NOT SUCH FEES AND EXPENSES ARE
INCURRED BEFORE OR AFTER THE DATE HEREOF OR ANY LOAN DOCUMENTATION IS ENTERED
INTO OR THE TRANSACTIONS ARE CONSUMMATED OR ANY EXTENSIONS OF CREDIT ARE MADE
UNDER THE CREDIT FACILITIES OR THIS COMMITMENT LETTER IS TERMINATED OR EXPIRES.
8.
CONFIDENTIALITY. THIS COMMITMENT LETTER, THE TERM SHEETS, THE
CONTENTS OF ANY OF THE FOREGOING AND OUR AND/OR OUR AFFILIATES' ACTIVITIES
PURSUANT HERETO OR THERETO ARE CONFIDENTIAL AND SHALL NOT BE DISCLOSED BY OR ON
BEHALF OF YOU OR ANY OF YOUR AFFILIATES TO ANY PERSON WITHOUT OUR PRIOR WRITTEN
CONSENT, EXCEPT THAT YOU MAY DISCLOSE THIS COMMITMENT LETTER AND THE TERM SHEETS
(I) TO YOUR AND GUIDANT'S AND YOUR AND ITS
5
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND ADVISORS, AND THEN ONLY IN
CONNECTION WITH THE TRANSACTIONS AND ON A CONFIDENTIAL NEED-TO-KNOW BASIS AND
(II) AS YOU ARE REQUIRED TO MAKE BY APPLICABLE LAW OR COMPULSORY LEGAL PROCESS
(BASED ON THE ADVICE OF LEGAL COUNSEL); PROVIDED, HOWEVER, THAT IN THE EVENT OF
ANY SUCH COMPULSORY LEGAL PROCESS YOU AGREE TO USE COMMERCIALLY REASONABLE
EFFORTS TO GIVE US PROMPT NOTICE THEREOF AND TO COOPERATE WITH US IN SECURING A
PROTECTIVE ORDER IN THE EVENT OF COMPULSORY DISCLOSURE AND THAT ANY DISCLOSURE
OF US, OUR SEVERAL COMMITMENTS, THIS COMMITMENT LETTER OR THE TERM SHEETS MADE
PURSUANT TO PUBLIC FILINGS SHALL BE SUBJECT TO OUR PRIOR REVIEW. YOU AGREE THAT
YOU WILL PERMIT US TO REVIEW AND APPROVE ANY REFERENCE TO ANY OF US OR ANY OF
OUR AFFILIATES IN CONNECTION WITH THE CREDIT FACILITIES OR THE TRANSACTIONS
CONTEMPLATED HEREBY CONTAINED IN ANY PRESS RELEASE OR SIMILAR PUBLIC DISCLOSURE
PRIOR TO PUBLIC RELEASE. YOU AGREE THAT WE AND OUR AFFILIATES MAY SHARE
INFORMATION CONCERNING YOU AND YOUR RESPECTIVE SUBSIDIARIES AND AFFILIATES AMONG
OURSELVES SOLELY IN CONNECTION WITH THE PERFORMANCE OF OUR SERVICES HEREUNDER
AND THE EVALUATION AND CONSUMMATION OF FINANCINGS AND TRANSACTIONS CONTEMPLATED
HEREBY. YOU ALSO ACKNOWLEDGE THAT WE OR OUR AFFILIATES MAY BE PROVIDING DEBT
FINANCING, EQUITY CAPITAL OR OTHER SERVICES (INCLUDING FINANCIAL ADVISORY
SERVICES) TO PARTIES WHOSE INTERESTS MAY CONFLICT WITH YOURS OR GUIDANT'S,
INCLUDING OTHER POTENTIAL PURCHASERS OF GUIDANT. WE AGREE THAT WE WILL NOT
FURNISH CONFIDENTIAL INFORMATION OBTAINED FROM YOU OR GUIDANT TO ANY OF OUR
OTHER CUSTOMERS AND THAT WE WILL TREAT CONFIDENTIAL INFORMATION RELATING TO YOU
OR GUIDANT AND YOUR AND THEIR RESPECTIVE AFFILIATES WITH THE SAME DEGREE OF CARE
AS WE TREAT OUR OWN CONFIDENTIAL INFORMATION. WE FURTHER ADVISE YOU THAT WE AND
OUR AFFILIATES WILL NOT MAKE AVAILABLE TO YOU, BORROWER OR GUIDANT CONFIDENTIAL
INFORMATION THAT WE OR THEY HAVE OBTAINED OR MAY OBTAIN FROM ANY OTHER CUSTOMER.
9.
TERMINATION. OUR SEVERAL COMMITMENTS HEREUNDER SHALL TERMINATE IN
THEIR ENTIRETY ON THE EARLIEST TO OCCUR OF (A) SEPTEMBER 30, 2006 IF THE CREDIT
DOCUMENTS ARE NOT EXECUTED AND DELIVERED BY BORROWER AND THE LENDERS ON OR PRIOR
TO SUCH DATE, (B) THE DATE OF TERMINATION OF THE MERGER AGREEMENT IN ACCORDANCE
WITH ITS TERMS, (C) THE DATE OF EXECUTION AND DELIVERY