BETWEEN YOU AND EACH INITIAL LENDER. YOU
HEREBY WAIVE AND RELEASE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIMS
THAT YOU MAY HAVE AGAINST EACH INITIAL LENDER WITH RESPECT TO ANY BREACH OR
ALLEGED BREACH OF FIDUCIARY DUTY.
11.
GOVERNING LAW; WAIVER OF JURY TRIAL. THIS COMMITMENT LETTER SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE PARTIES HERETO WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) RELATED TO OR ARISING OUT OF ANY OF THE TRANSACTIONS OR THE OTHER
TRANSACTIONS CONTEMPLATED HEREBY, OR THE PERFORMANCE BY US OR ANY OF OUR
AFFILIATES OF THE SERVICES CONTEMPLATED HEREBY.
12.
AMENDMENTS; COUNTERPARTS; ETC. NO AMENDMENT OR WAIVER OF ANY
PROVISION HEREOF OR OF THE TERM SHEETS SHALL BE EFFECTIVE UNLESS IN WRITING AND
SIGNED BY THE PARTIES HERETO AND THEN ONLY IN THE SPECIFIC INSTANCE AND FOR THE
SPECIFIC PURPOSE FOR WHICH GIVEN. THIS COMMITMENT LETTER, THE TERM SHEETS AND
THE FEE LETTER ARE THE ONLY AGREEMENTS BETWEEN THE PARTIES HERETO WITH RESPECT
TO THE MATTERS CONTEMPLATED HEREBY AND THEREBY AND SET FORTH THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT THERETO. THIS COMMITMENT LETTER MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO IN
SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
AGREEMENT. DELIVERY OF AN EXECUTED COUNTERPART BY TELECOPIER SHALL BE EFFECTIVE
AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART.
13.
PATRIOT ACT. WE HEREBY NOTIFY YOU THAT PURSUANT TO THE
REQUIREMENTS OF THE USA PATRIOT ACT, TITLE III OF PUB. L. 107-56 (SIGNED INTO
LAW OCTOBER 26, 2001) (THE "PATRIOT ACT"), THE LENDERS MAY BE REQUIRED TO
OBTAIN, VERIFY AND RECORD INFORMATION THAT IDENTIFIES BORROWER AND GUIDANT,
WHICH INFORMATION INCLUDES THE NAME, ADDRESS AND TAX IDENTIFICATION NUMBER AND
OTHER INFORMATION REGARDING THEM THAT WILL ALLOW SUCH LENDER TO IDENTIFY THEM IN
ACCORDANCE WITH THE PATRIOT ACT. THIS NOTICE IS GIVEN IN ACCORDANCE WITH THE
REQUIREMENTS OF THE PATRIOT ACT AND IS EFFECTIVE AS TO THE LENDERS.
14.
PUBLIC ANNOUNCEMENTS; NOTICES. WE MAY, SUBJECT TO YOUR PRIOR
CONSENT (NOT TO BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED) AT OUR
EXPENSE, PUBLICLY ANNOUNCE AS WE MAY CHOOSE THE CAPACITIES IN WHICH WE OR OUR
AFFILIATES HAVE ACTED HEREUNDER. ANY NOTICE GIVEN PURSUANT HERETO SHALL BE
MAILED OR HAND DELIVERED IN WRITING, IF TO (I) YOU, AT YOUR ADDRESS SET FORTH ON
PAGE ONE HEREOF, WITH A COPY TO MAURA E. O'SULLIVAN, ESQ., AT SHERMAN & STERLING
LLP, 599 LEXINGTON AVENUE, NEW YORK, NY
10022; AND (II) THE INITIAL LENDERS,
C/O MERRILL LYNCH, AT WORLD FINANCIAL CENTER, NORTH TOWER, 250 VESEY STREET, NEW
YORK, NEW YORK
10281, ATTENTION:
SARANG GADKARI, WITH A COPY TO CAHILL
GORDON & REINDEL LLP, 80 PINE STREET, NEW YORK, NEW YORK
10005.
PLEASE CONFIRM THAT THE FOREGOING CORRECTLY SETS FORTH OUR