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Exhibit
10.2
EXECUTION
COPY
PARENT GUARANTY
AGREEMENT
This PARENT GUARANTY AGREEMENT, dated as
of December 18, 2007 (this “ Agreement ”),
is made by GILEAD SCIENCES, INC., a Delaware corporation (“
Parent ” or “ Guarantor ”) in favor
of BANK OF AMERICA, N.A., as administrative agent (in such
capacities, the “ Administrative Agent ”) for
each of the Credit Parties (as defined below).
RECITALS
WHEREAS , pursuant to
an Amended and Restated Credit Agreement, dated as of the date
hereof (the “ Credit Agreement ”), among the
Parent, as a borrower, Gilead Biopharmaceutics Ireland Corporation,
an Irish company, as a borrower (the “ Borrower
”), the Lenders party thereto from time to time, the
Administrative Agent, and the other agents party thereto, and the
other Loan Documents referred to therein, the Lenders, and the
other Credit Parties have agreed to make Loans to or for the
benefit of the Borrower;
WHEREAS , the
obligations of the Lenders to make the Loans to or for the benefit
of the Borrower under the Credit Agreement are conditioned upon,
among other things, the execution and delivery of this Agreement by
the Guarantor;
WHEREAS , the Borrower
is a subsidiary of the Guarantor, which will derive substantial
direct and indirect benefits from the Credit Agreement and the
Loans to be made or issued thereunder by the Lenders to or for the
benefit of the Borrower and the other financial accommodations to
the Borrower and its Subsidiaries as may be made available by the
other Credit Parties;
WHEREAS , Guarantor is
willing to guarantee the Obligations of the Borrower as hereinafter
provided in order to obtain such benefits;
NOW THEREFORE , for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Guarantor agrees, for the benefit of
each Credit Party, as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Definitions . The following terms (whether or not underscored)
when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
“ Administrative
Agent ” is defined in the preamble .
“ Agreement
” is defined in the preamble .
“ Borrower
” is defined in the first recital .
“ Credit
Agreement ” is defined in the first recital
.
“ Credit Parties
” means the Administrative Agent, each Lender, each Swap Bank
and each Cash Management Bank.
“ Guaranteed
Obligations ” is defined in Section 2.01
.
“ Guarantor
” is defined in the preamble .
“ Parent ”
is defined in the preamble .
“ Post Petition
Interest ” is defined in Section 2.04(b)(ii)
.
“ Subordinated
Obligations ” is defined in Section 2.04(b)
.
“ Termination
Date ” means the date on which the latest of the
following events occurs: (i) the payment in full in cash of
the Obligations under the Loan Documents and (ii) the
termination or expiration of the Availability Period
Section 1.02 Credit
Agreement Definitions . Unless otherwise defined herein or the
context otherwise requires, terms used in this Agreement, including
its preamble and recitals, have the meanings provided in the Credit
Agreement.
Section 1.03 Other
Interpretive Provisions . The rules of construction in Sections
1.02 to 1.06 of the Credit Agreement shall be equally applicable to
this Agreement.
ARTICLE II
GUARANTY
Section 2.01
Guaranty; Limitation of Liability . (a) Guarantor hereby
absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all
Obligations of the Borrower (including, without limitation, any
extensions, modifications, substitutions, amendments, amendments
and restatements, replacements or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees,
indemnities, contract causes of action, costs, expenses or
otherwise (the Obligations of the Borrower being the “
Guaranteed Obligations ” of Guarantor), and agrees to
pay any and all expenses (including, without limitation, all
reasonable fees, charges and disbursements of counsel) incurred by
the Administrative Agent or any other Credit Party in enforcing any
rights under this Agreement or any other Loan Document. Without
limiting the generality of the foregoing, Guarantor’s
Obligations hereunder shall extend to all amounts that constitute
part of the Guaranteed Obligations that would be owed by the
Borrower to any Credit Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving the Borrower.
(b) Guarantor, and the
Administrative Agent, for itself and each other Credit Party,
hereby confirms that it is the intention of all such Persons that
this Agreement and the
Obligations of Guarantor
hereunder not constitute a fraudulent transfer or conveyance for
purposes of Debtor Relief Laws, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Law to the
extent applicable to this Agreement and the Obligations of
Guarantor hereunder. To effectuate the foregoing intention, the
Administrative Agent, the other Credit Parties and the Guarantor
hereby irrevocably agree that the Obligations of Guarantor under
this Agreement at any time shall be limited to the maximum amount
as will result in the Obligations of Guarantor under this Agreement
not constituting a fraudulent transfer or conveyance.
(c) Guarantor hereby
unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Credit Party under this
Agreement, Guarantor will contribute, to the maximum extent
permitted by Law, such amounts to each other guarantor (if any) so
as to maximize the aggregate amount paid to the Credit Parties
under or in respect of the Loan Documents.
Section 2.02 Guaranty
Absolute . Guarantor guarantees that the Guaranteed Obligations
will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any Law now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any
Credit Party with respect thereto. The Obligations of Guarantor
under or in respect of this Agreement are independent of the
Guaranteed Obligations, and a separate action or actions may be
brought and prosecuted against Guarantor to enforce this Agreement,
irrespective of whether any action is brought against the Borrower
or whether the Borrower is joined in any such action or actions.
This Agreement is a present and continuing, absolute and
unconditional guarantee of payment when due, and not of collection,
by Guarantor. The liability of Guarantor under this Agreement shall
be irrevocable, absolute and unconditional irrespective of, and
Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the
following:
(a) any lack of validity or
enforceability of any Loan Document or any agreement or instrument
relating thereto;
(b) any change in the time,
manner or place of payment of, or in any other term of, all or any
of the Obligations of the Borrower under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation,
any increase in the Guaranteed Obligations resulting from the
extension of additional credit to the Parent or any of its
Subsidiaries or otherwise;
(c) any taking, release,
subordination or amendment or waiver of, or consent to departure
from, any other guarantee (if any), for all or any of the
Guaranteed Obligations;
(d) any change, restructuring
or termination of the corporate structure or existence of the
Parent or any of its Subsidiaries or any insolvency, bankruptcy,
reorganization or other similar proceeding under Debtor Relief Laws
affecting the Parent, the Borrower or their assets or any resulting
release or discharge of any Guaranteed Obligation;
(e) the existence of any
claim, setoff or other right which Guarantor may have at any time
against the Borrower, the Administrative Agent, any Lender or any
other Person, whether in connection herewith or any unrelated
transaction;
(f) any provision of
applicable Law purporting to prohibit the payment or performance by
the Parent or the Borrower of any of the Obligations of such
Person;
(g) any failure of any Credit
Party to disclose to the Parent or the Borrower any information
relating to the business, financial condition, operations,
performance, properties or prospects of the Parent or the Borrower
now or hereafter known to such Credit Party (Guarantor waives any
duty on the part of the Credit Parties to disclose such
information);
(h) the failure of any other
Person to execute or deliver any other guarantee or agreement or
the release or reduction of liability of Guarantor or other
guarantor (if any) or surety (if any) with respect to the
Guaranteed Obligations; or
(i) any other circumstance
(including, without limitation, any statute of limitations) or any
existence of or reliance on any representation by any Credit Party
that might otherwise constitute a defense available to, or a
discharge of, the Parent, the Borrower or any other guarantor or
surety.
Section 2.03 Waivers
and Acknowledgments .
(a) Guarantor hereby
unconditionally and irrevocably waives, to the extent permitted by
applicable Law, promptness, diligence, notice of acceptance,
presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice
with respect to any of the Guaranteed Obligations and this
Agreement and any requirement that any Credit Party protect,
secure, perfect or insure any Lien or any property subject thereto
or exhaust any right or take any action against the Borrower or any
other Person.
(b) Guarantor hereby
unconditionally and irrevocably waives, to the extent permitted by
applicable Law, any right to revoke this Agreement and acknowledges
that this Agreement is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the
future.
(c) Guarantor hereby
unconditionally and irrevocably waives, to the extent permitted by
applicable Law, (i) any defense arising by reason of any claim
or defense based upon an election of remedies by any Credit Party
that in any manner impairs, reduces, releases or otherwise
adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of Guarantor or other rights
of Guarantor to proceed against the Borrower, any other guarantor
(if any) or any other Person and (ii) any defense based on any
right of setoff or counterclaim against or in respect of the
Obligations of Guarantor hereunder.
(d) Guarantor hereby
unconditionally and irrevocably waives any duty on the part of any
Credit Party to disclose to it any matter, fact or thing relating
to the business, financial condition, operations, performance,
properties or prospects of the Borrower or any of its Subsidiaries
now or hereafter known by such Credit Party.
(e) Guarantor acknowledges
that it will receive substantial direct and indirect benefits from
the financing arrangements contemplated by the Loan Documents and
that the waivers set forth in Section 2.02 and this
Section 2.03 are knowingly made in contemplation of
such benefits.
Section 2.04
Subordination . (a) Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have
or hereafter acquire against the Borrower or any other insider
guarantor (if any) that arise from the existence, payment,
performance or enforcement of Guarantor’s Obligations under
or in respect of this Agreement or any other Loan Document,
including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution (pursuant to
Section 2.01(c) or otherwise) or indemnification and
any right to participate in any claim or remedy of any Credit Party
against the Borrower, Guarantor or any other insider guarantor (if
any) whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without
limitation, the right to take or receive from the Borrower or any
other insider guarantor (if any), directly or indirectly, in cash
or other property or by setoff or in any other manner, payment or
security on account of such claim, remedy or right without the
prior written consent of the Administrative Agent, unless and until
the Termination Date has occurred.
(b) Guarantor hereby agrees
that any and a
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