Exhibit
10.2
GUARANTEE, dated as of September 8, 2008 (as amended from time to
time, this “ Guarantee ”), made by Philip Morris
USA Inc., a Virginia corporation (the “ Guarantor
”), in favor of the lenders (the “ Lenders
”) parties to the 364-Day Bridge Loan Agreement, dated as of
January 28, 2008 (as amended, supplemented or otherwise
modified from time to time, the “ Bridge Loan
Agreement ”) among Altria Group, Inc. (“
Altria ”), Goldman Sachs Credit Partners L.P. (“
Goldman Sachs ”) and Lehman Commercial Paper Inc., as
administrative agents (in such capacity, the “
Administrative Agents ”).
WITNESSETH:
SECTION 1. Guarantee
. (a) The Guarantor hereby unconditionally
guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of
Altria now or hereafter existing under the Bridge Loan Agreement,
whether for principal, interest, fees, expenses or otherwise (the
“ Obligations ”).
(b) It is the intention of the Guarantor that this
Guarantee not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar federal or state
law to the extent applicable to this Guarantee. To effectuate the
foregoing intention, the amount guaranteed by the Guarantor under
this Guarantee shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other contingent
and fixed liabilities of the Guarantor that are relevant under such
laws, result in the Obligations of the Guarantor under this
Guarantee not constituting a fraudulent transfer or conveyance. For
purposes hereof, “Bankruptcy Law” means Title 11, U.S.
Code, or any similar federal or state law for the relief of
debtors.
SECTION 2. Guarantee Absolute
. The Guarantor guarantees that the Obligations will be
paid strictly in accordance with the terms of the Bridge Loan
Agreement, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms
or the rights of Goldman Sachs, as Administrative Agent, or the
Lenders with respect thereto. The liability of the Guarantor under
this Guarantee shall be absolute and unconditional irrespective
of:
(i) any lack of validity, enforceability or genuineness
of any provision of the Bridge Loan Agreement or any other
agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to departure from the
Bridge Loan Agreement;
(iii) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the
Obligations; or
(iv) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, Altria or a
guarantor.
SECTION 3. Subordination
. The Guarantor covenants and agrees that its obligation
to make payments of the Obligations hereunder constitutes an
unsecured obligation of the
