July 24, 2006
EXHIBIT 99.10
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”). 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) 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, except as provided in the
last sentence of the following paragraph, 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.
The undersigned acknowledges that certain Investors have executed limited guarantees in favor
of the Company in connection with the execution of the Merger Agreement (each, a “Limited
Guarantee”), which, under the terms thereof, are the sole remedy of the Company and its
subsidiaries against the Investors or any of their respective stockholders, partners, members,
directors, officers or agents for any losses suffered as a result of the failure of the Merger to
be consummated. The undersigned agrees to contribute (promptly after demand) to the amount paid or
payable by such Investors (or any of them) in respect of the Limited Guarantees so that the
undersigned will have paid an amount equal to the product of the aggregate amount paid or payable
under all of the Limited Guarantees multiplied by a fraction of which the numerator is the
Commitment (calculated at the time the payments under the Limited Guarantees are triggered) and the
denominator is $5.3 billion. For purposes of this paragraph, the undersigned’s Commitment will be
reduced pursuant to the terms of Schedule A. The Investors shall be third party beneficiaries of,
and entitled to enforce the provisions of, this paragraph.
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.
Except for the undersigned’s obligations with respect to the Investors’ Limited Guarantees,
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”.
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, | ||||||||
| CITIGROUP INC. | ||||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||||
| Title: Authorized Signatory | ||||||||
Accepted and Acknowledged as of
the date first written above:
the date first written above:
HERCULES HOLDING II, LLC
By:
|
/s/ Xxxxx Xxxxxx | |||
| Name: Xxxxx Xxxxxx | ||||
| Title: President and Assistant Secretary |
