-----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, GkiZ8bxYTMSuzre3gpCSDsVuS2AKG0TrwnUdw3IgFTZyREpn20N55zXK4Jyoxqc8 lVFu+YIgaV1prWlloxMWqw== 0000950131-97-006321.txt : 19971024 0000950131-97-006321.hdr.sgml : 19971024 ACCESSION NUMBER: 0000950131-97-006321 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19971023 SROS: NYSE 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-3 SEC ACT: SEC FILE NUMBER: 333-38545 FILM NUMBER: 97699500 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-3 1 FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 23, 1997 REGISTRATION NO. 333- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- HELLER FINANCIAL, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ---------------- DELAWARE 36-1208070 (STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.) 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) COPY 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: From time to time after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [X] 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(c) 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 the delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box: [_] 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(1) PER UNIT PRICE(1) FEE - --------------------------------------------------------------------------------- Debt Securities....... Warrants to Purchase Debt Securities...... (2) (2) $3,000,000,000 $909,091 Senior Preferred Stock, $.01 par value per share............
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (1) The maximum aggregate offering price of Debt Securities, Warrants to Purchase Debt Securities and Senior Preferred Stock registered hereunder shall not exceed $3,000,000,000. (2) Not applicable pursuant to General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended. ---------------- 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 SAID SECTION 8(A), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED OCTOBER 23, 1997 PROSPECTUS HELLER FINANCIAL, INC. DEBT SECURITIES WARRANTS TO PURCHASE DEBT SECURITIES SENIOR PREFERRED STOCK ----------- Heller Financial, Inc. (the "Company") may from time to time offer unsecured debt securities (the "Debt Securities") consisting of debentures, notes and/or other evidences of unsecured indebtedness, in one or more series, or warrants to purchase Debt Securities ("Warrants"), or shares of senior preferred stock, $.01 par value per share (the "Senior Preferred Stock"), in one or more series (the Debt Securities, Warrants and Senior Preferred Stock being hereinafter collectively referred to as the "Securities"), or any combination of the foregoing, at an aggregate initial offering price not to exceed $3,000,000,000, or the equivalent thereof if any of the Securities are designated in a foreign currency or foreign currency unit, at prices and on terms to be determined at or prior to the time of sale. The Debt Securities and Warrants may be sold for U.S. dollars, foreign currencies or foreign currency units, and the principal of, and premium, if any, and interest, if any, on, the Debt Securities may be payable in U.S. dollars, foreign currencies or foreign currency units. Specific terms of the Securities in respect of which this Prospectus is being delivered will be set forth in an accompanying Prospectus Supplement (the "Prospectus Supplement"), together with the terms of the offering of such Securities, the initial price of such Securities and the net proceeds to the Company from their sale. Without limitation, the Prospectus Supplement will set forth the following: (i) in the case of Debt Securities, the specific designation, ranking as senior, subordinated or junior subordinated debt, aggregate principal amount, maturity, rate (or method of calculation) of any interest and dates for payment thereof, currency or currencies or currency unit or currency units for which the Debt Securities may be purchased, currency or currencies or currency unit or currency units in which principal, premium, if any, and interest, if any, is payable, authorized denominations, tax consequences, any exchangeability, conversion, redemption, prepayment or sinking fund provisions and additional covenants, conditions and events of default, if any; (ii) in the case of Warrants, the designation and terms of the Debt Securities purchasable upon exercise of the Warrants, the designation and terms of any Debt Securities with which the Warrants are issued, the exercise price, the duration and detachability from any related Debt Securities; and (iii) in the case of Senior Preferred Stock, the designation, number of shares, liquidation preference per share, dividend rate (or method of calculation thereof), dates on which dividends, if any, shall be payable and from which dividends shall accrue, voting rights, if any, any redemption or sinking fund provisions, and any conversion or exchange rights. The Company has not yet determined whether any Securities offered hereby will be listed on any exchange or over-the-counter market. If the Company decides to seek listing of any such Securities, the Prospectus Supplement relating thereto will disclose such exchange or market. The Securities may be offered directly to purchasers, to or through underwriters, dealers or agents, as designated from time to time, or through a combination of any such methods. If any underwriters, dealers or agents are involved in the offering of the Securities, then the names of such underwriters, dealers or agents and any applicable fee, commission or discount arrangements with them will be set forth in the Prospectus Supplement. See "Plan of Distribution." Except as otherwise provided in a Prospectus Supplement, the net proceeds to the Company from any offering will be added to the general funds of the Company. See "Use of Proceeds." ----------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is , 1997. LOGO NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. In this Prospectus and any Prospectus Supplement references to "dollar" and "$" are to United States dollars, and the term "United States" or "U.S." means the United States of America, its states, its territories, its possessions and all areas subject to its jurisdiction. AVAILABLE INFORMATION The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (herein, together with all amendments and exhibits, referred to as the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus, which constitutes a part of the Registration Statement, does not contain all of the information set forth in the Registration Statement, certain parts of which are omitted as permitted by the rules and regulations of the Commission. For further information, reference is hereby made to the Registration Statement. Statements made in this Prospectus, or in the documents incorporated by reference herein, as to the contents of any contract, agreement or other document are not necessarily complete. With respect to each such contract, agreement or other document filed as an exhibit to the Registration Statement or otherwise filed with the Commission, reference is made to the copy so filed, and each such statement shall be deemed qualified in its entirety by such reference. The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports and other information with the Commission. The Registration Statement, as well as such reports and other information filed by the Company with the Commission, can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of the Commission at 7 World Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material also can be obtained at prescribed rates from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Certain securities of the Company are listed on the New York Stock Exchange, and reports and other information concerning the Company may be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. Copies of reports, proxy and information statements and other information regarding registrants that file electronically (including the Company) are available on the Commission's Web Site at http://www.sec.gov. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed by the Company with the Commission pursuant to the Exchange Act are incorporated herein by reference: (1) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996; (2) The Company's Quarterly Reports on Form 10-Q for the periods ended March 31, 1997 and June 30, 1997; and (3) The Company's Current Reports on Form 8-K dated January 27, 1997, April 3, 1997, April 22, 1997, July 24, 1997 and October 22, 1997. 2 All documents filed by the Company pursuant to sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of any offering of the Securities shall be deemed to be incorporated in this Prospectus by reference and to be a part hereof from the date of filing of each such document. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom a copy of this Prospectus has been delivered, upon the written or oral request of such person, a copy of any or all of the documents referred to above which have been incorporated in this Prospectus by reference (other than exhibits to such documents, unless such exhibits are specifically incorporated by reference into the information that this Prospectus incorporates). Requests for such copies should be directed to: Treasurer, Heller Financial, Inc., 500 West Monroe Street, Chicago, Illinois 60661 (telephone (312) 441-7000). SAFE HARBOR FOR FORWARD-LOOKING STATEMENTS This Prospectus contains, any Prospectus Supplement will contain, and the documents incorporated by reference herein contain or will contain certain "forward-looking statements" (as defined in Section 27A of the Securities Act) that are based on the beliefs of the Company's management, as well as assumptions made by, and information currently available to, the Company's management. Wherever possible, the Company has identified these forward-looking statements by using words such as "anticipates," "believes," "estimates," "expects" and similar expressions. These forward-looking statements are subject to risks and uncertainties which could cause the Company's actual results, performance or achievements to differ materially from those expressed in, or implied by, these statements. These risks and uncertainties include, but are not limited to, the following: (1) the results of the Company's efforts to implement its business strategy; (2) the effect of economic conditions and the performance of borrowers; (3) actions of the Company's competitors and the Company's ability to respond to such actions; (4) the cost of the Company's capital, which depends in part on the Company's portfolio quality, ratings, prospects and outlook; and (5) changes in governmental regulations, tax rates and similar matters. The Company assumes no obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise. 3 THE COMPANY GENERAL The Company was incorporated in 1919 under the laws of the State of Delaware and is engaged in various aspects of the commercial finance business. The Company and its consolidated subsidiaries employ approximately 2,300 people. The Company's executive offices are located at 500 West Monroe Street, Chicago, Illinois 60661 (telephone: (312) 441-7000). Unless the context indicates otherwise, references to the Company include Heller Financial, Inc. and its consolidated subsidiaries. The Company is a diversified financial services company which provides a broad array of commercial financial products and services primarily to middle- market companies in the United States and internationally. The Company provides its products and services through five product categories: (i) asset based finance, (ii) cash flow lending, (iii) real estate finance, (iv) international asset based finance and factoring and (v) specialized finance. The middle- market segment served includes entities primarily in the manufacturing and service sectors with annual sales in the range of $15 million to $200 million and in the real estate sector with property values generally in the range of $5 million to $40 million. The Company's emphasis has been to grow the lower risk asset based finance businesses, maintain significant franchises in corporate finance and real estate finance and continue to grow its international asset based lending businesses. The asset based businesses have developed to become the largest product category in assets and revenues. Earnings quality has been strengthened through the growth in the asset based businesses, which provide more consistent revenue streams and produce lower and less volatile credit quality costs. The Company manages asset quality through the use of disciplined underwriting standards and aggressive account management techniques. The underwriting standards and credit disciplines employed on the post-1990 corporate finance and real estate finance portfolios have resulted in strong credit quality for these portfolios. In addition, the Company continues to significantly reduce its pre-1990 corporate finance and real estate finance portfolios. The Company has maintained a conservative capital structure with substantial equity, low leverage and moderate reliance for funding on the commercial paper market. PRODUCT CATEGORIES The Company offers a wide range of financial products and services to its customers through five product categories. Asset Based Finance Asset based financing is offered by six distinct product groups: Heller Current Asset Management ("Current Asset Management"), Heller Business Credit ("Business Credit"), Heller Equipment Finance and Leasing ("Equipment Finance and Leasing"), Heller Vendor Finance ("Vendor Finance"), Heller First Capital ("First Capital") and Heller Sales Finance ("Sales Finance"). Current Asset Management provides working capital financing, receivables management and credit protection to companies in a broad range of industries. Current Asset Management is the fourth largest domestic factor in the United States and is the Company's oldest business with over 50 years of operations. The group offers factoring services to over 600 clients and 80,000 customers, primarily in the apparel, textile, houseware, transportation and home furnishings industries. In return for a commission, the group purchases the client's accounts receivables and provides collection, credit protection and management information services. Working capital is provided by advancing on a formula basis a percentage of the purchase price of the client's factored accounts receivables. Current Asset Management also provides advances against inventory on a formula basis. Business Credit provides asset based working capital and term financing to middle market companies for refinancings, recapitalizations, acquisitions, seasonal borrowing, debtor-in-possession (DIP) and post-DIP 4 transactions through senior loans secured primarily by accounts receivable and inventory. The group provides financing to manufacturers, retailers, wholesalers, distributors, exporters and service firms. The group also serves as co-lender or participant in transactions agented by other asset-based lenders. Revolving credit facilities and term loans are generally cross- collateralized. The Company protects its position against deterioration of a borrower's performance by using established advance rates against eligible collateral. Transaction sizes range from $5 million to $75 million, and the group utilizes syndication capabilities to lower the average retained transaction size to approximately $20 million in commitments and $10 million in fundings. Equipment Finance and Leasing is comprised of four direct origination finance divisions: Heller Commercial Equipment Finance ("Commercial Equipment Finance"), Heller Aircraft Finance ("Aircraft Finance"), Heller Public Finance ("Public Finance") and Heller Industrial Equipment Finance ("Industrial Equipment Finance"). Commercial Equipment Finance provides leasing and financing programs to a diverse group of middle market companies collateralized by equipment for expansion, replacement or modernization or to refinance existing equipment obligations. Typically, the equipment is essential to the operations of the borrower, and the amount financed is generally not a substantial part of the borrower's capital structure. Commercial Equipment Finance serves various markets, including transportation, supermarket, manufacturing, energy, restaurant and food processing. Transaction sizes generally range from $500,000 to $15 million, with terms ranging from three to ten years and an average transaction size in 1996 of approximately $4 million. Aircraft Finance offers financing for commercial aircraft and aircraft engines through operating leases and senior and junior secured loans. Transaction sizes range from $5 million to $40 million, with terms ranging from five to fifteen years and an average transaction size in 1996 of approximately $13 million. During 1996, the Company formed Public Finance to provide equipment and project/facility financing to state and local governments and Industrial Equipment Finance to provide collateral based equipment financing to smaller middle market companies in the machine tool, construction, printing and trucking industries. The targeted average transaction size is approximately $2 million for Public Finance and less than $1 million for Industrial Equipment Finance. Vendor Finance provides customized equipment leasing and financing programs to manufacturers and distributors of a wide variety of commercial, industrial and technology based products. These services, offered through approximately 75 programs with manufacturers and vendors, are established to finance sales to end users. Transactions under these programs generally have partial or in some cases full recourse to the vendor. The group serves the financing needs of the machining, graphic arts, information technology, energy management, healthcare, communication and food processing markets. Transaction sizes range from $50,000 to approximately $3 million, with an average transaction size in 1996 of approximately $150,000. The group also provides capital to independent finance and leasing companies. First Capital provides long-term financing to independent small businesses and franchises under the United States Small Business Administration ("SBA") loan programs. First Capital is one of the largest participants in the SBA's 7(A) loan program under which up to 80% of each loan is guaranteed by the SBA. The Company also makes loans under the SBA's 504 program. These loans are senior to an accompanying SBA loan and have an average loan to collateral value of 50%. First Capital's SBA 7(A) and 504 loans include financing for real estate acquisition, refinancing or construction financing, equipment or business acquisition, permanent working capital for expansion efforts and debt consolidation. The guaranteed portions of the SBA 7(A) loans are sometimes sold in the secondary market, with servicing rights retained by First Capital. Transaction sizes generally range from $50,000 to $2 million, with an average transaction size in 1996 of approximately $400,000. Sales Finance provides financing, primarily through senior lines and, to a lesser extent, subordinated debt to originators of consumer receivables. Financing is primarily provided for vacation ownership, home equity and improvement, non-prime auto, security alarm monitoring contracts and municipal tax liens. Sales Finance is a major capital source in the United States in the vacation ownership industry. Transaction sizes generally range from $3 million to $25 million, with an average transaction size in 1996 of approximately $7 million. 5 Cash Flow Lending Heller Corporate Finance ("Corporate Finance") is a leading provider of middle market financing based on the cash flows underlying a client's business. This lending is generally provided through coordination with private equity sponsors and includes the financing of corporate recapitalizations, refinancings, expansions, acquisitions and buy-outs of publicly and privately held entities in a wide variety of industries. Loans are provided on both a term and revolving basis for periods of up to ten years and are typically collateralized by senior liens on the borrower's stock or assets or both. Transactions may also include some unsecured or subordinated financings or modest non-voting equity investments. The group also serves as co-lender or participant in transactions agented by other asset based lenders. Transaction sizes range from $5 million to $50 million, and the group utilizes syndication capabilities to lower the average retained transaction size to approximately $16 million in commitments and $9 million in fundings for 1996. Corporate Finance also invests in equity funds generally originated by equity sponsors. Real Estate Finance Heller Real Estate Financial Services ("Real Estate Finance") specializes in providing financing products to real estate owners, investors and developers, primarily for the acquisition, refinancing and renovation of commercial income- producing properties in a wide range of property types and geographic areas. The group is one of the nation's largest providers of loans secured by manufactured housing communities and self-storage facility property types to be sold in the capital markets through a commercial mortgage securitization. The group also offers financing for discounted loan portfolio acquisitions, single family housing developments, credit sale-leasebacks and to be built properties with credit tenants. The group also holds investments in acquisition, development and construction transactions, as well as certain available for sale debt securities. Loans generally have terms ranging from one to five years and are principally collateralized by first mortgages. Transaction sizes generally range from $1 million to $15 million, with an average transaction size in 1996 of approximately $3 million. International Asset Based Finance and Factoring Heller International Group, Inc. ("Heller International") offers financial products through commercial finance subsidiaries and joint ventures in 18 countries in Europe, Asia/Pacific and Latin America. The joint ventures and subsidiaries primarily provide factoring, asset based financing and receivables management services, and also make loans for acquisition financing, leasing, vendor finance and/or trade finance programs, primarily to small and mid-sized businesses outside the United States. Heller International also makes modest investments in international equity funds. On April 2, 1997, Heller International purchased the interest of its joint venture partner in Factofrance Heller S.A. ("Factofrance") for $174 million. As a result, Heller International increased its ownership interest in Factofrance from 48.8% to 97.6%. Heller International has held an interest in Factofrance for over 30 years, using the equity method of accounting for its previous ownership position. Factofrance, founded in 1965, is the leading factoring company in the French marketplace. Factofrance is headquartered in Paris and has seven regional sales offices covering local markets. Specialized Finance Heller Project Finance, formerly known as Project Investment and Advisory Division, consists of transactions in project finance offering financing to independent power producers and industrial projects in the oil and gas, coal, mining, paper and environmental industries. Financing is provided in the form of senior and junior secured loans and equity investments. Transaction sizes generally range from $5 million to $25 million, and terms range from seven to 15 years. 6 SYNDICATION, SECURITIZATION AND LOAN SALE ACTIVITIES A key element of the Company maintaining strong asset quality is its focus on managing exposure to individual credits and industry concentrations. A major part of the effort is syndicating loans or selling participations to control the concentration of credit risk. The Company has established syndication programs in most of its businesses, with receivable syndications and participations totaling $453 million during 1996. In addition, Real Estate Finance originates loans to manufactured housing communities, self storage facilities and multi-tenant industrial property types, which may be sold as whole loans or in the capital markets through a commercial mortgage securitization. Other business groups also originate receivables which may be sold as whole loans or through a securitization to take advantage of market pricing and to reduce concentrations of credit risk. During 1996, the Company had loan sales totaling $304 million. Through September 30, 1997, the Company sold through securitization $268 million of loans and leases originated in its Equipment Finance and Leasing and Vendor Finance businesses and $505 million of mortgage loans originated in its Real Estate Finance business. OWNERSHIP All of the outstanding Common Stock of the Company is owned by Heller International Corporation (the "Parent"), a wholly-owned subsidiary of The Fuji Bank, Limited ("Fuji Bank"), headquartered in Tokyo, Japan. Fuji Bank also directly owns 21% of the outstanding shares of Heller International, a consolidated subsidiary of the Company engaged in international factoring and asset based financing activities. Fuji Bank is one of the largest banks in the world, with total deposits of approximately $311.4 billion at March 31, 1997. For a discussion of the Keep Well Agreement between Fuji Bank and the Company, see "Keep Well Agreement with Fuji Bank" below. The following table summarizes selected financial data obtained from Fuji Bank's most recent available financial statements, as prepared in accordance with accounting principles generally accepted in Japan, which differ from generally accepted accounting principles in the United States. THE FUJI BANK, LIMITED (CONSOLIDATED FINANCIAL STATEMENTS)
YEAR ENDED MARCH 31, -------------------------------------------------- 1997 1996 ------------------------ ------------------------- YEN DOLLARS* YEN DOLLARS* (BILLIONS) (MILLIONS) (BILLIONS) (MILLIONS) ------------- ---------- ------------- ---------- Total Assets............ (Yen)56,211.2 $452,950.5 (Yen)54,401.4 $511,531.8 Total Deposits.......... 38,649.5 311,438.2 37,280.4 350,544.2 Total Liabilities....... 54,276.8 437,363.5 52,764.8 496,142.9 Total Stockholders' Equity................. 1,934.3 15,587.0 1,636.1 15,388.9 Net Income.............. 109.0 878.7 (325.4) (3,059.9)
- -------- *Rates of Exchange: 3/31/97 (Yen) 124.10 = U.S. $1.00 3/31/96 (Yen) 106.35 = U.S. $1.00 If the financial statements from which the numbers in the foregoing table were taken had been prepared in accordance with accounting principles generally accepted in the United States, some of the amounts shown might have been materially different. The Company currently understands that accounting principles generally accepted in Japan differ from generally accepted accounting principles in the United States in various areas including the following: valuation of securities; accounting treatment of guarantees, commitments, unearned income, deferred taxes, leases, depreciation, foreign currency transactions and investments in subsidiaries, and creation and maintenance of optional and required reserves. 7 KEEP WELL AGREEMENT WITH FUJI BANK The Company entered into a Keep Well Agreement (as amended from time to time, the "Keep Well Agreement") with Fuji Bank on April 23, 1983 in order to assist the Company in maintaining its credit rating. The Keep Well Agreement was amended and supplemented on January 26, 1984, in connection with the consummation of the purchase of the Company by Fuji Bank and has been amended since that date from time to time. Most recently, on June 17, 1997, the Keep Well Agreement was amended in connection with the Company's offering of its Fixed Rate Noncumulative Perpetual Senior Preferred Stock, Series B, $.01 par value ("Series B Preferred Stock"). The Keep Well Agreement shall not be terminated prior to the date (the "Termination Date") which is the earlier of (i) December 31, 2007 and (ii) the date on which the Company has received written certifications from Moody's Investor Service, Inc. ("Moody's") and Standard & Poor's Corporation ("S&P") that, upon termination of the Keep Well Agreement, the ratings on the Company's senior unsecured indebtedness without the support provided by the Keep Well Agreement will be no lower than such ratings with the support of the Keep Well Agreement, but in no event shall the Termination Date be earlier than December 31, 2002. In addition, the Keep Well Agreement includes certain restrictions on termination relating to the Company's 8 1/8% Cumulative Perpetual Senior Preferred Stock, Series A, $.01 par value ("Series A Preferred Stock"), the Series B Preferred Stock and any fixed rate noncumulative perpetual Senior Preferred Stock issued in exchange for the Series B Preferred Stock ("B Exchange Preferred Stock"), which restrictions are discussed below. The Keep Well Agreement provides that Fuji Bank will maintain the Company's net worth in an amount equal to $500 million. Accordingly, if the Company should determine, at the close of any month, that its net worth is less than $500 million, then Fuji Bank will purchase, or cause one of its subsidiaries to purchase, shares of the Company's NW Preferred Stock, Class B, no par value ("NW Preferred Stock"), in an amount necessary to increase the Company's net worth to $500 million. The NW Preferred Stock is a series of the Company's preferred stock, no par value per share ("Junior Preferred Stock"), and, accordingly, if and when issued will rank junior to the Series A Preferred Stock, Series B Preferred Stock, any B Exchange Preferred Stock and any other Senior Preferred Stock issued by the Company in the future (including any Senior Preferred Stock offered hereby) as to payment of dividends, and in all other respects. If and when the NW Preferred Stock is issued, dividends thereon will be noncumulative and will be payable (if declared) quarterly at a rate per annum equal to 1% over the three-month London Inter-bank Offered Rate. Such dividends will not be paid during a default in the payment of principal or interest on any of the outstanding indebtedness for money borrowed by the Company. Subject to certain conditions, the NW Preferred Stock will be redeemable, at the option of the holder, within a specified period of time after the end of a calendar quarter in an aggregate amount not greater than the excess of the net worth of the Company as of the end of such calendar quarter over $500 million. See "Description of Existing Preferred Stock--NW Preferred Stock." The Keep Well Agreement further provides that if the Company should lack sufficient cash, other liquid assets or credit facilities to meet its payment obligations on its commercial paper, then Fuji Bank will lend the Company up to $500 million (the "Liquidity Commitment"), payable on demand, which the Company may use only for the purpose of meeting such payment obligations. Any such loan by Fuji Bank to the Company (a "Liquidity Advance") will bear interest at a fluctuating interest rate per annum equal to the announced prime commercial lending rate of Morgan Guaranty Trust Company of New York plus 0.25% per annum. Each Liquidity Advance will be repayable on demand at any time after the business day following the 29th day after such Liquidity Advance was made. No repayment of the Liquidity Advance will be made during a period of default in the payment of the Company's senior indebtedness for borrowed money. No Liquidity Advances or purchases of NW Preferred Stock have been made by Fuji Bank under the Keep Well Agreement; other infusions of capital in the Company have been made by the Parent, the last one of which occurred in 1992. Under the Keep Well Agreement, the Company has covenanted to maintain, and Fuji Bank has undertaken to assure that the Company will maintain, unused short-term lines of credit, asset sales facilities and committed 8 credit facilities in an amount approximately equal to 75% of the amount of its commercial paper obligations from time to time outstanding. In addition, under the Keep Well Agreement, neither Fuji Bank nor any of its subsidiaries can sell, pledge or otherwise dispose of shares of Common Stock of the Company, or permit the Company to issue shares of its Common Stock, except to Fuji Bank or a Fuji Bank affiliate. Neither Fuji Bank nor the Company is permitted to terminate the Keep Well Agreement for any reason prior to the Termination Date. After the Termination Date, either Fuji Bank or the Company may terminate the Keep Well Agreement upon 30 business days' prior written notice, except as set forth below. So long as the Series A Preferred Stock is outstanding and held by third parties other than Fuji Bank, the Keep Well Agreement may not be terminated by either party unless the Company has received written certifications from Moody's and S&P that upon such termination the Series A Preferred Stock will be rated by them no lower than "a3" and "A-1," respectively. Additionally, so long as the Series B Preferred Stock or B Exchange Preferred Stock is outstanding and held by third parties other than Fuji Bank, the Keep Well Agreement may not be terminated by either party unless the Company has received written certifications from Moody's and S&P that upon such termination the Series B Preferred Stock or B Exchange Preferred Stock, as the case may be (or both the Series B Preferred Stock and B Exchange Preferred Stock if both are then outstanding), will be rated no lower than "baa1" and "BBB" by Moody's and S&P, respectively. For these purposes, the Series A Preferred Stock, Series B Preferred Stock or B Exchange Preferred Stock will no longer be deemed outstanding at such time as an effective notice of redemption of all of the Series A Preferred Stock, Series B Preferred Stock or B Exchange Preferred Stock, as the case may be, shall have been given by the Company and funds sufficient to effectuate such redemption shall have been deposited with the party designated for such purpose in the notice. So long as the Series A Preferred Stock is outstanding, if both Moody's and S&P shall discontinue rating the Series A Preferred Stock, then Goldman, Sachs & Co., or its successor, shall, within 30 days, select a nationally recognized substitute rating agency and identify the comparable ratings from such agency. So long as the Series A Preferred Stock is no longer outstanding but the Series B Preferred Stock or B Exchange Preferred Stock is outstanding, if both Moody's and S&P shall discontinue rating the Series B Preferred Stock or B Exchange Preferred Stock, as the case may be, then Lehman Brothers Inc., or its successor, shall, within 30 days, select a nationally recognized substitute rating agency and identify the comparable ratings from such agency. Any termination of the Keep Well Agreement by the Company must be consented to by Fuji Bank. Any such termination will not relieve the Company of its obligations in respect of any NW Preferred Stock outstanding on the date of termination or the dividends thereon, any amounts owed in respect of Liquidity Advances on the date of termination or the unpaid principal or interest on those Liquidity Advances or Fuji Bank's fee relating to the Liquidity Commitment. Any such termination will not adversely affect the Company's commercial paper obligations outstanding on the date of termination. The Keep Well Agreement can be modified or amended by a written agreement of Fuji Bank and the Company. However, no such modification or amendment may change the prohibition against termination before the Termination Date or the other restrictions on termination or adversely affect the Company's then-outstanding commercial paper obligations. Under the Keep Well Agreement, the Company's commercial paper obligations and any other debt instruments are solely the obligations of the Company. The Keep Well Agreement is not a guarantee by Fuji Bank of the payment of the Company's commercial paper obligations, indebtedness, liabilities or obligations of any kind. USE OF PROCEEDS Except as otherwise provided in a Prospectus Supplement, the net proceeds from the sale of the Securities will be added to the general funds of the Company and will be available for the repayment of short-term borrowings and for other corporate purposes. From time to time, the Company may engage in additional public or private financings of a character and amount that the Company may deem appropriate. 9 SELECTED FINANCIAL DATA The following selected financial data of the Company and its consolidated subsidiaries have been derived from information contained in, and should be read in conjunction with, the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996 and the Company's Quarterly Report on Form 10-Q for the six months ended June 30, 1997. The data presented below for, and as of the end of, each of the years in the five-year period ended December 31, 1996 are derived from the audited consolidated financial statements of the Company and its subsidiaries. The data presented below for, and as of the end of, the six months ended June 30, 1997 and 1996 are derived from unaudited financial statements and include, in the opinion of management, all adjustments (consisting only of normal recurring adjustments) necessary to present fairly the data for the periods.
FOR THE SIX MONTHS ENDED JUNE 30, FOR THE YEAR ENDED DECEMBER 31, -------------- ---------------------------------- 1997 1996 1996 1995 1994 1993 1992 ------- ------ ------ ------ ------ ------ ------ (DOLLARS IN MILLIONS) Income Statement Data: Interest income............ $ 446 $ 400 $ 807 $ 851 $ 702 $ 620 $ 634 Interest expense........... 247 223 452 464 336 264 295 ------- ------ ------ ------ ------ ------ ------ Net interest income...... 199 177 355 387 366 356 339 Fees and other income...... 79 37 79 148 117 88 52 Factoring commissions...... 43 26 55 50 55 50 49 Income of international joint ventures............ 19 20 44 35 21 23 26 ------- ------ ------ ------ ------ ------ ------ Operating revenues....... 340 260 533 620 557 517 466 Operating expenses......... 152 119 247 216 195 174 169 Provision for losses....... 56 49 103 223 188 210 252 ------- ------ ------ ------ ------ ------ ------ Income before income taxes, minority interest and change in accounting principle............... 132 92 183 181 174 133 45 Income tax provision/(benefit)....... 45 21 43 49 51 11 (5) Minority interest in income of Heller International Group, Inc....................... 4 2 7 7 5 5 3 ------- ------ ------ ------ ------ ------ ------ Income before change in accounting principle.... 83 69 133 125 118 117 47 Cumulative effect of a change in accounting principle for income taxes..................... -- -- -- -- -- -- 41 ------- ------ ------ ------ ------ ------ ------ Net income............... $ 83 $ 69 $ 133 $ 125 $ 118 $ 117 $ 88 ======= ====== ====== ====== ====== ====== ====== Common dividends paid.... $ 28 $ 24 $ 56 $ 52 $ 20 $ -- $ -- ======= ====== ====== ====== ====== ====== ====== JUNE 30, DECEMBER 31, -------------- ---------------------------------- 1997 1996 1996 1995 1994 1993 1992 ------- ------ ------ ------ ------ ------ ------ (DOLLARS IN MILLIONS) Balance Sheet Data: Receivables................ $10,109 $8,167 $8,529 $8,085 $7,616 $7,062 $7,465 Allowance for losses of receivables............... 250 230 225 229 231 221 224 Investments................ 881 771 805 693 634 370 280 Investment in international joint ventures.................. 193 235 272 233 174 144 140 Total assets............... $11,608 $9,475 $9,926 $9,638 $8,476 $7,913 $7,952 ======= ====== ====== ====== ====== ====== ====== Senior debt: Commercial paper and short-term borrowings... $ 3,826 $2,440 $2,745 $2,223 $2,451 $1,981 $2,422 Notes and debentures..... 4,600 4,768 4,761 5,145 3,930 3,893 3,521 Junior subordinated debt... -- -- -- -- -- 75 225 ------- ------ ------ ------ ------ ------ ------ Total debt............... $ 8,426 $7,208 $7,506 $7,368 $6,381 $5,949 $6,168 ======= ====== ====== ====== ====== ====== ====== Total liabilities.......... $ 9,907 $7,997 $8,402 $8,208 $7,107 $6,625 $6,777 Preferred stock............ 275 150 150 150 150 150 150 Common equity.............. 1,368 1,276 1,317 1,234 1,180 1,103 994 ------- ------ ------ ------ ------ ------ ------ Total stockholders' equity.................. $ 1,643 $1,426 $1,467 $1,384 $1,330 $1,253 $1,144 ======= ====== ====== ====== ====== ====== ====== Ratio of commercial paper and short-term borrowings to total debt............. 45% 34% 37% 30% 38% 33% 39% ======= ====== ====== ====== ====== ====== ====== Ratio of debt (net of short-term investments) to total stockholders' equity.................... 5.0x 4.8x 5.0x 5.0x 4.7x 4.7x 5.4x ======= ====== ====== ====== ====== ====== ======
10 RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The following table sets forth the ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends for the Company and its consolidated subsidiaries for the periods indicated.
FOR THE SIX MONTHS ENDED JUNE FOR THE YEAR ENDED DECEMBER 30, 31, ----------- ----------------------------- 1997 1996 1996 1995 1994 1993 1992 ----- ----- ----- ----- ----- ----- ----- Ratio of earnings to fixed charges(1).......................... 1.53x 1.41x 1.40x 1.38x 1.51x 1.49x 1.15x Ratio of earnings to combined fixed charges and preferred stock dividends(2)........................ 1.48x 1.36x 1.35x 1.34x 1.44x 1.43x 1.14x
- -------- (1) The ratio of earnings to fixed charges is calculated by dividing (i) income before income taxes, the minority interest in Heller International income and fixed charges by (ii) fixed charges. Fixed charges consist of interest on all indebtedness and one-third of annual rentals (approximate portion representing interest). (2) The ratio of earnings to combined fixed charges and preferred stock dividends is calculated by dividing (i) income before income taxes, the minority interest in Heller International income and fixed charges by (ii) fixed charges plus preferred stock dividends. DESCRIPTION OF DEBT SECURITIES The following description sets forth certain general terms and provisions of the indentures under which the Debt Securities are to be issued. The particular terms of each issue of Debt Securities (the "Offered Debt Securities"), as well as any modifications or additions to such general terms that may apply in the case of such Offered Debt Securities, will be described in the Prospectus Supplement relating to such Offered Debt Securities and will be set forth in a filing with the Commission. Accordingly, for a description of the terms of a particular issue of Debt Securities, reference must be made to both the Prospectus Supplement relating thereto and to the following description. The Debt Securities will be unsecured general obligations of the Company, and may be senior Debt Securities ("Senior Debt Securities"), subordinated Debt Securities ("Subordinated Debt Securities") or junior subordinated Debt Securities ("Junior Subordinated Debt Securities"). None of the Company's outstanding Debt Securities are, and none of the Debt Securities will be, guaranteed by Fuji Bank. The Senior Debt Securities will be issued under an indenture dated as of September 1, 1995, as amended, between the Company and State Street Bank and Trust Company ("State Street"), as successor to Shawmut Bank Connecticut, National Association ("Shawmut"), as trustee (such indenture, as at any time amended, being referred to herein as the "Senior Indenture"); the Subordinated Debt Securities will be issued under an indenture dated as of September 1, 1995, as amended, between the Company and State Street, as successor to Shawmut, as trustee (such indenture, as at any time amended, being referred to herein as the "Subordinated Indenture"); and the Junior Subordinated Debt Securities will be issued under an indenture dated as of September 1, 1995, as amended, between the Company and State Street, as successor to Shawmut, as trustee (such indenture being referred to as the "Junior Subordinated Indenture"). The Senior Indenture, the Subordinated Indenture and the Junior Subordinated Indenture are sometimes hereinafter referred to individually as an "Indenture" and collectively as the "Indentures." The trustee under each Indenture (and any successor thereto under each Indenture) is referred to herein as the "Trustee." The statements under this caption relating to the Debt Securities and the Indentures are summaries only and do not purport to be complete. All section references appearing herein are to sections of the applicable Indenture or Indentures, and capitalized terms not defined herein shall have the meanings ascribed to them in the applicable Indenture or Indentures. Wherever particular provisions of the Indentures are referred to, such provisions are incorporated by reference as part of the statements made herein, and such statements are qualified in their entirety by such reference. Copies of the Senior Indenture, the Subordinated Indenture and the 11 Junior Subordinated Indenture have been filed with the Commission as exhibits to the Registration Statement and are available from the offices of the Commission as referred to under "Available Information." There is no requirement that future issues of debt securities of the Company be issued under any of the Indentures, and the Company will be free to employ other indentures or documentation containing provisions different from those included in the Indentures or applicable to one or more issues of Offered Debt Securities, in connection with future issues of such other debt securities. PROVISIONS APPLICABLE TO SENIOR, SUBORDINATED AND JUNIOR SUBORDINATED DEBT SECURITIES General Each Indenture provides that the Debt Securities issued thereunder may be issued without limit as to aggregate principal amount, in one or more series, and may be denominated in any currency or currency unit, in each case as established from time to time in, or pursuant to authority granted by, a resolution of the Board of Directors of the Company or as established in one or more indentures supplemental to such Indenture. (Section 3.01). Each Indenture also provides that there may be more than one Trustee under such Indenture, each with respect to one or more series of Debt Securities. The Trustee under any Indenture may resign or be removed with respect to one or more series of Debt Securities issued under such Indenture, and a successor Trustee may be appointed to act with respect to such series. (Section 8.10). If two or more persons are acting as Trustee with respect to different series of Debt Securities issued under the same Indenture, each such Trustee shall be a Trustee of a trust under such Indenture separate and apart from the trust administered by any other such Trustee (Section 8.11), and any action described herein to be taken by the "Trustee" may then be taken by each such Trustee with respect to, and only with respect to, the one or more series of Debt Securities for which it is Trustee under such Indenture. Reference is made to the Prospectus Supplement relating to the particular series of Debt Securities offered hereby for the following terms of the Offered Debt Securities: (i) the title of the Offered Debt Securities and whether such Offered Debt Securities will be Senior Debt, Subordinated Debt or Junior Subordinated Debt; (ii) any limit on the aggregate principal amount of the Offered Debt Securities; (iii) the percentage of their principal amount for which the Offered Debt Securities will be issued; (iv) the date or dates on which the principal of (and premium, if any, on) the Offered Debt Securities will be payable; (v) the rate or rates (which may be fixed or variable) per annum, or the method by which such rate or rates shall be determined, at which the Offered Debt Securities will bear interest, if any; (vi) if other than U.S. Dollars, the currency or currencies or currency unit or units for which the Offered Debt Securities may be purchased and the currency or currencies or currency unit or units in which the principal of, and premium, if any, and interest, if any, on, such Offered Debt Securities may be payable; (vii) the date or dates from which any such interest will accrue, the date or dates on which any such interest will be payable and the regular record dates for such interest payments; (viii) the place or places where the principal of, and premium, if any, and interest, if any, on, the Offered Debt Securities will be payable; (ix) the period or periods within which, the price or prices at which and the terms and conditions upon which the Offered Debt Securities may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise, if the Company is to have such an option, and whether any special terms and conditions of redemption shall apply if the Offered Debt Securities are Registered Securities (as hereinafter defined) or Unregistered Securities (as hereinafter defined); (x) the obligation, if any, of the Company to redeem, repay or purchase the Offered Debt Securities pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which the Offered Debt Securities will be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation; (xi) the terms for conversion or exchange, if any; (xii) any Events of Default with respect to the Offered Debt Securities in addition to those set forth under "Events of Default, Notice and Waiver" below; (xiii) the securities exchange or market, if any, on which the Offered Debt Securities will be listed; and (xiv) any other terms of the Offered Debt Securities not inconsistent with the provisions of the respective Indenture. 12 The Company will comply with Rule 14e-1 promulgated under the Exchange Act, and any other tender offer rules under the 1934 Act which may then be applicable in connection with any obligation of the Company to purchase Offered Debt Securities at the option of the Holders thereof. Any such obligation applicable to an issue of Securities will be described in the Prospectus Supplement relating thereto. The Debt Securities may be issued in fully registered form without coupons ("Fully Registered Securities"), or in a form registered as to principal only with coupons ("Registered Securities") or in bearer form with or without coupons ("Unregistered Securities"). The Debt Securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified in the applicable Prospectus Supplement. The specific depositary arrangement with respect to a series of Offered Debt Securities or any part thereof will be described in the applicable Prospectus Supplement. Unless otherwise specified in the Prospectus Supplement, the Offered Debt Securities will be issued only as Fully Registered Securities in denominations of $1,000 and any integral multiple thereof and will be payable in U.S. dollars. (Section 3.02). An investment in Offered Debt Securities indexed, as to principal or interest or both, to one or more values of currencies (including exchange rates between currencies), commodities or interest rate indices entails significant risks that are not associated with similar investments in a conventional fixed-rate debt security. If the interest rate of such an Offered Debt Security is so indexed, it may result in an interest rate that is less than that payable on a conventional fixed-rate debt security issued at the same time, including the possibility that no interest will be paid, and, if the principal amount of such an Offered Debt Security is so indexed, the principal amount payable at maturity may be less than the original purchase price of such Offered Debt Security if allowed pursuant to the terms of such Offered Debt Security, including the possibility that no principal will be paid. The secondary market for such Offered Debt Securities will be affected by a number of factors, independent of the creditworthiness of the Company and the value of the applicable currency, commodity or interest rate index, including the volatility of the applicable currency, commodity or interest rate index, the time remaining to the maturity of such Offered Debt Securities, the amount outstanding of such Offered Debt Securities and market interest rates. The value of the applicable currency, commodity or interest rate index depends on a number of interrelated factors, including economic, financial and political events, over which the Company has no control. Additionally, if the formula used to determine the principal amount or interest payable with respect to such Offered Debt Securities contains a multiple or leverage factor, the effect of any change in the applicable currency, commodity or interest rate index will be increased. The historical experience of the relevant currencies, commodities or interest rate indices should not be taken as an indication of future performance of such currencies, commodities or interest rate indices during the term of any Offered Debt Security. Accordingly, prospective investors should consult their own financial and legal advisors as to the risks entailed by an investment in such Offered Debt Securities and the suitability of such Offered Debt Securities in light of their particular circumstances. One or more series of Offered Debt Securities may be sold at a discount (which may be substantial) below their stated principal amount or bear no interest or interest at a rate which at the time of issuance is below market rates ("Original Issue Discount Securities"). Special federal income tax, accounting and other considerations applicable thereto will be described in the Prospectus Supplement relating to any such Offered Debt Securities. If any of the Offered Debt Securities are sold for any foreign currency or foreign currency unit or if the principal of, and premium, if any, and interest, if any, on, any series of Offered Debt Securities are payable in any foreign currency or foreign currency unit, the restrictions, elections, tax consequences, specific terms and other information with respect to such issue of Offered Debt Securities and such foreign currency or currency unit will be set forth in the Prospectus Supplement relating thereto. The Debt Securities will be unsecured obligations of the Company. None of the Company's outstanding debt securities are, and none of the Debt Securities will be, guaranteed by Fuji Bank. 13 Certain Definitions The following terms are defined in each Indenture. (Sections 1.01 and 12.07). The term "Consolidated Net Tangible Assets" is defined to mean the total of all assets reflected on a consolidated balance sheet of the Company and its consolidated Subsidiaries, 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 such 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 such balance sheet for capital stock of the Company, all as determined in accordance with such principles, less the aggregate of the current liabilities of the Company and its consolidated Subsidiaries reflected on such balance sheet, all as determined in accordance with such principles. For purposes of this definition, "current liabilities" include all indebtedness for money borrowed, incurred, issued, assumed or guaranteed by the Company and its consolidated Subsidiaries, 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 such consolidated balance sheet of the Company and its consolidated Subsidiaries, prepared in accordance with generally accepted accounting principles. The term "Debt" is defined to mean 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 such third persons to pay money. The term "Finance Business" is defined to mean the business of making loans, extending credit, or providing financial accommodations to any person and such activities as may be incidental thereto, including, but not limited to: the purchase of obligations growing out of the sale or lease of all types of consumer, commercial and industrial property; the making of loans to individuals and business enterprises, including the extension of wholesale or floor plan accommodations to permit distributors and dealers to carry inventories for resale; factoring; leasing of tangible personal property to others; mortgage brokerage and servicing; and other business of a similar character to the extent that other companies similarly situated, within the limits of sound trade practice, may have heretofore engaged or may hereafter engage in such other business. The term "Junior Subordinated Debt" is defined to mean all Debt of the Company which is by its terms made subordinate and junior to Senior Debt and Subordinated Debt. The term "Lien" is defined to mean any mortgage, pledge, security interest or lien. The term "Restricted Subsidiary" is defined to mean any Subsidiary of the Company or of a Restricted Subsidiary (i) which is primarily engaged in the Finance Business, (ii) which conducts such Finance Business primarily in the United States and (iii) of which the Company and/or a Restricted Subsidiary owns 51% or more of each class of its Voting Stock. The term "Senior Debt" is defined to mean all Debt of the Company which is not by its terms made subordinate or junior in right of payment with respect to the general assets of the Company to any other Debt of the Company. The term "Subordinated Debt" is defined to mean all Debt of the Company which is by its terms made subordinate or junior in right of payment to any other Debt of the Company, except Junior Subordinated Debt. The term "Subsidiary" is defined to mean any corporation of which more than 50% of the Voting Stock, other than directors' qualifying shares (if any), shall at the time be owned by the Company and/or one or more Subsidiaries. 14 The term "Voting Stock" is defined to mean stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). Certain Restrictions The Company agrees in each Indenture that it will not, and will not permit any Restricted Subsidiary to, create, incur or assume any Lien on property of any character of the Company or any Restricted Subsidiary to secure indebtedness for money borrowed, incurred, issued, assumed or guaranteed by the Company or any Restricted Subsidiary ("indebtedness") unless: (i) the Lien equally and ratably secures the Debt Securities and the indebtedness (subject, in the case of Debt Securities constituting either Subordinated Debt or Junior Subordinated Debt, to subordination of respective rights of payment as provided in the Subordinated Indenture or the Junior Subordinated Indenture, as the case may be); or (ii) the Lien is on property or shares of stock of a corporation at the time the corporation becomes a Restricted Subsidiary or merges into or consolidates with the Company or a Restricted Subsidiary; or (iii) the Lien is on property at the time the Company or a Restricted Subsidiary acquires the property; or (iv) the Lien secures indebtedness incurred to finance all or part of the purchase price or cost of construction of property of the Company or a Restricted Subsidiary; or (v) the Lien secures indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; or (vi) the Lien is on property of a person at the time the person transfers or leases all or substantially all of its assets to the Company or a Restricted Subsidiary; or (vii) the Lien is in favor of a government or governmental entity and is for taxes or assessments or secures payments pursuant to a contract or statute; or (viii) the Lien arises out of a judgment, decree or court order or the Lien arises in connection with other proceedings or actions at law or in equity; or (ix) the Lien is on receivables of the Company, or cash, deposited or otherwise subjected to a Lien as a basis for the issuance of bankers' acceptances or letters of credit in connection with any financing of customers' operations by the Company or any Restricted Subsidiary; or (x) the Lien is on property (or any receivables arising in connection with the lease thereof) acquired by the Company or a Restricted Subsidiary through repossession, foreclosure or like proceeding and secures indebtedness incurred at the time of such acquisition or at any time thereafter to finance all or part of the cost of maintenance, improvement or construction relating thereto; or (xi) the Lien is created in favor of the Small Business Administration on property owned by a Restricted Subsidiary which is organized as a small business investment company under Title 15, 681, of the United States Code; or (xii) the Lien extends, renews or replaces in whole or in part a Lien enumerated in clauses (i) through (xi) above; or (xiii) the Lien secures indebtedness of the Company or a Restricted Subsidiary and the sum of the following does not exceed 10% of Consolidated Net Tangible Assets: (x) such indebtedness plus (y) other indebtedness of the Company and its Restricted Subsidiaries secured by Liens on property of the Company and its Restricted Subsidiaries, excluding indebtedness secured by a Lien existing as of the date of the Indenture and excluding indebtedness secured by a Lien permitted by one of clauses (i) through (xii) above. (Section 12.07). Each Indenture provides that the Company may omit in any particular instance to comply with any part or the entirety of the foregoing restriction on Liens if the Holders of at least a majority in principal amount of the Offered Debt Securities at the time Outstanding of each series that is affected thereby shall either waive such compliance in such instance or generally waive compliance. (Section 12.08). None of the Indentures limits the amount of Senior Debt, Subordinated Debt or Junior Subordinated Debt that may be incurred by the Company. However, under certain restrictive provisions of other indentures and agreements, the Company has covenanted that it will not at any time permit the aggregate principal amount of all Debt which is reflected on the consolidated balance sheets of the Company to exceed 10 times consolidated stockholders' equity, determined in accordance with generally accepted accounting principles. The foregoing provisions are contained in certain indentures and agreements of varying terms, the longest of which is currently scheduled to expire on May 15, 2002. None of the Indentures affects the Company's ability to terminate or amend such provisions prior to such date. 15 Mergers, Consolidations and Transfers of Assets Each Indenture provides that the Company will not consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any person, unless (a) the corporation formed by such consolidation or into which the Company is merged or the person which shall have acquired by conveyance or transfer, or which leases such properties and assets is a corporation, partnership, limited liability company or trust organized and existing under the laws of any United States jurisdiction, and shall assume payment of the principal of, and premium, if any, and interest, if any, on, the Debt Securities and the performance or observance of every covenant to be performed or observed by the Company under the Indentures, (b) immediately thereafter, no Event of Default (or event which, with notice or lapse of time, or both, would be such) shall have occurred and be continuing and (c) certain other conditions have been met. (Section 10.01). If any such transaction were to occur, then, provided that all such conditions were satisfied, the Company would (except in the case of a lease) be discharged from all of its obligations and covenants under the Indenture and the Debt Securities. (Section 10.02). Payment and Transfer Principal of, and premium, if any, and interest, if any, on, Fully Registered Securities is to be payable at the Corporate Trust Office of the Trustee under the applicable Indenture or any other office maintained by the Company for such purposes, provided that payment of interest, if any, on Fully Registered Securities may be made at the option of the Company by check mailed to the persons in whose names such Debt Securities are registered at the close of business on the day or days specified in the applicable Prospectus Supplement. (Sections 3.08, 3.12). The principal of, and premium, if any, and interest, if any, on, Offered Debt Securities in other forms will be payable in such manner and at such place or places as may be designated by the Company and specified in the applicable Prospectus Supplement. (Section 3.12). Fully Registered Securities may be transferred or exchanged at the Corporate Trust Office of the Trustee under the applicable Indenture or at any other office or agency maintained by the Company for such purposes, subject to the limitations in the applicable Indenture, without the payment of any service charge except for any tax or governmental charge incidental thereto. Provisions with respect to the transfer and exchange of Offered Debt Securities in other forms will be set forth in the applicable Prospectus Supplement. (Section 3.05). Book Entry, Delivery and Form If the accompanying Prospectus Supplement so indicates, the Offered Debt Securities will be represented by one or more certificates in registered, global form (the "Global Securities"). The Global Security representing Offered Debt Securities will be deposited with, or on behalf of, The Depository Trust Company ("DTC") in New York, New York or other successor depositary appointed by the Company (DTC or such other depositary is herein referred to as the "Depositary") and registered in the name of the Depositary or its nominee. DTC currently limits the maximum denomination of any single Global Security to $200,000,000. Therefore, for purposes hereof, "Global Security" refers to the Global Security or Global Securities representing the entire issue of Offered Debt Securities. DTC has advised the Company and any underwriters, dealers or agents named in the accompanying Prospectus Supplement as follows: DTC is a limited-purpose trust company organized under the laws of the State of New York, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities of its participants (the "Participants") and to facilitate the clearance and settlement of securities transactions among its Participants in such securities through electronic book-entry changes in accounts of the Participants, thereby eliminating the need for physical movement of securities certificates. The Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTC's book-entry system is also available to other entities, such as banks, brokers, dealers and trust companies, that clear through or maintain a custodial relationship with a Participant, either directly or indirectly. 16 Ownership of beneficial interests in Debt Securities represented by a Global Security (each, a "Book-Entry Debt Security") will be limited to Participants or persons that may hold interests through Participants. Upon deposit of a Global Debt Security, the Depositary will credit, on its book-entry registration and transfer system, the Participants' accounts with the respective principal amounts of the Book-Entry Debt Securities represented by such Global Debt Security beneficially owned by such Participants. The accounts to be credited shall be designated by any dealers, underwriters or agents participating in the distribution of such Book-Entry Debt Securities. Ownership of Book-Entry Debt Securities will be shown on, and the transfer of such ownership interests will be effected only through, records maintained by the Depositary for the related Global Debt Security (with respect to interests of Participants) and on the records of Participants (with respect to interests of persons holding through Participants). The laws of some states may require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to own, transfer or pledge beneficial interest in Book-Entry Debt Securities. So long as the Depositary for a Global Debt Security, or its nominee, is the registered owner of such Global Debt Security, the Depositary or such nominee, as the case may be, will be considered the sole owner or Holder of the Book- Entry Debt Securities represented by such Global Debt Security for all purposes under the Indenture. Except as set forth below, owners of beneficial interests in Book-Entry Debt Securities will not be entitled to have such securities registered in their names, will not receive or be entitled to receive physical delivery of a certificate in definitive form representing such securities and will not be considered the owners or Holders thereof under the Indenture for any purpose, including with respect to the giving of any directions, approvals or instructions to the Trustee thereunder. As a result, the ability of a person having a beneficial interest in Book-Entry Securities represented by a Global Debt Security to pledge such interest to persons or entities that do not participate in the Depositary's system, or to otherwise take actions with respect to such interest, may be affected by the lack of a physical certificate evidencing such interest. Accordingly, each person owning Book-Entry Debt Securities must rely on the procedures of the Depositary for the related Global Debt Security and, if such person is not a Participant, on the procedures of the Participant through which such person owns its interest, to exercise any rights of a Holder under the Indenture. The Company understands that, under existing industry practice, if a Company requests any action of Holders or an owner of a beneficial interest in a Global Debt Security desires to give any notice or take any action a Holder is entitled to give or take under the Indenture, the Depositary will authorize the Participants on whose behalf it holds a Global Debt Security to give such notice or take such action, and Participants will authorize beneficial owners owning through such Participants to give such notice or take such action or will otherwise act upon the instructions of beneficial owners owning through them. The Indentures provide that the Company, the Trustee and their respective agents will treat as the Holders of a Debt Security the persons specified in a written statement of the Depositary with respect to such Global Debt Security for purposes of obtaining any consents or directions required to be given by Holders of the Debt Securities pursuant to the Indentures. Payments of principal of, and premium, if any, and interest, if any, on, Book-Entry Debt Securities will be made by the Company through the Trustee under the applicable Indenture, or a paying agent (the "Paying Agent"), which may also be the Trustee under the applicable Indenture, to the Depositary or its nominee, as the case may be, as the registered Holder of the related Global Debt Security. Under the terms of the Indentures, the Company and the Trustee may treat the persons in whose names the Offered Debt Securities, including the Global Debt Security, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. Consequently, none of the Company, the Trustee or the Paying Agent or any agent of the Trustee will have any responsibility or liability for any aspect of the records relating to, or payments made on account of beneficial ownership interests in, such Global Debt Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Company expects that the Depositary, upon receipt of any payment of principal of, or premium or interest, if any, on, a Global Debt Security, will immediately credit Participants' accounts with payments in 17 amounts proportionate to the respective amounts of Book-Entry Debt Securities held by each such Participant as shown on the records of the Depositary. The Company also expects that payments by Participants to owners of beneficial interests in Book-Entry Debt Securities held through such Participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of the Participants. If the Depositary is at any time unwilling or unable to continue as Depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days, certificates representing the Offered Debt Securities in definitive form will be issued to each person that the Depositary identifies as the beneficial owner of the Book-Entry Debt Securities represented by the Global Debt Security. Neither the Company nor the Trustee shall be liable for any delay by the Depositary or any Participant or any person that may hold interests through a Participant in identifying the beneficial owners of the Book-Entry Debt Securities, and the Company and the Trustee may conclusively rely on, and shall be protected in relying on, instructions from the Depositary for all purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Book-Entry Debt Securities to be issued). The foregoing information in this section concerning the Depositary and the Depositary's book-entry system has been obtained from sources that the Company believes to be reliable. The Company takes no responsibility for the accuracy of such information or the performance by the Depositary or its Participants of their respective obligations as described hereunder or under the rules and procedures governing their respective operations. Same-Day Settlement If the accompanying Prospectus Supplement so indicates, settlement for Offered Debt Securities will be made by the underwriters, dealers or agents in immediately available funds and all applicable payments of principal and interest on Offered Debt Securities will be made by the Company in immediately available funds. Secondary trading in long-term notes and debentures of corporate issuers is generally settled in clearinghouse or next-day funds. In contrast, Debt Securities subject to settlement in immediately available funds will trade in the Depositary's Same-Day Funds Settlement System until maturity, and secondary market trading activity in Offered Debt Securities will therefore be required by the Depositary to settle in immediately available funds. No assurance can be given as to the effect, if any, of settlement in immediately available funds on trading activity in Offered Debt Securities. Events of Default, Notice and Waiver Except as may otherwise be set forth in the applicable Prospectus Supplement with respect to any series of Offered Debt Securities, each Indenture provides that the following events are Events of Default with respect to any series of Offered Debt Securities issued thereunder: (a) default in the payment of the principal of (or premium, if any, on) any Offered Debt Security of such series at its maturity, upon redemption (if applicable) or otherwise; (b) default for 30 days in the payment of any installment of interest on any Offered Debt Security of such series; (c) default for 60 days after written notice in the performance of any other covenant in respect of the Offered Debt Securities of such series contained in such Indenture or in such Offered Debt Securities; (d) (i) an Event of Default with respect to any other series of Offered Debt Securities issued pursuant to such Indenture, or (ii) a default under any bond, debenture, note or other evidence of indebtedness for money borrowed, issued, assumed or guaranteed by the Company having unpaid principal in excess of $2,000,000 or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any such indebtedness for money borrowed, whether such indebtedness now exists or shall hereafter be created, which Event of Default or default, as the case may be, in either such case, shall have resulted in such other series of Offered Debt Securities or such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such other series of Offered Debt Securities or such indebtedness having been discharged or such declaration of acceleration having been rescinded 18 or annulled within a period of 60 days after there shall have been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Securities of such series, a written notice specifying such Event of Default or default, as the case may be, and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a "Notice of Default" under the Indenture, unless at the end of such 60-day period and thereafter the Event of Default or default is being contested in good faith by the Company; (e) certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Company or its property; and (f) any other Event of Default provided in, or pursuant to, the applicable resolution of the Board of Directors of the Company, or established in the supplemental indenture under which such series of Offered Debt Securities is issued. (Section 7.01). No Event of Default with respect to a particular series of Offered Debt Securities necessarily constitutes an Event of Default with respect to any other series of Offered Debt Securities issued under the same or another Indenture. Within 90 days after the occurrence of any default with respect to any series of Debt Securities, the Trustee for such series must give the Holders of such Debt Securities notice of all defaults of which it has knowledge and that have not been cured or waived. Nevertheless, the Trustee may withhold notice to the Holders of any series of Debt Securities of any default with respect to such series (except a default in the payment of principal, premium or interest) if and so long as it determines in good faith that the withholding of such notice is in the best interest of such Holders. (Section 8.02). If an Event of Default with respect to any series of Debt Securities occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the outstanding Debt Securities of such series may declare the principal thereof and accrued but unpaid interest thereon (or, in the case of a series of Original Issue Discount Securities, such portion of the principal amount as may be specified in the Prospectus Supplement respecting the offer and sale of such Debt Securities) to be due and payable immediately. (Section 7.02). Each Indenture contains a provision entitling the Trustee to be indemnified by the Holders of Offered Debt Securities issued thereunder before proceeding to exercise any right or power under such Indenture at the request of any Holders. (Section 8.03). Each Indenture provides that the Holders of a majority in principal amount of the outstanding Debt Securities of any series issued thereunder may, with certain exceptions, direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, with respect to the Debt Securities of such series. (Section 7.12). The right of a Holder to institute a proceeding with respect to the applicable Indenture is subject to certain conditions precedent, including notice and indemnity to the applicable Trustee, but each Holder has an absolute right to the receipt of principal, premium, if any, and interest, if any, at the respective Stated Maturities of the Debt Securities (or, in the case of a redemption, on the Redemption Date) or to institute suit for the enforcement thereof. (Sections 7.07 and 7.08). The Holders of at least a majority in principal amount of the outstanding Debt Securities of any series may, on behalf of the Holders of all such Debt Securities, waive any past default, except (a) a default in the payment of the principal of, or premium, if any, or interest, if any, on, any Debt Security of such series at maturity, upon redemption or otherwise, and (b) a default in respect of any covenant or provision of the applicable Indenture that cannot be amended or modified without the consent of the Holder of each of the outstanding Debt Securities affected. (Section 7.13). Each Indenture requires the Company to furnish to the applicable Trustee annual statements as to the fulfillment by the Company of its obligations under such Indenture. (Section 12.05). Modification of the Indentures The Company and the applicable Trustee, with the consent of the Holders of a majority in principal amount of each series of the Debt Securities at the time outstanding under the Indenture that is affected thereby, may enter into supplemental indentures for the purpose of amending or modifying, provisions of such Indenture or any indenture supplemental thereto; provided, however, that no such modification or amendment may, without the consent of the Holder of each of the outstanding Debt Securities affected thereby: (i) modify the terms of 19 payment of principal or interest; (ii) reduce the above-stated percentage of Holders of outstanding Securities necessary to modify or amend such Indenture or to waive compliance by the Company with any restrictive covenant; or (iii) subordinate the indebtedness evidenced by the Debt Securities to any indebtedness of the Company other than to subordinate Subordinated Debt to Senior Debt or to subordinate Junior Subordinated Debt to Senior Debt and Subordinated Debt. (Section 11.02). Satisfaction and Discharge Each Indenture provides that the Company shall be discharged from its obligations under the Debt Securities of a series at any time prior to the Stated Maturity or redemption thereof when (a) the Company has irrevocably deposited with the Trustee, in trust, (i) sufficient funds in the currency or currency unit in which the Debt Securities are denominated to pay the principal of, and premium, if any, and interest, if any, to Stated Maturity (or redemption) on, the Debt Securities of such series, or (ii) such amount of direct obligations of, or obligations the principal of, and interest on, which are fully guaranteed by, the government which issued the currency in which the Debt Securities are denominated, and which are not subject to prepayment, redemption or call, as will, together with the predetermined and certain income to accrue thereon without consideration of any reinvestment thereof, be sufficient to pay when due the principal of, and premium, if any, and interest, if any, to Stated Maturity (or redemption) on, the Debt Securities of such series, (b) the Company has paid all other sums payable with respect to the Debt Securities of such series, (c) if the deposit occurs more than one year prior to the Stated Maturity or redemption of the Debt Securities of such series, the Company has delivered to the Trustee an opinion of recognized tax counsel to the effect that such deposit and discharge will not result in recognition by the Holders of the Debt Securities of such series of income, gain or loss for Federal income tax purposes (other than income, gain or loss which would have been recognized in like amount and at a like time absent such deposit and discharge) and (d) the Company has delivered to the Trustee an Opinion of Counsel as to certain other matters. Upon such discharge, the Holders of the Debt Securities of such series shall no longer be entitled to the benefits of the Indenture, except for the purposes of registration of transfer and exchange of the Debt Securities of such series, and replacement of lost, stolen or mutilated Debt Securities and shall look only to such deposited funds or obligations for payment. (Sections 6.01 and 6.03). However, each Indenture provides that, if the Trustee is unable to apply any money or obligations deposited with the Trustee 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 such application, or by reason of the Trustee's inability to convert any such money or Government Obligations into the currency or currency unit required to be paid with respect to the Debt Securities of such series, the Company's obligations under the Indenture will be reinstated until such time as the Trustee is permitted to apply all such money and obligations in accordance with the provisions of such Indenture. (Section 6.04). The Trustee State Street Bank and Trust Company will serve as Trustee under the Senior Indenture, the Subordinated Indenture and the Junior Subordinated Indenture. Each Indenture contains certain limitations on the right of the Trustee, as a creditor of the Company, to obtain payment of claims in certain cases and to realize on certain property received with respect to any such claims, as security or otherwise. The Trustee is permitted to engage in other transactions, except that, if it acquires any conflicting interest (as defined), it must eliminate such conflict or resign. The Trustee is trustee with respect to outstanding senior or subordinated unsecured debt securities of the Company previously issued under the Indentures and may from time to time perform certain other services for, including extending lines of credit to, the Company in the ordinary course of business. PROVISIONS APPLICABLE SOLELY TO THE SENIOR DEBT SECURITIES The Senior Debt Securities will be issued under the Senior Indenture. Each series of Senior Debt Securities will constitute Senior Debt and will rank pari passu with each other series of Senior Debt Securities. All Subordinated Debt (including, but not limited to, all Subordinated Debt Securities) and all Junior Subordinated Debt (including, but not limited to, all Junior Subordinated Debt Securities) will be subordinated to the Senior Debt Securities. 20 PROVISIONS APPLICABLE SOLELY TO THE SUBORDINATED DEBT SECURITIES The Subordinated Debt Securities will be issued under the Subordinated Indenture. Each series of Subordinated Debt Securities will constitute Subordinated Debt and will rank pari passu with each other series of Subordinated Debt Securities. All Junior Subordinated Debt (including, but not limited to, all Junior Subordinated Debt Securities) will be subordinated to the Subordinated Debt Securities, and the Subordinated Debt Securities will be subordinated to all Senior Debt (including, but not limited to, all Senior Debt Securities). In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Company or to its property, or if any Subordinated Debt Security is declared due and payable because of the occurrence of an Event of Default, then, in either event, all principal of, and premium, if any, and interest, if any, on, all Senior Debt will be paid in full before any payment is made on such Subordinated Debt Security. (Section 14.01 of the Subordinated Indenture). If Subordinated Debt Securities are issued under the Subordinated Indenture, the aggregate principal amount of Senior Debt outstanding as of a recent date will be set forth in the applicable Prospectus Supplement. The applicable Prospectus Supplement will also set forth any limitation on the issuance by the Company of any additional Senior Debt. PROVISIONS APPLICABLE SOLELY TO THE JUNIOR SUBORDINATED DEBT SECURITIES The Junior Debt Subordinated Securities will be issued under the Junior Subordinated Indenture. Each series of Junior Subordinated Securities will rank pari passu with each other series of Junior Debt Subordinated Securities. The Junior Subordinated Debt Securities will be subordinated to all Senior Debt (including, but not limited to, all Senior Debt Securities) and all Subordinated Debt (including, but not limited to, all Subordinated Debt Securities). In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Company or to its property, or if any Junior Subordinated Debt Security is declared due and payable because of the occurrence of an Event of Default, then, in either event, all principal of, and premium, if any, and interest, if any, on, all Senior Debt and all Subordinated Debt will be paid in full before any payment is made on such Junior Subordinated Debt Security. (Section 14.01 of the Junior Subordinated Indenture). If Junior Subordinated Debt Securities are issued under the Junior Subordinated Indenture, the aggregate principal amount of Senior Debt and Subordinated Debt outstanding as of a recent date will be set forth in the applicable Prospectus Supplement. The applicable Prospectus Supplement will also set forth any limitation on the issuance by the Company of any additional Senior Debt or Subordinated Debt. As of June 30, 1997, the aggregate principal amount of Senior Debt outstanding was $8.4 billion, and there was no outstanding Subordinated Debt or Junior Subordinated Debt. DESCRIPTION OF WARRANTS The following statements with respect to the Warrants are summaries of, and subject to, the detailed provisions of a Warrant Agreement (the "Warrant Agreement") to be entered into by the Company and a warrant agent to be selected at the time of issue (the "Warrant Agent"), a form of which is filed with the Commission as an exhibit to the Registration Statement. GENERAL The Warrants, evidenced by Warrant certificates (the "Warrant Certificates"), may be issued under the Warrant Agreement independently or together with any Debt Securities offered by any Prospectus Supplement and may be attached to or separate from such Debt Securities. If Warrants are offered, the Prospectus Supplement 21 will describe the terms of the Warrants, including the following: (i) the offering price, if any; (ii) the designation, aggregate principal amount and terms of the Debt Securities purchasable upon exercise of the Warrants; (iii) if applicable, the designation and terms of the Debt Securities with which the Warrants are issued and the number of Warrants issued with each such Debt Security; (iv) if applicable, the date on and after which the Warrants and the related Debt Securities will be separately transferable; (v) the principal amount of Debt Securities purchasable upon exercise of one Warrant and the price at which such principal amount of Debt Securities may be purchased upon such exercise; (vi) the date on which the right to exercise the Warrants shall commence and the date on which such right shall expire; (vii) federal income tax consequences; (viii) whether the Warrants represented by the Warrant Certificates will be issued in registered or bearer form; and (ix) any other terms of the Warrants. Warrant Certificates may be exchanged for new Warrant Certificates of different denominations and may (if in registered form) be presented for registration of transfer at the corporate trust office of the Warrant Agent or any co-Warrant Agent, which will be listed in the Prospectus Supplement, or at such other office as may be set forth therein. Warrant holders do not have any of the rights of Holders of Debt Securities and are not entitled to payments of principal of, and premium, if any, and interest, if any, on, such Debt Securities. EXERCISE OF WARRANTS Warrants may be exercised by surrendering the Warrant Certificate at the corporate trust office of the Warrant Agent or at the corporate trust office of the co-Warrant Agent, if any, with the form of election to purchase on the reverse side of the Warrant Certificate properly completed and executed, and by payment in full of the exercise price, as set forth in the Prospectus Supplement. Upon the exercise of Warrants, the Warrant Agent or co-Warrant Agent, if any, will, as soon as practicable, deliver the Debt Securities in authorized denominations in accordance with the instructions of the exercising Warrantholder and at the sole cost and risk of such Holder. If less than all of the Warrants evidenced by the Warrant Certificate are exercised, a new Warrant Certificate will be issued for the remaining amount of Warrants. DESCRIPTION OF CAPITAL STOCK GENERAL The following description of the capital stock of the Company is qualified in its entirety by reference to the Company's Amended and Restated Certificate of Incorporation, as amended (the "Restated Certificate"), which is filed with the Commission as an exhibit to the Registration Statement, and to the Certificates of Designation, Preferences and Rights relating to the Series A Preferred Stock and the Series B Preferred Stock, which have been filed with, and are available from the offices of, the Commission as referred to under "Available Information." The Restated Certificate authorizes the Company to issue 22,000,000 shares of capital stock, of which 1,999,000 shares shall be designated preferred stock, no par value per share ("Junior Preferred Stock"), 20,000,000 shares shall be designated senior preferred stock, $.01 par value per share ("Senior Preferred Stock" and, together with the Junior Preferred Stock, "Preferred Stock") and 1,000 shares shall be designated common stock, $.025 par value per share ("Common Stock"). As of October 1, 1997, there were 6,600,000 shares of Preferred Stock authorized and issued or reserved for issuance as follows: 5,000,000 shares of Series A Preferred Stock, a series of Senior Preferred Stock, 1,500,000 shares of Series B Preferred Stock, a series of Senior Preferred Stock, and 100,000 shares of NW Preferred Stock, a series of Junior Preferred Stock. As of October 1, 1997, 5,000,000 shares of Series A Preferred Stock, 1,500,000 shares of Series B Preferred Stock, no shares of NW Preferred Stock and 105 shares of Common Stock were issued and outstanding. All outstanding shares of Common Stock and Preferred Stock are fully paid and nonassessable, and any Senior Preferred Stock offered hereby will, upon full payment of the purchase price therefor, likewise be fully paid and nonassessable. Under the Restated Certificate, the Board of Directors of the Company may provide for the issuance of Senior or Junior Preferred Stock in one or more series from time to time, and the rights, preferences, privileges 22 and restrictions, including dividend rights, voting rights, conversion rights, terms of redemption and liquidation preferences, of the Senior Preferred Stock or Junior Preferred Stock of each series will be fixed or designated by the Board of Directors pursuant to a certificate of designation, preferences and rights without any further vote or action by the Company's stockholders, except as required pursuant to the terms of the Series A Preferred Stock and Series B Preferred Stock (and any fixed rate noncumulative perpetual Senior Preferred Stock issued in exchange therefor) as described below. The description of Senior Preferred Stock set forth below and the description of the terms of a particular series of Senior Preferred Stock that will be set forth in a Prospectus Supplement do not purport to be complete and are qualified in their entirety by reference to the Restated Certificate and the certificate of designation relating to such series, a form of which will be filed with the Commission. The specific terms of a particular series of Senior Preferred Stock offered hereby will be described in a Prospectus Supplement relating to such series and will include the following: (i) the maximum number of shares to constitute the series and the distinctive designation thereof; (ii) the annual dividend rate, if any, on shares of the series, whether such rate is fixed or variable or both, the date or dates from which dividends will begin to accrue or accumulate and whether dividends will be cumulative; (iii) whether the shares of the series will be redeemable and, if so, the price at and the terms and conditions on which the shares of the series may be redeemed, including the time during which shares of the series may be redeemed and any accumulated dividends thereon that the holders of shares of the series shall be entitled to receive upon the redemption thereof; (iv) the liquidation preference, if any, applicable to shares of the series; (v) whether the shares of the series will be subject to operation of a retirement or sinking fund and, if so, the extent and manner in which any such fund shall be applied to the purchase or redemption of the shares of the series for retirement or for other corporate purposes, and the terms and provisions relating to the operation of such fund; (vi) the terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, shares of any other class or classes of Senior Preferred Stock of the Company, or of any other series of the same class, including the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same; (vii) the voting rights, if any, of the shares of the series; and (viii) any other preferences and relative, participating, optional or other special rights or qualifications, limitations or restrictions thereof. EXISTING PREFERRED STOCK Series A Preferred Stock The Series A Preferred Stock has an annual dividend rate of 8.125%. Dividends are cumulative and payable quarterly. The Company is prohibited from declaring or paying cash dividends on Common Stock, Junior Preferred Stock or other series of Senior Preferred Stock on parity with the Series A Preferred Stock unless full cumulative dividends on all outstanding shares of Series A Preferred Stock for all past dividend periods have been paid. The Series A Preferred Stock is not redeemable prior to September 22, 2000. On or after that date, the Series A Preferred Stock will be redeemable at the option of the Company, in whole or in part, at a redemption price of $25 per share, plus accrued and unpaid dividends. Except as required by law and as set forth herein, the holders of Series A Preferred Stock have no voting rights. In case the Company shall be in arrears in the payment of six consecutive quarterly dividends on the outstanding Series A Preferred Stock, the holders of Series A Preferred Stock, voting separately as a class and in addition to any voting rights that holders of the Series A Preferred Stock shall have as required by law, shall have the exclusive right to elect two additional directors beyond the number to be elected by the stockholders at the next annual meeting of the stockholders called for the election of directors, and at every subsequent such meeting at which the terms of office of the directors so elected by the Series A Preferred Stock expire, provided such arrearage exists on the date of such 23 meeting or subsequent meetings, as the case may be. Any such elected directors shall serve until the dividend default shall cease to exist. In addition, without the vote of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, the Company shall not (i) issue, from any class or series of stock now existing or to be created in the future, any shares of stock ranking senior to the outstanding shares of Series A Preferred Stock as to the payment of dividends and upon liquidation or (ii) amend the Restated Certificate or the Company's By-laws, as amended, if such amendment would increase or decrease the aggregate number of authorized shares of Series A Preferred Stock, increase or decrease the par value of the shares of Series A Preferred Stock or alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect the holders of the Series A Preferred Stock adversely. The Series A Preferred Stock carries a liquidation preference of $25 per share, plus accrued and unpaid dividends. The Series A Preferred Stock ranks senior with respect to payment of dividends and liquidation preferences to the Common Stock and Junior Preferred Stock. Series B Preferred Stock On June 17, 1997 (the "Issuance Date"), the Company issued 1,500,000 shares of Series B Preferred Stock at an offering price of $100.00 per share. Dividends on the Series B Preferred Stock are noncumulative and, if declared, will be payable at an annual rate of 6.687%. If one or more amendments to the Internal Revenue Code of 1986, as amended (the "Code"), are enacted that reduce the percentage of the dividends received reduction (currently 70%) as specified in Section 243(a)(1) of the Code or any successor provision, the amount of each dividend payable (if declared) per share of the Series B Preferred Stock shall be increased according to a formula set forth in the Certificate of Designation, Preferences and Rights relating to the Series B Preferred Stock. The Series B Preferred Stock is not redeemable prior to August 15, 2007. On and after such date, the Series B Preferred Stock is redeemable, in whole or in part, at the option of the Company, at $100.00 per share, plus an amount equal to the sum of all accrued and unpaid dividends (whether or not declared) for the then-current dividend period to the Redemption Date (without accumulation of accrued and unpaid dividends for prior dividend periods unless previously declared). The Series B Preferred Stock is not entitled to the benefit of any sinking fund. Except as required by law and as set forth herein, the holders of Series B Preferred Stock have no voting rights. If dividends payable on any share or shares of the Series B Preferred Stock or on any other class or series of Senior Preferred Stock for which dividends are noncumulative ("Noncumulative Preferred Stock") ranking on a parity with the Series B Preferred Stock and upon which like voting rights have been conferred and are exercisable (excluding any class or series of Noncumulative Preferred Stock entitled to elect additional directors by a separate vote, "Voting Preferred Stock") have not been paid or declared and set aside for payment for the equivalent of six full quarterly dividend periods (whether or not consecutive), the number of directors of the Company will be increased by two (without duplication of any increase made pursuant to the terms of any other class or series of Voting Preferred Stock), and the holders of the Series B Preferred Stock, voting as a single class with the holders of the Voting Preferred Stock, will be entitled to elect such two directors to fill such newly-created directorships. Such right of the holders of the Series B Preferred Stock and the Voting Preferred Stock shall continue until dividends on the Series B Preferred Stock and the Voting Preferred Stock have been paid or declared and set apart for payment regularly for at least one year (i.e., four consecutive full quarterly dividend periods). Any such elected directors shall serve until the Company's next annual meeting of stockholders and until their respective successors are elected and qualified (notwithstanding that prior to the end of such term the dividend default shall cease to exist). In addition, the affirmative vote or consent of the holders of at least 66 2/3% of the outstanding shares of the Series B Preferred Stock will be required for any amendment, alteration or repeal of any provisions of the Restated Certificate, of the Offered Preferred Certificate or of any other certificate amendatory of or supplemental to the Restated Certificate which would adversely affect the powers, preferences, privileges or rights of the Series B Preferred Stock. The affirmative vote or consent of the holders of at least 66 2/3% of the outstanding shares of the Series B Preferred Stock and any other series of Noncumulative Preferred Stock ranking on a parity with the Series B Preferred Stock either as to dividends or upon liquidation, voting as a single class without regard to series, will be required to issue, authorize or increase the authorized amount of, or issue or authorize any obligation or security convertible into or evidencing a right to purchase, any additional class or series of stock ranking prior to the Series B Preferred Stock as to dividends or upon liquidation, or to reclassify any authorized stock of the Company into such prior shares, but such vote will not be required for the Company to take any such actions with respect to any stock ranking on a parity with 24 or junior to the Series B Preferred Stock. The Series B Preferred Stock is entitled to a liquidation preference of $100.00 per share, plus an amount equal to the sum of all accrued and unpaid dividends (whether or not earned or declared) for the then-current dividend period to the date of final distribution (without accumulation of accrued and unpaid dividends for prior dividend periods unless previously declared), that is senior to payments to holders of the Common Stock, the Junior Preferred Stock or any other class or series of stock of the Company ranking junior to the Series B Preferred Stock and pari passu with payments to holders of each other series of Senior Preferred Stock outstanding on the date of original issue of the Series B Preferred Stock. The Series B Preferred Stock has not been registered under the Securities Act or any applicable state securities law. Pursuant to a Registration Rights Agreement (the "Registration Rights Agreement") between the Company and the initial purchasers of the Series B Preferred Stock, the Company has agreed (i) to use its reasonable best efforts to file, within 150 days after the Issuance Date, a registration statement with respect to an offer to exchange (the "Exchange Offer") shares of Series B Preferred Stock for shares of fixed rate noncumulative perpetual Senior Preferred Stock of the Company with substantially identical terms to the Series B Preferred Stock and (ii) to use its reasonable best efforts to cause such registration statement to become effective under the Securities Act within 180 days after the Issuance Date. In the event that applicable law or interpretations of the staff of the Commission do not permit the Company to effect the Exchange Offer, or in certain other circumstances, the Company will use its reasonable best efforts to cause to become effective a shelf registration statement with respect to the resale of the Series B Preferred Stock and to keep such shelf registration statement effective for up to two years after the Issuance Date. NW Preferred Stock The Company has authorized the issuance of 100,000 shares of NW Preferred Stock pursuant to the Keep Well Agreement wherein, among other things, Fuji Bank has agreed to purchase NW Preferred Stock in an amount required to maintain the Company's net worth at $500 million. The Company's net worth was approximately $1.5 billion at December 31, 1996. If and when issued, the NW Preferred Stock will have an annual dividend rate equal to 1% per annum above the three-month rate at which deposits in United States dollars are offered by The Fuji Bank, Limited in London, England to prime banks in the London interbank market. Dividends on the NW Preferred Stock will be noncumulative and payable (if declared) quarterly, and the Company will be prohibited from paying cash dividends on Common Stock unless full dividends for the then- current dividend period (without accumulation of accrued and unpaid dividends for prior dividend periods unless previously declared) on all outstanding shares of NW Preferred Stock have been declared and paid or declared and a sum sufficient set aside for such payment. Subject to certain conditions, NW Preferred Stock will be redeemable at the option of the holder, in whole or in part, within a specified period of time after the end of a calendar quarter in an aggregate amount not greater than the excess of the net worth of the Company as of the end of such calendar quarter over $500 million and at a redemption price equal to the price paid to the Company upon the issuance thereof, plus accrued and unpaid dividends for the then-current dividend period (without accumulation of accrued and unpaid dividends for prior dividend periods unless previously declared). Except as required by law, the holders of NW Preferred Stock will have no voting rights. The NW Preferred Stock will carry a liquidation preference equal to the price paid for each share upon issuance thereof, plus accrued and unpaid dividends for the then- current dividend period (without accumulation of accrued and unpaid dividends for prior dividend periods unless previously declared). The NW Preferred Stock will rank senior with respect to payment of dividends and liquidation preference to the Common Stock and junior to the Senior Preferred Stock. No purchases of NW Preferred Stock have been made by Fuji Bank under the Keep Well Agreement. COMMON STOCK All outstanding shares of the Common Stock are held by the Parent. Subject to the rights of holders of the Senior Preferred Stock and Junior Senior Preferred Stock, including any Senior Preferred Stock offered hereby, the holders of outstanding shares of Common Stock are entitled to share ratably in dividends declared out of assets legally available therefor at such time and in such amounts as the Board of Directors of the Company may from time to time lawfully determine. Each holder of Common Stock is entitled to one vote for each share held. 25 All shares of Common Stock currently outstanding are fully paid and nonassessable, not subject to redemption and assessment and without conversion, preemptive or other rights to subscribe for or purchase any proportionate part of any new or additional issues of any class or of securities convertible into stock of any class. PLAN OF DISTRIBUTION The Company may offer the Securities directly to purchasers, to or through underwriters, through dealers or agents or through a combination of any such methods. Any such underwriter(s), dealer(s) or agent(s) involved in the offer and sale of the Securities in respect of which this Prospectus is delivered will be named in a Prospectus Supplement. The Prospectus Supplement with respect to such Securities also will set forth the terms of the offering of such Securities, including the purchase price of such Securities and the proceeds to the Company from such sale, any underwriting discounts and other items constituting underwriters' compensation, any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges or markets on which such Securities may be listed. If underwriters are used in an offering of Securities, the Company will execute an underwriting agreement with such underwriters, and the name of each underwriter and the terms of the transaction, including any underwriting discounts and other items constituting compensation of the underwriters and dealers, if any, will be set forth in the Prospectus Supplement relating to such offering, and, if an underwriting syndicate is used, the managing underwriter or underwriters will be set forth on the cover of such Prospectus Supplement. Such Securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more transactions, (i) at a fixed price or prices, which may be changed, (ii) at market prices prevailing at the time of sale, (iii) at prices relating to such prevailing market price or (iv) at negotiated prices. Unless otherwise set forth in the Prospectus Supplement, the obligations of the underwriters to purchase all of the Securities offered will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all of the Securities offered if any are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. If a dealer is used in an offering of Securities, the Company will sell such Securities to the dealer, as principal. The dealer then may resell such Securities to the public at varying prices to be determined by such dealer at the time of resale. The name of the dealer and the terms of the transaction will be set forth in the Prospectus Supplement relating thereto. If an agent is used in an offering of Securities, the agent will be named, and the terms of the agency will be set forth, in the Prospectus Supplement relating thereto. Unless otherwise indicated in such Prospectus Supplement, an agent will act on a best efforts basis for the period of its appointment. Dealers and agents named in a Prospectus Supplement may be deemed to be underwriters (within the meaning of the Securities Act) of the Securities described therein. Underwriters, dealers and agents, under underwriting agreements and other agreements which may be entered into with the Company, may be entitled to indemnification by the Company against certain liabilities, including liabilities under the Securities Act. Offers to purchase Securities may be solicited, and sales thereof may be made, by the Company directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resales thereof. The terms of any such offer will be set forth in the Prospectus Supplement relating thereto. If so indicated in the Prospectus Supplement, the Company will authorize underwriters, dealers or other agents of the Company to solicit offers by certain institutional investors to purchase Securities from the Company pursuant to contracts providing for payment and delivery at a future date. Institutional investors with which such contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases such purchasers must be approved 26 by the Company. The obligations of any purchaser under any such contract will not be subject to any conditions except that (i) the purchase of the Securities shall not at the time of delivery be prohibited under the laws of any jurisdiction to which such purchaser is subject and (ii) if the Securities also are being sold to underwriters, the Company shall have sold to such underwriters the Securities not subject to delayed delivery. Underwriters and other agents will not have any responsibility in respect of the validity or performance of such contracts. The anticipated date of delivery of Securities will be set forth in the Prospectus Supplement relating to each applicable offering. There can be no assurance that a secondary market will be created for the Securities, or if it is created, that it will continue. Certain of the underwriters, dealers or agents and their associates may engage in transactions with, serve as financial advisors to, and perform other general financing and bank services for, the Company and its affiliates in the ordinary course of business. To facilitate an offering of a series of Securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the Securities. This may include over-allotments or short sales of the Securities, which involves the sale by persons participating in the offering of more Securities than have been sold to them by the Company. In such circumstances, such persons would cover such over-allotments or short positions by purchasing in the open market or by exercising the over-allotment option granted to such persons. In addition, such persons may stabilize or maintain the price of the Securities by bidding for or purchasing Securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in any such offering may be reclaimed if Securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the Securities at a level above that which might otherwise prevail in the open market. Such transactions, if commencement, may be discontinued at any time. LEGAL MATTERS Certain legal matters in connection with the Securities offered hereby will be passed upon for the Company by Mark J. Ohringer, Esq., Associate General Counsel of the Company. Certain legal matters will be passed upon for any agents or underwriters by Katten Muchin & Zavis, a partnership including professional corporations, 525 West Monroe Street, Suite 1600, Chicago, Illinois 60661-3693. Katten Muchin & Zavis from time to time acts as counsel in certain matters for the Company and certain of its subsidiaries. INDEPENDENT PUBLIC ACCOUNTANTS The financial statements and schedules incorporated in this Prospectus and elsewhere in the Registration Statement by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 and the financial statements for the five years ended December 31, 1996 from which the five-year selected financial data included in this Prospectus have been derived, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto. These financial statements, schedules and five-year selected financial data forming a part of this Prospectus and Registration Statement have been included or incorporated by reference, as the case may be, herein in reliance upon the authority of said firm as experts in giving such reports. The interim financial statements for the periods ended June 30, 1996 and June 30, 1997 have not been audited. 27 [LOGO OF HELLER FINANCIAL, INC.] PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The expenses, other than underwriting discounts and commissions, payable by the Company in connection with the issuance and distribution of the Securities covered hereby are subject to future contingencies estimated to be as follows: Securities and Exchange Commission registration fee.......... $ 909,091* Printing and engraving expenses.............................. 250,000 Legal fees and expenses...................................... 75,000 Blue Sky fees and expenses................................... 30,000 Accounting fees and expenses................................. 50,000 Trustees' fees and expenses.................................. 60,000 Rating agency fees........................................... 800,000 Miscellaneous expenses....................................... 25,909 ---------- Total.................................................... $2,200,000 ==========
- -------- *Actual ITEM 15. 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. In effect, the By-Laws of the Registrant 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 his 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. Reference is made to the form of Underwriting Agreement Basic Provisions filed as Exhibit 1.1 hereto and the form of Distribution Agreement filed as Exhibit 1.2 hereto for a description of the indemnification arrangements in connection with any offering through underwriters of the Securities registered hereby. Similar indemnification provisions were contained in the underwriting agreements executed in connection with prior offerings and sales of securities by the Registrant. ITEM 16. EXHIBITS
EXHIBIT NUMBER ------- ++1.1 Underwriting Agreement Basic Provisions dated October 16, 1997 for dollar denominated Securities to be distributed in the United States. An Underwriting Agreement relating to Securities to be distributed outside the United States or for Securities denominated in foreign currencies or foreign currency units will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference.
II-1
EXHIBIT NUMBER ------- *1.2 Form of Distribution Agreement. ++4.1 Amended and Restated Certificate of Incorporation of the Company, as amended. **4.2 By-laws of the Company, as amended. *4.2 Heller Financial, Inc. Standard Multiple-Series Indenture Provisions dated February 5, 1987. ++4.3 Indenture 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, with respect to the Senior Debt Securities. The form or forms of Senior Debt Securities with respect to each particular offering will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference. ***4.4 First Supplemental Indenture dated as of October 13, 1995 between the Company and State Street Bank and Trust Company, as successor to Shawmut Bank Connecticut, National Association, as Trustee, with respect to the Senior Debt Securities. ++4.5 Indenture 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, with respect to the Subordinated Debt Securities. The form or forms of Subordinated Debt Securities with respect to each particular offering will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference. ***4.6 First Supplemental Indenture dated as of October 13, 1995 between the Company and State Street Bank and Trust Company, as successor to Shawmut Bank Connecticut, National Association, as Trustee, with respect to the Subordinated Debt Securities. ++4.7 Indenture 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, with respect to the Junior Subordinated Debt Securities. The form or forms of Junior Subordinated Debt Securities with respect to each particular offering will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference. ***4.8 First Supplemental Indenture dated as of October 13, 1995 between the Company and State Street Bank and Trust Company, as successor to Shawmut Bank Connecticut, National Association, as Trustee, with respect to the Junior Subordinated Debt Securities. ****4.9 Form of Warrant Agreement to be entered into between the Company and the Warrant Agent (including form of Warrant Certificate). 4.10 Form of Certificate of Designation, Preferences and Rights for Senior Preferred Stock. The form or forms will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference. *****4.11 Amended and Restated Keep Well Agreement between the Fuji Bank, Limited and the Company, as amended. ++ 5 Opinion of Mark J. Ohringer, Esq., Associate General Counsel of the Company, as to the validity of the Securities. ++12 Computation of Ratio of Earnings to Fixed Charges. ++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).
II-2
EXHIBIT NUMBER ------- ++24 Powers of Attorney (included on the signature page hereto). ++25.1 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 for the Senior Debt Securities. ++25.2 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 for the Subordinated Debt Securities. ++25.3 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 for the Junior Subordinated Debt Securities.
- -------- ++Filed herewith. *Incorporated by reference to the Company's Registration Statement No. 33- 11757 (filed February 5, 1987). **Incorporated by reference to Exhibit 3(ii) to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1996 (File No. 1-6157, filed July 31, 1996). ***Incorporated by reference to the Company's Current Report on Form 8-K (File No. 1-6157, filed October 17, 1995). ****Incorporated by reference to the Company's Registration Statement No. 33- 21310 (filed April 20, 1988). *****Incorporated by reference to Exhibit 28(a) to the Company's Registration Statement No. 33-51692 (filed September 14, 1992), Exhibit 10 to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1995 (File No. 1-6157) and Exhibit 10 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997 (File No. 1-6157). ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in he form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. II-3 (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment 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. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act of 1933, 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. (5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, 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 of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment 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 of 1933 and will be governed by the final adjudication of such issue. (6) To file an application for the purpose of determining the eligibility of the trustee under Subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Trust Indenture Act. II-4 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND 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 22ND DAY OF OCTOBER, 1997. 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 DEBRA H. SNIDER, LAURALEE E. MARTIN AND MARK J. OHRINGER AND EACH OF THEM, THEIR TRUE AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS, WITH FULL POWER OF SUBSTITUTION, TO SIGN ON HIS OR HER BEHALF, INDIVIDUALLY AND IN EACH CAPACITY STATED BELOW, ALL AMENDMENTS AND POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT ON FORM S-3 (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 SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, 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, THEREBY 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, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON OCTOBER 22, 1997. /s/ Richard J. Almeida Chairman, Chief Executive Officer ___________________________________________ (Principal Executive Officer) and Richard J. Almeida Director /s/ Atsushi Takano Director ___________________________________________ Atsushi Takano /s/ Yukihiko Chayama Director ___________________________________________ Yukihiko Chayama /s/ Kenichi Tomita Director ___________________________________________ Kenichi Tomita /s/ Tsutomu Hayano Director ___________________________________________ Tsutomu Hayano /s/ Mark Kessel Director ___________________________________________ Mark Kessel
II-5 /s/ Masahiro Sawada Director ___________________________________________ Masahiro Sawada /s/ Michael J. Litwin Director ___________________________________________ Michael J. Litwin /s/ Dennis P. Lockhart Director ___________________________________________ Dennis P. Lockhart /s/ Lauralee E. Martin Executive Vice President, Chief Financial ___________________________________________ Officer and Director (Principal Financial Lauralee E. Martin Officer) /s/ Takeshi Takahashi Director ___________________________________________ Takeshi Takahashi /s/ Osamu Ogura Director ___________________________________________ Osamu Ogura /s/ Hideo Nakajima Director ___________________________________________ Hideo Nakajima /s/ Kenichiro Tanaka Director ___________________________________________ Kenichiro Tanaka /s/ Lawrence G. Hund Senior Vice President and Controller ___________________________________________ (Principal Accounting Officer) Lawrence G. Hund
II-6 EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT ------- ------- 1.1 Underwriting Agreement Basic Provisions dated October 16, 1997 for dollar denominated Securities to be distributed in the United States. An Underwriting Agreement relating to Securities to be distributed outside the United States or for Securities denominated in foreign currencies or foreign currency units will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference. 4.1 Amended and Restated Certificate of Incorporation of the Company, as amended. 4.3 Indenture 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, with respect to the Senior Debt Securities. The form or forms of Senior Debt Securities with respect to each particular offering will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference. 4.5 Indenture 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, with respect to the Subordinated Debt Securities. The form or forms of Subordinated Debt Securities with respect to each particular offering will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference. 4.7 Indenture 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, with respect to the Junior Subordinated Debt Securities. The form or forms of Junior Subordinated Debt Securities with respect to each particular offering will be filed as an Exhibit to a Current Report on Form 8-K and incorporated herein by reference. 5 Opinion of Mark J. Ohringer, Esq., Associate General Counsel of the Company, as to the validity of the Securities. 12 Computation of Ratio of Earnings to Fixed Charges. 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 Powers of Attorney (included on the signature page hereto). 25.1 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 for the Senior Debt Securities. 25.2 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 for the Subordinated Debt Securities. 25.3 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 for the Junior Subordinated Debt Securities.
EX-1.1 2 UNDERWRITING AGREEMENT EXHIBIT 1.1 HELLER FINANCIAL, INC. Debt Securities UNDERWRITING AGREEMENT BASIC PROVISIONS --------------------------------------- October 16, 1997 Heller Financial, Inc., a Delaware corporation (the "Company"), proposes to issue and sell from time to time certain of its senior unsecured debt securities (the "Senior Securities"), and/or subordinated unsecured debt securities (the "Subordinated Securities") and/or junior subordinated unsecured debt securities (the "Junior Securities") (the Senior Securities, Subordinated Securities and Junior Securities are herein collectively called the "Securities") registered under the registration statement referred to in Section l(a). The Senior Securities will be issued under an indenture dated as of September 1, 1995 between the Company and Shawmut Bank Connecticut, National Association, as Trustee, or pursuant to an indenture referred to in the next sentence (such indentures, as at any time amended, being referred to herein individually as a "Senior Indenture" or collectively as the "Senior Indentures"); the Subordinated Securities will be issued under an indenture dated as of September 1, 1995 between the Company and Shawmut Bank Connecticut, National Association, as Trustee, or pursuant to an indenture referred to in the next sentence (such indentures, as at any time amended, being referred to herein individually as a "Subordinated Indenture" or collectively as the "Subordinated Indentures"); and the Junior Subordinated Securities will be issued under an indenture dated as of September 1, 1995 between the Company and Shawmut Bank Connecticut, National Association, as Trustee, or pursuant to an indenture referred to in the next sentence (such indentures being referred to herein individually as a "Junior Subordinated Indenture" or collectively as the "Junior Subordinated Indentures"); each may be issued in one or more series, which series may have varying designations, interest rates and payment dates, maturities, redemption provisions, and other terms, with all such terms for any particular series being determined at the time of sale. Each of the Senior Securities, the Subordinated Securities and the Junior Subordinated Securities, respectively, may also be issued under an indenture in the form of such indenture for each such class of Securities, respectively, filed as an exhibit to the registration statement referred to in Section 1(a), for which the related Trustee will be qualified in accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission") on or about the time of their respective issuance. The Senior Indentures, the Subordinated Indentures and the Junior Subordinated Indentures are sometimes referred to herein individually as an "Indenture" and collectively as the "Indentures." The securities will be issued and sold pursuant to one or more pricing agreements (each a "Pricing Agreement" and together the "Pricing Agreements") in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, between the Company and the firm or firms named in Schedule I to the Pricing Agreement. With respect to any particular Pricing Agreement, the firm or firms named in Schedule I thereto are hereinafter referred to as the "Underwriters," the particular series of Securities specified in Schedule II thereto as being issued and sold to the Underwriters thereunder are hereinafter referred to as the "Designated Securities, the Indenture under which the Designated Securities are to be issued is hereinafter referred to as the "Designated Indenture" and the firm or firms designated as representatives of the Underwriters are hereinafter referred to as the "Representatives"; if the Underwriters include only the Representatives, use of the latter term shall be deemed to refer to the Underwriters. The basic provisions set forth in this document (the "Basic Provisions) are intended to be incorporated by reference in the Pricing Agreements and the sale of Designated Securities to Underwriters pursuant to any particular Pricing Agreement shall be subject to the terms and conditions set forth herein and therein. Any such Pricing Agreement, together with the Basic Provisions incorporated by reference therein, is herein referred to as this "Agreement." Capitalized terms defined in any Pricing Agreement are used herein as therein defined. 1. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Underwriters with respect to each offering of Designated Securities that: (a) A registration statement on Form S-3 (with the file number set forth in Schedule II to the Pricing Agreement), including a prospectus, relating to the Securities has been filed with the Commission and has become effective; the Company meets the requirements for the use of such form. A prospectus supplement (the "Prospectus Supplement") reflecting the terms of the Designated Securities, the terms of the offering thereof and the other matters set forth therein has been prepared and will be filed pursuant to Rule 424 under the Securities Act of 1933 (the "Act"). The registration statement (including the material incorporated therein by reference, except for documents or portions thereof which are deemed, under Rule 412 of the rules and regulations under the Act, not to be incorporated into such registration statement and including all exhibits thereto other than the Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), for each Trustee under the Indentures, as amended at the time of any Pricing Agreement, is hereinafter referred to, with respect to the transaction contemplated by such Pricing Agreement, as the "Registration Statement", and each prospectus then forming a part thereof (including the material incorporated therein by reference), as supplemented by the Prospectus Supplement, is hereinafter referred to as the "Prospectus". Any reference to any amendment or supplement to the Registration Statement or Prospectus shall be deemed to refer to and include the filing of any document with the Commission deemed -2- to be incorporated by reference therein after the effective date of the Registration Statement. (b) On the effective date of the registration statement relating to the Securities (including the material incorporated therein by reference), the registration statement conformed in all material respects with the requirements of the Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and each of the Indentures conformed in all material respects with the requirements of the Trust Indenture Act and the rules and regulations of the Commission thereunder; on the date of each Pricing Agreement and at the Time of Delivery (as hereinafter defined), the Registration Statement and the Prospectus will conform in all material respects with the requirements of the Act, the Trust Indenture Act and the rules and regulations of the Commission thereunder and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Designated Indenture will conform in all material respects with the requirements of the Trust Indenture Act and the rules and regulations of the Commission thereunder; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter, directly or through the Representatives, specifically for use in connection with the preparation thereof. (c) The accountants who have certified or shall certify the audited financial statements of the Company included or incorporated by reference in the Registration Statement and the Prospectus are, to the best of the Company's knowledge, independent accountants as required by the Act and the Rules and Regulations. (d) The financial statements included or incorporated by reference in the Registration Statement and the Prospectus present fairly the financial position, results of operations and changes in financial position of the corporations to which they relate, as of the respective dates of, or for the respective periods indicated, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. (e) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as -3- contemplated or set forth in the Registration Statement and the Prospectus, (i) there has not been any material adverse change in the financial condition, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, (ii) neither the Company nor any of its subsidiaries have entered into any transaction not in the ordinary course of business material to the Company and its subsidiaries taken as a whole and (iii) neither the Company nor any of its subsidiaries have incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business which are material in relation to the Company and its subsidiaries taken as a whole. (f) The Designated Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act and constitutes the valid and legally binding obligations of the Company subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability affecting creditors rights and to general equity principles; the Designated Securities conform to the description thereof contained in the Prospectus and are duly and validly authorized, and, when validly authenticated, issued and delivered in accordance with the Designated Indenture and sold to the Underwriters, will be validly issued and outstanding obligations of the Company entitled to the benefits of the Designated Indenture; and at the Time of Delivery the Designated Securities will rank pari passu with all other series of Securities issued under the Designated Indenture. (g) The Company and each of its subsidiaries (other than subsidiaries which, considered in the aggregate as a single subsidiary, would not constitute a "significant subsidiary" as defined in Rule 1-02(v) of Regulation S-X promulgated by the Commission) have been duly incorporated and are validly existing as corporations in good standing under the laws of the respective jurisdictions of their incorporations; each of the Company and such subsidiaries is duly licensed and duly qualified to do business as a foreign corporation and is in good standing in all the jurisdictions in which it owns or leases substantial property or in which the conduct of its business requires such qualification, except where the failure to be so qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company and its subsidiaries, taken as a whole; and each of the Company and such subsidiaries has full power and authority to own its properties and conduct its business as described in the Prospectus; all the outstanding shares of capital stock of each such subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable and are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and any other security interests, claims, liens or encumbrances. -4- (h) Neither the issuance or sale of the Designated Securities by the Company, nor the consummation by the Company of any other of the transactions herein contemplated, nor the fulfillment by the Company of the terms hereof, will materially conflict with, result in a material breach of or constitute a material default under any statute, the Company's charter or by-laws or the terms of any indenture or other agreement or instrument to which the Company or any of its subsidiaries is a party or is bound, or, to the best of the knowledge of the Company, any order or regulation applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or any of its subsidiaries. (i) Except for litigation referred to in the Registration Statement or in the Prospectus and litigation which, if determined adversely to the Company or its subsidiaries, would not have a material adverse effect upon the financial condition or the earnings of the Company and its subsidiaries (taken as a whole), the Company knows of no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (j) Neither the Company nor any of the Company's subsidiaries is in default in the payment of principal of or interest on any indebtedness or in the performance of any covenant, term or condition contained in any instrument evidencing any such indebtedness or under which it was created; and at the Time of Delivery, there shall not exist any Event of Default as defined in the Designated Indenture or any condition, event or act, which, with notice or lapse of time or both, would constitute such an Event of Default. (k) The documents incorporated by reference in the Registration Statement or Prospectus, when they became effective or were filed with the Commission, as the case may be, under the Securities Exchange Act of 1934 (the "Exchange Act"), conformed, and any documents so filed and incorporated by reference after the date of the Pricing Agreement relating to the Designated Securities will, when they are filed with the Commission, conform, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. -5- 2. Purchase and Offering. (a) Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities. These Basic Provisions, standing alone, shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any Underwriters to purchase the Securities. Such obligations shall come into existence only upon execution, by the Company and the Representatives named therein, of the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the firms which will be Underwriters and their Representatives (if any), the principal amount of the Designated Securities to be purchased by each Underwriter, the purchase price to be paid by the Underwriters, the initial public offering price, the terms of the Designated Securities not already specified in the Designated Indenture, including, but not limited to, interest rate (if any), maturity, redemption provisions and sinking fund requirements (if any) and whether any of the Designated Securities may be sold pursuant to Delayed Delivery Contracts ("Delayed Delivery Contracts"). Each Pricing Agreement shall also specify the date, time and manner of delivery and payment for the Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of facsimile transmissions. The obligations of the Underwriters to purchase the Designated Securities pursuant to any Pricing Agreement shall be several and not joint. (b) Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus Supplement relating to such Designated Securities. (c) Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in definitive form or in book-entry form as specified in the Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours' prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by certified or official bank check or checks payable to the order of the Company or by wire transfer, as specified in the Pricing Agreement, in the funds specified in such Pricing Agreement, all at the place and time and date specified in such Pricing Agreement with respect to Designated Securities not being sold pursuant to Delayed Delivery Contracts, or at such other place and time and date as the Representatives and the Company may agree upon in writing, -6- such time and date being herein called the "Time of Delivery" for such Designated Securities. The Company agrees to have the Designated Securities available for inspection, checking and packaging by the Representatives in New York, New York, not later than noon on the business day prior to the Time of Delivery for such Designated Securities. 3. Covenants of the Company. In connection with each offering of Designated Securities, the Company covenants and agrees with the Underwriters: (a) To cause the Prospectus Supplement to be filed pursuant to Rule 424 under the Act and notify the Representatives promptly of such filing; to prepare and file with the Commission, after the date of the Pricing Agreement relating to such Securities and prior to the Time of Delivery for such Securities, promptly upon the request of the Representatives, any amendments or supplements to the Registration Statement or the Prospectus which, in the reasonable opinion of the Representatives, may be necessary or advisable in connection with the distribution of such Securities by the Underwriters; to make no further amendment or any supplement to the Registration Statement or the Prospectus after the date of the Pricing Agreement relating to such Securities and prior to the Time of Delivery for such Securities which shall be reasonably disapproved by the Representatives for such Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any amendment or supplement to the Registration Statement or the Prospectus after such Time of Delivery and furnish the Representatives with copies thereof and to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, (i) of the time when any amendment to the Registration Statement has become effective or any supplement to the Prospectus or any amended Prospectus has been filed, (ii) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Prospectus, (iii) of the suspension of the qualification of such Securities for offering or sale in any jurisdiction, (iv) of the initiation or threatening of any proceeding for any such purpose, or (v) of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. (b) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Securities for -7- offering and sale under the securities laws of such jurisdictions as the Representatives 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 distribution of such Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction. The Company will also arrange for the determination of the eligibility for investment for the Designated Securities under the laws of such jurisdictions as the Representatives may reasonably request. (c) To furnish the Underwriters with copies of the Prospectus in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the date of the Pricing Agreement in connection with the offering or sale of such Securities and if at such time any event shall have occurred as a result of which the Prospectus 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 such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance. (d) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the date of each Pricing Agreement, an earnings statement of the Company and its consolidated subsidiaries (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least twelve consecutive months beginning after the date of such Pricing Agreement. (e) During the period beginning from the date of the Pricing Agreement for such Securities and continuing to and including the earlier of (i) the termination of trading restrictions on such Securities of which termination the Representatives agree to give the Company prompt notice confirmed in writing, and (ii) the Time of Delivery for such Securities, not to offer, sell, publicly announce any intention to offer or sell, contract to sell or otherwise dispose of any debt securities of the Company (except under prior contractual commitments or pursuant to arrangements with banks or deposit -8- taking institutions) denominated in U.S. dollars which mature more than one year after such Time of Delivery, without the prior consent of the Representatives, except pursuant to arrangements of which the Representatives have been advised by the Company prior to the time of execution of such Pricing Agreement, which advice is confirmed in writing to the Representatives by the end of the business day following the date of such Pricing Agreement. (f) To pay all expenses incident to the performance of the Company's obligations under this Agreement, including the expenses of printing all documents relating to the offering, and to reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with the matters referred to in Section 3(b) hereof and the preparation of memoranda relating thereto, for any filing fee of the National Association of Securities Dealers, Inc. or of the New York Stock Exchange relating to the Designated Securities and for any fees charged by investment rating agencies for rating of the Designated Securities. 4. Conditions. The obligations of the Underwriters of any Designated Securities hereunder shall be subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with or otherwise satisfied. (b) Counsel for the Underwriters, McDermott, Will & Emery, shall have furnished to the Representatives an opinion, dated the Time of Delivery of such Designated Securities, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering their opinion, such counsel may rely on certificates of the Trustee under the Designated Indenture as to the execution and authentication of the Designated Securities. (c) The General Counsel of the Company, or other counsel satisfactory to the Representatives in their reasonable judgment shall have -9- furnished to the Representatives an opinion, dated the Time of Delivery of such Designated Securities, on the matters set forth in Exhibit A hereto. (d) The independent accountants of the Company who have certified the consolidated financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Representatives: (i) At or prior to the time of execution of the Pricing Agreement relating to the Designated Securities, a letter, dated the date of delivery thereof, to the effect set forth in Exhibit B hereto, except for paragraph (3)(c) thereof, with respect to the Registration Statement and the Prospectus at the time the Registration Statement became effective. (ii) At the Time of Delivery, a letter dated the Time of Delivery to the effect set forth in Exhibit B hereto, with respect to the Registration Statement and the Prospectus at the time of the Pricing Agreement relating to the Designated Securities and as to such other matters as the Representatives and the Company may have agreed upon at or prior to the execution of the Pricing Agreement, which letter may refer to the letter delivered pursuant to subsection (i) above and reconfirm the matters set forth therein. (e) Since the respective dates as of which information is given in the Prospectus there shall not have been any material change, on a consolidated basis, in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, or any material adverse change, or any development involving a prospective material adverse change, in the financing condition, earnings, business or properties of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which, when viewed in relation to the Company and its subsidiaries taken as a whole, is so material and adverse as to make it impracticable or inadvisable, in the reasonable judgment of the Representatives, to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus. (f) Subsequent to the date of the Pricing Agreement relating to the Designated Securities, no downgrading shall have occurred in the rating accorded to any of the Company's debt securities by Moody's Investors Service, Inc., Standard & Poor's Corporation or Duff & Phelps, Inc. and no such rating agency shall have announced publicly that it has placed any of such debt securities on what is commonly termed a "watch list" for possible downgrading. -10- (g) Subsequent to the date of the Pricing Agreement relating to the Designated Securities, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; or (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, the effect of which (in any such case described in clause (i), (ii) or (iii) hereof), in the reasonable judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus. (h) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a certificate, signed by the Chairman of the Board, the President or any Vice President, and by the principal financial or accounting officer, dated the Time of Delivery, to the effect that, to the best of their knowledge based upon reasonable investigation: (i) The representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Time of Delivery, and the Company has complied in all material respects with all obligations on its part to be performed at or prior to the Time of Delivery; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the knowledge of the Company, is threatened by the Commission; and (iii) Since the date of the Pricing Agreement relating to the Designated Securities, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth, and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed. (i) The Company shall have furnished to the Representatives such further certificates and documents as they shall have reasonably requested. -11- All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representatives. The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and other documents as they shall reasonably request. 5. Indemnification and Contribution. -------------------------------- (a) The Company agrees to indemnify and hold harmless each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus or any amendment or supplement thereto (or contained in the Registration Statement after it first became effective but prior to the Pricing Agreement or in any prospectus forming a part thereof during such period), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that any such settlement is effected with the written consent of the Company, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by then in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that (i) the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation thereof, and (ii) such indemnity with respect to any prospectus forming a part of the Registration Statement prior to the Pricing Agreement (the "Preliminary Prospectus") shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the person asserting any such loss, claim, damage or liability purchased the Designated Securities which are the subject thereof if the Company shall have sustained the burden of proving that such person did not receive a copy of the Prospectus (or the Prospectus as amended or supplemented) excluding documents incorporated therein by -12- reference (and the Company shall have fulfilled its obligation pursuant to Section 3(c) above) at or prior to the confirmation of the sale of such Designated Securities to such person in any case where such delivery is required by the Act and the untrue statement or omission of a material fact contained in the Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Underwriter severally agrees (i) to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for use in the preparation of the documents referred to in the foregoing indemnity and (ii) to reimburse each such indemnified party for any legal or other expenses reasonably incurred by them in connection with investigating or defending any loss, claim, damage, liability or action on which a claim for indemnity is validly made pursuant to this sentence. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page and under the heading "Underwriting" or "Plan of Distribution" in the Preliminary Prospectus or the Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity, and you, as the Representatives, confirm that such statements are correct. (c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 5. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other -13- indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 5 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, other than local counsel, approved by the Representatives in the case of paragraph (a) of this Section 5, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). (d) If the indemnification provided for in this Section 5 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence in not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds form the sale of Designated Securities (before deducting expenses) received by the -14- Company bear to the total discounts received by the Underwriters in respect thereof. The relative fault shall be determined by reference to, among other things, whether the indemnified party failed to give the notice required under subsection (c) above, including the consequences of such failure, and whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading relates to information supplied by the Company on the one hand or by the Underwriters, directly or through the Representatives, on the other and the relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, of the Company on the one hand or the Underwriters, directly or through the Representatives, on the other. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim (which shall be limited as provided in subsection (c) above if the indemnifying party has assumed the defense of any such action in accordance with the provisions thereof). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Designated Securities purchased by or through it were sold exceeds the amount of any damages which such Underwriter 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. For purposes of this Section 5, each person who controls an Underwriter within the meaning of the Act shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement or any amendment thereto and each director of the Company shall have the same rights to contribution as the Company. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this subsection (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve -15- the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under subsection (d). (e) No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 5 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. 6. Default of Underwriters. (a) If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives shall not have arranged for the purchase of such Designated Securities then the Company shall be entitled to a further period of thirty-six hours to provide another party or such other parties as shall be satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed periods the Representatives notify the Company that they have so arranged for the purchase of such Designated Securities, or the Company shall have notified the Representatives that it has so arranged for the purchase of such Designated Securities the Representatives or the Company shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section 6 with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities. -16- (b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives or the company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated securities, and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives or the Company as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriters or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 3(f) hereof and the indemnity and contribution agreements in Section 5 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 7. Survival of Indemnities, Representations, etc. The respective indemnities, agreements, representations, warranties, covenants and other statements of the Company, as set forth in this Agreement or made by or on behalf of it pursuant to this Agreement, and the agreements of the several Underwriters contained in Section 5 hereof, 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 Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Securities. 8. Reimbursement of Underwriters' Expenses. If any Pricing Agreement shall be terminated pursuant to Section 6 hereof or if the Designated Securities are not delivered by or on behalf of the Company because of any of the events referred to in Section 4(h) hereof, then the Company shall not then be under any liability to -17- any Underwriter with respect to Designated Securities covered by such Pricing Agreement except as provided in Section 3(f) and Section 5 hereof; but, if for any other reason Designated securities are not delivered by or on behalf of the Company as provided herein, the company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Section 3 (f) and Section 5 hereof. 9. Representatives; Notices. In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice, waiver or agreement on behalf of any Underwriter made or given by such Representative. All statements, requests, notices and agreements hereunder shall be in writing or by telegram if promptly confirmed in writing and if to the Underwriters shall be sufficient in all respects, if delivered or sent by registered mail to the address of the Representatives as set forth in the Pricing Agreement; and if to the Company shall be sufficient in all respects if delivered or sent by registered mail to the address of the Company set forth in the Registration Statement: Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 5(c) hereof shall be delivered or sent by registered mail to such Underwriter at its address furnished to the Company in writing for the purpose of communications hereunder. Any party to this Agreement may change such address for notices by sending to the other parties written notice of a new address for such purpose. 10. Binding Effect; Successors. This Agreement shall be binding upon, and inure solely to the benefits of, the Underwriters, the Company and, to the extent provided in Section 5 and Section 7 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, 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 or any such Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 11. Applicable Law. These Basic Provisions and each Pricing Agreement shall be construed in accordance with the law of the State of New York. 12. Counterparts. Each Pricing Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which -18- shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. -19- Exhibit A Matters to be Covered by Opinion of Company Counsel (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority under the laws of such State to own its properties and conduct its business as described in the Prospectus; is duly qualified to do business as a foreign corporation in good standing in each state or other jurisdiction in which, in the opinion of such counsel, such qualification is required, or if in any jurisdiction the Company is not so qualified, the failure to so qualify does not, considering all such cases in the aggregate, involve a material risk to the business, properties, financial position or results of operations of the Company and its subsidiaries, taken as a whole; all of the issued and outstanding shares of capital stock of each subsidiary of the Company, other than those which considered in the aggregate as a single subsidiary, would not constitute a significant subsidiary (as defined in Rule 1-02(v) of Regulation S-X promulgated by the Commission), are owned by the Company, free and clear of all claims, liens, encumbrances and security interests; each of such subsidiaries of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is qualified to do business and is in good standing in each state or other Jurisdiction in which, in the opinion of such counsel, such qualification is required, or if in any jurisdiction any such subsidiary is not so qualified, the failure to so qualify does not, considering all such cases in the aggregate, involve a material risk to the business, properties, financial position or results of operations of the Company and its subsidiaries, taken as a whole; (ii) The Pricing Agreement with respect to the Designated Securities and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; (iii) The Designated Securities have been duly authorized, executed, authenticated and delivered, constitute valid and legally binding obligations of the Company in accordance with their terms and are entitled to the benefits provided by the Designated Indenture, subject, as to enforcement of the Designated Securities, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Designated Securities and the Designated Indenture conform to the descriptions thereof contained in the Prospectus; (iv) The Designated Indenture has been duly authorized, executed and delivered by the Company; has been duly qualified under the Trust Indenture Act; and constitutes a valid and binding agreement of the Company enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (v) The Registration Statement has become effective under the Act and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; the Registration Statement and the Prospectus and any amendment or supplement thereto (other than the financial statements and other financial data therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the rules and regulations of the Commission thereunder; such counsel does not believe that the Registration Statement or the Prospectus, as of the time of the Prospectus Supplement and the time of delivery contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, other than financial statements and other financial data therein, as to which such counsel need express no opinion; (vi) The documents incorporated by reference in the Registration Statement and the Prospectus (other than the financial statements and other financial data therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder; (vii) The issuance of the Designated Securities in accordance with the Designated Indenture and the sale thereof in accordance with this Agreement will not, and at the date of such opinion the sale of any thereof covered by Delayed Delivery Contracts would not, result in any violation of any of the provisions of the Company's Restated Certificate of Incorporation or By-laws or of any indenture, mortgage, deed of trust, loan agreement, lease financing agreement or other similar agreement or instrument known to such counsel by which the Company, or any of its subsidiaries, is bound; (viii) No consent, approval or authorization from any regulatory board, agency or instrumentality having jurisdiction over the Company (other than registration under the Act, qualification under state securities or Blue Sky laws and, if applicable, qualification under the Trust Indenture Act) is necessary to authorize the issuance and sale of the Designated Securities; and (ix) To the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no contract or other document A-2 of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required, and the statements included or incorporated in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters. A-3 Exhibit B Matters to be Covered by Letters of Independent Accountants to the Company (1) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations of the Commission thereunder. (2) In their opinion, the audited financial statements and financial statement schedules of the Company and its consolidated subsidiaries included or incorporated in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations of the Commission thereunder; (3) On the basis of a reading of the amounts included or incorporated in the Registration Statement and the Final Prospectus in response to Item 301 of Regulation S-K and of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with standards established by the American Institute of Certified Public Accountants of the unaudited interim financial information; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes (or drafts thereof where approved minutes were not available) of the meetings of the stockholders, directors and executive committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements incorporated in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that: (a) The amounts in the "Selected Financial Data" included or incorporated in the Registration Statement and the Prospectus, do not agree with the corresponding amounts in the audited or the unaudited financial statements from which such amounts were derived, except that, with respect to the amounts representing the ratio of earnings to fixed charges for each period presented, such amounts are not accurately derived from worksheets prepared by the Company; (b) Any unaudited financial statements of the Company and its subsidiaries included or incorporated in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; or such unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus; or (c) With respect to the period subsequent to the date of the most recent financial statements included or incorporated in the Registration Statement and the Prospectus, there was, at a specified date not more than five business days prior to the date of the letter, any change in the capital stock or any increase in the total short-term or total long-term debt of the Company and its consolidated subsidiaries or there were, as of the month-end date prior to the date of the letter for which financial statements of the Company and its consolidated subsidiaries are available, any decreases in its consolidated total assets or its stockholders' equity, in each case as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the date of the most recent financial statements included or incorporated in the Registration Statement and the Final Prospectus to such month-end date there were any decreases, as compared with the corresponding period in the preceding year, in total revenue or income before income taxes or in the total income of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or (d) The amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus, and (4) They have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth or incorporated in the Registration Statement and the Prospectus, and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1 and 7 of the Company's annual report on Form 10-K, incorporated therein, or in "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in any of the Company's quarterly reports on B-2 Form 10-Q incorporated therein, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. Reference to the Registration Statement and the Prospectus are to such documents as amended and supplemented at the date of the letter. B-3 ANNEX I PRICING AGREEMENT [Manager] [Co-Manager, if any] As Representatives of the several Underwriters named in Schedule I hereto, [Street Address] New York, New York _______________, 199___ Dear Sirs: Heller Financial, Inc. (the "Company") proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). Each of the provisions of the Underwriting Agreement Basic Provisions dated September 8, 1995 (the "Basic Provisions"), copies of which have previously been supplied to you, is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Basic Provisions so incorporated by reference shall be deemed to refer to you. Capitalized terms used herein, unless otherwise defined herein, have the meanings provided in the Basic Provisions. The Company has delivered to you for each of the Underwriters copies of the Registration Statement and the Prospectus, including the documents incorporated therein by reference. The Prospectus Supplement relating to the Designated Securities, in the form heretofore delivered to you, is now proposed to be filed, or mailed for filing, with the Commission. Subject to the terms and conditions set forth herein and in the Basic Provisions, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. [The Company authorizes the Underwriters to solicit offers to purchase Designated Securities from the Company pursuant to Delayed Delivery Contracts substantially in the form of Schedule III hereto but with such changes therein as the Company may approve. The Underwriters will endeavor to make such arrangements and, as compensation therefor, the Company will pay to the Representatives, for the account of the Underwriters, at the Time of Delivery a commission in the amount set forth in Schedule II hereto. Delayed Delivery Contracts are to be with purchasers of the types approved by the Company and set forth in the Prospectus and subject to other conditions therein set forth. Except as the Company may otherwise agree, each Delayed Delivery Contract must be for the minimum principal amount set forth in Schedule II hereto and the aggregate principal amount of all Delayed Delivery Contracts may not exceed the amount set forth in such Schedule II. The Underwriters will not have any responsibility in respect of the validity or performance of any Delayed Delivery Contracts.] [If the Company executes and delivers Delayed Delivery Contracts, the Securities subject to such contracts shall be deducted from the Designated Securities to be purchased by the several Underwriters and the aggregate principal amount of Designated Securities to be purchased by each Underwriter shall be reduced pro rata in proportion to the principal amount of Designated Securities set forth opposite each Underwriter's name in Schedule I hereto, except to the extent that the Representatives determine that such reduction shall be otherwise and so advise the Company in writing; provided, however, that the total principal amount of Designated Securities to be purchased by all Underwriters shall be the total principal amount of Designated Securities set forth in Schedule I hereto less the principal amount of Designated Securities covered by Delayed Delivery Contracts. The Company will advise you not later than 10:00 A.M., New York City time, on the third full business day preceding the Time of Delivery (or at such later time as you may otherwise agree) of the sales of Designated Securities pursuant to Delayed Delivery Contracts which have been so approved.] * * * ANNEX I-2 If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the Basic Provisions incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters. Very truly yours, HELLER FINANCIAL, INC. By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Accepted as of the date hereof: - ------------------------------------ [Manager] - ------------------------------------ [Co-Manager, if any] On behalf of each of the Underwriters ANNEX I-3 SCHEDULE I
Principal Amount of Designated Securities to be Purchased Underwriter ----------------------------------- [Manager].................................................. $______________ [Co-Manager, if any]....................................... [Names of other Underwriters].............................. Total $______________
SCHEDULE II Registration Statement No.: Title of Designated Securities: [__%] [Floating Rate] [Zero Coupon] [Senior] [Subordinated] [Junior Subordinated] [Notes] [Debentures] due _________________________________________________________________________ Aggregate Principal Amount: $____________________________ Denominations: [$1,000] [$5,000] [$______________ ] Price to Public: ___% of the principal amount of the Designated Securities, plus accrued interest from _______________ to the Time of Delivery [and accrued amortization, if any, from _______________ to the Time of Delivery] Price to Underwriters: ___% of the principal amount of the Designated Securities, plus accrued interest from _______________ to the Time of Delivery [and accrued amortization, if any, from _______________ to the Time of Delivery] Indenture: [Senior Indenture] [Subordinated Indenture] [Junior Subordinated Indenture] Maturity: _______________, 19___ Interest Rate: [___]% [Zero Coupon] [Method of determination] Interest Payment Dates: [Months and dates] Interest Payment Record Dates: [Months and dates] Redemption Provisions: [No redemption provisions) [The Designated Securities may be redeemed in whole or in part at the option of the Company, in the amount of $_____ or an integral multiple thereof, [on or after ____________ at the following redemption prices (expressed in percentages of principal amount). If redeemed during the 12-month period beginning _______________, Year Redemption Price ---- ---------------- and thereafter at 100% of their principal amount, together in each case with accrued interest to the redemption date.] [on any interest payment date falling on or after _________, at the election of the Company, at a redemption price equal to the principal amount thereof, plus accrued interest to the date of redemption.] [Other possible redemption provisions, such as mandatory redemption upon occurrence of certain events or redemption for changes in tax law.] Sinking Fund Provisions: [No sinking Fund provisions] [The Securities are entitled to the benefit of a sinking Fund to retire $_____ principal amount of Securities on _____ in each of the years _____ through _____ at 100% of their principal amount plus accrued interest] [, together with [cumulative] [non-cumulative] redemptions at the option of the Company to retire an additional $__________ principal amount of Securities in the years _____ through _____ at 100% of their principal amount plus accrued interest.] II-2 Time of Delivery: _______________________________________ Closing Location: _______________________________________ Funds in which Underwriters to make Payment: Delayed Delivery: Underwriters' commission shall be ___% of the principal amount of Designated Securities for which Delayed Delivery Contracts have been entered into and the check given in payment of such commission shall be drawn to the order of: Maximum aggregate principal amount of Designated Securities to be offered and sold pursuant to Delayed Delivery Contracts: $______________ Minimum principal amount of each Delayed Delivery Contract: $_________________ [Other Terms]*: __________________________ /*/ A description of particular tax, accounting or other unusual features of the Securities should be set forth, or referenced to an attached and accompanying description, if necessary to the issuer's understanding of the transaction contemplated. Such a description might appropriately be in the form in which such features will be described in the Prospectus Supplement for the offering. II-3 SCHEDULE III Delayed Delivery Contract HELLER FINANCIAL, INC. c/o _______________, 199__ Attention: Dear Sirs: The undersigned hereby agrees to purchase from Heller Financial, Inc. (hereinafter called the "Company"), and the Company agrees to sell to the undersigned, $ principal amount of the Company's [Title of Designated Securities] (hereinafter called the "Designated Securities"), offered by the Company's Prospectus dated __________, 199__ [as amended or supplemented], receipt of a copy of which is hereby acknowledged, at a purchase price of ___% of the principal amount thereof, plus accrued interest from the date from which interest accrues as set forth below, and on the further terms and conditions set forth in this contract. [The undersigned will purchase the Designated Securities from the Company on __________, 199__ (the "Delivery Date") and interest on the Designated Securities so purchased will accrue from __________, 199__.] [The undersigned will purchase the Designated Securities from the Company on the delivery date or dates and in the principal amount or amounts set forth below: Principal Date From which Delivery Date Amount Interest Accrues
Principal Date From which Delivery Date Amount Interest Accrues ------------- ----------- ---------------- , 199 $ , 199 , 199 $ , 199
Each such date on which Designated Securities are to be purchased hereunder is hereinafter referred to as a "Delivery Date".] Payment for the Designated Securities which the undersigned has agreed to purchase on [the] [each] Delivery Date shall be made to the Company or its order by certified or official bank check in ______________ funds at the office of _______________, _______________, _______________, or by wire transfer to a bank account specified by the Company, on [the] [such] Delivery Date upon delivery to the undersigned of the Designated Securities then to be purchased by the undersigned in definitive, fully registered form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five business days prior to [the] [such] Delivery Date. The obligation of the undersigned to take delivery of and make payment for Designated Securities on [the] (each] Delivery Date shall be subject to the conditions that (a) the purchase of Designated Securities to be made by the undersigned shall not on [the] [such] Delivery Date is prohibited under the laws of the jurisdiction to which the undersigned is subject and (b) the Company, on or before __________, 199__, shall have sold to the several Underwriters, pursuant to the Pricing Agreement dated __________, 199__, with the Company, an aggregate principal amount of Designated Securities equal to $_______, minus the aggregate principal amount of Designated Securities to be covered by this contract and other contracts similar to this contract. The obligation of the undersigned to take delivery of and make payment for Designated Securities shall not be affected by the failure of any purchaser to take delivery of and make payment for Designated Securities pursuant to other contracts similar to this contract. Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion or opinions of the General Counsel of the Company delivered to the Underwriters in connection therewith. The undersigned represents and warrants that, as of the date of this contract, the undersigned is not prohibited form purchasing the Designated Securities hereby agreed to be purchased by its under the laws of the jurisdiction to which the undersigned is subject. This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. This contract may be executed by either of-the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. It is understood that the acceptance by the Company of any Delayed Delivery Contract (including this contract) is in the Company's sole discretion and that, III-2 without limiting the foregoing, acceptances of such contracts need not be on a firstcome, first-served basis. If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned as its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so sailed or delivered by the Company. Yours very truly, [Name of Purchaser] By: ------------------------------ Name: Title: Address: Accepted, ________________, 199__ HELLER FINANCIAL, INC. By:________________________________ Name: Title: III-3 EX-4.1 3 AMENDED & RESTATED CERTIFICATE OF INCORPORATION Exhibit 4.1 HELLER FINANCIAL, INC. (a Delaware corporation) RESTATED CERTIFICATE OF INCORPORATION As Amended This Restated Certificate of Incorporation (hereinafter sometimes referred to as "Certificate" or "Restated Certificate of Incorporation") of HELLER FINANCIAL, INC. (the "Company") was duly adopted by written Unanimous Consents of the Board of Directors and the stockholder of the Company, both dated August 28, 1992 in accordance with Sections 245, 242, 141(f) and 228 of the General Corporation Law of the State of Delaware. 1. The name under which this Company was incorporated on November 20, 1919, was HELLER-MARKS & COMPANY. 2. This Restated Certificate of Incorporation restates and integrates and further amends the Certificate of Incorporation of the Company by: (a) amending Article Fourth, paragraph one, deleting 2,000,000, and inserting, in lieu thereof, 22,000,000, and inserting to provide for the creation of the class of preferred stock designated as "Senior Preferred Stock"; (b) amending Article Fourth, subdivision (b)3.A., deleting $350,000,000, and inserting, in lieu thereof, $500,000,000; and (c) Amending Article Seventh to provide for the rights of the holders of a series of Senior Preferred Stock to elect additional directors. 3. The text of the Restated Certificate of Incorporation as amended or supplemented heretofore is further amended hereby to read as herein set forth in full: HELLER FINANCIAL, INC. (a Delaware corporation) RESTATED CERTIFICATE of INCORPORATION FIRST: The name of the Company is HELLER FINANCIAL, INC. SECOND: The location of its registered office in the State of Delaware is to be 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its agent therein and in charge thereof, and upon whom legal process against this Company may be served, is THE CORPORATION TRUST COMPANY, 1209 Orange Street, in said City of Wilmington. THIRD: The nature of the business and the objects and purposes for which, and for any of which, this Company is formed are to do any or all of the things herein set forth as fully and to the same extent as natural persons might or could do and in any part of the world, viz: (a) To buy, sell and generally deal in commercial paper, securities, shares of stock, bonds, debentures, and evidences of indebtedness of all kinds, whether secured or unsecured, including bills and accounts receivable, and to loan money on the security thereof, or otherwise, and to make in commercial paper, securities, shares of stock, bonds, debentures, and evidences of indebtedness of all kinds, whether secured or unsecured, including bills and accounts receivable, and to loan money on the security thereof, or otherwise, and to make advances upon consignments of merchandise and commodities, and to hypothecate such merchandise and commodities as security, and with power to transact all of the commercial and financial transactions pertaining to any of the businesses herein provided for. (b) To organize, incorporate, reorganize, finance, or assist financially or otherwise companies, corporations, syndicates, partnerships and associations of all kinds, and individuals, and to endorse, underwrite and subscribe for the bonds, stocks, securities, debentures, notes or undertakings of any company, corporation, syndicate, partnership, association or individual, and to make any guarantee in connection therewith, or otherwise, for the payment of money, and for the performance of any obligation or undertaking and to do any and all things necessary or convenient to carry any such purposes into effect. (c) To investigate, develop, consummate, undertake, and carry on any enterprise, business, transaction or operation, commonly carried on or undertaken by capitalists, financiers, trust companies, contracts, syndicates, merchants, importers, exporters, commission men or agents, and to acquire the good will, rights and property, and undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock, bonds, or notes, or otherwise, and generally, as principal or agent, to institute, enter into, carry on, assist, promote, and participate in financial, commercial, mercantile, and other business, works, contracts, undertakings and operations. (d) To manufacture, buy, sell, warehouse, store and deal in goods, wares, merchandise, commodities and property of any and every kind, and also to advance money to any person, firm or corporation on the security of any such property, or on the security of commercial paper or notes given evidence of any deferred payments for any property sold by this Company or by any person, firm, association or corporation. (e) To insure any of the property or interest aforesaid, and the persons, firms or corporations owning, using or operating the same, against loss of fire, theft, collision or damage, or any risk or liability whatever. 2 (f) To engage in and carry on the business of general commission merchants, and purchasing and selling agents: to manufacture, buy, hold, own, produce, sell and otherwise dispose of, either as principal or agent, and upon commission or consignment or otherwise, goods, wares, merchandise, commodities, and personal property of all kinds. (g) To hold in trust, issue on commission, make advances upon, or sell, lease, license, transfer, organize, reorganize, incorporate, or dispose of any of the undertakings or resulting investments aforesaid, or the stock or securities thereof; to act as agent, trustee, or depositary for any of the above or like purposes, or any purpose herein mentioned, and to act as fiscal agent of any person, firm, association or corporation. (h) To obtain the grant of, purchase, lease, or otherwise acquire any concessions, rights, options, patents, privileges, franchises, licenses, lands, properties, undertakings, or businesses, or any right, option, or contract in relation thereto, and to perform, carry out and fulfill the terms and conditions thereof, and to carry the same into effect, and develop, maintain, lease, sell, transfer, dispose of, and otherwise deal with the same. (i) To subscribe for, or cause to be subscribed for, buy, own, hold, purchase, receive or otherwise acquire, and to sell, negotiate, guarantee, assign, deal in, exchange, transfer, mortgage, pledge, or otherwise dispose of, shares of the capital stock, scrip, bonds, coupons, mortgages, debentures, debenture stock, securities, notes and evidences of indebtedness, issued or created by other corporations, joint stock companies or associations, whether public, private or municipal, or any corporate body, and while owner thereof to possess and to exercise in respect thereof, all the rights, powers and privileges of ownership, including the right to vote thereon; to guarantee the payment of dividends on any shares of the capital of any of the corporations, joint stock companies or associations in which this Company has or may have an interest and to become surety in respect of, endorse or otherwise guarantee the payment of the principal or interest of any scrip, bonds, coupons, mortgages, debentures, securities, notes, or evidences of indebtedness issued or created by any such corporations, joint stock companies or associations; to become surety for or guarantee the carrying out and performance of any and all contracts, leases and other obligations of every kind of any such corporation, joint stock company, or association, any of whose shares, bonds, securities or evidences of indebtedness are held by or for this Company, and to do any acts or things designed to protect, preserve, improve or enhance the value of any such shares, bonds, securities or evidences of indebtedness. (j) To purchase, apply for, obtain, or otherwise acquire, any and all letters patent, licenses, patent rights, patented processes and similar rights granted by the United States or any other government or country, or any interest therein, or any inventions which may seem capable of being used for or in connection with any of the objects or purposes of this Company, and to use, exercise, develop, sell, lease, grant licenses in respect to, or other interests in the same, and otherwise turn the same to account, and to carry on any business, manufacturing or otherwise, which may be deemed to directly or indirectly effectuate these objects or any of them. 3 (k) To secure, acquire, apply for, register, hold, own or otherwise dispose of any and all copyrights, trademarks, trade names and other trade rights. (l) To organize, or cause to be organized, under the laws of the State of Delaware, or of any other state, territory or country, or the District of Columbia, a corporation or corporations for the purpose of accomplishing any of the objects for which this Company is organized, or for any other purpose or purposes, and to dissolve, wind up, liquidate, merge or consolidate any such corporation or corporations. (m) To borrow money for the purposes of this Company, and to issue bonds, debentures, notes, and other obligations, and to secure the sale by pledge or mortgage of the whole, or any part of the property of this Company, either real or personal, or to issue bonds, notes, debentures, or other obligations, without any such security. (n) To issue shares of stock, preferred stock, debentures, debenture stock, bonds, notes, and other obligations for cash, or property, or in exchange for the stock, bonds, notes or securities of any person, firm or corporation. (o) To enter into, make, perform and carry out contracts of every kind for any lawful purpose, without limit as to amount, with any person, firm, association or corporation. (p) To draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, warrants and other negotiable or transferable instruments. (q) To purchase and acquire shares of the capital stock, bonds, and other obligations of this Company, from time to time, to such extent, and in such manner and upon such terms as its Board of Directors shall determine, and from time to time to accept, any such shares, bonds and obligations as security for, or in payment on account, or in satisfaction of, any claim or demand of this Company, and to reissue the same from time to time. (r) To have one or more offices to carry on any or all of its operations and business, and, without restriction or limit as to amount, to purchase, lease, or otherwise acquire, hold, and own, and to mortgage, sell, convey, lease, or otherwise dispose of real and personal property of every class and description, in any of the states or territories of the United States and in the District of Columbia and in any and all foreign countries, subject to the laws of such state, district, territory or country. (s) To do any and all things herein set forth, and in addition such other acts as are incident or conducive to the attainment of the purposes of this Company, or any of them, to the same extent as natural persons lawfully might or could do in any part of the world, insofar as such acts are not inconsistent with the provisions of the laws of the State of Delaware. The foregoing clauses shall be construed both as objects and powers, and it is hereby expressly provided that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the powers of this Company, and are in furtherance 4 of, and in addition to, and not in limitation of the general powers conferred by the laws of the State of Delaware. It is the intention that the purposes and powers specified in this Article Third hereof shall, except as otherwise expressly provided, in no wise be limited or restricted by reference to or interference from the terms of any other clause or paragraph of this Certificate, and that each of the purposes and powers specified in this Article Third hereof, shall be regarded as independent purposes and powers. FOURTH: The total number of shares of stock which the Company shall have authority to issue is 22,000,000, of which 1,999,000 shares, no par value, are to be of a class designated "Preferred Stock", and 20,000,000 shares, of the par value of $0.01 each, are to be of a class designated "Senior Preferred Stock" and 1,000 shares, of the par value of $0.25 each, are to be of a class designated "Common Stock." (a) Subject to the provisions of any applicable law, or of the By-laws of the Company as from time to time amended, with respect to the closing of the transfer books or the fixing of a record date for the determination of stockholders entitled to vote and except as otherwise provided by law, by this Restated Certificate of Incorporation or by the resolution or resolutions providing for the issuance of any series of Preferred Stock or Senior Preferred Stock, the holders of outstanding shares of Common Stock shall exclusively possess voting power for the election of directors and for all other purposes, each holder of record of shares of Common Stock being entitled to one vote for each share of Common Stock standing in his name on the books of the Company. Except as otherwise provided by the resolution or resolutions providing for the issue of any series of Preferred Stock or Senior Preferred Stock, the holders of Common Stock shall be entitled, to the exclusion of the holders of Preferred Stock and the Senior Preferred Stock of any and all series, to receive such dividends as from time to time may be declared by the Board of Directors. In the event of any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, after payment shall have been made to the holders of Preferred Stock and Senior Preferred Stock of any and all series of the full amount for which they shall be entitled pursuant to the resolution or resolutions providing for the issue of any series of Preferred Stock or Senior Preferred Stock, the holders of Common Stock shall be entitled, to the exclusion of the holders of Preferred Stock and Senior Preferred Stock of any and all series, to share, ratably according to the number of shares of Common Stock held by them, in all remaining assets of the Company available for distribution to its stockholders. The Preferred Stock and the Senior Preferred Stock may be issued from time to time in one or more series of any number of shares, provided that (i) the aggregate number of shares of Preferred Stock issued and not canceled of any and all such series shall not exceed the total number of shares of Preferred Stock authorized, and (ii) the aggregate number of shares of Senior Preferred Stock issued and not canceled of any and all such series shall not exceed the total number of shares of Senior Preferred Stock authorized. Authority is hereby expressly granted to the Board of Directors from time to time to issue the Preferred Stock or Senior Preferred Stock as Preferred Stock or Senior Preferred Stock, respectively, of any series and, in connection with the creation of each such series, to fix by the resolution or resolutions providing for the issue of shares 5 thereof, the number of shares of such series, and the voting powers, full or limited, or no voting powers, and such distinctive designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions of such series (including, without limitation, the authority to make such shares convertible into, or exchangeable for, shares of the same or any other class or classes of stock of Heller International Corporation, its parent), to the full extent now or hereafter permitted by the laws of the State of Delaware. Subject to the provisions of this Restated Certificate of Incorporation and except as otherwise provided by law, the shares of stock of the Company, regardless of class, may be issued for such consideration and for such corporate purposes as the Board of Directors may from time to time determine. No holder of stock of the Company shall have any preemptive rights with respect to stock of the Company. (b) The Board of Directors pursuant to the authority expressly vested in this Article Fourth, and pursuant to the provisions of the General Corporation Law of the State of Delaware has by resolution fixed the voting powers, designation, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof of the following series of Preferred Stock: NW Preferred Stock, Class B 1. Designation. The designation of the series of Preferred Stock created by this Resolution shall be "NW Preferred Stock, Class B (No Par Value)", the first series of said stock when issued to be designated as "Series A", and each subsequent series when issued thereafter to be lettered consecutively (all such series hereinafter called the "NW Preferred Stock"). The NW Preferred Stock, Class B shall consist of 100,000 shares. Except as hereinafter set forth, all such series when issued are to be governed by the same voting powers, designation, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof as each of the other series of Preferred Stock. 2. Dividends. The holders of shares of the NW Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, dividends in cash in an amount determined at a rate equal to one percent per annum above the rate of interest at which deposits in United States dollars are offered by the principal office of The Fuji Bank, Limited in London, England, to prime banks in the London interbank market for a period equal to three months (or, in the case of the initial issuance of a series of NW Preferred Stock, for a period equal to the period commencing on the date of issuance of such series and ending on the date of the calendar quarter during which such issuance occurred), which dividend amount shall be established on the second business day preceding the first day of each calendar quarter (or in the case of the initial issuance of a series of NW Preferred Stock, on the second business day preceding the date of issuance of such series), payable quarterly on March 31, June 30, September 30, and 6 December 31 in each year, commencing on the first such date following the initial issuance of any series of NW Preferred Stock (each of such quarterly periods (or, in the case of the initial issuance of a series of NW Preferred Stock, such shorter period) ending on the last day of such months, being hereinafter called a `dividend period'). The rights of holders of the NW Preferred Stock shall be noncumulative. Accordingly, if the Board of Directors fails to declare a dividend on the NW Preferred Stock payable on a dividend payment date, then holders of NW Preferred Stock will have no right to receive a dividend in respect of the dividend period ending on such dividend payment date, and the Company will have no obligation to pay dividends accrued for such period, whether or not dividends on the NW Preferred Stock are declared payable on any future dividend payment date. The amount of dividends payable for any period shorter than a full quarterly dividend period will be calculated on the basis of a 360-day year consisting of twelve 30-day months. All dividends declared upon the shares of the NW Preferred Stock and any other preferred stock ranking on a parity as to dividends with the NW Preferred Stock shall be declared pro rata, so that the amounts of dividends declared per share on the NW Preferred Stock and such other preferred stock shall in all cases bear to each other the same rate that Accrued Dividends per share on the shares of the NW Preferred Stock and such other preferred stock bear to each other. No full dividends shall be declared or paid or set apart for payment of the preferred stock of any series ranking, as to dividends, on a parity with or junior to the NW Preferred Stock for any period unless dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the NW Preferred Stock for the then-current dividend period (without accumulation of accrued and unpaid dividends for prior dividend periods unless previously declared). When dividends are not paid in full, as aforesaid, upon the shares of NW Preferred Stock and any other preferred stock ranking on a parity as to dividends with the NW Preferred Stock, all dividends declared upon shares of NW Preferred Stock and any other class of series of preferred stock ranking on a parity as to dividends with the NW Preferred Stock shall be declared pro rata so that the amount of dividends declared per share on the NW Preferred Stock and such other preferred stock shall in all cases bear to each other the same ratio that dividends per share on the shares of NW Preferred Stock for the then- current dividend period (without accumulation of accrued and unpaid dividends for prior dividend periods unless previously declared) and such other preferred stock bear to each other. Holders of shares of NW Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full dividends for the then-current dividend period (without accumulation of accrued and unpaid dividends for prior dividend periods unless previously declared), as herein provided, on the NW Preferred Stock. Holders of shares of the NW Preferred Stock shall not be entitled to any dividends, whether payable in case, property or stock, and no dividends shall be paid on any shares of NW Preferred Stock during the existence of a default in the payment of principal of or interest on any outstanding indebtedness of the Company for money borrowed. 3. Rights of Redemption. The shares of the NW Preferred Stock shall be subject to redemption as follows: 7 A. Mandatory Redemption. Each share of each series of NW Preferred Stock shall be redeemable no less than 30 and no more than 45 days following the end of a calendar quarter upon five business days' prior written notice to the Company from the holder, (the date on which any such redemption shall occur being referred to herein as the 'Redemption Date'), in whole or in part, in an aggregate amount in such calendar quarter not exceeding the excess of the Net Worth of the Company, as defined herein, at the end of such quarter over $500,000,000, at a redemption price equal to the price paid to the Company upon the issuance thereof, plus Accrued Dividends in respect thereof, provided that the Company shall be obligated to effect any such redemption only to the extent that its doing so will not (i) result in a breach of or default under any agreement for or instrument evidencing indebtedness of, or guaranteed by, the Company and (ii) conflict with the provisions set forth under Paragraph 2 hereof restricting the payment of dividends on any shares of NW Preferred Stock during the existence of a default in the payment of principal of or interest on any outstanding indebtedness of the Company for money borrowed. Unless provision has been made for payment in full of Accrued Dividends on all preferred stock, no sum shall be set aside for the redemption of any Preferred Stock nor shall any Preferred Stock be purchased or otherwise acquired by the Company. B. Sinking Fund, Etc. Shares of the NW Preferred Stock are not subject or entitled to the benefit of a sinking fund. C. Effect of Redemption. After a Redemption Date in respect of any shares of NW Preferred Stock, shares redeemed on such Redemption Date shall not be deemed to be outstanding and shall not be transferable on the books of the Company except to the Company. D. Receipt of Redemption Price. At any time on or after a Redemption Date in respect of any shares of NW Preferred Stock, the respective holders of record of shares of NW Preferred Stock to be redeemed shall be entitled to receive the redemption price upon actual delivery to the Company of certificates for the shares to be redeemed. E. Return of Deposits, Etc. Any moneys deposited with the transfer agent, or other redemption agent, for the redemption of any shares of NW Preferred Stock which shall not be claimed after five years from the Redemption Date shall be repaid to the Company by such agent on demand, and the holder of any such shares of NW Preferred Stock shall thereafter look only to the Company for any payment to which such holder may be entitled. Any interest accrued on money so deposited shall belong to the Company and shall be paid to it from time to time on demand. 8 F. Redemption by Deposit. If on or before the Redemption Date in respect of any shares of NW Preferred Stock, funds necessary for such redemption shall have been deposited by the Company, in trust for the pro rata benefit of the holders of the shares called for redemption on such Redemption Date, with a bank or trust company in good standing organized under the laws of the United States of America, doing business in the City of Chicago or in the Borough of Manhattan, in the City of New York, having a capital, surplus and undivided profits aggregating at least $10,000,000 according to its last published statement of condition, then, notwithstanding that any certificate for shares to be redeemed shall not have been surrendered for cancellation, from and after such Redemption Date, all shares to be redeemed shall no longer be deemed to be outstanding and all rights with respect to such shares shall forthwith cease and terminate, except only the right of the holders thereof to receive the redemption price for such shares, without interest, and the right to exercise on or before the close of business on the Redemption Date, privileges of exchange or conversion, if any, not theretofore expiring. Any interest accrued on such funds shall be paid to the Company from time to time. 4. Rights on Liquidation, Dissolution or Winding Up. A. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of the NW Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders, before any payment shall be made to the holders of any class of capital stock of the Company ranking junior upon liquidation to the NW Preferred Stock, an amount equal to the price paid for each such share upon the issuance thereof plus an amount equal to all Accrued Dividends thereon to and including the date of payment. B. In the event the assets of the Company available for distribution to the holders of shares of NW Preferred Stock upon any involuntary or voluntary liquidation, dissolution or winding up of the Company shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to subparagraph A of this paragraph 4, no such distribution shall be made on account of any shares of any other class or series of preferred stock ranking on a parity with the shares of NW Preferred Stock upon liquidation unless proportionate distributive amounts shall be paid on account of the shares of NW Preferred Stock, ratably, in proportion to the full distributive amounts to which the holders of all such parity shares are respectively entitled upon such liquidation, dissolution or winding up. 5. Voting. The shares of the NW Preferred Stock shall not have any voting powers, either general or special, except as required by applicable law. 6. Definitions. 9 A. The term 'business day' shall mean a day on which dealings are carried on in the London interbank market and banks are open in London, and banks are not required or authorized to dose in New York City or in Chicago, it being understood, however, that for purposes of paragraph 2 of this Resolution, the term 'business day' shall not include reference to Chicago. B. The term `Accrued Dividends' shall mean the aggregate amount of dividends that have been declared but have not been paid in respect of shares of the NW Preferred Stock. C. Intentionally Omitted. D. Intentionally Omitted. E. The term 'Net Worth' in respect of any period shall mean the stockholders' equity of the Company, including preferred stock, common stock and earned surplus and all other items listed under the heading "Stockholders' Equity" on the balance sheet of the Company, as determined in accordance with generally accepted accounting principles, consistently applied, and shown on the balance sheet of the Company as at the close of such period; provided, that Net Worth shall be increased by the aggregate amount of the accrued and unpaid dividends on all shares of NW Preferred Stock outstanding on the last day of the period in respect of which Net Worth is being determined, and by the aggregate amount of the liquidation preference of all such shares of NW Preferred Stock to the extent not otherwise included in Net Worth pursuant to the foregoing provisions of this definition. F. The term "Preferred Stock" shall mean any preferred stock created and issued under the Restated Certificate of Incorporation of the Company as in effect on the date of this Resolution, including the NW Preferred Stock, whether or not issued. The term "preferred stock" shall mean shares of any class of stock (including Preferred Stock) if the holders of such class shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, in preference or priority to the holders of shares of Common Stock. G. For the purposes of this Resolution any stock of any class or classes of the Company shall be deemed to rank: (1) prior to shares of the NW Preferred Stock, either as to dividends or upon liquidation, if the holders of such class or classes shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of shares of the NW Preferred Stock; 10 (2) on a parity with shares of the NW Preferred Stock, either as to dividends or upon liquidation, whether or not the dividend rates, dividend payment dates, or redemption or liquidation prices per share thereof be different from those of the NW Preferred Stock, if the holders of such stock shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in proportion to their respective dividend rates or liquidation prices, without preference or priority of one over the other as between the holders of such stock and the holders of shares of NW Preferred Stock; and (3) junior to shares of the NW Preferred Stock, either as to dividends or upon liquidation, if such class shall be common stock of the Company or if the holders of the NW Preferred Stock shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of shares of such class or classes. FIFTH: The existence of this Company is to be perpetual. SIXTH: The private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatever. SEVENTH: Except as otherwise provided for or fixed pursuant to the provisions of Article Fourth of this Restated Certificate of Incorporation relating to the rights of the holders of a series of the Senior Preferred Stock to elect additional directors, the number of directors of this Company shall be fixed and may be altered from time to time as may be provided in the By-laws. In case of any increase in the number of directors, the additional directors may be elected by the directors, or by the stockholders, at an annual or special meeting. EIGHTH: In furtherance, and not in limitation of the powers conferred by statute, the Board of Directors are expressly authorized: (a) To fix, determine and vary from time to time the amount to be maintained as surplus and the amount or amounts to be set apart as working capital. (b) To make, alter, amend or repeal By-laws for this Company without any action on the part of the stockholders. The By-laws made by the directors may be altered or repealed by the stockholders. (c) To designate two or more directors to constitute an executive committee, which committee shall have and exercise (except when the Board of Directors shall be in session) such powers and rights of the full Board of Directors in the management of the business and affairs of this Company as may be lawfully delegated, and shall have power to authorize the seal of this Company to be affixed to all papers which may require it. 11 (d) If the By-laws of this Company shall so provide, the stockholders and directors shall have power to hold their meetings either within or without the State of Delaware, and to have one or more offices outside of the State of Delaware, and to keep the books and records except the original or duplicate stock ledger, of this Company outside the State of Delaware, and at such place or places as may from time to time be designated by the Board of Directors. (e) To authorize and cause to be executed mortgages and liens without limit as to amount, upon the real and personal property of this Company. (f) From time to time to determine whether and to what extent, and at what time and place and under what conditions and regulations the accounts and books of this Company, or any of them, shall be open to the inspection of the stockholders; and no stockholder shall have any right to inspect any account or book or document of this Company except as conferred by statute or the By- laws or as authorized by a resolution of the directors or stockholders. (g) To sell, assign, transfer, convey and otherwise dispose of a part of the property, assets and effects of this Company, less than the whole or substantially the whole thereof, on such terms and conditions as they shall deem advisable, without the assent of the stockholders in writing or otherwise; and also to sell, assign, transfer, convey and otherwise dispose of the whole, or substantially the whole, of the property, assets, effects, franchises, and good will of this Company on such terms and conditions as they shall deem advisable but only with the assent in writing, or pursuant to the vote, of the holders of not less than two-thirds in interest of all the stockholders of this Company but in any event not less than the amount required by law. (h) All of the powers of this Company, insofar as the same lawfully may be vested by this Certificate in the directors, are hereby conferred upon the said directors of this Company. NINTH: This Company may in its By-laws fix the number (not less than the number required by law or in this Certificate) of shares, the holders of which must consent to, or which must be voted in favor of, any specific act or acts by this Company, or its Board of Directors, and during the period for which such number remains so fixed, such specified act or acts shall not and may not be performed or carried out by this Company, or its Board of Directors without the consent or affirmative vote of the holders of at least the number of shares so fixed. TENTH: In the absence of fraud, no contract or transaction between this Company and any other corporation shall be affected by the fact that the directors of this Company are interested in or are directors or officers of such other corporation, and any director individually may be a party to, or may be interested in any such contract or transaction of this Company; and no such contract or transaction of this Company with any person or persons, firm or association, shall be affected by the fact that any director of this Company is a party to, or interested in such contract or transaction, or in any way connected with such person or persons, firm or association, provided that the interest in any such contract or transaction of any such director shall be fully disclosed, and that such contract or other 12 transaction shall be authorized or ratified by the vote of a sufficient number of the directors of this Company not so interested; and each and every person who may become a director in this Company is hereby relieved from any liability that might otherwise exist from thus contracting with this Company for the benefit of himself or any firm, association, or corporation in which he may be in anyway interested. ELEVENTH: This Company may in its Bylaws make any other provisions or requirements for the management or conduct of the business of this Company, provided the same be not inconsistent with the provisions of this Certificate, or contrary to the laws of the State of Delaware, or the United States. TWELFTH: Except where other notice is specifically required by statute written notice only of any stockholder's meeting, given as provided in the By- laws shall be sufficient without publication or other form of notice. THIRTEENTH: Any officer elected or appointed by the Board of Directors, or by the Executive Committee, or by the stockholders, or any member of the Executive Committee, or of any other standing committee, or any director of this Company may be removed at any time, with or without cause, in such manner as shall be provided in the By-laws of this Company. FOURTEENTH: No director of this Company shall be personally liable to the Company or to its stockholders for monetary damages arising out of or resulting from any breach of his fiduciary duty as a director; provided, however, that this Article Fourteenth shall not apply in any case where such liability arises out of or results from: (a) the breach by such director of his duty of loyalty to the Company or to its stockholders; (b) any act or omission of such director not in good faith or which involves intentional misconduct or a knowing violation of the law; (c) any transaction from which such director derives an improper personal benefit; or (d) any payment of a dividend or any purchase or redemption of the capital stock of the Company in violation of the provisions of Section 174 of the General Corporation Law of the State of Delaware. This Article Fourteenth shall be effective as of, and shall apply to any act, omission or transaction of any director of this Company occurring on or after, July 1, 1986. FIFTEENTH: This Company reserves the right to amend, alter, change or repeal any provision contained in this Restated Certificate of Incorporation in the manner now or hereafter prescribed by statute and all rights conferred on officers, directors and stockholders herein are granted subject to this reservation. 4. This Restated Certificate of Incorporation was adopted by the written Consent of the sole stockholder of the Company dated August 28, 1992, in accordance with the applicable provisions of Section 228, 242, 243 and 245 of the General Corporation Law of the State of Delaware. 13 EX-4.3 4 INDENTURE EXHIBIT 4.3 =============================================================== HELLER FINANCIAL, INC. AND SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, Trustee ________ INDENTURE _________ Dated as of September 1, 1995 _________ Senior Securities =============================================================== INDENTURE dated as of September 1, 1995 between HELLER FINANCIAL, INC., a Delaware corporation (the "Company"), and SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION (the "Trustee"). PRELIMINARY STATEMENTS A. The Company is authorized to borrow money for its corporate purposes and to issue non-convertible debentures, notes and other debt obligations therefor; and for its corporate purposes, the Company has determined to make and issue its non-convertible debentures, notes and other debt obligations to be issued in one or more series (the "Securities"), as hereinafter provided, up to such principal amount or amounts as may from time to time be authorized by or pursuant to the authority granted in one or more resolutions of the Board of Directors. B. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. In consideration of the above statements, and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties agree that all the Securities are to be executed, authenticated and delivered subject to the further covenants and conditions hereinafter set forth; and the Company, for itself and its successors, does hereby covenant and agree to and with the Trustee and its successors in such trust, for the benefit of those who shall hold the Securities, or any of them, as follows: TERMS AND CONDITIONS 1. Incorporation by Reference. Articles I through XIII of the Heller Financial, Inc. Standard Multiple- Series Indenture Provisions, dated and filed with the Securities and Exchange Commission on February 5, 1987 (the "Standard Provisions"), are hereby incorporated herein by reference with the same force and effect as though fully set forth herein. To the extent that the terms set forth in Sections 2 and 3 of this Indenture are inconsistent with the terms of the Standard Provisions, the terms set forth in Section 2 herein shall apply. 2. Amendments to the Standard Provisions A. The Standard Provisions as incorporated herein are hereby amended as follows: B. Section 1.01 is amended to add new defined terms thereto or to amend existing defined terms, and all definitions set forth below, to the extent they are inconsistent with the meanings ascribed to them in the Standard Provisions, control, as though they were fully set forth in the Standard Provisions, in the appropriate alphabetical sequence, as follows: "Conversion Event" means the cessation of (i) a Foreign Currency to be used both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, (ii) the ECU to be used both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities, (iii) any currency unit other than the ECU to be used for the purposes for which it was established, or (iv) the availability of a currency due to the imposition of exchange controls or other circumstances beyond the Company's control. "Depositary" means, unless otherwise specified by the Company pursuant to either Section 2.03 or 3.01, with respect to Securities of any series issuable or issued as a Global Security, The Depository Trust Company, New York, New York, or any successor thereto registered under the Securities and Exchange Act of 1934, as amended, or other applicable statute or regulation. "Exchange Rate Agent" means the New York banking corporation, if any, from time to time selected by the Company for purposes of Section 3.12, which, initially, shall be The Fuji Bank and Trust Company. "Global Security" means with respect to any series of Securities issued hereunder, a Security which is executed by the Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction, all in accordance with this Indenture and an indenture supplemental hereto, if any, or Board Resolution and pursuant to a Company Order, which shall be registered in the name of the Depositary or its nominee and which shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series or any portion thereof, in either case having the same terms, including, without limitation, the same issue date, date or dates on which principal is due, and interest rate or method of determining interest. "Market Exchange Rate" means (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant series, (ii) for any conversion of Dollars into 2 any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the highest firm bid quotation for Dollars received by the Exchange Rate Agent at approximately 11:00 a.m. New York City time, on the second Business Day preceding the applicable payment date (or if no such rate is quoted on such date, the last date on which such rate was quoted), from three recognized foreign exchange dealers in The City of New York selected by the Exchange Rate Agent and approved by the Company (one of which may be the Exchange Rate Agent) In the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii), and (iii), payments shall be made in the Foreign Currency which is to be converted, unless such Foreign Currency is unavailable due to the imposition of exchange controls or to other circumstances beyond the Company's control, in which case payment shall be made in Dollars on the basis of the most recently available Market Exchange Rate or as otherwise indicated in a pricing supplement to a prospectus describing the Securities. Unless otherwise specified by the Exchange Rate Agent, if any, or if there shall not be an Exchange Rate Agent, then by the Trustee, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in order to make Payments in respect of such securities. C. Section 1.01 is amended to delete the term "Currency Determination Agent" and all references to the term Currency Determination Agent in the Indenture shall be replaced with references to the Exchange Rate Agent, and all sections with such references are hereby amended and restated as though fully set forth herein. D. Section 2.01 is amended to add the words "or forms" after the word "form" in the first sentence of such Section. E. Article Two is amended to add a new Section 2.03, which reads in its entirety as follows: Section 2.03 Securities Issuable in the Form of a Global Security. (a) If the Company shall establish pursuant to Section 3.01 that the Securities of a particular series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 3.03 and the Company Order delivered to 3 the Trustee thereunder, authenticate and deliver, such Global Security or Securities, which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding Securities of such series to be represented by such Global Security or Securities, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for the individual Securities represented hereby, this Global Security may not be transferred except as a whole by the Depositary to a nominee of 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 Depositary or a nominee of such successor Depositary. (b) Notwithstanding any other provision of this Section 2.03 or of Section 3.05, subject to the provisions of paragraph (c) below, unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for individual securities, a Global Security may be transferred, in whole but not in part and in the manner provided in Section 3.05, only to a nominee of the Depositary for such Global Security, or to the Depositary, or a successor Depositary for such Global Security selected or approved by the Company, or to a nominee of such successor Depositary. (c) (i) If at any time the Depositary for a Global Security notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time the Depositary for the Securities for such series shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a Depositary with respect to such Global Security. If a successor Depositary for such Global Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of such series in exchange for such Global Security, will authenticate and deliver individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security. (ii) The Company may at any time and in its sole discretion determine that the Securities of any series issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery 4 of individual Securities of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities representing such series in exchange for such Global Security or Securities. (iii) If specified by the Company pursuant to Section 3.01 with respect to Securities issued or issuable in the form of a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for individual securities or such series of like tenor and terms in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (l) to each Person specified by such Depositary a new Security or Securities of the same series of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (2) to such Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof. (iv) In any exchange provided for in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver individual Securities in definitive registered form in authorized denominations. Upon the exchange of a Global Security for individual Securities, such Global Security shall be canceled by the Trustee. Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered. F. Section 3.01 is amended to (i) add Section 2.03 to the sections referred to in the parenthetical exception to paragraph (b) of Section 3.01, (ii) redesignate paragraphs (q), (r), (s), (t), (u) and (v) as paragraphs (r), (s), (t), (u), (v) and (w), respectively, and (iii) add new paragraph (q) as follows: (q) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary for such Global Security or Securities; and 5 G. The second paragraph following paragraph (d) (vi) of Section 3.03 is amended and restated to read as follows: If all the Securities of any one series are not to be issued at one time (i) the Trustee shall be entitled to assume that, at the time of the issuance of such Securities, the terms of such Securities do not violate any applicable law or agreement then binding on the Company, and (ii) it shall not be necessary to deliver a Board Resolution, an executed supplemental indenture, if any, an Officer's Certificate or an Opinion of Counsel at the time of issuance of each Security, but such Board Resolution, supplemental indenture, if any, Officer's Certificate and Opinion of Counsel shall be delivered at or prior to the time of issuance of the first Security of such series and the Trustee may conclusively rely on such documents as to the matters covered thereby until revoked by superseding comparable documents delivered to it. H. The first sentence of Section 3.05 is amended and restated to read as follows: Subject to Section 2.03, Securities of any series may be exchanged for a like aggregate principal amount of Securities of the same series of other authorized denominations of a like Stated Maturity and with like terms and provisions. I. The following paragraph is added at the end of Section 3.05: None of the Company, the Trustee, any Paying Agent or the Securities Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. J. Paragraphs (a) and (b) of Section 3.12 are amended and restated to read as follows: (a) With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, the following payment provision will apply: (1) Except as provided in paragraph (e) below, payment of the principal of (and premium, if any) on any Registered Security will be made at the Place of Payment by delivery of a check of checks in Dollars, unless any Holder has elected to receive payment in any Foreign Currency, in which case, payment of the principal of (and premium, if any) on any Registered 6 Security will be made at the Place of Payment by delivery of a check or checks in the currency or currency unit in which the Security is payable on the payment date against surrender of such Registered Security, and any interest on any Fully Registered Security will be paid at the Place of Payment by bailing a check or checks in the currency or currency unit in which such interest is payable to the Person entitled thereto at the address of such Person appearing on the Securities Register. (2) Payment of the principal of (and premium, if any) and (with-respect to Fully Registered Securities only) interest on such Security may also, subject to applicable laws and regulations, be made at such other place or places as may be designated by the Company by any appropriate method and in such other manner as may be agreed by the Company and any Holder. (b) It may be provided pursuant to Section 3.01 with respect to the Registered Securities of any series that Holders shall have the option, subject to paragraphs (e) and (f) below, to receive payments of principal of (and premium, if any) and (with respect to Fully Registered Securities only) interest, if any, on such Security in any of the currencies or currency units which may be designated for such election by delivering to the Paying Agent a written election, to be in form and substance satisfactory to the Paying Agent on or prior to the applicable record date or at least 15 calendar days prior to maturity, as the case may be. If a Holder so elects to receive such payments in any such currency or currency unit, such election will remain in effect for such Holder until changed by such Holder by delivery of a written notice to the Paying Agent but the Paying Agent must receive written notice of any change on or prior to the applicable record date or at least 15 calendar days prior to maturity, as the case may be, to be effective for the payment to be made on such payment date and no such change or election may be made with respect to payments to be made on any Security of such series with respect to which notice of redemption has been given by the Company pursuant to Article IV). Any Holder of any such Security who shall not have delivered any such election to the Paying Agent not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant currency or currency unit as provided in paragraph (a) of this Section 3.12. Payment of principal of (and premium, if any) and (with respect to Fully Registered Securities only) interest, if any, on such Security shall be made at the Place of Payment by mailing at such location a check, in the applicable currency or currency unit to the Person entitled thereto at the address of such Person appearing on the Securities Register. Payment of the principal of, premium, if any, and (with respect to Fully Registered Securities only) interest, if any, on such Security may also, subject to applicable laws and regulations, be made at such other place or places as may be designated by the Company by any appropriate method. 7 K. Paragraph (d) of Section 3.12 is amended and restated to read as follows: (d) Not later than the fourth Business Day after the Election Date for each payment date, the Paying Agent will deliver to the Company a written notice specifying, in the currency or currency unit in which each series of the Securities are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Securities to be made on such payment date, specifying the amounts so payable in respect of Fully Registered Securities, Registered Securities with Coupons and Unregistered Securities and in respect of the Registered Securities as to which the Holders of Securities denominated in any currency or currency unit shall have elected to be paid in another currency or currency unit as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then, on the second Business day preceding each payment date the Company will deliver to the Paying Agent an Exchange Rate Officer's Certificate in respect of the Dollar, Foreign Currency or currency unit payments to be made on such payment date. The Dollar, Foreign Currency or currency unit amount receivable by Holders of Registered Securities who have elected payment in a currency or currency unit as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the "Valuation Date") immediately preceding each payment date. L. Paragraph (g) of Section 3.12 is amended and restated to read as follows: (g) The "Dollar Equivalent of the Foreign Currency" shall be determined by the Exchange Rate Agent, if any, or, if there shall not be an Exchange Rate Agent, then by the Trustee, on the basis of the most recently available Market Exchange Rate, or as otherwise indicated in a pricing supplement to a prospectus describing the Securities. M. The first sentence of Section 8.14 is amended and restated to read as follows: The Trustee may appoint an Authenticating Agent for each series of Securities, which shall be acceptable to the Company, to act on behalf of such Trustee, and subject to its direction in the authentication and delivery of the Securities of such series issued upon original issuance, exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06. N. Section 3.10 is amended and restated to read as follows: 8 All Securities surrendered for the purpose of payment, redemption, repayment, purchase, exchange or registration of transfer or for credit against any sinking fund shall, if surrendered to the Company or any Paying Agent or any Securities Registrar, be surrendered to the Securities Registrar and promptly canceled by it, or, if surrendered to the Securities Registrar, shall be promptly canceled by it, and no Securities or Coupons shall be issued in lieu thereof except as expressly permitted by this Indenture. The Securities Registrar shall destroy canceled Securities and Coupons in accordance with a Company Order and deliver a certificate of such destruction to the Company unless, by a Company Order, the Company directs that such canceled Securities and Coupons be returned to the Company. 3. Additional Provision. The following provision, which constitutes part of this Indenture, is numbered to conform with the format of the Standard Provisions: Section 8.15. Other Matters Concerning the Trustee. At the date of this Indenture, the Corporate Trust Office of the Trustee is located at 777 Main St., Hartford, CT 06115. 9 IN WITNESS WHEREOF, HELLER FINANCIAL, INC. has caused this Indenture to be signed in its corporate name by its authorized officer, and its corporate seal to be affixed hereto, and the same to be attested by the signature of its Secretary or an Assistant Secretary, and SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, in evidence of its acceptance of the trust hereby created, has caused this Indenture to be signed in its corporate name by one of its Authorized Officers, and its corporate seal to be affixed hereto, and the same to be attested by one of its Assistant Secretaries, as of the day and year first above written. HELLER FINANCIAL, INC. By: /s/ Anthony O'B. Beirne ----------------------------- Title: SVP & Treasurer -------------------------- [SEAL] Attest: /s/ David M. Sherbin - ----------------------- SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION By: /s/ Mark A. Forgetta ----------------------------- Title: Vice President -------------------------- [SEAL] Attest: /s/ - ----------------------- 10 STATE OF ILLINOIS ) ) ss: COUNTY OF COOK ) On the 1st day of September, 1995, before me personally came Anthony O'B. Beirne to me known, who, being by me duly sworn, did depose and say that he is an authorized officer of HELLER FINANCIAL, INC., one of the corporations described in and which executed the above instrument; that he knows the seal of such corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of such corporation; and that he signed his name thereto by like authority. /s/ Mary L. Riedesel ----------------------------- "OFFICIAL SEAL" Mary L. Riedesel Notary Public, State of Illinois My Commission Expires 6/17/96 STATE OF Connecticut ) -----------------) ss: COUNTY OF Hartford ) ---------------- On the ___ day of _______, 1995 before me personally came Mark A. Forgetta to me known, who, being by me duly sworn, did depose and say that he is an Authorized Officer of SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, one of the corporations described in and which executed the above instrument; that he knows the seal of such corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of such corporation; and that he signed his name thereto by like authority. /s/ Karen R. Felt ----------------------------- KAREN R. FELT Notary Public My Commission Expires 02/28/99 [SEAL] 11 EX-4.5 5 INDENTURE EXHIBIT 4.5 =============================================================== HELLER FINANCIAL, INC. AND SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, Trustee _________ INDENTURE _________ Dated as of September 1, 1995 _________ Subordinated Securities =============================================================== INDENTURE dated as of September 1, 1995 between HELLER FINANCIAL, INC., a Delaware corporation (the "Company"), and SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION (the "Trustee"). PRELIMINARY STATEMENTS A. The Company is authorized to borrow money for its corporate purposes and to issue non-convertible debentures, notes and other debt obligations therefor; and for its corporate purposes, the Company has determined to make and issue its non-convertible debentures, notes and other debt obligations to be issued in one or more series (the "Securities"), as hereinafter provided, up to such principal amount or amounts as may from time to time be authorized by or pursuant to the authority granted in one or more resolutions of the Board of Directors. B. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. In consideration of the above statements, and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties agree that all the Securities are to be executed, authenticated and delivered subject to the further covenants and conditions hereinafter set forth; and the Company, for itself and its successors, does hereby covenant and agree to and with the Trustee and its successors in such trust, for the benefit of those who shall hold the Securities, or any of them, as follows: TERMS AND CONDITIONS 1. Incorporation by Reference. Articles I through XIII of the Heller Financial, Inc. Standard Multiple- Series Indenture Provisions, dated and filed with the Securities and Exchange Commission on February 5, 1987 (the "Standard Provisions"), are hereby incorporated herein by reference with the same force and effect as though fully set forth herein. To the extent that the terms set forth in Sections 2 and 3 of this Indenture are inconsistent with the terms of the Standard Provisions, the terms set forth in Section 2 shall apply. 2. Amendments to the Standard Provisions. A. The Standard Provisions as incorporated herein are hereby amended as follows: B. Section 1.01 is amended to add new defined terms thereto or to amend existing defined terms, and all definitions set forth below, to the extent they are inconsistent with the meanings ascribed to them in the Standard Provisions, control, as though they were fully set forth in the Standard Provisions, in the appropriate alphabetical sequence, as follows: "Conversion Event" means the cessation of (i) a Foreign Currency to be used both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, (ii) the ECU to be used both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities, (iii) any currency unit other than the ECU to be used for the purposes for which it was established, or (iv) the availability of a currency due to the imposition of exchange controls or other circumstances beyond the Company's control. "Depositary" means, unless otherwise specified by the Company pursuant to either Section 2.03 or 3.01, with respect to Securities of any series issuable or issued as a Global Security, The Depository Trust Company, New York, New York, or any successor thereto registered under the Securities and Exchange Act of 1934, as amended, or other applicable statute or regulation. "Exchange Rate Agent" means the New York banking corporation, if any, from time to time selected by the Company for purposes of Section 3.12, which, initially, shall be The Fuji Bank and Trust Company. "Global Security" means with respect to any series of Securities issued hereunder, a Security which is executed by the Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction, all in accordance with this Indenture and an indenture supplemental hereto, if any, or Board Resolution and pursuant to a Company Order, which shall be registered in the name of the Depositary or its nominee and which shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series or any portion thereof, in either case having the same terms, including, without limitation, the same issue date, date or dates on which principal is due, and interest rate or method of determining interest. "Market Exchange Rate" means (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant series, (ii) for any conversion of Dollars into 2 any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the highest firm bid quotation for Dollars received by the Exchange Rate Agent at approximately 11:00 a.m. New York City time, on the second Business Day preceding the applicable payment date (or if no such rate is quoted on such date, the last date on which such rate was quoted), from three recognized foreign exchange dealers in The City of New York selected by the Exchange Rate Agent and approved by the Company (one of which may be the Exchange Rate Agent) In the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii), and (iii), payments shall be made in the Foreign Currency which is to be converted, unless such Foreign Currency is unavailable due to the imposition of exchange controls or to other circumstances beyond the Company's control, in which case payment shall be made in Dollars on the basis of the most recently available Market Exchange Rate or as otherwise indicated in a pricing supplement to a prospectus describing the Securities. Unless otherwise specified by the Exchange Rate Agent, if any, or if there shall not be an Exchange Rate Agent, then by the Trustee, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in order to make Payments in respect of such securities. C. Section 1.01 is amended to delete the term "Currency Determination Agent" and all references to the term Currency Determination Agent in the Indenture shall be replaced with references to the Exchange Rate Agent, and all sections with such references are hereby amended and restated as though fully set forth herein. D. Section 2.01 is amended to add the words "or forms" after the word "form" in the first sentence of such Section. E. Article Two is amended to add a new Section 2.03, which reads in its entirety as follows: Section 2.03 Securities Issuable in the Form of a Global Security. (a) If the Company shall establish pursuant to Section 3.01 that the Securities of a particular series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 3.03 and the Company Order delivered to 3 the Trustee thereunder, authenticate and deliver, such Global Security or Securities, which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding Securities of such series to be represented by such Global Security or Securities, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for the individual Securities represented hereby, this Global Security may not be transferred except as a whole by the Depositary to a nominee of 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 Depositary or a nominee of such successor Depositary. (b) Notwithstanding any other provision of this Section 2.03 or of Section 3.05, subject to the provisions of paragraph (c) below, unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for individual securities, a Global Security may be transferred, in whole but not in part and in the manner provided in Section 3.05, only to a nominee of the Depositary for such Global Security, or to the Depositary, or a successor Depositary for such Global Security selected or approved by the Company, or to a nominee of such successor Depositary. (c) (i) If at any time the Depositary for a Global Security notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time the Depositary for the Securities for such series shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a Depositary with respect to such Global Security. If a successor Depositary for such Global Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of such series in exchange for such Global Security, will authenticate and deliver individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security. (ii) The Company may at any time and in its sole discretion determine that the Securities of any series issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery 4 of individual Securities of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities representing such series in exchange for such Global Security or Securities. (iii) If specified by the Company pursuant to Section 3.01 with respect to Securities issued or issuable in the form of a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for individual securities or such series of like tenor and terms in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (l) to each Person specified by such Depositary a new Security or Securities of the same series of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (2) to such Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof. (iv) In any exchange provided for in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver individual Securities in definitive registered form in authorized denominations. Upon the exchange of a Global Security for individual Securities, such Global Security shall be canceled by the Trustee. Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered. F. Section 3.01 is amended to (i) add Section 2.03 to the sections referred to in the parenthetical exception to paragraph (b) of Section 3.01, (ii) redesignate paragraphs (q), (r), (s), (t), (u) and (v) as paragraphs (r), (s), (t), (u), (v) and (w), respectively, and (iii) add new paragraph (q) as follows: (q) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary for such Global Security or Securities; and 5 G. The second paragraph following paragraph (d) (vi) of Section 3.03 is amended and restated to read as follows: If all the Securities of any one series are not to be issued at one time (i) the Trustee shall be entitled to assume that, at the time of the issuance of such Securities, the terms of such Securities do not violate any applicable law or agreement then binding on the Company, and (ii) it shall not be necessary to deliver a Board Resolution, an executed supplemental indenture, if any, an Officer's Certificate or an Opinion of Counsel at the time of issuance of each Security, but such Board Resolution, supplemental indenture, if any, Officer's Certificate and Opinion of Counsel shall be delivered at or prior to the time of issuance of the first Security of such series and the Trustee may conclusively rely on such documents as to the matters covered thereby until revoked by superseding comparable documents delivered to it. H. The first sentence of Section 3.05 is amended and restated to read as follows: Subject to Section 2.03, Securities of any series may be exchanged for a like aggregate principal amount of Securities of the same series of other authorized denominations of a like Stated Maturity and with like terms and provisions. I. The following paragraph is added at the end of Section 3.05: None of the Company, the Trustee, any Paying Agent or the Securities Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. J. Paragraphs (a) and (b) of Section 3.12 are amended and restated to read as follows: (a) With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, the following payment provision will apply: (1) Except as provided in paragraph (e) below, payment of the principal of (and premium, if any) on any Registered Security will be made at the Place of Payment by delivery of a check of checks in Dollars, unless any Holder has elected to receive payment in any Foreign Currency, in which case, payment of the principal of (and premium, if any) on any Registered 6 Security will be made at the Place of Payment by delivery of a check or checks in the currency or currency unit in which the Security is payable on the payment date against surrender of such Registered Security, and any interest on any Fully Registered Security will be paid at the Place of Payment by bailing a check or checks in the currency or currency unit in which such interest is payable to the Person entitled thereto at the address of such Person appearing on the Securities Register. (2) Payment of the principal of (and premium, if any) and (with-respect to Fully Registered Securities only) interest on such Security may also, subject to applicable laws and regulations, be made at such other place or places as may be designated by the Company by any appropriate method and in such other manner as may be agreed by the Company and any Holder. (b) It may be provided pursuant to Section 3.01 with respect to the Registered Securities of any series that Holders shall have the option, subject to paragraphs (e) and (f) below, to receive payments of principal of (and premium, if any) and (with respect to Fully Registered Securities only) interest, if any, on such Security in any of the currencies or currency units which may be designated for such election by delivering to the Paying Agent a written election, to be in form and substance satisfactory to the Paying Agent on or prior to the applicable record date or at least 15 calendar days prior to maturity, as the case may be. If a Holder so elects to receive such payments in any such currency or currency unit, such election will remain in effect for such Holder until changed by such Holder by delivery of a written notice to the Paying Agent but the Paying Agent must receive written notice of any change on or prior to the applicable record date or at least 15 calendar days prior to maturity, as the case may be, to be effective for the payment to be made on such payment date and no such change or election may be made with respect to payments to be made on any Security of such series with respect to which notice of redemption has been given by the Company pursuant to Article IV). Any Holder of any such Security who shall not have delivered any such election to the Paying Agent not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant currency or currency unit as provided in paragraph (a) of this Section 3.12. Payment of principal of (and premium, if any) and (with respect to Fully Registered Securities only) interest, if any, on such Security shall be made at the Place of Payment by mailing at such location a check, in the applicable currency or currency unit to the Person entitled thereto at the address of such Person appearing on the Securities Register. Payment of the principal of, premium, if any, and (with respect to Fully Registered Securities only) interest, if any, on such Security may also, subject to applicable laws and regulations, be made at such other place or places as may be designated by the Company by any appropriate method. 7 K. Paragraph (d) of Section 3.12 is amended and restated to read as follows: (d) Not later than the fourth Business Day after the Election Date for each payment date, the Paying Agent will deliver to the Company a written notice specifying, in the currency or currency unit in which each series of the Securities are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Securities to be made on such payment date, specifying the amounts so payable in respect of Fully Registered Securities, Registered Securities with Coupons and Unregistered Securities and in respect of the Registered Securities as to which the Holders of Securities denominated in any currency or currency unit shall have elected to be paid in another currency or currency unit as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then, on the second Business day preceding each payment date the Company will deliver to the Paying Agent an Exchange Rate Officer's Certificate in respect of the Dollar, Foreign Currency or currency unit payments to be made on such payment date. The Dollar, Foreign Currency or currency unit amount receivable by Holders of Registered Securities who have elected payment in a currency or currency unit as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the "Valuation Date") immediately preceding each payment date. L. Paragraph (g) of Section 3.12 is amended and restated to read as follows: (g) The "Dollar Equivalent of the Foreign Currency" shall be determined by the Exchange Rate Agent, if any, or, if there shall not be an Exchange Rate Agent, then by the Trustee, on the basis of the most recently available Market Exchange Rate, or as otherwise indicated in a pricing supplement to a prospectus describing the Securities. M. The first sentence of Section 8.14 is amended and restated to read as follows: The Trustee may appoint an Authenticating Agent for each series of Securities, which shall be acceptable to the Company, to act on behalf of such Trustee, and subject to its direction in the authentication and delivery of the Securities of such series issued upon original issuance, exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06. N. Section 3.10 is amended and restated to read as follows: 8 All Securities surrendered for the purpose of payment, redemption, repayment, purchase, exchange or registration of transfer or for credit against any sinking fund shall, if surrendered to the Company or any Paying Agent or any Securities Registrar, be surrendered to the Securities Registrar and promptly canceled by it, or, if surrendered to the Securities Registrar, shall be promptly canceled by it, and no Securities or Coupons shall be issued in lieu thereof except as expressly permitted by this Indenture. The Securities Registrar shall destroy canceled Securities and Coupons in accordance with a Company Order and deliver a certificate of such destruction to the Company unless, by a Company Order, the Company directs that such canceled Securities and Coupons be returned to the Company. 3. Additional Provisions. The following provisions, which constitute part of this Indenture, are numbered to conform with the format of the Standard Provisions: a. Section 8.15. Other Matters Concerning the Trustee. At the date of this Indenture, the Corporate Trust Office of the Trustee is located at 777 Main St., Hartford, CT 06115. b. ARTICLE XIV. Subordination of Securities. Section 14.01 Securities Subordinated to Senior Debt. Anything in this Indenture or in the Securities to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment to the extent and in the manner hereinafter set forth, to all Senior Debt at any time outstanding: (i) in the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Company or to its creditors, as such, or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive payment in full of all principal of, premium, if any, and interest, if any, on all Senior Debt before the Holders of Securities are entitled to receive any payment on account of principal, premium, if any, and interest, if any, upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in this Article XIV and in the Securities upon the Senior Debt and the holders thereof with respect to the Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any payment or distribution of any kind 9 or character, whether in cash or property or securities, which may be payable or deliverable in any such proceedings in respect of the Securities, except securities which are subordinate and junior to the payment of all Senior Debt then outstanding; and (ii) if any Security is declared due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (i) shall not be applicable), any Holder of the Securities shall be entitled to payment only after there shall first have been paid in full, on the Senior Debt outstanding at the time the Securities first so become due and payable because of such Event of Default, all principal, premium, if any, and interest, if any, becoming due and payable, by acceleration or otherwise, on such Senior Debt within one year after such Securities so become due and payable. No present or future holder of Senior Debt shall be prejudiced in his right to enforce subordination of the Securities by any act or failure to act on the part of the Company. The provisions of this paragraph are solely for the purpose of defining the relative rights of the holders of Senior Debt on the one hand, and the Holders of the Securities on the other hand, and nothing herein shall impair, as between the Company and the Holder of any Security, the obligation of the Company, which is unconditional and absolute, to pay to the Holder thereof the principal, premium, if any, and interest, if any, thereon in accordance with its terms, nor shall anything herein prevent the Trustee or the Holder of a Security from exercising all remedies otherwise permitted by applicable law or hereunder upon default hereunder, subject to the rights, if any, under this paragraph, of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to Holders of the Securities. The Company agrees, for the benefit of the holders of Senior Debt, that if any Security becomes due and payable before its expressed maturity because of the occurrence of a default hereunder (a) the Company will give prompt notice in writing of such happening to the holders of record of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand made prior to the curing of any such default, regardless of the expressed maturity thereof. Section 14.02. Securities May be Paid Prior to Dissolution, etc. Nothing contained in this Article XIV or elsewhere in this Indenture, or in any of the Securities, shall prevent (a) the Company, at any time except under the conditions described in Section 14.01 or during the pendency of any dissolution or winding up or total or partial liquidation or reorganization proceedings therein referred to, from making payments at any time of principal of, premium, if any, or interest, if any, on Securities or from depositing with the Trustee or any Paying Agent moneys for such payments, or (b) the application by the Trustee or any Paying Agent of any moneys deposited with it under this Indenture to the payment of or on account of the principal of, premium, if any, or interest, if any, on the Securities to the Holders of the Securities entitled thereto if such payment would 10 not have been prohibited by the provisions of Section 14.01 on the date such moneys were so deposited. Notwithstanding the provisions of Section 14.01 or any other provision of this Indenture, the Trustee and any Paying Agent shall not be charged with knowledge of the existence of any Senior Debt or of any facts which would prohibit the making of any payment of moneys to or by the Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent shall have received written notice thereof from the Company or from a holder of such Senior Debt; and, prior to the receipt of any such written notice, the Trustee shall be entitled in all respects to assume that no such facts exist. However, if prior to one business day before the date upon which by the terms hereof any such moneys may become payable for any purpose (including, without limitation, the payment of the principal of, premium, if any, or interest, if any, on any Security) the Trustee or such Paying Agent shall not have received with respect to such moneys the notice provided for in this Section 14.02, then, anything herein contained to the contrary notwithstanding, the Trustee and such Paying Agent shall have full power and authority to receive such moneys and apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received after such date. Section 14.03. Rights of the Holders of Senior Debt Not to be Impaired. Neither the Trustee nor any Paying Agent shall be deemed to owe any fiduciary duty to the holders of Senior Debt, and neither shall be liable to any such holders if it shall mistakenly pay over or distribute to or on behalf of Holders of the Securities or the Company moneys or assets to which any holders of Senior Debt shall be entitled by virtue of this Article XIV. The Trustee shall be entitled to all the rights set forth in this Article XIV with respect to any Senior Debt which may at any time be held by it, to the same extent as any other holder of Senior Debt, and nothing in Section 8.13, or elsewhere in this Indenture, shall deprive the Trustee of any of its rights as such holder. Any distributions to be made by the Trustee to the holders of Senior Debt in accordance with this Article XIV may be made to any Trustee or other representatives of such Holder. Section 14.04. Authorization to Trustee to Take Action to Effectuate Subordination. Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee in his behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article XIV and appoints the Trustee his attorney in fact for any and all such purposes. 11 IN WITNESS WHEREOF, HELLER FINANCIAL, INC. has caused this Indenture to be signed in its corporate name by its authorized officer, and its corporate seal to be affixed hereto, and the same to be attested by the signature of its Secretary or an Assistant Secretary, and SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, in evidence of its acceptance of the trust hereby created, has caused this Indenture to be signed in its corporate name by one of its Authorized Officers, and its corporate seal to be affixed hereto, and the same to be attested by one of its Assistant Secretaries, as of the day and year first above written. HELLER FINANCIAL, INC. By: /s/ Anthony O'B. Beirne -------------------------------- Title: SVP & Treasurer ----------------------------- [SEAL] Attest: /s/ David M. Sherbin - -------------------------- SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION By: /s/ Mark A. Forgetta -------------------------------- Title: Vice President ----------------------------- [SEAL] Attest: /s/ - -------------------------- 12 STATE OF ILLINOIS ) ) ss: COUNTY OF COOK ) On the 1st day of September, 1995, before me personally came Anthony O'B. Beirne to me known, who, being by me duly sworn, did depose and say that he is an authorized officer of HELLER FINANCIAL, INC., one of the corporations described in and which executed the above instrument; that he knows the seal of such corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of such corporation; and that he signed his name thereto by like authority. /s/ Mary L. Riedesel --------------------------- "OFFICIAL SEAL" Mary L. Riedesel Notary Public, State of Illinois My Commission Expires 6/17/96 STATE OF Connecticut ) -------------------- ) ss: COUNTY OF Hartford ) ------------------- On the day of , 1995, before me personally came Mark A. Forgetta to me known, who, being by me duly sworn, did depose and say that he is an Authorized Officer of SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, one of the corporations described in and which executed the above instrument; that he knows the seal of such corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of such corporation; and that he signed his name thereto by like authority. /s/ Karen R. Felt --------------------------- KAREN R. FELT Notary Public My Commission Expires 02/28/99 [SEAL] 13 EX-4.7 6 INDENTURE EXHIBIT 4.7 ================================================================================ HELLER FINANCIAL, INC. AND SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, Trustee --------- INDENTURE --------- Dated as of September 1, 1995 --------- Junior Subordinated Securities ================================================================================ INDENTURE dated as of September 1, 1995 between HELLER FINANCIAL, INC., a Delaware corporation (the "Company"), and SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION (the "Trustee"). PRELIMINARY STATEMENTS A. The Company is authorized to borrow money for its corporate purposes and to issue non-convertible debentures, notes and other debt obligations therefor; and for its corporate purposes, the Company has determined to make and issue its non-convertible debentures, notes and other debt obligations to be issued in one or more series (the "Securities"), as hereinafter provided, up to such principal amount or amounts as may from time to time be authorized by or pursuant to the authority granted in one or more resolutions of the Board of Directors. B. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. In consideration of the above statements, and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties agree that all the Securities are to be executed, authenticated and delivered subject to the further covenants and conditions hereinafter set forth; and the Company, for itself and its successors, does hereby covenant and agree to and with the Trustee and its successors in such trust, for the benefit of those who shall hold the Securities, or any of them, as follows: TERMS AND CONDITIONS 1. Incorporation by Reference. Articles I through XIII of the Heller Financial, Inc. Standard Multiple- Series Indenture Provisions, dated and filed with the Securities and Exchange Commission on February 5, 1987 (the "Standard Provisions"), are hereby incorporated herein by reference with the same force and effect as though fully set forth herein. To the extent that the terms set forth in Sections 2 and 3 of this Indenture are inconsistent with the terms of the Standard Provisions, the terms set forth in Section 2 shall apply. 2. Amendments to the Standard Provisions. A. The Standard Provisions as incorporated herein are hereby amended as follows: B. Section 1.01 is amended to add new defined terms thereto or to amend existing defined terms, and all definitions set forth below, to the extent they are inconsistent with the meanings ascribed to them in the Standard Provisions, control, as though they were fully set forth in the Standard Provisions, in the appropriate alphabetical sequence, as follows: "Conversion Event" means the cessation of (i) a Foreign Currency to be used both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, (ii) the ECU to be used both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities, (iii) any currency unit other than the ECU to be used for the purposes for which it was established, or (iv) the availability of a currency due to the imposition of exchange controls or other circumstances beyond the Company's control. "Depositary" means, unless otherwise specified by the Company pursuant to either Section 2.03 or 3.01, with respect to Securities of any series issuable or issued as a Global Security, The Depository Trust Company, New York, New York, or any successor thereto registered under the Securities and Exchange Act of 1934, as amended, or other applicable statute or regulation. "Exchange Rate Agent" means the New York banking corporation, if any, from time to time selected by the Company for purposes of Section 3.12, which, initially, shall be The Fuji Bank and Trust Company. "Global Security" means with respect to any series of Securities issued hereunder, a Security which is executed by the Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction, all in accordance with this Indenture and an indenture supplemental hereto, if any, or Board Resolution and pursuant to a Company Order, which shall be registered in the name of the Depositary or its nominee and which shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series or any portion thereof, in either case having the same terms, including, without limitation, the same issue date, date or dates on which principal is due, and interest rate or method of determining interest. "Market Exchange Rate" means (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant series, (ii) for any conversion of Dollars into 2 any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the highest firm bid quotation for Dollars received by the Exchange Rate Agent at approximately 11:00 a.m. New York City time, on the second Business Day preceding the applicable payment date (or if no such rate is quoted on such date, the last date on which such rate was quoted), from three recognized foreign exchange dealers in The City of New York selected by the Exchange Rate Agent and approved by the Company (one of which may be the Exchange Rate Agent) In the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii), and (iii), payments shall be made in the Foreign Currency which is to be converted, unless such Foreign Currency is unavailable due to the imposition of exchange controls or to other circumstances beyond the Company's control, in which case payment shall be made in Dollars on the basis of the most recently available Market Exchange Rate or as otherwise indicated in a pricing supplement to a prospectus describing the Securities. Unless otherwise specified by the Exchange Rate Agent, if any, or if there shall not be an Exchange Rate Agent, then by the Trustee, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in order to make Payments in respect of such securities. C. Section 1.01 is amended to delete the term "Currency Determination Agent" and all references to the term Currency Determination Agent in the Indenture shall be replaced with references to the Exchange Rate Agent, and all sections with such references are hereby amended and restated as though fully set forth herein. D. Section 2.01 is amended to add the words "or forms" after the word "form" in the first sentence of such Section. E. Article Two is amended to add a new Section 2.03, which reads in its entirety as follows: Section 2.03 Securities Issuable in the Form of a Global Security. (a) If the Company shall establish pursuant to Section 3.01 that the Securities of a particular series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 3.03 and the Company Order delivered to 3 the Trustee thereunder, authenticate and deliver, such Global Security or Securities, which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding Securities of such series to be represented by such Global Security or Securities, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for the individual Securities represented hereby, this Global Security may not be transferred except as a whole by the Depositary to a nominee of 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 Depositary or a nominee of such successor Depositary. (b) Notwithstanding any other provision of this Section 2.03 or of Section 3.05, subject to the provisions of paragraph (c) below, unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for individual securities, a Global Security may be transferred, in whole but not in part and in the manner provided in Section 3.05, only to a nominee of the Depositary for such Global Security, or to the Depositary, or a successor Depositary for such Global Security selected or approved by the Company, or to a nominee of such successor Depositary. (c) (i) If at any time the Depositary for a Global Security notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time the Depositary for the Securities for such series shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a Depositary with respect to such Global Security. If a successor Depositary for such Global Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of such series in exchange for such Global Security, will authenticate and deliver individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security. (ii) The Company may at any time and in its sole discretion determine that the Securities of any series issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery 4 of individual Securities of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities representing such series in exchange for such Global Security or Securities. (iii) If specified by the Company pursuant to Section 3.01 with respect to Securities issued or issuable in the form of a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for individual securities or such series of like tenor and terms in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (l) to each Person specified by such Depositary a new Security or Securities of the same series of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (2) to such Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof. (iv) In any exchange provided for in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver individual Securities in definitive registered form in authorized denominations. Upon the exchange of a Global Security for individual Securities, such Global Security shall be canceled by the Trustee. Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered. F. Section 3.01 is amended to (i) add Section 2.03 to the sections referred to in the parenthetical exception to paragraph (b) of Section 3.01, (ii) redesignate paragraphs (q), (r), (s), (t), (u) and (v) as paragraphs (r), (s), (t), (u), (v) and (w), respectively, and (iii) add new paragraph (q) as follows: (q) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary for such Global Security or Securities; and 5 G. The second paragraph following paragraph (d) (vi) of Section 3.03 is amended and restated to read as follows: If all the Securities of any one series are not to be issued at one time (i) the Trustee shall be entitled to assume that, at the time of the issuance of such Securities, the terms of such Securities do not violate any applicable law or agreement then binding on the Company, and (ii) it shall not be necessary to deliver a Board Resolution, an executed supplemental indenture, if any, an Officer's Certificate or an Opinion of Counsel at the time of issuance of each Security, but such Board Resolution, supplemental indenture, if any, Officer's Certificate and Opinion of Counsel shall be delivered at or prior to the time of issuance of the first Security of such series and the Trustee may conclusively rely on such documents as to the matters covered thereby until revoked by superseding comparable documents delivered to it. H. The first sentence of Section 3.05 is amended and restated to read as follows: Subject to Section 2.03, Securities of any series may be exchanged for a like aggregate principal amount of Securities of the same series of other authorized denominations of a like Stated Maturity and with like terms and provisions. I. The following paragraph is added at the end of Section 3.05: None of the Company, the Trustee, any Paying Agent or the Securities Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. J. Paragraphs (a) and (b) of Section 3.12 are amended and restated to read as follows: (a) With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, the following payment provision will apply: (1) Except as provided in paragraph (e) below, payment of the principal of (and premium, if any) on any Registered Security will be made at the Place of Payment by delivery of a check of checks in Dollars, unless any Holder has elected to receive payment in any Foreign Currency, in which case, payment of the principal of (and premium, if any) on any Registered 6 Security will be made at the Place of Payment by delivery of a check or checks in the currency or currency unit in which the Security is payable on the payment date against surrender of such Registered Security, and any interest on any Fully Registered Security will be paid at the Place of Payment by bailing a check or checks in the currency or currency unit in which such interest is payable to the Person entitled thereto at the address of such Person appearing on the Securities Register. (2) Payment of the principal of (and premium, if any) and (with-respect to Fully Registered Securities only) interest on such Security may also, subject to applicable laws and regulations, be made at such other place or places as may be designated by the Company by any appropriate method and in such other manner as may be agreed by the Company and any Holder. (b) It may be provided pursuant to Section 3.01 with respect to the Registered Securities of any series that Holders shall have the option, subject to paragraphs (e) and (f) below, to receive payments of principal of (and premium, if any) and (with respect to Fully Registered Securities only) interest, if any, on such Security in any of the currencies or currency units which may be designated for such election by delivering to the Paying Agent a written election, to be in form and substance satisfactory to the Paying Agent on or prior to the applicable record date or at least 15 calendar days prior to maturity, as the case may be. If a Holder so elects to receive such payments in any such currency or currency unit, such election will remain in effect for such Holder until changed by such Holder by delivery of a written notice to the Paying Agent but the Paying Agent must receive written notice of any change on or prior to the applicable record date or at least 15 calendar days prior to maturity, as the case may be, to be effective for the payment to be made on such payment date and no such change or election may be made with respect to payments to be made on any Security of such series with respect to which notice of redemption has been given by the Company pursuant to Article IV). Any Holder of any such Security who shall not have delivered any such election to the Paying Agent not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant currency or currency unit as provided in paragraph (a) of this Section 3.12. Payment of principal of (and premium, if any) and (with respect to Fully Registered Securities only) interest, if any, on such Security shall be made at the Place of Payment by mailing at such location a check, in the applicable currency or currency unit to the Person entitled thereto at the address of such Person appearing on the Securities Register. Payment of the principal of, premium, if any, and (with respect to Fully Registered Securities only) interest, if any, on such Security may also, subject to applicable laws and regulations, be made at such other place or places as may be designated by the Company by any appropriate method. 7 K. Paragraph (d) of Section 3.12 is amended and restated to read as follows: (d) Not later than the fourth Business Day after the Election Date for each payment date, the Paying Agent will deliver to the Company a written notice specifying, in the currency or currency unit in which each series of the Securities are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Securities to be made on such payment date, specifying the amounts so payable in respect of Fully Registered Securities, Registered Securities with Coupons and Unregistered Securities and in respect of the Registered Securities as to which the Holders of Securities denominated in any currency or currency unit shall have elected to be paid in another currency or currency unit as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then, on the second Business day preceding each payment date the Company will deliver to the Paying Agent an Exchange Rate Officer's Certificate in respect of the Dollar, Foreign Currency or currency unit payments to be made on such payment date. The Dollar, Foreign Currency or currency unit amount receivable by Holders of Registered Securities who have elected payment in a currency or currency unit as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the "Valuation Date") immediately preceding each payment date. L. Paragraph (g) of Section 3.12 is amended and restated to read as follows: (g) The "Dollar Equivalent of the Foreign Currency" shall be determined by the Exchange Rate Agent, if any, or, if there shall not be an Exchange Rate Agent, then by the Trustee, on the basis of the most recently available Market Exchange Rate, or as otherwise indicated in a pricing supplement to a prospectus describing the Securities. M. The first sentence of Section 8.14 is amended and restated to read as follows: The Trustee may appoint an Authenticating Agent for each series of Securities, which shall be acceptable to the Company, to act on behalf of such Trustee, and subject to its direction in the authentication and delivery of the Securities of such series issued upon original issuance, exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06. 8 N. Section 3.10 is amended and restated to read as follows: All Securities surrendered for the purpose of payment, redemption, repayment, purchase, exchange or registration of transfer or for credit against any sinking fund shall, if surrendered to the Company or any Paying Agent or any Securities Registrar, be surrendered to the Securities Registrar and promptly canceled by it, or, if surrendered to the Securities Registrar, shall be promptly canceled by it, and no Securities or Coupons shall be issued in lieu thereof except as expressly permitted by this Indenture. The Securities Registrar shall destroy canceled Securities and Coupons in accordance with a Company Order and deliver a certificate of such destruction to the Company unless, by a Company Order, the Company directs that such canceled Securities and Coupons be returned to the Company. 3. Additional Provisions. The following provisions, which constitute part of this Indenture, are numbered to conform with the format of the Standard Provisions: a. Section 8.15. Other Matters Concerning the Trustee. At the date of this Indenture, the Corporate Trust Office of the Trustee is located at 777 Main St., Hartford, CT 06115. b. ARTICLE XIV. Subordination of Securities. Section 14.01 Securities Subordinated to Senior Debt and Subordinated Debt. Anything in this Indenture or in the Securities to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment to the extent and in the manner hereinafter set forth, to all Senior Debt and all Subordinated Debt at any time outstanding: (i) in the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Company or to its creditors, as such, or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt and Subordinated Debt shall be entitled to receive payment in full of all principal of, premium, if any, and interest, if any, on all Senior Debt and Subordinated Debt before the Holders of Securities are entitled to receive any payment on account of principal, premium, if any, and interest, if any, upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in this 9 Article XIV and in the Securities upon the Senior Debt and Subordinated Debt and the holders thereof with respect to the Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt and Subordinated Debt shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such proceedings in respect of the Securities, except securities which are subordinate and junior to the payment of all Senior Debt and Subordinated Debt then outstanding; and (ii) if any Security is declared due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (i) shall not be applicable), any Holder of the Securities shall be entitled to payment only after there shall first have been paid in full, on the Senior Debt and Subordinated Debt outstanding at the time the Securities first so become due and payable because of such Event of Default, all principal, premium, if any, and interest, if any, becoming due and payable, by acceleration or otherwise, on such Senior Debt and Subordinated Debt within one year after such Securities so become due and payable. No present or future holder of Senior Debt or Subordinated Debt shall be prejudiced in his right to enforce subordination of the Securities by any act or failure to act on the part of the Company. The provisions of this paragraph are solely for the purpose of defining the relative rights of the holders of Senior Debt and Subordinated Debt on the one hand, and the Holders of the Securities on the other hand, and nothing herein shall impair, as between the Company and the Holder of any Security, the obligation of the Company, which is unconditional and absolute, to pay to the Holder thereof the principal, premium, if any, and interest, if any, thereon in accordance with its terms, nor shall anything herein prevent the Trustee or the Holder of a Security from exercising all remedies otherwise permitted by applicable law or hereunder upon default hereunder, subject to the rights, if any, under this paragraph, of holders of Senior Debt and Subordinated Debt to receive cash, property or securities otherwise payable or deliverable to Holders of the Securities. The Company agrees, for the benefit of the holders of Senior Debt and Subordinated Debt, that if any Security becomes due and payable before its expressed maturity because of the occurrence of a default hereunder (a) the Company will give prompt notice in writing of such happening to the holders of record of Senior Debt and Subordinated Debt and (b) all Senior Debt and subordinated Debt shall forthwith become immediately due and payable upon demand made prior to the curing of any such default, regardless of the expressed maturity thereof. Section 14.02. Securities May be Paid Prior to Dissolution, etc. Nothing contained in this Article XIV or elsewhere in this Indenture, or in any of the Securities, shall prevent (a) the Company, at any time except under the 10 conditions described in Section 14.01 or during the pendency of any dissolution or winding up or total or partial liquidation or reorganization proceedings therein referred to, from making payments at any time of principal of, premium, if any, or interest, if any, on Securities or from depositing with the Trustee or any Paying Agent moneys for such payments, or (b) the application by the Trustee or any Paying Agent of any moneys deposited with it under this Indenture to the payment of or on account of the principal of, premium, if any, or interest, if any, on the Securities to the Holders of the Securities entitled thereto if such payment would not have been prohibited by the provisions of Section 14.01 on the date such moneys were so deposited. Notwithstanding the provisions of Section 14.01 or any other provision of this Indenture, the Trustee and any Paying Agent shall not be charged with knowledge of the existence of any Senior Debt or Subordinated Debt or of any facts which would prohibit the making of any payment of moneys to or by the Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent shall have received written notice thereof from the Company or from a holder of such Senior Debt or Subordinated Debt; and, prior to the receipt of any such written notice, the Trustee shall be entitled in all respects to assume that no such facts exist. However, if prior to one business day before the date upon which by the terms hereof any such moneys may become payable for any purpose (including, without limitation, the payment of the principal of, premium, if any, or interest, if any, on any Security) the Trustee or such Paying Agent shall not have received with respect to such moneys the notice provided for in this Section 14.02, then, anything herein contained to the contrary notwithstanding, the Trustee and such Paying Agent shall have full power and authority to receive such moneys and apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received after such date. Section 14.03. Rights of the Holders of Senior Debt and Subordinated Debt Not to be Impaired. Neither the Trustee nor any Paying Agent shall be deemed to owe any fiduciary duty to the holders of Senior Debt or Subordinated Debt, and neither shall be liable to any such holders if it shall mistakenly pay over or distribute to or on behalf of Holders of the Securities or the Company moneys or assets to which any holders of Senior Debt and Subordinated Debt shall be entitled by virtue of this Article XIV. The Trustee shall be entitled to all the rights set forth in this Article XIV with respect to any Senior Debt which may at any time be held by it, to the same extent as any other holder of Senior Debt and Subordinated Debt, and nothing in Section 8.13, or elsewhere in this Indenture, shall deprive the Trustee of any of its rights as such holder. 11 Any distributions to be made by the Trustee to the holders of Senior Debt in accordance with this Article XIV may be made to any Trustee or other representatives of such Holder. Section 14.04. Authorization to Trustee to Take Action to Effectuate Subordination. Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee in his behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article XIV and appoints the Trustee his attorney in fact for any and all such purposes. [SIGNATURE PAGE FOLLOWS] 12 IN WITNESS WHEREOF, HELLER FINANCIAL, INC. has caused this Indenture to be signed in its corporate name by its authorized officer, and its corporate seal to be affixed hereto, and the same to be attested by the signature of its Secretary or an Assistant Secretary, and SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, in evidence of its acceptance of the trust hereby created, has caused this Indenture to be signed in its corporate name by one of its Authorized Officers, and its corporate seal to be affixed hereto, and the same to be attested by one of its Assistant Secretaries, as of the day and year first above written. HELLER FINANCIAL, INC. By: /s/ Anthony O'B. Beirne --------------------------- Title: SVP & Treasurer ------------------------ [SEAL] Attest: /s/ David M. Sherbin - ------------------------ SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION By: /s/ Mark A. Forgetta --------------------------- Title: Vice President ------------------------ [SEAL] Attest: /s/ - ------------------------ 13 STATE OF ILLINOIS ) ) ss: COUNTY OF COOK ) On the 1st day of September, 1995, before me personally came Anthony O'B. Beirne to me known, who, being by me duly sworn, did depose and say that he is an authorized officer of HELLER FINANCIAL, INC., one of the corporations described in and which executed the above instrument; that he knows the seal of such corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of such corporation; and that he signed his name thereto by like authority. /s/ Mary L. Riedesel ------------------------------- "OFFICIAL SEAL" Mary L. Riedesel Notary Public, State of Illinois My Commission Expires 6/17/96 STATE OF Connecticut ) ) ss: COUNTY OF Hartford ) On the ___ day of _______, 1995 before me personally came Mark A. Forgetta to me known, who, being by me duly sworn, did depose and say that he is an Authorized Officer of SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, one of the corporations described in and which executed the above instrument; that he knows the seal of such corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of such corporation; and that he signed his name thereto by like authority. /s/ Karen R. Felt ------------------------------- KAREN R. FELT Notary Public My Commission Expires 02/28/99 [SEAL] 14 EX-5 7 OPINION OF MARK J. OHRINGER Exhibit 5 October 22, 1997 Heller Financial, Inc. 500 West Monroe Street Chicago, Illinois 60661 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-3 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"). The Registration Statement relates to the registration of up to $3,000,000,000 aggregate initial offering price of an indeterminate amount of the following: (1) debt securities ("Debt Securities") consisting of debentures, notes and/or other evidences of indebtedness, in one or more series, which are to be issued pursuant to one or more indentures (each, as may be supplemented from time to time, an "Indenture"), in each case between the Company and State Street Bank and Trust Company, as trustee (the "Trustee"), which are filed as exhibits to the Registration Statement, (2) shares of the Company's senior preferred stock, par value $.01 per share ("Preferred Stock"), in one or more series, and (3) warrants to purchase Debt Securities (the "Warrants"), which are to be issued under a warrant agreement (the "Warrant Agreement") to be entered into between the Company and a warrant agent to be selected by the Company at the time of issuance (the "Warrant Agent"), the form of which is filed as an exhibit to the Registration Statement. The Debt Securities may be senior, subordinated or junior subordinated and are issuable from time to time pursuant to the Indentures. The Debt Securities, Preferred Stock and Warrants (collectively, the "Securities") may be issued from time to time, pursuant to Rule 415 under the Securities Act. Specific terms pertaining to the Securities offered by the Company will be determined at or prior to the time of issuance and will be set forth in one or more supplements to the prospectus (each, a "Prospectus Supplement") constituting part of the Registration Statement. I am familiar with the corporate proceedings of the Company to date with respect to the proposed issuance and sale of the Securities, and I have examined such corporate records of the Company and such other documents and certificates as I have deemed necessary as a basis for the opinions hereinafter expressed, including (i) the Registration Statement, (ii) the Amended and Restated Certificate of Incorporation, as amended, of the Company, (iii) the By-Laws of the Company, (iv) the Indentures, (v) the form of the Warrant Agreement and (vi) the Form T-1 Statements of Eligibility with respect to the Trustee under the Indentures. In connection with this opinion, I have assumed the accuracy and completeness of all documents and records I have reviewed, the genuineness of all signatures, the authenticity of the documents submitted to me as originals and the conformity to authentic original documents of all documents submitted to me as certified, conformed or reproduced copies. Based on the foregoing, I am of the opinion that: 1. Upon (i) execution and delivery by the Company and the Trustee of a supplement to the applicable Indenture (if required), (ii) the adoption by the Company's Board of Directors or a duly authorized committee thereof of resolutions authorizing the terms, issuance and delivery of the Debt Securities as contemplated by the applicable Indenture, (iii) the filing of a Prospectus Supplement describing the terms of the Debt Securities, as contemplated by the applicable Indenture, with the Commission pursuant to the Securities Act and the rules and regulations thereunder and (iv) the execution by the Company, authentication by the Trustee and delivery by the Company of the Debt Securities, upon receipt of lawful consideration therefor as determined by the Company's Board of Directors or a duly authorized committee thereof, in the manner contemplated by the Registration Statement, any applicable underwriting or pricing agreement and any applicable Prospectus Supplement, the Debt Securities will be legally issued and binding obligations of the Company under the terms of the applicable Indenture. 2. Upon (i) adoption by the Company's Board of Directors of the terms of the Preferred Stock, including, without limitation, the designation, number of shares, dividend rate, any conversion or exchange rights, any redemption or sinking fund provisions and liquidation preference thereof, (ii) the Company's execution and filing with the Secretary of State of the State of Delaware of a Certificate of Designation (containing such terms as have been approved by the Company's Board of Directors or a duly authorized committee thereof) and its effectiveness in accordance with the Delaware General Corporation Law, (iii) the adoption by the Company's Board of Directors or a duly authorized committee thereof of resolutions authorizing the issuance of the Preferred Stock, (iv) the filing by the Company of a Prospectus Supplement describing the terms of the Preferred Stock, as contemplated by the applicable Certificate of Designation, with the Commission pursuant to the Securities Act and the rules and regulations thereunder and (v) the issuance and delivery by the Company of the Preferred Stock, upon receipt of lawful consideration therefor as determined by the Company's Board of Directors or a duly authorized committee thereof (or pursuant to conversion or exchange of Debt Securities or another class or series of Preferred Stock), in the manner 2 contemplated by the Registration Statement, any applicable underwriting or pricing agreement and any applicable Prospectus Supplement, the Preferred Stock will be validly issued, fully paid and nonassessable. 3. Upon (i) the adoption by the Company's Board of Directors or a duly authorized committee thereof of resolutions authorizing the issuance of the Warrants, (ii) the execution and delivery of the Warrant Agreement by the Company, (iii) the filing by the Company of a Prospectus Supplement describing the terms of the Warrants, as contemplated by the Warrant Agreement, with the Commission pursuant to the Securities Act and the rules and regulations thereunder and (iv) the execution by the Company, countersignature by the Warrant Agent and delivery by the Company of the Warrants, upon receipt of lawful consideration therefor as determined by the Company's Board of Directors or a duly authorized committee thereof, in the manner contemplated by the Registration Statement, the Warrant Agreement, any applicable underwriting or pricing agreement and any applicable Prospectus Supplement, the Warrants will be legally issued and binding obligations of the Company. The foregoing opinions are subject to (1) all bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and general equitable principles and (2) limitations under federal or state securities laws, or the public policy underlying such laws, with respect to rights to indemnity or contribution. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name in the Registration Statement and the Prospectus related thereto. Very truly yours, /s/ Mark J. Ohringer Mark J. Ohringer Associate General Counsel 3 EX-12 8 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHANGES EXHIBIT (12) HELLER FINANCIAL, INC. AND SUBSIDIARIES COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS (dollars in millions)
For the Six Months Ended June 30, For the Year Ended December 31, ------------ ------------------------------- 1997 1996 1996 1995 1994 1993 1992 ---- ---- ---- ---- ---- ---- ---- (unaudited) Net income before income taxes and minority interest in income of Heller International Group, Inc................................ $132 $ 92 $183 $181 $174 $133 $ 45 ---- ---- ---- ---- ---- ---- ---- Add-Fixed charges Interest and debt expense............................... 247 223 452 464 336 264 295 One-third of rentals...................................................... 4 3 7 7 6 5 5 ---- ---- ---- ---- ---- ---- ---- Total fixed charges.................................................. 251 226 459 471 342 269 300 ---- ---- ---- ---- ---- ---- ---- Net income, as adjusted................................................... $383 $318 $642 $652 $516 $402 $345 ---- ---- ---- ---- ---- ---- ---- Ratio of earnings to fixed charges........................................ 1.53x 1.41x 1.40x 1.38x 1.51x 1.49x 1.15x ==== ==== ==== ==== ==== ==== ==== Preferred stock dividends on a pre-tax basis.............................. 8 8 16 17 17 12 3 Total combined fixed charges and preferred stock dividends........... $259 $234 $475 $488 $359 $281 $303 ---- ---- ---- ---- ---- ---- ---- Ratio of earnings to combined fixed charges and preferred stock dividends......................................................... 1.48x 1.36x 1.35x 1.34x 1.44x 1.43x 1.14x ==== ==== ==== ==== ==== ==== ====
For purposes of computing the ratio of earnings to combined fixed charges and preferred stock dividends, "earnings" includes income before income taxes, the minority interest in Heller International Group, Inc. income and fixed charges. "Combined fixed charges and preferred stock dividends" includes interest on all indebtedness, one third of annual rentals (approximate portion representing interest) and preferred stock dividends on a pre-tax basis. EX-23.1 9 CONSENT OF ARTHUR ANDERSEN LLP [ARTHUR ANDERSEN'S LETTERHEAD GOES HERE] 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 24, 1997 (except with the matter discussed in Note 18, as to which the date is February 5, 1997) included in Heller Financial, Inc.'s Form 10-K for the year ended December 31, 1996 and to all references to our firm included in this registration statement. /s/ Arthur Andersen LLP Chicago, Illinois October 22, 1997 EX-25.1 10 FORM T-1 FOR SENIOR DEBT SECURITIES Exhibit 25.1 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) John R. Towers, 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, IL 60661 (Address of principal executive offices) (Zip Code) ____________________ Heller Financial, Inc. Senior Debt Securities (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 Boston 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 furnished 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 16th day of October, 1997. STATE STREET BANK AND TRUST COMPANY By: /s/ Mark A. Forgetta --------------------------------- Mark A. Forgetta 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 Heller Financial, Inc. Senior Debt Securities, 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/ Mark A. Forgetta -------------------- Mark A. Forgetta Vice President Dated: October 16, 1997 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 June 30, 1997, 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.................. 1,842,337 Interest-bearing balances........................................... 8,771,397 Securities.................................................................... 10,596,119 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and its Edge subsidiary................................. 5,953,036 Loans and lease financing receivables: Loans and leases, net of unearned income ............ 5,769,090 Allowance for loan and lease losses ......................74,031 Allocated transfer risk reserve............................. 0 Loans and leases, net of unearned income and allowances............. 5,695,059 Assets held in trading accounts............................................... 916,608 Premises and fixed assets..................................................... 374,999 Other real estate owned....................................................... 755 Investments in unconsolidated subsidiaries.................................... 28,992 Customers' liability to this bank on acceptances outstanding.................. 99,209 Intangible assets............................................................. 229,412 Other assets.................................................................. 1,589,526 ---------- Total assets.................................................................. 36,097,449 ========== LIABILITIES Deposits: In domestic offices................................................. 11,082,135 Noninterest-bearing..............................8,932,019 Interest-bearing.................................2,150,116 In foreign offices and Edge subsidiary.............................. 13,811,677 Noninterest-bearing................................112,281 Interest-bearing................................13,699,396 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge subsidiary................................. 6,785,263 Demand notes issued to the U.S. Treasury and Trading Liabilities.............. 755,676 Other borrowed money.......................................................... 716,013 Subordinated notes and debentures............................................. 0 Bank's liability on acceptances executed and outstanding...................... 99,605 Other liabilities............................................................. 841,566 Total liabilities............................................................. 34,091,935 ---------- EQUITY CAPITAL Perpetual preferred stock and related Surplus................................. 0 Common stock.................................................................. 29,931 Surplus....................................................................... 437,183 Undivided profits and capital reserves/Net unrealized holding gains (losses).. 1,542,695 Cumulative foreign currency translation adjustments........................... (4,295) Total equity capital.......................................................... 2,005,514 ---------- Total liabilities and equity capital.......................................... 36,097,449
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-25.2 11 FORM T-1 FOR SUBORDINATED DEBT SECURITIES EXHIBIT 25.2 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) John R. Towers, 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, IL 60661 (Address of principal executive offices) (Zip Code) ____________________ Heller Financial, Inc. Subordinated Debt Securities (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 Boston 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 furnished 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 16th day of October, 1997. STATE STREET BANK AND TRUST COMPANY By: /S/ Mark A. Forgetta --------------------------------------- Mark A. Forgetta 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 Heller Financial, Inc. Subordinated Debt Securities, 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/ Mark A. Forgetta ----------------------------- Mark A. Forgetta Vice President Dated: October 16, 1997 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 June 30, 1997, 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............... 1,842,337 Interest-bearing balances........................................ 8,771,397 Securities......................................................... 10,596,119 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and its Edge subsidiary... 5,953,036 Loans and lease financing receivables: Loans and leases, net of unearned income ............ 5,769,090 Allowance for loan and lease losses ................. 74,031 Allocated transfer risk reserve...................... 0 Loans and leases, net of unearned income and allowances.......... 5,695,059 Assets held in trading accounts.................................... 916,608 Premises and fixed assets.......................................... 374,999 Other real estate owned............................................ 755 Investments in unconsolidated subsidiaries......................... 28,992 Customers' liability to this bank on acceptances outstanding....... 99,209 Intangible assets.................................................. 229,412 Other assets....................................................... 1,589,526 ---------- Total assets....................................................... 36,097,449 ========== LIABILITIES Deposits: In domestic offices.............................................. 11,082,135 Noninterest-bearing................................ 8,932,019 Interest-bearing................................... 2,150,116 In foreign offices and Edge subsidiary........................... 13,811,677 Noninterest-bearing................................ 112,281 Interest-bearing................................... 13,699,396 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge subsidiary....................................................... 6,785,263 Demand notes issued to the U.S. Treasury and Trading Liabilities... 755,676 Other borrowed money............................................... 716,013 Subordinated notes and debentures.................................. 0 Bank's liability on acceptances executed and outstanding........... 99,605 Other liabilities.................................................. 841,566 Total liabilities.................................................. 34,091,935 ---------- EQUITY CAPITAL Perpetual preferred stock and related surplus...................... 0 Common stock....................................................... 29,931 Surplus............................................................ 437,183 Undivided profits and capital reserves/Net unrealized holding gains (losses)................................................... 1,542,695 Cumulative foreign currency translation adjustments................ (4,295) Total equity capital............................................... 2,005,514 ---------- Total liabilities and equity capital............................... 36,097,449
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-25.3 12 FORM T-1 FOR JUNIOR SUBORDINATED DEBT SECURITIES EXHIBIT 25.3 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) John R. Towers, 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, IL 60661 (Address of principal executive offices) (Zip Code) -------------------- Heller Financial, Inc. Junior Debt Subordinated Securities (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 Boston 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 furnished 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 16th day of October, 1997. STATE STREET BANK AND TRUST COMPANY By: /S/ Mark A. Forgetta ------------------------------ Mark A. Forgetta 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 Heller Financial, Inc. Junior Debt Subordinated Securities, 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/ Mark A. Forgetta ------------------------------ Mark A. Forgetta Vice President Dated: October 16, 1997 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 June 30, 1997, 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.................. 1,842,337 Interest-bearing balances........................................... 8,771,397 Securities.................................................................... 10,596,119 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and its Edge subsidiary................................. 5,953,036 Loans and lease financing receivables: Loans and leases, net of unearned income ............ 5,769,090 Allowance for loan and lease losses ....................74,031 Allocated transfer risk reserve............................0 Loans and leases, net of unearned income and allowances............. 5,695,059 Assets held in trading accounts............................................... 916,608 Premises and fixed assets..................................................... 374,999 Other real estate owned....................................................... 755 Investments in unconsolidated subsidiaries.................................... 28,992 Customers' liability to this bank on acceptances outstanding.................. 99,209 Intangible assets............................................................. 229,412 Other assets.................................................................. 1,589,526 ---------- Total assets.................................................................. 36,097,449 ========== LIABILITIES Deposits: In domestic offices................................................. 11,082,135 Noninterest-bearing..............................8,932,019 Interest-bearing.................................2,150,116 In foreign offices and Edge subsidiary.............................. 13,811,677 Noninterest-bearing................................112,281 Interest-bearing................................13,699,396 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge subsidiary................................. 6,785,263 Demand notes issued to the U.S. Treasury and Trading Liabilities.............. 755,676 Other borrowed money.......................................................... 716,013 Subordinated notes and debentures............................................. 0 Bank's liability on acceptances executed and outstanding...................... 99,605 Other liabilities............................................................. 841,566 Total liabilities............................................................. 34,091,935 ---------- EQUITY CAPITAL Perpetual preferred stock and related surplus....................................................................... 0 Common stock.................................................................. 29,931 Surplus....................................................................... 437,183 Undivided profits and capital reserves/Net unrealized holding gains (losses).. 1,542,695 Cumulative foreign currency translation adjustments........................... (4,295) Total equity capital.......................................................... 2,005,514 ---------- Total liabilities and equity capital.......................................... 36,097,449
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 -----END PRIVACY-ENHANCED MESSAGE-----