IN ALL
MATERIAL RESPECTS. IN SYNDICATING THE CREDIT FACILITIES WE WILL BE ENTITLED TO
USE AND RELY PRIMARILY ON THE INFORMATION AND THE PROJECTIONS WITHOUT
RESPONSIBILITY FOR INDEPENDENT CHECK OR VERIFICATION THEREOF.
YOU HEREBY ACKNOWLEDGE THAT (A) WE WILL MAKE AVAILABLE INFORMATION AND
PROJECTIONS TO THE PROPOSED SYNDICATE OF LENDERS THROUGH POSTING ON INTRALINKS
OR ANOTHER SIMILAR ELECTRONIC SYSTEM AND (B) CERTAIN OF THE PROPOSED LENDERS MAY
BE "PUBLIC-SIDE" LENDERS (I.E., LENDERS THAT DO NOT WISH TO RECEIVE MATERIAL
NON-PUBLIC INFORMATION WITH RESPECT TO BORROWER) (EACH, A "PUBLIC LENDER"). YOU
HEREBY AGREE THAT (A) YOU WILL USE COMMERCIALLY REASONABLE EFFORTS TO IDENTIFY
THAT PORTION OF THE INFORMATION AND PROJECTIONS THAT MAY BE DISTRIBUTED TO THE
PUBLIC LENDERS AND INCLUDE A REASONABLY DETAILED TERM SHEET IN SUCH INFORMATION
AND THAT ALL OF THE FOREGOING THAT IS TO BE MADE AVAILABLE TO PUBLIC LENDERS
SHALL BE CLEARLY AND CONSPICUOUSLY MARKED "PUBLIC"; (B) BY MARKING MATERIALS
"PUBLIC," YOU SHALL BE DEEMED TO HAVE AUTHORIZED US AND THE PROPOSED LENDERS TO
TREAT SUCH MATERIALS AS NOT CONTAINING ANY MATERIAL NON-PUBLIC INFORMATION WITH
RESPECT TO THE BORROWER FOR PURPOSES OF UNITED STATES FEDERAL AND STATE
SECURITIES LAWS, IT BEING UNDERSTOOD THAT CERTAIN OF SUCH MATERIALS MAY BE
SUBJECT TO THE CONFIDENTIALITY REQUIREMENTS OF THE DEFINITIVE CREDIT
DOCUMENTATION; (C) ALL MATERIALS MARKED "PUBLIC" ARE PERMITTED TO BE MADE
AVAILABLE BY ELECTRONIC MEANS DESIGNATED "PUBLIC INVESTOR;" AND (D) WE SHALL BE
ENTITLED TO TREAT ANY MATERIALS THAT ARE NOT MARKED "PUBLIC" AS BEING SUITABLE
ONLY FOR POSTING BY ELECTRONIC MEANS NOT DESIGNATED FOR "PUBLIC LENDERS."
6.
INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH
INITIAL LENDER, EACH OTHER LENDER, BAS, MLPF&S AND THEIR RESPECTIVE AFFILIATES,
AND EACH SUCH PERSON'S RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
CONTROLLING PERSONS (EACH INITIAL LENDER AND EACH SUCH OTHER PERSON BEING AN
"INDEMNIFIED
4
PARTY") FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, COSTS, EXPENSES
AND LIABILITIES, JOINT OR SEVERAL, TO WHICH ANY INDEMNIFIED PARTY MAY BECOME
SUBJECT UNDER ANY APPLICABLE LAW, OR OTHERWISE RELATED TO OR ARISING OUT OF OR
IN CONNECTION WITH THIS COMMITMENT LETTER, THE FEE LETTER, THE TERM SHEETS, THE
CREDIT FACILITIES, THE LOANS THEREUNDER AND THE USE OF PROCEEDS THEREFROM, ANY
OF THE TRANSACTIONS AND THE PERFORMANCE BY ANY INDEMNIFIED PARTY OF THE SERVICES
CONTEMPLATED HEREBY, AND WILL REIMBURSE EACH INDEMNIFIED PARTY FOR ANY AND ALL
EXPENSES (INCLUDING COUNSEL FEES AND EXPENSES) AS THEY ARE INCURRED IN
CONNECTION WITH THE INVESTIGATION OF OR PREPARATION FOR OR DEFENSE OF ANY
PENDING OR THREATENED CLAIM OR ANY ACTION OR PROCEEDING ARISING THEREFROM,
WHETHER OR NOT SUCH INDEMNIFIED PARTY IS A PARTY AND WHETHER OR NOT SUCH CLAIM,
ACTION OR PROCEEDING IS INITIATED OR BROUGHT BY OR ON BEHALF OF YOU, GUIDANT, OR
ANY OF YOUR OR GUIDANT'S RESPECTIVE AFFILIATES AND WHETHER OR NOT ANY OF THE
TRANSACTIONS ARE CONSUMMATED OR THIS COMMITMENT LETTER IS TERMINATED, EXCEPT TO
THE EXTENT DETERMINED BY A FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION
TO HAVE RESULTED PRIMARILY FROM SUCH