July 24, 2006
EXHIBIT 99.11
July 24, 2006
To: Hercules Holding II, LLC
Re: HCA Inc.
Gentlemen:
Reference is made to the Agreement and Plan of Merger, dated as of the date hereof (as it may
be amended from time to time, the “Merger Agreement”), by and among Hercules Holding II,
LLC, a Delaware limited liability company (“Parent”), Hercules Acquisition Corporation, a
Delaware corporation (“Merger Sub”) and HCA Inc., a Delaware corporation (the
“Company”), pursuant to which Merger Sub, or a permitted assignee of Merger Sub, will be
merged into the Company (the “Merger”). Capitalized terms used but not defined herein have the
meanings ascribed to them in the Merger Agreement.
This letter confirms the commitment of the undersigned, subject to the conditions set forth
herein, to purchase, or cause an assignee permitted by the fourth paragraph of this letter to
purchase, a portion of the equity of Parent as of the Effective Time (the “Subject Equity
Securities”) for an aggregate purchase price equal to the dollar commitment set forth next to
the undersigned’s name on Schedule A (the “Commitment”) solely for the purpose of funding,
and to the extent necessary to fund, Merger Consideration pursuant to and in accordance with the
Merger Agreement and related expenses, provided that the undersigned shall not, under any
circumstances, be obligated to contribute to Parent more than the Commitment. The amount of the
Commitment may be reduced from time to time by Parent in the manner set forth on Schedule A (the
“Equity Sell-down”), which Schedule A also sets forth commitment fees that Parent shall
cause to be paid to the undersigned only upon the completion of the Merger. The undersigned’s
obligation to fund the Commitment is subject to the satisfaction or waiver by Parent (in the manner
agreed by the Requisite Investors in accordance with the Interim Investors Agreement executed by
the undersigned in connection with the delivery of this letter (the “Interim Investors
Agreement”) of the conditions precedent to Parent’s and Merger Sub’s obligation to effect the
Closing and the terms of this letter, and such funding will occur contemporaneous with the Closing
and the simultaneous issuance to the undersigned of the Subject Equity Securities. The amount to
be funded under this Agreement will be reduced among the undersigned and any other person providing
equity commitment letters to Parent (other than the Family Investor) in proportion to each such
person’s equity commitment after giving effect to any Equity Sell-down or similar reduction in
commitments in the event Parent does not require all of the equity with respect to which the
Investors have made commitments.
The undersigned’s obligation to fund the Commitment will terminate automatically and
immediately upon the termination of the equity commitments of all of the Investors.
The undersigned’s obligation to fund the Commitment may not be assigned, except as permitted
in this paragraph. The undersigned shall assign all or a portion of its obligations to fund the
Commitment to any person in connection with the undersigned’s Equity Sell-down if requested by
Parent and may assign all or a portion of its obligations to its Affiliates or affiliated
funds or to entities governed by an Affiliate or an affiliated fund (in the case of
assignments to non-Affiliates or non-affiliated funds, in a manner agreed by the committee formed
to manage the sell-down of the Commitments of the Investors and the undersigned); provided, however
that, except to the extent that such assignment was part of the Equity Sell-down or otherwise
agreed to by Parent, any such assignment shall not relieve the undersigned of its obligations under
this letter.
This letter shall be binding solely on, and inure solely to the benefit of, the undersigned
and Parent and their respective successors and permitted assigns, and nothing set forth in this
letter shall be construed to confer upon or give to any person other than the undersigned and
Parent and their respective successors and permitted assigns any benefits, rights or remedies under
or by reason of, or any rights to enforce or cause Parent to enforce, the Commitment or any
provisions of this letter.
Notwithstanding anything that may be expressed or implied in this letter, Parent, by its
acceptance of the benefits of this equity commitment, covenants, agrees and acknowledges that no
person other than the undersigned and its successors and permitted assigns shall have any
obligation hereunder and that, notwithstanding that the undersigned or any of its successors or
permitted assigns may be a partnership or limited liability company, no recourse hereunder or under
any documents or instruments delivered in connection herewith shall be had against any former,
current or future director, officer, agent, Affiliate, employee, general or limited partner,
member, manager or stockholder of the undersigned or any and its successors and permitted assigns
or any former, current or future director, officer, agent, Affiliate, employee, general or limited
partner, member, manager or stockholder of any of the foregoing, whether by the enforcement of any
assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or
other applicable Law, it being expressly agreed and acknowledged that no personal liability
whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future
director, officer, agent, Affiliate, employee, general or limited partner, member, manager or
stockholder of the undersigned or any former, current or future director, officer, agent,
Affiliate, employee, general or limited partner, member, manager or stockholder of any of the
foregoing, as such, for any obligations of the undersigned and its successors and permitted assigns
under this letter or any documents or instrument delivered in connection herewith or for any claim
based on, in respect of, or by reason of such obligation or their creation.
Parent and the undersigned agree that the undersigned will not be responsible for the
out-of-pocket expenses incurred by each Sponsor Investor or the Family Investor (as such terms are
defined in the Interim Investors Agreement). Notwithstanding the foregoing, the undersigned shall
be responsible for all of its out-of-pocket expenses whether or not the Merger is consummated.
This letter may only be enforced by Parent at the direction of the Requisite Investors in
their sole discretion. Parent shall have no right to enforce this letter unless directed to do so
by the Requisite Investors in their sole discretion. Parent’s creditors shall have no right to
enforce this letter or to cause Parent to enforce this letter. For purposes of this letter,
“Requisite Investors” shall mean any combination of at least three of the following: (i)
Frisco, Inc. and Frisco Partners (collectively, the “Family Investor”), (ii) Xxxx Capital Fund IX,
L.P., (iii) ML
Global Private Equity, L.P. and (iv) KKR Millennium Fund, L.P. and KKR PEI Investments, L.P.
(collectively) and each of the foregoing shall be referred to herein as an “Investor” and
collectively, as the “Investors”.
Notwithstanding anything to the contrary in the Interim Investors Agreement or the exhibits
thereto, the undersigned shall not be required to fund any portion of any Guarantees.
This letter may be executed in counterparts. This letter shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that State. Each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of any state or federal court located in the Borough of
Manhattan of The City of New York in the event any dispute arises out of this letter or any of the
transactions contemplated by this letter, (ii) agrees that it will not attempt to deny or defeat
such personal jurisdiction or venue by motion or other request for leave from any such court and
(iii) agrees that it will not bring any action relating to this letter or any of the transactions
contemplated by this letter in any court other than such courts sitting in the Borough of Manhattan
of The City of New York.
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
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Very truly yours, | ||||||||
BANC OF AMERICA SECURITIES LLC | ||||||||
By: | /s/ Xxxxx X. Xxxxxxxx | |||||||
Title: Managing Director |
Accepted and Acknowledged as of
the date first written above:
the date first written above:
HERCULES HOLDING II, LLC
By:
|
/s/ Xxxxx Xxxxxx | |||
Title: President and Assistant Secretary |