July 24, 2006
Exhibit
(d)(6)
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. The parties listed on Schedule A and the party
to the Equity Rollover Commitment are collectively referred to herein as the “Investors”. This
letter is being delivered to Parent in connection with the execution of the Merger Agreement by
Parent, Merger Sub and the Company.
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 undersigned’s
obligation to fund the Commitment is subject to the satisfaction or waiver by Parent (in the manner
agreed by the Investors) of the conditions precedent to Parent’s and Merger Sub’s obligation to
effect the Closing and the terms of this letter, and 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 in the manner agreed by the Investors 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 earliest to occur of (a) termination of the Merger Agreement, (b) if the
Requisite Investors (as defined herein) agree to terminate this letter and the corresponding
letters delivered by each of the Investors, and (c) the Company or any of its Affiliates asserts in
any litigation or other proceeding any claim under any limited guarantee of even date herewith of
any Investor (each, a “Limited Guarantee”) or otherwise against any Investor or any
Affiliate thereof in connection with the Merger Agreement or any of the transactions contemplated
hereby or thereby (other than any claim relating to a breach or seeking to prevent a breach of a
Confidentiality Agreement between the Company and any Investor or any Affiliate thereof).
The undersigned’s obligation to fund the Commitment may not be assigned, except as permitted
in this paragraph. The undersigned may assign all or a portion of its obligations to fund the
Commitment to any other Investor, any additional equity co-investor and the undersigned’s
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
Investors); provided, however that, except to the extent otherwise agreed to by Parent, any such
assignment shall not relieve the undersigned of its obligations under this letter; provided,
further, however that the undersigned shall not assign more than 50% of the amount of its
Commitment hereunder other than to the undersigned’s affiliated funds or affiliated entities (other
than portfolio companies).
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 of its successors or 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 or any of its successors or 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.
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, (ii) Xxxx Capital Fund IX, L.P., (iii) ML Global Private Equity
Fund, L.P. and (iv) Kohlberg Kravis Xxxxxxx & Co. L.P. on behalf of affiliated investment funds.
Concurrently with the execution and delivery of this letter, the undersigned is executing and
delivering to the Company a Limited Guarantee related to Parent’s and Merger Sub’s obligations
under the Merger Agreement. The Company’s remedies against the undersigned under the Limited
Guarantee shall, and are intended to be, the sole and exclusive direct or indirect remedies
available to the Company and its Affiliates against the undersigned and any former, current or
future director, officer, employee, agent, general or limited partner, manager, member,
stockholder, Affiliate or assignee of the undersigned or any former, current or future director,
officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or
assignee of any of the foregoing in respect of any liabilities or obligations arising under, or in
connection with, the Merger Agreement and the transactions contemplated thereby, including in the
event Parent or Merger Sub breaches its obligations under the Merger Agreement, whether or not
Parent’s or Merger Sub’s breach is caused by the undersigned’s breach of its obligations under this
letter. Nothing in this letter, express or implied, is intended to or shall confer upon any
person, other than Parent and the undersigned, any right, benefit or remedy of any nature
whatsoever under or by reason of this letter.
This letter may be executed in counterparts. This letter and any related dispute 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, | ||||||||
| XXXX CAPITAL FUND IX, L.P. | ||||||||
| By: | XXXX CAPITAL PARTNERS IX, L.P., | |||||||
| its general partner | ||||||||
| By: | XXXX CAPITAL INVESTORS, LLC, its general partner |
|||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||||
| Name: Xxxxxxx Xxxxxxxx | ||||||||
| Title: Managing Director | ||||||||
| Accepted and Acknowledged as of the date first written above: |
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| HERCULES HOLDING II, LLC | ||||
By:
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/s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Title: President | ||||
