AGREEMENT OF THE
TERMS HEREOF AND THE FEE LETTER BY SIGNING AND RETURNING TO US C/O MERRILL LYNCH
THE DUPLICATE COPY OF THIS LETTER AND THE FEE LETTER ENCLOSED HEREWITH. UNLESS
WE RECEIVE YOUR EXECUTED DUPLICATE COPIES HEREOF AND THEREOF BY MIDNIGHT, NEW
YORK CITY TIME, ON JANUARY 16, 2006, OUR COMMITMENT HEREUNDER WILL EXPIRE AT
SUCH TIME.
(Signature Page Follows)
7
We are pleased to have this opportunity and we look forward to working with you
on this transaction.
Very truly yours,
MERRILL LYNCH CAPITAL CORPORATION
By:
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
Name:
Title:
BANK OF AMERICA, N.A.
By:
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
Name:
Title:
Accepted and agreed to as of
the date first written above:
BOSTON SCIENTIFIC CORPORATION
By:
Name:
Title:
S-1
Annex I
Project Manhattan
Summary of Additional Conditions Precedent
Except as otherwise set forth below, the initial borrowing under each of the
Credit Facilities shall be subject to the contemporaneous or prior satisfaction
of the following additional conditions precedent:
1.
THE ACQUISITION SHALL HAVE BEEN CONSUMMATED IN ALL MATERIAL
RESPECTS IN ACCORDANCE WITH THE TERMS OF THE MERGER AGREEMENT AND ALL RELATED
AGREEMENTS (WITHOUT THE WAIVER OR AMENDMENT OF ANY MATERIAL CONDITION UNLESS
CONSENTED TO BY THE ARRANGERS).
2.
IF THE CLOSING DATE SHALL NOT HAVE OCCURRED ON OR PRIOR TO MARCH
14, 2006, THE LENDERS SHALL HAVE RECEIVED AUDITED CONSOLIDATED BALANCE SHEETS
AND RELATED STATEMENTS OF INCOME, STOCKHOLDERS' EQUITY AND CASH FLOWS OF EACH OF
BSC AND GUIDANT FOR THE YEAR ENDED DECEMBER 31, 2005. THE LENDERS ALSO SHALL
HAVE RECEIVED UNAUDITED CONSOLIDATED BALANCE SHEETS AND RELATED STATEMENTS OF
INCOME, STOCKHOLDERS' EQUITY AND CASH FLOWS OF BSC AND GUIDANT FOR EACH FISCAL
QUARTER ENDED AFTER DECEMBER 31, 2005 AND ENDED 40 DAYS BEFORE THE CLOSING DATE.
3.
WITH RESPECT TO THE INTERIM LOAN, BORROWER SHALL HAVE PROVIDED TO
THE ARRANGERS (1) NOT LATER THAN 30 DAYS PRIOR TO THE CLOSING DATE A
SUBSTANTIALLY COMPLETE DRAFT REGISTRATION STATEMENT OR A RULE 144A CONFIDENTIAL
OFFERING MEMORANDUM RELATING TO THE ISSUANCE OF THE SECURITIES, WHICH CONTAINS
ALL FINANCIAL STATEMENTS AND OTHER DATA TO BE INCLUDED THEREIN (INCLUDING ALL
AUDITED FINANCIAL STATEMENTS, ALL UNAUDITED FINANCIAL STATEMENTS (EACH OF WHICH
SHALL HAVE UNDERGONE A SAS 100 REVIEW)) AND ALL APPROPRIATE PRO FORMA FINANCIAL
STATEMENTS PREPARED IN ACCORDANCE WITH, OR RECONCILED TO, GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES IN THE UNITED STATES AND PREPARED IN ACCORDANCE WITH
REGULATION S-X UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND SUBSTANTIALLY ALL OTHER DATA (INCLUDING SELECTED FINANCIAL DATA) THAT
THE SECURITIES AND EXCHANGE COMMISSION WOULD REQUIRE IN A REGISTERED OFFERING OF
THE SECURITIES (COLLECTIVELY, THE "REQUIRED INFORMATION"), AND (2) NOT LATER
THAN 15 DAYS PRIOR TO THE CLOSING DATE, A COMPLETE PRINTED PRELIMINARY OFFERING
MEMORANDUM OR PROSPECTUS USABLE IN A CUSTOMARY ROAD SHOW RELATING TO THE
ISSUANCE OF THE SECURITIES WHICH CONTAINS ALL REQUIRED INFORMATION (THE
"OFFERING DOCUMENT"). WITH RESPECT TO THE INTERIM LOAN, BORROWER AND GUIDANT
SHALL HAVE COOPERATED REASONABLY