in determining whether there
has been or will be, a Material Adverse Change: (A) any change, effect, event,
occurrence, state of
3
facts or development (1) in the financial or securities markets or the economy
in general, (2) in the industries in which BSC or any of its subsidiaries (after
giving effect to the Transactions) operates in general, to the extent that such
change, effect, event, occurrence, state of facts or development does not
disproportionately impact BSC or any of its subsidiaries (after giving effect to
the Transactions), or (3) resulting from any divestiture required to be effected
pursuant to the terms of the Merger Agreement, (B) any failure, in and of
itself, by BSC or Guidant to meet any internal or published projections,
forecasts or revenue or earnings predictions (it being understood that the facts
or occurrences giving rise or contributing to such failure may be deemed to
constitute, or be taken into account in determining whether there has been or
would reasonable be expected to be, a Material Adverse Change or (C) any effect
on BSC's or Guidant's business relating to or arising from any product recalls
announced by Guidant prior to the date of this Commitment Letter, or any related
pending or future litigation, investigations by governmental authorities or
other developments.
5.
INFORMATION AND INVESTIGATIONS. YOU HEREBY REPRESENT AND COVENANT
THAT (A) ALL WRITTEN INFORMATION AND DATA, AND ALL OTHER INFORMATION AND DATA IN
CONNECTION WITH THE LENDERS' DUE DILIGENCE INVESTIGATIONS, THAT HAVE BEEN OR
WILL BE MADE AVAILABLE BY YOU OR ANY OF YOUR AFFILIATES, REPRESENTATIVES OR
ADVISORS TO US OR ANY LENDER (WHETHER PRIOR TO OR ON OR AFTER THE DATE HEREOF)
IN CONNECTION WITH THE TRANSACTIONS, TAKEN AS A WHOLE (EXCLUDING FINANCIAL
PROJECTIONS, THE "INFORMATION"), IS AND WILL BE COMPLETE AND CORRECT IN ALL
MATERIAL RESPECTS AND DOES NOT AND WILL NOT, TAKEN AS A WHOLE, CONTAIN ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY
IN ORDER TO MAKE THE STATEMENTS CONTAINED THEREIN NOT MISLEADING IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH SUCH STATEMENTS ARE MADE (PROVIDED THAT ANY
INFORMATION PERTAINING TO GUIDANT IS EITHER BASED ON PUBLICLY AVAILABLE
INFORMATION OR IS BEING SUPPLIED TO THE BEST OF YOUR KNOWLEDGE), AND (B) ALL
FINANCIAL PROJECTIONS CONCERNING BSC AND ITS SUBSIDIARIES AND THE TRANSACTIONS
CONTEMPLATED HEREBY (THE "PROJECTIONS") THAT HAVE BEEN MADE OR WILL BE PREPARED
BY OR ON BEHALF OF YOU OR ANY OF YOUR AFFILIATES, REPRESENTATIVES OR ADVISORS
AND THAT HAVE BEEN OR WILL BE MADE AVAILABLE TO US OR ANY LENDER IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN AND WILL BE PREPARED IN GOOD
FAITH BASED UPON ASSUMPTIONS BELIEVED BY YOU TO BE REASONABLE. YOU AGREE TO
SUPPLEMENT THE INFORMATION AND THE PROJECTIONS FROM TIME TO TIME UNTIL THE
CLOSING DATE AND, IF REQUESTED BY US, FOR A REASONABLE PERIOD THEREAFTER
NECESSARY TO COMPLETE THE SYNDICATION OF THE CREDIT FACILITIES SO THAT THE
REPRESENTATION AND COVENANT IN THE PRECEDING SENTENCE REMAIN CORRECT