-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QhSTQkWEFuk+GWvoGXEDI2GcbFfPlSbk8QcFpmqIfBHWLkQpp1POnrCo1wb6Uyyo NrnN3U9LPD2pp+SwIRx97g== 0000950131-00-000903.txt : 20000210 0000950131-00-000903.hdr.sgml : 20000210 ACCESSION NUMBER: 0000950131-00-000903 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 20000209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HELLER FINANCIAL INC CENTRAL INDEX KEY: 0000046738 STANDARD INDUSTRIAL CLASSIFICATION: SHORT-TERM BUSINESS CREDIT INSTITUTIONS [6153] IRS NUMBER: 361208070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: SEC FILE NUMBER: 333-96475 FILM NUMBER: 528934 BUSINESS ADDRESS: STREET 1: 500 W MONROE ST CITY: CHICAGO STATE: IL ZIP: 60661 BUSINESS PHONE: 3124417000 MAIL ADDRESS: STREET 1: 500 W MONROE ST CITY: CHICAGO STATE: IL ZIP: 60661 FORMER COMPANY: FORMER CONFORMED NAME: HELLER WALTER E & CO /NEW/ DATE OF NAME CHANGE: 19850503 S-4 1 FORM S-4 As filed with the Securities and Exchange Commission on February 9, 2000 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
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 - ----------------------------------------------------------------------------------- 7.375% Notes Due November 1, 2009...... $600,000,000 100% $600,000,000 $158,400 - -----------------------------------------------------------------------------------
- -------------------------------------------------------------------------------- (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. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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 TABLE OF CONTENTS
Page ---- 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
Page ---- 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
---------------- 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 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 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 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 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 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 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 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.
September 30, 1999 ----------------- As Actual Adjusted ------- -------- (in millions) 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 ======= ======
- -------- * 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 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."
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) 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 ======== ======== ======= ======= September 30, December 31, ------------------ ------------------------------------------ 1999(1) 1998 1998(2)(3) 1997(3) 1996 1995 1994 ------------------ ---------- ------- ------ ------ ------ (unaudited) (in millions) 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
8 (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:
Year Ended December 31, Nine Months Ended --------------------------------------------------------------------- September 30, 1999 1998 1997 1996 1995 1994 ------------------ ---- ---- ---- ---- ---- 1.55 1.46 1.44 1.40 1.38 1.51
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 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 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; 11 . 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. 12 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; 13 . 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 14 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. 15 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. 16 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. 17 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. 18 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., 19 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. 20 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 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 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 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 . 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 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 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 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 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- [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 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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. 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.
II-1 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.
- -------- * 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 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 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 /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 EXHIBIT INDEX
Exhibit Number Exhibit ------- ------- 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.
EX-4.8 2 PURCHASE AGREEMENT DATED 11/3/99 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 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 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 (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 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 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 (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 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 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 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 "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 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 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 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 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 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 SCHEDULE I
- ---------------------------------------------------------------------------------------- Initial Purchaser Principal Amount of Securities to be Purchased - ---------------------------------------------------------------------------------------- A B TOTAL - ---------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------
EX-4.9 3 REGISTRATION RIGHTS AGRMNT DATED 11/3/99 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. ________________________________________________________________________________ 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. 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. 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) 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. ------------------------------- 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: 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 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, 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 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, 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 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; 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 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 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 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 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 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. 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. 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. 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. 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 EX-4.10 4 FORM OF 7.37% NOTES DUE 11/1/2001 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 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 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 (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 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 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 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 EX-5 5 OPINION OF MARK J. OHRINGER AS TO LEGALITY OF NOTE 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 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 EX-23.1 6 CONSENT OF ARTHUR ANDERSEN LLP [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 EX-25 7 FORM T-1 STATEMENT OF ELIGIBILITY & QUALIFICATION 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) 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 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 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 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).
Thousands of ASSETS Dollars 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 ------------
4 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 EX-99.1 8 FORM OF LETTER OF TRANSMITTAL 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. 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 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 - --------------------------------------------------------------------------------
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** - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- Totals: - ----------------------------------------------------------------------------------------
* 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 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 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 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 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 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 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 (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 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 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 (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 EX-99.2 9 FORM OF NOTICE OF GUARANTEED DELIVERY 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. 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:
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 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
*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 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 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 EX-99.3 10 FORM OF LETTER TO CLIENTS 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. 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 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. EX-99.4 11 FORM OF LETTER TO NOMINEES 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. 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 EX-99.5 12 GUIDELINES ON SUBSTITUTE FORM W-9 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. - --------------------------------------- ---------------------------------------
Give the For this type of account: SOCIAL SECURITY number of-- - ----------------------------------------------- 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
Give the EMPLOYER For this type of account: IDENTIFICATION number of -- -------- 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
--------------------------------------- (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. 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 -----END PRIVACY-ENHANCED MESSAGE-----