LIMITED GUARANTEE
EXHIBIT 99.4
Limited Guarantee, dated as of July 24, 2006 (this “Limited Guarantee”), by ML Global
Private Equity Fund, L.P. (the “Guarantor”), in favor of HCA Inc. (the “Guaranteed
Party”).
2. NATURE OF GUARANTEE. The Guaranteed Party shall not be obligated to file any claim
relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy,
reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not
affect the Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed
Party in respect of the Obligations is rescinded or must otherwise be returned for any reason
whatsoever, the Guarantor shall remain liable hereunder with respect to the Obligations as if such
payment had not been made. This is an unconditional guarantee of payment and not of collectibility.
3. CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. The Guarantor agrees that the Guaranteed
Party may at any time and from time to time, without notice to or further consent of the Guarantor,
extend the time of payment of any of the Obligations, and may also make any agreement with Parent,
Merger Sub or with any other Person (including any Other Guarantor) interested in the transactions
contemplated by the Merger Agreement, for the extension, renewal, payment, compromise, discharge or
release thereof, in whole or in part, or for any modification of the terms thereof or of any
agreement between the Guaranteed Party and Parent, Merger Sub or any such other Person without in
any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The
Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or
discharged, in whole or in part, or otherwise
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affected by (a) the failure of the Guaranteed Party
to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub or any
other Person interested in the transactions contemplated by the Merger Agreement (including any
Other Guarantor); (b) any change in the time, place or manner of payment of any of the Obligations
or any rescission, waiver, compromise, consolidation or other amendment or modification of any of
the terms or provisions of the Merger Agreement or any other agreement evidencing, securing or
otherwise executed in connection with any of the Obligations; (c) the addition, substitution or
release of any Person interested in the transactions contemplated by the Merger Agreement
(including any Other Guarantor); (d) any change in the corporate existence, structure or ownership
of Parent, Merger Sub or any other Person interested in the transactions contemplated by the Merger
Agreement (including any Other Guarantor); (e) any insolvency, bankruptcy, reorganization or other
similar proceeding affecting Parent, Merger Sub or any other Person interested in the transactions
contemplated by the Merger Agreement (including any Other Guarantor); (f) the existence of any
claim, set-off or other right which the Guarantor may have at any time against Parent, Merger Sub
or the Guaranteed Party, whether in connection with the Obligations or otherwise; or (g) the
adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the
Obligations. To the fullest extent permitted by law, the Guarantor hereby expressly waives any and
all rights or defenses arising by reason of any law which would otherwise require any election of
remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the
acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment,
notice of non-performance, default, dishonor and protest, notice of any Obligations incurred and
all other notices of any kind (except for notices to be provided to Parent, Merger Sub and Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP in accordance with Section 10.1 of the Merger Agreement), all defenses which
may be available by virtue of any valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshalling of assets of Parent, Merger Sub or any
other Person interested in the transactions contemplated by the Merger Agreement (including any
Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by
the Guaranteed Party or any of its Subsidiaries, defenses to the payment of the Obligations that
are available to Parent or Merger Sub under the Merger Agreement or breach by the Guaranteed Party
of this Limited
Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth
in this Limited Guarantee are knowingly made in contemplation of such benefits.
The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause
its Affiliates not to institute, any proceeding or bring any other claim arising under, or in
connection with, the Merger Agreement or the transactions contemplated thereby, against any
Guarantor or any of its former, current or future directors, officers, agents, Affiliates (other
than Parent or Merger Sub) or employees, or against any of the former, current or future general or
limited partners, members, managers or stockholders of the Guarantor or any Affiliate thereof
(other than Parent or Merger Sub) or against any former, current or future directors, officers,
agents, Affiliates, general or limited partners, members, managers or stockholders of any of the
foregoing (other than Parent or Merger Sub), except for claims against the Guarantor under this
Limited Guarantee and against Other Guarantors under their written limited guarantees, and the
Guarantor hereby covenants and agrees that it shall not institute, and shall cause its respective
Affiliates not to institute, any proceedings asserting that this Limited Guarantee is illegal,
invalid or unenforceable in accordance with its terms, subject to the effects of bankruptcy,
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insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting
creditors’ rights generally, and general equitable principles (whether considered in a proceeding
in equity or at law). The Guarantor hereby unconditionally and irrevocably agrees not to exercise
any rights that it may now have or hereafter acquire against Parent, Merger Sub or any other Person
interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor)
that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations
under or in respect of this Limited Guarantee or any other agreement in connection therewith,
including, without limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of the Guaranteed Party
against Parent, Merger Sub or such other Person, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without limitation, the right to
take or receive from Parent, Merger Sub or such other Person, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Obligations and all other amounts payable under this
Limited Guarantee shall have been paid in full in cash. If any amount shall be paid to the
Guarantor in violation of the immediately preceding sentence at any time prior to the payment in
full in cash of the Obligations and all other amounts payable under this Limited Guarantee, such
amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be
segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered
to the Guaranteed Party in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Obligations and all other amounts payable under this
Limited Guarantee, in accordance with the terms of the Merger Agreement, whether matured or
unmatured, or to be held as collateral for any Obligations or other amounts payable under this
Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this
Limited Guarantee, the Guaranteed Party hereby agrees that to the extent Parent and Merger Sub are
relieved of their obligations under Section 7.10(a), Section 7.11, Section 9.2(d) and the second
sentence of Section 9.2(f) of the Merger Agreement, the Guarantor shall be similarly relieved of
its obligations under this Limited Guarantee.
4. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any
right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or
future exercise of any right, remedy or power hereunder. Each and every right, remedy and power
hereby granted to the Guaranteed Party or allowed it by law or other agreement shall be cumulative
and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from
time to time.
5. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and warrants that:
(a) the execution, delivery and performance of this Limited Guarantee have been duly
authorized by all necessary action and do not contravene any provision of the Guarantor’s
charter, partnership agreement, operating agreement or similar organizational documents or
any law, regulation, rule, decree, order, judgment or contractual restriction binding on the
Guarantor or its assets;
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(b) all consents, approvals, authorizations, permits of, filings with and notifications
to, any governmental authority necessary for the due execution, delivery and performance of
this Limited Guarantee by the Guarantor have been obtained or made and all conditions
thereof have been duly complied with, and no other action by, and no notice to or filing
with, any governmental authority or regulatory body is required in connection with the
execution, delivery or performance of this Limited Guarantee;
(c) this Limited Guarantee constitutes a legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors’ rights generally, and (ii) general equitable
principles (whether considered in a proceeding in equity or at law); and
(d) the Guarantor has the financial capacity to pay and perform its obligations under
this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations
under this Limited Guarantee shall be available to the Guarantor (or its assignee pursuant
to Section 6 hereof) for so long as this Limited Guarantee shall remain in effect in
accordance with Section 8 hereof.
6. NO ASSIGNMENT. Neither the Guarantor nor the Guaranteed Party may assign its
rights, interests or obligations hereunder to any other Person (except by operation of law) without
the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor)
or the Guarantor (in the case of an assignment by the Guaranteed Party); provided,
however, the Guarantor shall be permitted to assign, in whole or in part, its rights and
obligations hereunder to a new private equity fund formed after the date hereof, sponsored by an
Affiliate of the Guarantor that (a) has at least $5 billion of committed equity capital and (b)
certifies to the Guaranteed Party that it is capable of (i) making the representations and
warranties set forth in Section 5 above and (ii) performing all of its obligations hereunder.
7. NOTICES. All notices and other communications hereunder shall be in writing in the
English language and shall be deemed given (a) on the date of delivery if delivered personally, (b)
on the first business day following the date of dispatch if delivered by a nationally recognized
next-day courier service, (c) on the fifth business day following the date of mailing if delivered
by registered or certified mail (postage prepaid, return receipt requested) or (d) if sent by
facsimile transmission, when transmitted and receipt of transmittal is confirmed. All notices
hereunder shall be delivered as set forth below or to such other Person or address or facsimile
number as a party shall specify by notice in writing to the other party:
(i) if to the Guaranteed Party, to it at:
HCA Inc.
Xxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
Xxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X’Xxxxx, Esq.
Xxxxxxxxx O’X. Xxxxxx, Esq.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X’Xxxxx, Esq.
Xxxxxxxxx O’X. Xxxxxx, Esq.
Fax: (000) 000-0000
(ii) if to the Guarantor, to it at:
ML Global Private Equity Fund, L.P.
c/x Xxxxxxx Xxxxx Global Private Equity
Four World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Xxxxxxxxxxx Xxxxxxx
Fax: (000) 000-0000
c/x Xxxxxxx Xxxxx Global Private Equity
Four World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Xxxxxxxxxxx Xxxxxxx
Fax: (000) 000-0000
with copies (which shall not constitute notice) to::
Proskauer Rose, LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx X.Gerkis, Esq.
Fax: (000) 000-0000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx X.Gerkis, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxxxxx Xxxxx Global Private Equity
Strategic M&A and Private Equity Counsel
Four World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Strategic M&A and Private Equity Counsel
Four World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
8. CONTINUING GUARANTEE. This Limited Guarantee shall remain in full force and effect
and shall be binding on the Guarantor, its successors and assigns until the Obligations are
satisfied in full. Notwithstanding the foregoing, this Limited Guarantee shall terminate and the
Guarantor shall have no further obligations under this Limited Guarantee as of the earliest of (i)
the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms by
mutual consent of the parties or under circumstances in which Parent and Merger Sub would not be
obligated to make any payments under Section 9.2(d) and (iii) the first anniversary of any
termination of the Merger Agreement in accordance with its terms under circumstances in which
Parent and Merger Sub would be obligated to make any payments under Section 9.2(d) if the
Guaranteed Party has not presented a claim for payment of any Obligation to Parent and Merger Sub
or any Guarantor (including the Other Guarantors) by such first anniversary. Notwithstanding the
foregoing, in the event that the Guaranteed Party or any of its
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Affiliates asserts in any
litigation or other proceeding that the provisions of Section 1 hereof limiting the Guarantor’s
liability to the Cap or the provisions of this Section 8 or Section 9 hereof are illegal, invalid
or unenforceable in whole or in part, or asserting any theory of liability against the Guarantor or
any Affiliates of the Guarantor with respect to the transactions contemplated by the Merger
Agreement other than liability of the Guarantor under this Limited Guarantee (as limited by the
provisions of Section 1), then (i) the obligations of the Guarantor under this Limited Guarantee
shall terminate ab initio and be null and void, (ii) if the Guarantor has previously made any
payments under this Limited Guarantee, it shall be entitled to recover such payments, and (iii)
neither the Guarantor nor any Affiliate of any Guarantor shall have any liability to the Guaranteed
Party with respect to the transactions contemplated by the Merger Agreement or under this Limited
Guarantee; provided, however, that if the Guarantor asserts in any litigation or other proceeding
that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws affecting creditors’ rights generally, and general equitable principles
(whether considered in a proceeding in equity or at law), then, to the extent the Guaranteed Party
prevails in such litigation or proceeding, the Guarantor shall pay on demand all reasonable fees
and out of pocket expenses of the guaranteed Party in connection with such litigation or
proceeding.
9. NO RECOURSE. The Guaranteed Party by its acceptance of the benefits hereof,
covenants, agrees and acknowledges that no Person other than the Guarantor shall have any
obligation hereunder and that 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 (other than Parent or Merger Sub) or employee of the Guarantor, against any former,
current or future general or limited partner, member, manager or stockholder of the Guarantor or
any Affiliate thereof (other than Parent or Merger Sub) or against any former, current or future
director, officer, agent, Affiliate, employee, general or limited partner, member, manager or
stockholder of any of the foregoing (other than Parent or Merger Sub), 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. The Guaranteed Party acknowledges and agrees that Parent and Merger Sub
have no assets and that no funds are expected to be contributed to Parent or Merger Sub unless the
Closing occurs. The Guaranteed Party further agrees that neither it nor any of its Affiliates have
any right of recovery against the Guarantor or any of its former, current or future directors,
officers, agents, Affiliates (other than Parent or Merger Sub), general or limited partners,
members, managers or stockholders through Parent or Merger Sub or otherwise, whether by piercing of
the corporate veil, by a claim on behalf of Parent or Merger Sub against the Guarantor or Parent’s
stockholders or Affiliates, or otherwise, except for the rights under this Limited Guarantee and
its rights against Other Guarantors pursuant to the terms of their written limited guarantees
delivered contemporaneously herewith. Recourse against the Guarantor under this Limited Guarantee
shall be the exclusive remedy of the Guaranteed Party and its Affiliates against the Guarantor and
any of its former, current or future directors, officers, agents, Affiliates, general or limited
partners, members, managers or stockholders in respect of any liabilities or obligations arising
under, or in connection with, the Merger Agreement or the transactions contemplated thereby. The
Guaranteed Party hereby covenants and agrees that it shall not institute, and it shall cause its
Affiliates not to institute, any proceeding or bring any other claim arising under, or in
connection with, the Merger Agreement or the transactions contemplated thereby, against the
Guarantor or any of its former, current or future directors,
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officers, agents, Affiliates (other
than Parent or Merger Sub), general or limited partners, members, managers or stockholders except
for claims against the Guarantor under this Limited Guarantee. Except as contemplated under Section
6, nothing set forth in this Limited Guarantee shall affect or be construed to confer or give any
Person other than the Guarantor and the Guaranteed Party (including any Person acting in a
representative capacity) any rights or remedies against any Person.
10. GOVERNING LAW. This Guarantee and any dispute hereunder shall be governed by, and
construed in accordance with, the laws of the State of New York. Each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of any state or federal court sitting in the
Borough of Manhattan of The City of New York in the event any dispute arises out of this Guarantee
or any of the transactions contemplated by this Guarantee, (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 Guarantee or any of
the transactions contemplated by this Guarantee in any court other than such courts sitting in the
Borough of Manhattan of The City of New York.
12. COUNTERPARTS. This Limited Guarantee may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same instrument.
[Remainder of page intentionally left blank]
ML GLOBAL PRIVATE EQUITY FUND, L.P. | ||||||
By: | MLGPE LTD, its General Partner | |||||
By: | /s/ Xxxxxx Xxxxxx | |||||
Name: Xxxxxx Xxxxxx | ||||||
Title: President |
[Limited Guarantee Signature Page]
HCA INC. | ||||||
By: | /s/ Xxxx X. Xxxxxxxx, Xx. | |||||
Name: Xxxx X. Xxxxxxxx, Xx. | ||||||
Title: Chairman and CEO |
[Limited Guarantee Signature Page]