EXHIBIT 1.2
UNDERWRITING AGREEMENT
(TERMS)
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$1,000,000,000
6.500% Notes due 2016
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February 3, 2006
HCA Inc.
Xxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Dear Sirs/Madams:
The underwriters set forth below (the "Underwriters"), for which
Citigroup Global Markets Inc. and Banc of America Securities LLC are acting as
Managers (the "Managers"), understand that HCA Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $1,000,000,000 aggregate principal amount
of its 6.500% Notes due 2016 (the "Offered Securities"). The Offered Securities
will be issued pursuant to the provisions of an Indenture dated as of December
16, 1993, as supplemented (the "Indenture"), between the Company and The Bank of
New York, as successor trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of the
Offered Securities set forth below opposite their names.
Principal Amount
of 6.500% Notes
due 2016
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Citigroup Global Markets Inc. $ 170,000,000
Banc of America Securities LLC 170,000,000
Deutsche Bank Securities Inc. 170,000,000
Wachovia Capital Markets, LLC 170,000,000
Mizuho International plc 60,000,000
Scotia Capital (USA) Inc. 60,000,000
SunTrust Capital Markets, Inc. 60,000,000
X.X. Xxxxxx Securities Inc. 32,500,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 32,500,000
BNY Capital Markets, Inc. 25,000,000
Calyon Securities (USA) Inc. 25,000,000
KeyBanc Capital Markets, a Division of
McDonald Investments Inc. 25,000,000
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Total $ 1,000,000,000
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The Underwriters will pay for the Offered Securities upon delivery
thereof at the offices of Citigroup Global Markets Inc. or through the
facilities of The Depository Trust Company at 10:00 a.m. (New York time) on
February 8, 2006 (the "Closing Date").
The Offered Securities shall have the terms set forth in the Prospectus
dated April 21, 2005, and the Prospectus Supplement dated February 3, 2006,
including the following:
Public Offering Price: 99.570% of principal amount
Purchase Price: 98.445% of principal amount
Underwriters' Discount: 1.125%
Maturity Date: February 15, 2016
Interest Rate: 6.500%
Interest Payment Dates: February 15 and August 15 of each year,
commencing August 15, 2006. Interest
accrues from February 8, 2006.
Redemption Provisions: The Company may, at its option, redeem
the Offered Securities at any time and
from time to time, in whole or in part,
at a redemption price equal to the
greater of (1) 100% of the principal
amount of the Offered Securities to be
redeemed or (2) the sum of the present
values of the remaining scheduled
payments of principal and interest on
the Offered Securities to be redeemed
discounted to the date of redemption at
the then current ten year treasury rate
plus 30 basis points.
Current Ratings: Standard & Poor's Ratings Service --BB+
Xxxxx'x Investors Service, Inc. -- Ba2
All provisions contained in the document entitled Underwriting
Agreement Standard Provisions (Debt Securities), dated as of December 21, 2004,
a copy of which is attached hereto, are incorporated by reference in their
entirety herein 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, except that (i)
if any term defined in such document is otherwise defined herein, the definition
set forth
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herein shall control, (II) all references in such document to a type of security
that is not an Offered Security shall not be deemed to be a part of this
Agreement, (III) all references in such document to a type of agreement that has
not been entered into in connection with the transactions contemplated hereby
shall not be deemed to be a part of this Agreement, (IV) Section 1(b) shall be
amended to provide that at the Execution Time, the Disclosure Package and the
final term sheet prepared and filed pursuant to Section 6(j) hereto, when taken
together as a whole, do not contain any 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, not
misleading; and to further provide that the preceding sentence does not apply to
statements in or omissions from the Disclosure Package and the final term sheet
based upon and in conformity with written information furnished to the Company
by any Underwriter through the Managers specifically for use therein, (v)
Section 1(c) shall be amended to insert "Disclosure Package and the Final" prior
to Prospectus, (VI) Section 1(d) shall be amended to insert "Disclosure Package
and the Final" prior to Prospectus, (VII) Section 1(l) shall be amended to
insert "Disclosure Package and the Final" prior to each occurrence of the term
Prospectus, (VIII) Section 1 shall be amended to add thereunto a new Section
1(x) to provide that at the Execution Time (with such date being used as the
determination date for purposes of this Section 1(x)) the Company was or is (as
the case may be) a "well-known seasoned issuer" as defined in Rule 405, (IX)
Section 1 shall be amended to add thereunto a new Section 1(y) to provide that
as of the Execution Time (with such date being used as the determination date
for purposes of this Section 1(y)) the Company was not and is not an Ineligible
Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer, (x) Section 1 shall be amended to add thereunto
a new Section 1(z) to provide that each Issuer Free Writing Prospectus and the
final term sheet prepared and filed pursuant to Section 6(j) hereto do not
include any information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein and any
prospectus supplement deemed to be a part thereof that has not been superseded
or modified; and to further provide that the foregoing sentence does not apply
to statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Managers specifically for use therein, (XI) Section 5(c)(i) shall be
amended to insert "Disclosure Package and the Final" prior to Prospectus, (XII)
Section 5(c)(ii) shall be amended to insert "Disclosure Package and the Final"
prior to Prospectus, (XIII) Section 5(c)(x) shall be amended to insert
"Disclosure Package and the Final" prior to Prospectus, (XIV) Section
5(c)(xi)(A) shall be amended to include the statements in the Prospectus
Supplement under the captions the "Description of the Notes", (XV) Section
5(c)(xii) shall be amended to insert "Disclosure Package and the Final" prior to
Prospectus, (XVI) Section 5(c)(xvi) shall be amended to insert "Disclosure
Package and the Final" prior to each occurrence of the term Prospectus, (XVII)
Section 5(c)(xix) shall be added in its entirety to provide that such counsel
has no reason to believe that the documents specified in a schedule to such
counsel's letter, consisting of those included in the Disclosure Package and the
final term sheet prepared and filed pursuant to Section 6(j) hereto, when taken
together as a whole, as of the Execution Time, contained any untrue statement of
a material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading; and to further provide that such counsel may state that
his belief is based upon his participation in the preparation of the Disclosure
Package and the final term sheet, his consultation with other
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officers of the Company who have participated in the preparation of the
Disclosure Package and the final term sheet and upon his review and discussion
of the contents thereof, but are without independent check or verification,
except as specified, (XVIII) Section 5(e) shall be amended and restated to
provide that (A) the Managers shall have received on February 3, 2006, a letter,
dated such date, in form and substance satisfactory to the Managers, from the
Company's independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Disclosure
Package and the Final Prospectus and (B) on the Closing Date, the Manager's
shall have received a letter, dated the Closing Date, in form and substance
satisfactory to the Managers, from the Company's independent public accountants
confirming their statements and conclusions as set forth in the comfort letter
delivered to the Managers on February 3, 2006, (XIX) Section 5(e) shall be
amended and restated to insert "Disclosure Package and the Final" prior to the
term Prospectus, (XX) Section 5 shall be amended to add thereunto a new Section
5(f) to provide that the Final Prospectus, and any supplement thereto, have been
filed in the manner and within the time period required by Rule 424(b); the
final term sheet contemplated by Section 6(j) hereto, and any other material
required to be filed by the Company pursuant to Rule 433(d) under the Act, shall
have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice that would prevent its
use shall have been issued and no proceedings for that purpose shall have been
instituted or threatened, (XXI) Section 6 shall be amended to add thereunto a
new Section 6(j) to provide that the Company covenants to prepare a final term
sheet, containing solely a description of the Offered Securities, in a form
approved by you and to file such term sheet pursuant to Rule 433(d) within the
time required by such Rule, (XXII) Section 6 shall be amended to add thereunto a
new Section 6(k) to provide that the Company covenants if there occurs an event
or development as a result of which the Disclosure Package would include an
untrue statement of a material fact or would omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will notify promptly
the Managers so that any use of the Disclosure Package may cease until it is
amended or supplemented, (XXIII) Section 6 shall be amended to add thereunto a
new Section 6(l) to provide that the Company agrees that, unless it obtains the
prior written consent of the Managers, and each Underwriter, severally and not
jointly, agrees with the Company that, unless it has obtained or will obtain, as
the case may be, the prior written consent of the Company, it has not made and
will not make any offer relating to the Offered Securities that would constitute
an Issuer Free Writing Prospectus or that would otherwise constitute a "free
writing prospectus" (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433, other than the
final term sheet prepared and filed pursuant to Section 6(j) hereto; provided
that the prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in Schedule II
hereto; to further provide that any such free writing prospectus consented to by
the Managers or the Company is hereinafter referred to as a "Permitted Free
Writing Prospectus;" and to further provide that the Company agrees that (A) it
has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (B) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping, (XXIV) Section
7(a) shall be amended
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to insert "any Issuer Free Writing Prospectus or the information contained in
the final term sheet required to be prepared and filed pursuant to Section 6(j)
hereto" after Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto); and further amended to delete
"provided, however, that the indemnity agreement contained in this paragraph (a)
with respect to a preliminary prospectus or amended preliminary prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages and liabilities purchased the Offered Securities which are the
subject thereof, if the Prospectus corrected any such alleged untrue statement
or omission and if such Underwriter failed to send or give, if required by law
to have been sent or given, a copy of the Prospectus (excluding the documents
incorporated by reference therein) to such person in connection with the
confirmation of the sale of such Offered Securities to such person and the
untrue statement in or omission from such preliminary prospectus was corrected
in the Prospectus unless, in either case, such failure to deliver the Prospectus
was a result of non-compliance by the Company with Section 6(a)", (XXV) Section
15 shall be added in its entirety to provide the following definitions:
"Disclosure Package" shall mean (A) the Basic Prospectus, as amended and
supplemented to the Execution Time, (B) the Issuer Free Writing Prospectuses, if
any, identified in Schedule II hereto, and (C) any other Free Writing Prospectus
that the parties hereto shall hereafter expressly agree in writing to treat as
part of the Disclosure Package; "Effective Date" shall mean each date and time
that the Registration Statement and any post-effective amendment or amendments
thereto became or become effective; "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties hereto; "Final
Prospectus" shall mean the prospectus supplement relating to the Offered
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus; "Free Writing Prospectus" shall mean a
free writing prospectus, as defined in Rule 405; and "Issuer Free Writing
Prospectus" shall mean an issuer free writing prospectus, as defined in Rule
433.
As evidenced by the Company's countersignature of this Agreement, the
Company hereby confirms its engagement of the services of Wachovia Capital
Markets, LLC as, and hereby confirms its agreement with the Company to render
services as, a "qualified independent underwriter," within the meaning of
Section (b)(15) of Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc., with respect to the offering and sale of the Offered
Securities. As compensation for the services of Wachovia Capital Markets, LLC
hereunder as a "qualified independent underwriter," the Company agrees to pay
Wachovia Capital Markets, LLC $1,000 on the Closing Date.
Wachovia Capital Markets, LLC hereby represents and warrants to, and
agrees with, the Company and the Underwriters that with respect to the offering
and sale of the Offered Securities as described in the Prospectus and Prospectus
Supplement:
(i) Wachovia Capital Markets, LLC constitutes a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720 of the Conduct
Rules of the National Association of Securities Dealers, Inc.;
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(ii) Wachovia Capital Markets, LLC has participated in the preparation
of the Registration Statement, the Prospectus and the Prospectus Supplement and
has exercised the usual standards of "due diligence" in respect thereto;
(iii) Wachovia Capital Markets, LLC has undertaken the legal
responsibilities and liabilities of an underwriter under the Securities Act of
1933, as amended, specifically including those inherent in Section 11 thereof;
and
(iv) Based upon (A) a review of the Company, including an examination
of the Registration Statement, information regarding the earnings, assets,
capital structure and growth rate of the Company and other pertinent financial
and statistical data, (B) inquiries of and conferences with the management of
the Company and its counsel and independent public accountants regarding the
business and operations of the Company, (C) consideration of the prospects for
the industry in which the Company competes, estimates of the business potential
of the Company, assessments of its management, the general condition of the
securities markets, market prices of the capital stock and debt securities of,
and financial and operating data concerning, companies believed by Wachovia
Capital Markets, LLC to be comparable to the Company with debt securities of
maturity and seniority similar to the Offered Securities and the demand for
securities of comparable companies similar to the Offered Securities, and (D)
such other studies, analyses and investigations as Wachovia Capital Markets, LLC
has deemed appropriate, and assuming that the offering and sale of the Offered
Securities is made as contemplated herein and in the Prospectus and Prospectus
Supplement, Wachovia Capital Markets, LLC recommends, as of the date of the
execution and delivery of this Agreement, that the yield on the Offered
Securities be not less than 6.559%, which minimum yield should in no way be
considered or relied upon as an indication of the value of the Offered
Securities.
Wachovia Capital Markets, LLC hereby agrees with the Company and the
Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to either the Prospectus or the Prospectus Supplement,
Wachovia Capital Markets, LLC will render services as a "qualified independent
underwriter," in accordance with Rule 2710 of the Conduct Rules of the National
Association of Securities Dealers, Inc., as such term is defined in Section
(b)(15) of Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. with respect to the offering and sale of the Offered
Securities as described in either the Prospectus or the Prospectus Supplement,
as so amended or supplemented, that are substantially the same as those services
being rendered with respect to the offering and sale of the Offered Securities
as described in the Prospectus and the Prospectus Supplement (including those
described above).
Without limitation and in addition to its obligations under the
indemnification and contribution provisions of the Underwriting Agreement
Standard Provisions (Debt Securities), which are incorporated herein by
reference, the Company agrees to indemnify and hold harmless Wachovia Capital
Markets, LLC and its affiliates, and each person, if any who controls Wachovia
Capital Markets, LLC and its affiliates within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) arising out of or based upon Wachovia
Capital Markets, LLC acting as a "qualified independent underwriter"
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(within the meaning of Rule 2720 of the NASD's Conduct Rules) in connection with
the offering contemplated by this Agreement; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense results from the gross negligence or willful
misconduct of Wachovia Capital Markets, LLC. The Company agrees to cooperate
with Wachovia Capital Markets, LLC to enable it to perform the services
contemplated by this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Underwriting Agreement in the space set forth below.
[Signature Page Follows.]
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Very truly yours,
By: Citigroup Global Markets Inc.
By: /s/ Xxxx Xxxxxx Xxxxx
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Name: Xxxx Xxxxxx Xxxxx
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Title: Managing Director
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Acting on behalf of itself and the several
Underwriters named herein.
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Very truly yours,
By: Banc of America Securities LLC
By: /s/ R. Xxxx Xxxxxx
---------------------------------
Name: R. Xxxx Xxxxxx
---------------------------------
Title: Managing Director
---------------------------------
Acting on behalf of itself and the several
Underwriters named herein.
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Very truly yours,
By: Wachovia Capital Markets, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Managing Director
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Acting as "qualified independent underwriter"
as set forth herein
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Accepted:
HCA Inc.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President and Treasurer
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Schedule II
Free Writing Prospectuses
Issuer Free Writing Prospectus filed pursuant to Rule 433, supplementing the
Preliminary Prospectus Supplement, dated February 3, 2006, Registration No.
333-121520, February 3, 2006.
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