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Exhibit 10.1
HCA - THE HEALTHCARE COMPANY
AND
BANK ONE, NA, LONDON BRANCH
AS PAYING AGENT AND REGISTRAR
AND
CREDIT AGRICOLE INDOSUEZ LUXEMBOURG S.A.
AS PAYING AGENT AND TRANSFER AGENT
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AGENCY AGREEMENT (8.75% NOTES DUE 2010)
DATED AS OF OCTOBER 25, 2000
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THIS AGREEMENT is made in London as of October 25, 2000 AMONG
(1) HCA - THE HEALTHCARE COMPANY (the "ISSUER"),
(2) BANK ONE, NA, LONDON BRANCH ("BANK ONE"), which shall act as paying
agent and registrar (hereinafter referred to in such respective
capacities as "PAYING AGENT" or "REGISTRAR," which expressions shall
include any successor or successors thereto), and
(3) CREDIT AGRICOLE INDOSUEZ LUXEMBOURG S.A., ("Credit Agricole") which
shall act as paying agent and transfer agent (hereinafter referred to
as "PAYING AGENT AND TRANSFER AGENT", which expression shall include
any successor or successors thereto).
WHEREAS, pursuant to the Underwriting Agreement Standard Provisions
(Debt Securities) dated October 25, 2000, which is incorporated into the
Underwriting Agreement (Terms) dated October 25, 2000, between the Issuer and
the Underwriters referred to therein (together, the "Underwriting Agreement"),
the Issuer has agreed to issue L.150,000,000 of its 8.75% Notes due 2010 (THE
"NOTES");
WHEREAS the Issuer wishes to appoint Bank One to act as Paying Agent
and Registrar and Credit Agricole as Paying Agent and Transfer Agent in relation
to the Notes upon the terms and conditions set forth in this Agreement and the
Schedules hereto.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS, INTERPRETATION
The following terms shall, unless the context otherwise requires, have
the respective meanings indicated below:
"AGENT(S)" means any of the Registrar, the Paying Agent or the Transfer
Agent.
"CONDITIONS" means the terms and conditions of the issue of the Notes,
as contained in the Global Note, the Prospectus dated August 5, 1999,
as supplemented by the Prospectus Supplement, dated October 25, 2000,
the Officer's Certificate related to the issue of the Notes dated
November 1, 2000 and the Indenture.
"GLOBAL NOTE" means the Global Note in the form of Schedule 1 attached
hereto.
"INDENTURE" means the Indenture dated as of December 16, 1993, as
supplemented on May 25, 2000 between the Issuer and Bank One Trust
Company, NA, the successor of the First National Bank of Chicago, as
Trustee (the "Trustee"), a copy of which is attached hereto as
Schedule 2.
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Terms not defined herein shall have the same meanings as are assigned
thereto in the Underwriting Agreement.
2. APPOINTMENTS
2.1 The Issuer hereby appoints Bank One to act as Paying Agent and
Registrar in respect of the Notes and Global Note.
2.2 Bank One hereby accepts such appointment and the resulting obligations,
and agrees to act in such capacities, on the terms and conditions set out in
this Agreement and the Schedules hereto. In particular, the Paying Agent agrees
to effect any publication of notices pursuant to the Conditions.
2.3 The Issuer hereby appoints Credit Agricole to act as Paying Agent and
Transfer Agent in respect of the Notes and Global Note.
2.4 Credit Agricole hereby accepts such appointment and the resulting
obligations, and agrees to act in such capacities, on the terms and conditions
set out in this Agreement and the Schedules hereto.
2.5 The obligations of the Agents are several and not joint.
3. THE NOTES
3.1 The Notes shall be represented by a permanent Global Note without
interest coupons as specified in the Conditions. The Global Note shall be
substantially in the form attached hereto as Schedule 1, in each case with such
changes as may be agreed between the Issuer and the Trustee. Individual Notes
shall not be issued.
3.2 Each Global Note shall be signed manually by a duly authorized officer
of the Issuer and dated November 1, 2000. Each Global Note shall be
authenticated manually by the Trustee and delivered to Bank One as common
depository for Euroclear System and Clearstream Banking, societe anonyme,
Luxembourg (hereinafter "Euroclear" and "Clearstream Luxembourg," respectively).
4. PAYING AGENCY
4.1 The Issuer shall remit the funds necessary for the payment of interest
on and principal of the Notes to the Paying Agent, in pounds Sterling, in
same-day funds, to such account at the Paying Agent in London as the Paying
Agent may from time to time specify (the "REDEMPTION ACCOUNT") on the Business
Day such payment is due, provided always that, if any due date shall not be a
Business Day, the Issuer shall make such transfer to the account of the Paying
Agent on the next succeeding Business Day (for the purposes of the Agreement,
Business Day shall have the same definition as Business Day contained in the
Prospectus Supplement).
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The Issuer hereby authorizes and directs the Paying Agent, from the amounts so
paid to, it to make payment of the principal of, and interest on, the Notes on
the due date for payment set forth in the Conditions and this Agreement. If
applicable, the Paying Agent will, from funds so received from the Issuer,
credit to the account of the Paying Agent the amounts of all such payments made
by it in accordance with the provisions of this Agreement.
The Issuer understands that it should confirm to the Paying Agent not later than
10:00 a.m. (London time) on the second Business Day before the relevant date for
such payment that it has issued irrevocable payment instructions for such
payment to be made. The Paying Agent shall contact the Issuer not later than ten
Business Days before the respective due date with regard to such payment. The
Redemption Account shall be free of charge.
4.2 If for any reason (other than negligence or willful misconduct on the
part of the Paying Agent or its officers, employees or agents) the Paying Agent
does not receive unconditionally the full amount payable by the Issuer on the
relevant due date in respect of all the outstanding or maturing Notes, the
Paying Agent shall forthwith notify immediately the Issuer by telephone followed
by facsimile and the Paying Agent shall not be bound to make any payment of
principal or interest in respect of the Notes until the Paying Agent has
received to its order the full amount of the moneys then due and payable in
respect of all outstanding or maturing Notes, provided, however, that if the
Paying Agent shall, in its discretion, make any payment of principal or interest
on or after the due date therefor in respect of the Notes prior to its
unconditional receipt of the full amount then due and payable in respect of all
outstanding Notes, the Issuer will promptly pay such amount to the Paying Agent
and will compensate the Paying Agent at a rate equal to the Paying Agent's cost
of funding.
4.3 Out of the sums paid to the Paying Agent in respect of interest and
principal on the Notes, the Paying Agent will make payment free of charge to the
registered holder of the Global Note as stipulated in Clause 8 below, in the
amounts specified in the Conditions. The Paying Agent shall obtain from the
Registrar, and the Registrar shall supply, such details as are required for the
Paying Agent to make payment as stated above.
4.4 In respect of the monies paid to it relating to any Note, the Paying
Agent
4.4.1 shall not be entitled to exercise any lien, right of set-off
or similar claim (including without limitation any claim
arising from or relating to any other issue of securities by
the Issuer),
4.4.2 shall not be required to account for interest thereon, and
4.4.3 need not segregate money held by it, except as required by
law.
5. DOCUMENTS FOR INSPECTION AND PUBLICATION OF NOTICES
5.1 On behalf and at the request and expense of the Issuer, the Paying
Agent shall cause to be published any notices required to be given by the Issuer
in accordance with the Conditions.
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5.2 The Issuer shall provide to the Paying Agent sufficient copies of all
documents required by the Conditions to be available for issue or inspection,
and the Paying Agent shall make such copies available to the holders of the
Notes upon their request.
5.3 To the extent practicable, the Issuer shall provide the Paying Agent
with a copy (prior to publication) of all notices to be issued in connection
with the Notes.
6. CANCELLATION OF THE GLOBAL NOTE
6.1 Subject to the terms of the Indenture, promptly upon the Issuer's
request, the Registrar shall take all measures necessary to cancel any Notes
which the Issuer has repurchased or whose maturity has been accelerated pursuant
to the Conditions. The Registrar shall cause any such Notes to be canceled,
resulting in a reduction in the aggregate amount of the Notes represented by the
Global Note by the aggregate amount of Notes so canceled.
6.2 On the same day such cancellation is effected, the Registrar shall
record such cancellation of Notes on the Register, as defined below, in such a
way that the aggregate principal amount of Notes canceled at any time together
with the aggregate principal amount of Notes outstanding and represented by the
Global Note shall equal the aggregate principal amount of Notes originally
issued by the Issuer.
6.3 The Registrar shall upon request furnish the Issuer with a notice of
cancellation signed by an authorized officer of the Registrar confirming the
cancellation of such Notes and the corresponding reduction of the relevant
Global Note.
7. DUTIES OF THE REGISTRAR
7.1 The Registrar shall maintain a register (the "Register") in London in
accordance with the Conditions. The Register shall show the aggregate amount of
Notes represented by each Global Note at the date of issue and all subsequent
transfers and exchanges involving a change in such amounts and the names and
addresses of the registered holders (each a "PAYEE"). On the first Business Day
after the Record Date for any interest payment on the Notes, the Registrar shall
send payment details in respect of the Payees and the accounts to which
transfers should be made to the Paying Agent.
7.2 Transfers or exchanges of Notes will be made in accordance with the
Conditions, the procedures established for this purpose between Euroclear,
Clearstream, Luxembourg, and the Registrar, and the regulations of Euroclear and
Clearstream, Luxembourg applicable to such transfers or exchanges. Any such
transfer or exchange which results in a change in the aggregate principal amount
of Notes held by Euroclear and Clearstream, Luxembourg shall be notified by
Euroclear and Clearstream, Luxembourg to the Registrar. The Registrar shall
promptly enter details of the transfer or exchange in the Register, which entry
shall, without further action, cause the aggregate principal amount represented
by each Global Note to be amended accordingly.
7.3 The Registrar shall at all reasonable times during office hours make
the Register available to the Issuer and the Paying Agent or any person
authorized by either of them for inspection and
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for the taking of copies thereof or extracts therefrom, and the Registrar shall
deliver to such persons such information contained in the Register or relating
to the Notes as they may reasonably request.
8. DUTIES OF THE TRANSFER AGENT
If and to the extent so specified by the Conditions and in accordance therewith,
or if otherwise requested by the Issuer, the Transfer Agent shall make available
all relevant forms of transfer, inform the Registrar of the name and address of
the relevant person to be inserted in the Register and carry out such other acts
as may be necessary to give effect to the Conditions and this Agreement.
9. CONDITIONS OF APPOINTMENT
9.1 The Issuer will pay to the Agents a remuneration for all services
rendered hereunder by the Agents in connection with the Notes, together with any
expenses incurred only to the extent separately agreed upon by the Agents and
the Issuer.
9.2 The Issuer will indemnify and hold harmless each of the Agents against
any loss, liability or expense which it may incur or any claim, action or demand
which may be made against it resulting from the negligence or willful misconduct
on the part of the Issuer (or its officers, employees or agents (other than the
Agents and their officers, employees, and agents)) and arising out of or in
connection with such Agent's appointment or the exercise of its powers and
duties hereunder without negligence or willful misconduct on the part of such
Agent.
9.3 Each Agent will indemnify and hold harmless the Issuer against any
loss, liability or expense incurred by the Issuer or any claim, action or demand
which may be made against the Issuer resulting from the negligence or willful
misconduct on the part of such Agent (or such Agent's officers, employees or
agents) and arising out of or in connection with such Agent's duties hereunder.
9.4 The indemnities above shall survive the termination or expiry of this
Agreement.
9.5 Each of the Agents shall be protected and shall incur no liability for
or in respect of any action taken, omitted or suffered in reliance upon any
instruction or communication from the Issuer or any document reasonably believed
by it to be genuine and to have been delivered, signed or sent by the proper
party or parties in accordance with the provisions hereof, except such as may
result from its own negligence or willful misconduct or that of its officers,
employees or agents.
9.6 In acting hereunder and in connection with the Notes, the Agents do not
assume any relationship of agency and trust for the holders of the Notes and
shall not have any obligation towards them except that all funds held by a
Paying Agent for payment of principal of or interest on the Notes shall be held
exclusively for the benefit of and for payment to the holders of the Notes and
shall be applied as set forth herein and in the Conditions.
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9.7 Nothing herein shall be deemed to require any Agent to advance its own
funds in the performance of its duties hereunder.
9.8 The Agents may consult with legal and other professional advisers
selected in good faith and satisfactory to them and the advice or opinion of
such advisers shall be full and complete protection in respect of any action
taken, omitted or suffered hereunder in good faith and without negligence and in
accordance with the advice or opinion of such advisers.
9.9 The Agents shall be obliged to perform such duties and only such duties
as are herein specifically set forth, and no implied duties or obligations shall
be read into this Agreement against the Agent. No Agent shall be under any
obligation to take any action hereunder which it expects will result in any
expense or liability of such Agent, the payment of which within a reasonable
time is not, in its opinion, assured to it.
9.10 The Agents and their officers, employees and affiliates, in their
individual or any other capacity, may become the owner of, or acquire any
interest in, any Notes with the same rights that the Agents would have if they
were not the Agents hereunder.
10. CHANGE IN AGENTS
10.1 Each of the Paying Agent and Registrar and Paying Agent and Transfer
Agent, in its capacity as such, may be removed at any time by the giving to it
of at least 30 days' written notice to that effect signed on behalf of the
Issuer specifying the date on which such removal shall become effective. Each of
the Paying Agent and Registrar and Paying Agent and Transfer Agent may at any
time resign by giving at least 30 days' written notice (unless the Issuer agrees
to accept less notice) to that effect to the Issuer specifying the date on which
such resignation shall become effective. Notwithstanding the foregoing, no such
resignation or removal shall take effect within 30 days before or after any due
date for payment of any Notes or before a new Paying Agent and Registrar and
Paying Agent and Transfer Agent, as the case may be, shall have been appointed
by the Issuer as hereinafter provided, and such new Agent shall have accepted
such appointment. Any change in any Agent shall be notified by the Issuer to the
other Agent(s).
10.2 The Issuer agrees with the Paying Agent that if, by the day falling 10
days before the expiry of any notice under Clause 10.1 above, the Issuer has not
appointed a replacement Paying Agent, then the Paying Agent shall be entitled,
on behalf of the Issuer, to appoint in its place any reputable financial
institution of good standing and the Issuer shall not unreasonably object to
such appointment.
10.3 Upon the effectiveness of the appointment of any successor Paying Agent
and Registrar or Paying Agent and Transfer Agent, as the case may be, pursuant
to Clause 10.1, the Paying Agent and Registrar or Paying Agent and Transfer
Agent so removed shall cease to be a Paying Agent and Registrar or Paying Agent
and Transfer Agent, as the case may be, hereunder. Prior to the effectiveness of
such appointment, the Paying Agent and Registrar or Paying Agent and Transfer
Agent shall transfer all moneys deposited with it or held by it hereunder in
respect of the Notes to the order of the respective successor Paying Agent and
Registrar or Paying Agent and Transfer Agent.
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11. NOTICES
Notices shall be in writing (including by facsimile) and addressed to
the relevant party hereto as follows:
(a) If to the Issuer:
HCA - The Healthcare Company
One Park Plaza
Nashville, Tennessee 37203
Telephone: +1 (615) 344-9551
Telefax: +1 (615) 344-2598
Attn: John M. Franck II
(b) If to the Paying Agent and Registrar
Bank One, NA, London Branch
27 Leadenhall Street
London EC2A 1AA
Telephone: 44-20-7903-4192
Telefax: 44-20-7903-4547
Attn: Corporate Trust
(c) If to the Paying Agent and Transfer Agent:
Credit Agricole Indosuez Luxembourg S.A.
39 Allee Scheffer
L-25250 Luxembourg
Telephone: +352-47-67-2344
Telefax: +352-47-67-3344
Attn: M. Gilson de Rouvreux
or at any other address of which any of the foregoing shall have notified the
others, and shall be deemed to have been given when received by the relevant
party.
12. APPLICABLE LAW, PLACE OF JURISDICTION
12.1 This Agreement shall be governed by the laws of the State of New York,
without regard to its conflict of laws principles.
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12.2 The non-exclusive place for all proceedings arising out of this
agreement shall be New York.
13. MISCELLANEOUS
13.1 The Paying Agent shall promptly advise the Issuer of any notice,
including any notice declaring Notes due, which it may receive pursuant to the
Conditions.
13.2 Should any of the provisions of this Agreement be or become invalid, in
whole or in part, the other provisions of this Agreement shall remain in force.
Invalid provisions shall, according to the intent and purpose of this Agreement,
be replaced by such valid provisions which in their economic effect come as
close as legally possible to that of the invalid provisions.
13.3 This Agreement may be signed in one or more counterparts.
13.4 If there is any conflict between the terms of this Agreement and the
terms of the Indenture, the terms of the Indenture shall control.
13.5 The terms of the United States Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), shall be incorporated by reference herein to the
extent applicable. Each of the Agents shall abide by the Trust Indenture Act, to
the extent applicable. Nothing in this agreement shall be deemed to conflict
with the Trust Indenture Act and, to the extent of any such conflict and to the
extent applicable, the terms of the Trust Indenture Act shall be deemed to
govern.
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This Agreement has been entered into effective the date stated at the beginning
hereof.
HCA - THE HEALTHCARE COMPANY
By: /s/ David G. Anderson
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Print Name: David G. Anderson
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Title: Senior Vice President-Finance and Treasurer
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BANK ONE, NA, LONDON BRANCH
By: /s/ Anna Hogg
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Print Name: Anna Hogg
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Title: Assistant Vice President
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CREDIT AGRICOLE INDOSUEZ LUXEMBOURG S.A.
By: /s/ Anna Hogg
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Print Name: Anna Hogg
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Title: Assistant Vice President
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SCHEDULE 1
[GLOBAL NOTE]
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SCHEDULE 2
[INDENTURE]
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