistered notes, except that the registered notes (1) have been
registered under the Securities Act and, therefore, will not bear legends
restricting their transfer under the Securities Act and (2) will not have
registration rights or contain provisions regarding the payment of additional
interest under circumstances relating to the timing of the exchange offer or
the filing of a registration statement.
THE EXCHANGE OFFER IS NOT CONDITIONED UPON ANY MINIMUM AGGREGATE PRINCIPAL
AMOUNT OF UNREGISTERED NOTES BEING TENDERED BY THE HOLDERS OF THE UNREGISTERED
NOTES.
We are asking you to contact your clients for whom you hold unregistered
notes registered in your name or the name of your nominee. In addition, we ask
you to contact your clients who, to your knowledge, hold unregistered notes
registered in their own name. Heller will not pay any fee or commission to any
broker-dealers or other persons, other than us, as exchange agent, in
connection with the solicitation of tenders of unregistered notes pursuant to
the exchange offer. Heller will pay or cause to be paid any transfer taxes
payable on the tender of unregistered notes to it, except as otherwise provided
in Instruction 8 to the Letter of Transmittal.
<PAGE>
Enclosed for your information and for forwarding to your clients are copies
of the following documents:
1. The Prospectus;
2. The Letter of Transmittal;
3. A form of letter which may be sent to your clients for whose account
you hold unregistered notes in your name or in the name of your nominee,
with space provided for obtaining the client's instructions with regard to
the exchange offer;
4. A Notice of Guaranteed Delivery;
5. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9; and
6. A return envelope addressed to us, State Street Bank and Trust
Company, the exchange agent.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE
THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 2000, UNLESS EXTENDED. PLEASE FURNISH COPIES OF THE ENCLOSED
MATERIALS TO THOSE OF YOUR CLIENTS FOR WHOM YOU HOLD UNREGISTERED NOTES
REGISTERED IN YOUR NAME OR THE NAME OF YOUR NOMINEE AS QUICKLY AS POSSIBLE.
In all cases, exchanges of unregistered notes accepted for exchange
pursuant to the exchange offer will be made only after timely receipt by the
exchange agent of (1) certificates representing the unregistered notes or
confirmation of a book-entry transfer of unregistered notes to the exchange
agent's account at The Depository Trust Company, (2) the Letter of
Transmittal, properly completed and executed with any required signature
guarantees, and (3) any other documents required by the Letter of Transmittal.
If holders of unregistered notes wish to tender their unregistered notes,
but they cannot (1) forward their certificates for unregistered notes, the
Letter of Transmittal or any other documents required by the Letter of
Transmittal before the expiration of the exchange offer or (2) comply with the
book-entry transfer procedures on a timely basis, they may tender their
unregistered notes by following the guaranteed delivery procedure described in
the Prospectus under "The Exchange Offer--Guaranteed Delivery Procedures" and
Instruction 3 of the Letter of Transmittal.
The exchange offer is not being made to, nor will tenders be accepted from
or on behalf of, holders of unregistered notes residing in any jurisdiction in
which the making of the exchange offer or the acceptance of the exchange offer
would not be in compliance with the laws of that jurisdiction.
You should direct questions about the exchange offer and requests for
additional copies of the enclosed materials to the exchange agent at its
address, phone number or facsimile number listed on the cover of the Letter of
Transmittal.
Very truly yours,
State Street Bank and Trust Company
NOTHING CONTAINED IN THIS LETTER OR IN THE ENCLOSED DOCUMENTS WILL
CONSTITUTE YOU OR ANY OTHER PERSON THE AGENT OF HELLER, OR THE EXCHANGE AGENT,
OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT
ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED
DOCUMENTS AND THE STATEMENTS CONTAINED IN THIS LETTER.
2
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payer--Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-0000. Employer identification numbers have nine digits separated
by only one hyphen: i.e., 00-0000000. The table below will help you determine
which number to provide the payer on the Substitute Form W-9.
- --------------------------------------- ---------------------------------------
<TABLE>
<CAPTION>
Give the
For this type of account: SOCIAL SECURITY
number of--
- -----------------------------------------------
<S> <C>
1. An individual's account The individual
2. Two or more individuals The actual owner
(joint account) of the account
or, if combined
funds, any one of
the
individuals(1)
3. Husband and wife (joint The actual owner
account) of the account
or, if
joint funds,
either person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if
account) the minor is the
only contributor,
the minor(1)
6. Account in the name of The ward, minor
guardian or committee for a or incompetent
designated ward, minor or person(3)
incompetent person
7. a. The usual revocable The grantor-
savings trust account trustee(1)
(grantor is also
trustee)
b. So-called trust account The actual
that is not a legal or owner(1)
valid trust under state
law
8. Sole proprietorship The owner(4)
account
</TABLE>
<TABLE>
<CAPTION>
Give the EMPLOYER
For this type of account: IDENTIFICATION
number of --
--------
<S> <C>
9. A valid trust, estate or The legal entity
pension trust (5)
10. Corporate account The corporation
11. Partnership account held The partnership
in the name of the business
12. Association, club, The organization
religious, charitable,
educational or other tax-
exempt organization
13. A broker or registered The broker or
nominee nominee
14. Account with the The public entity
Department of Agriculture
in the name of a public
entity, such as a state or
local government, school
district or prison that
receives agricultural
program payments
</TABLE>
---------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) You must show your individual name, but you may also enter your business
or "doing business as" name. You may use either your social security
number or, if you have one, your employer identification number.
(5) List first and circle the name of the legal trust, estate, or pension
trust. Do not furnish the identifying number of the personal
representative or trustee unless the legal entity itself is not designated
in the account title.
Note: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
- ---------------------------------------
Note: All "Code" references on the reverse side of these Guidelines are to the
Internal Revenue Code of 1986, as amended.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you don't have a taxpayer identification number or you don't know your
number, obtain Internal Revenue service Form SS-5, Application for Social
Security Number Card, or Form SS-4, Application for Employer Identification
Number, from the local office of the Social Security Administration or the
Internal Revenue Service or by calling 1(800) TAX-FORM, and apply for a
number.
Holders Exempt from Backup Withholding
Holders specifically exempted from backup withholding include the following:
. An organization exempt from tax under Section 501(a) of the Code, or an
individual retirement account (IRA), or a custodial account under Section
403(b)(7) of the Code, if the account satisfies the requirements of Sec-
tion 401(f)(2) of the Code. plan.
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
. A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
. An international organization or any agency, or instrumentality thereof.
Holders that may be exempt from backup withholding include the following:
. A corporation.
. A financial institution.
. A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a)
. An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company Act of
1940.
. A middleman known in the investment community as a nominee or who is
listed in the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee list.
. A futures commission merchant registered with the Commodity Futures Trad-
ing Commission.
. A foreign central bank of issue.
Payments Exempt from Backup Withholding
Payments of dividends and patronage dividends generally exempt from backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest generally exempt from backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not pro-
vided your correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND DATE
THE FORM AND RETURN IT TO THE PAYER. IF YOU ARE A NONRESIDENT ALIEN OR A
FOREIGN ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYER A COMPLETED
INTERNAL REVENUE FORM W-8 (CERTIFICATE OF FOREIGN STATUS).
Certain payments, other than interest, dividends, and patronage dividends,
that are exempt from information reporting are also not exempt from backup
withholding. For details, see Sections 6041, 6041A(a), 6042, 6044, 6045, 6050A
and 6050N.
Privacy Act Notice
Section 6109 of the Code requires most recipients of dividend, interest, or
other payments to give taxpayer identification numbers to payers who must re-
port the payments to the IRS. The IRS uses the numbers for identification pur-
poses and to help verify the accuracy of your tax return, and may also provide
this information to various government agencies for tax enforcement or litiga-
tion purposes. . Payers must be given the numbers whether or not recipients
are required to file tax returns. Payers must generally withhold 31% of tax-
able interest, dividend, and certain other payments to a payee who does not
furnish a taxpayer identification number to a payer. Certain penalties may
also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer Identification Number.--If you
fail to furnish your taxpayer identification number to a payer, you are sub-
ject to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) Civil Penalty for False Information With Respect to Withholding.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or im-
prisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE
