Amendment No. 2 to Amended and Restated Credit Agreement



 Exhibit 10.8 
 AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT 
 THIS
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT CREDIT AGREEMENT (this “Amendment”), dated as of December 22, 2010, is made by and among GILEAD SCIENCES, INC., a Delaware corporation (the
“Parent”), GILEAD BIOPHARMACEUTICS IRELAND CORPORATION, an Irish company (“Gilead Ireland”, Gilead Ireland together with the Parent are together referred to as the “Borrowers”, and each
individually, as a “Borrower”), BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States (“Bank of America”), in its capacity as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”), and each of the Lenders signatory hereto. 

W I T N E S S E T H: 
 WHEREAS, the Borrowers, Bank of America, as Administrative Agent, Swing Line Lender and L/C Issuer, and the Lenders have entered into that Credit Agreement, dated as of December 18, 2007 (as
previously amended, as hereby amended and as from time to time hereafter further amended, modified, supplemented, restated, or amended and restated, the “Credit Agreement”; capitalized terms used in this Amendment not otherwise
defined herein shall have the respective meanings given thereto in the Credit Agreement), pursuant to which the Lenders have made available to Borrower a revolving credit facility with a swing line sublimit and a letter of credit sublimit;

 WHEREAS, as a condition to making the revolving credit facility available to the Borrower the Lenders have required
that the Parent guarantee payment of the Obligations of Gilead Ireland; 
 WHEREAS, the Borrowers have requested
amendments to certain provisions of the Credit Agreement as set forth in Section 1 below, and 
 WHEREAS, the
Administrative Agent and the Lenders signatory hereto are willing to effect such waivers, consents and amendments, in each case as set forth below pursuant to the terms and conditions contained in this Amendment. 

NOW, THEREFORE, in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows: 
 1. Amendments to Credit Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement is hereby amended as follows: 
  

	 	(a)	Section 2.03(a)(i) is hereby amended by inserting “or extend” in the fifth line thereof immediately after “amend” and before
“Letters of Credit”. 

  

	 	(b)	Section 2.03(a)(ii)(A) is hereby amended by inserting (i) “subject to Section 2.03(b)(iv),” in the first line thereof immediately
after “(A)” and (ii) “or extension” in the second line thereof immediately after “renewal”. 









	 	(c)	A new clause (iv) is added to Section 2.03(b) which reads as follows: 


(iv) If a Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion,
agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in
each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the applicable Borrower shall not be required to make a specific request to the L/C Issuer for any such
automatic extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may
be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the applicable Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension;
provided, however, that the parties agrees that clauses (A) and (B) above set forth the only circumstances under which the L/C Issuer may not permit any such extension. 

 

	 	(d)	Section 7.09 is deleted in its entirety and the following is inserted in lieu thereof. 


7.09 Burdensome Agreements. Enter into any contractual obligation (other than this Agreement or any other Loan
Document) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to either Borrower or otherwise transfer property to either Borrower, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrowers or
(iii) of the Borrowers or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided, however, that the foregoing shall not apply to (A) restrictions and conditions existing on
Second Amendment Effective Date (or any extension, renewal, amendment or modification thereof), (B) any contractual obligation of a Person which becomes a Subsidiary after the Closing Date; provided that such contractual obligation is
only binding upon such Subsidiary and such contractual obligation was in existence at the time such Person becomes a Subsidiary, (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (C) restrictions and conditions imposed by any agreement or document governing or evidencing any other Indebtedness, Swap Contract or other obligation of a Borrower or any Subsidiary permitted hereunder, so


  
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long as such documentation does not contain any covenant expressly limiting the ability of either Borrower or its Subsidiaries to enter into contractual obligations of the type described in the
foregoing clauses (i) through (iii) that is materially more restrictive on the Borrowers and its subsidiaries than this Section 7.09, (D) restrictions in such Person’s organizational documents or
pursuant to any joint venture agreement or equity holder’s agreement, (E) any restrictions with respect to a Subsidiary imposed pursuant to an agreement which has been entered into in connection with a Disposition, (F) any negative
pledge incurred or provided in favor of any holder of Indebtedness permitted hereunder solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness, (G) any negative pledge incurred or
provided in favor a financial institution with respect to deposit or other account pooling agreements, cash management agreements and similar arrangements, so long as such negative pledge relates only to the deposit accounts subject to such
agreement, and (z) apply to customary provisions in leases and other contracts restricting the assignment, pledge or mortgage thereof. 
 2. Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments to the Credit Agreement herein provided are subject to the satisfaction of the following conditions
precedent (the first date on which all such conditions have been satisfied shall be referred to as the “Second Amendment Effective Date”): 
  

	 	(a)	the Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:


  

	 	(i)	counterparts of this Amendment, duly executed by each of the Borrowers, the Parent in its capacity as a guarantor, the Administrative Agent, and the Required Lenders;
and 

  

	 	(ii)	such other certificates, instruments and documents as the Administrative Agent shall reasonably request; 


 

	 	(b)	the Borrowers shall have paid to each Lender that signs this Amendment on or before the Second Amendment Effective Date a fee of $10,000, which fee shall be fully
earned and due on the Second Amendment Effective Date and shall be nonrefundable; and 

  

	 	(c)	unless waived by the Administrative Agent, all fees and expenses payable to the Administrative Agent and the Lenders (including the reasonable fees and expenses of
counsel to the Administrative Agent to the extent invoiced prior to the date hereof) estimated to date shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses). 


  
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 3. Consent and Confirmation of the Parent. The Parent hereby consents, acknowledges
and agrees to the amendments set forth herein and hereby confirms and ratifies in all respects the Parent Guaranty Agreement (including without limitation the continuation of the Parent’s payment and performance obligations thereunder upon and
after the effectiveness of this Amendment and the amendments contemplated hereby) and the enforceability of the Parent Guaranty against the Parent in accordance with its terms. 

4. Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, each
Borrower represents and warrants to the Administrative Agent and the Lenders as follows: 
  

	 	(a)	The representations and warranties contained in Article V of the Credit Agreement or any other Loan Documents, or which are contained in any document furnished
at any time under or in connection with the Credit Agreement or such other Loan Document, are true and correct in all material respects on and as of the date hereof, (i) except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (ii) except that the representations and warranties contained in subsections (a) and (b) of
Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement;


  

	 	(b)	The Persons appearing as guarantor on the signature pages to this Amendment constitute all Persons who are required to be guarantors pursuant to the terms of the Credit
Agreement and the other Loan Documents; 

  

	 	(c)	This Amendment has been duly authorized, executed and delivered by the Borrowers and the Parent, as guarantor, and constitutes a legal, valid and binding obligation of
such parties, except as may be limited by general principles of equity or by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally; and 


 

	 	(d)	After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. 


5. Release. In consideration of the Administrative Agent and the Required Lenders entering into this Amendment on behalf of the
Lenders, the Borrowers hereby release the Administrative Agent, the L/C Issuer, each of the Lenders, and the Administrative Agent’s, the L/C Issuer’s and each of the Lender’s respective officers, employees, representatives, agents,
counsel and directors from any and all actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises
from any action or failure to act solely in connection with the Loan Documents on or prior to the date hereof. 
 6. Entire
Agreement. This Amendment, together with the Loan Documents (collectively, the “Relevant Documents”), sets forth the entire understanding and agreement of 

  
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the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition,
representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges
that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof. None of the terms
or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 10.01 of the Credit Agreement. 

7. Full Force and Effect of Amendment. Except as hereby specifically amended, modified or supplemented, the Credit Agreement and
all other Loan Documents are hereby confirmed and ratified in all respects and shall be and remain in full force and effect according to their respective terms. 
 8. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, facsimile or other electronic transmission (including .PDF) shall be effective as delivery of a manually executed
counterpart of this Amendment. 
 9. Governing Law. This Amendment shall in all respects be governed by, and construed in
accordance with, the laws of the State of New York. 
 10. Enforceability. Should any one or more of the provisions of
this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto. 

11. References. All references in any of the Loan Documents to the “Credit Agreement” shall mean the Credit Agreement,
as amended hereby. 
 12. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the
Borrowers, the Administrative Agent, the Lenders and their respective successors and assignees to the extent such assignees are permitted assignees as provided in Section 10.06 of the Credit Agreement. 

[Signature pages follow.] 

  
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 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made,
executed and delivered by their duly authorized officers as of the day and year first above written. 
  

			
	GILEAD SCIENCES, INC., as a Borrower
		
	By:	 	 /s/ John F. Milligan




			
	Name:	 	John F. Milligan, PhD
	Title:	 	President and Chief Operating Officer
	
	GILEAD BIOPHARMACEUTICS IRELAND CORPORATION, as a Borrower



			
		
	By:	 	 /s/ John F. Milligan




			
	Name:	 	John F. Milligan, PhD
	Title:	 	Director



			
		
	By:	 	 /s/ Gregg H. Alton




			
	Name:	 	Gregg H. Alton
	Title:	 	Director
	
	GUARANTOR:



			
	
	GILEAD SCIENCES, INC., as a guarantor of Gilead Ireland
		
	By:	 	 /S/ John F. Milligan




			
	Name:	 	John F. Milligan, PhD
	Title:	 	President and Chief Operating Officer



  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	ADMINISTRATIVE AGENT:
	
	BANK OF AMERICA, N.A., as Administrative   Agent



			
		
	By:	 	 /s/ Dora A. Brown




			
	Name:	 	 Dora A. Brown
	Title:	 	Vice President



  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	 BANK OF AMERICA, N.A., as a Lender, L/C
 Issuer and Swing Line Lender




			
		
	By:	 	 /s/ John C. Plecque




			
	Name:	 	 John C. Plecque
	Title:	 	Senior Vice President



  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	 THE ROYAL BANK OF SCOTLAND N.V. 
 (FORMERLY ABN AMRO BANK N.V.), as a Lender




			
		
	By:	 	 /s/ William McGinty




			
	Name:	 	 William McGinty
	Title:	 	Director



  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	CITIBANK, N.A., as a Lender



			
		
	By:	 	 /s/ Henry H. Schwake




			
	Name:	 	  Henry H. Schwake




			
	Title:	 	 Managing Director




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender



			
		
	By:	 	 /s/ Frederick W. Laird




			
	Name: 	 	 Frederick W. Laird




			
	Title:	 	 Managing Director




			
		
	By:	 	 /s/ Ming K. Chu




			
	Name: 	 	 Ming K. Chu




			
	Title:	 	 Vice President




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	WELLS FARGO BANK, N.A., as a Lender



			
		
	By:	 	 /s/ Matthew Burke




			
	Name: 	 	 Matthew Burke




			
	Title:	 	 Vice President




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	 MIZUHO CORPORATE BANK, LTD., as a
 Lender




			
		
	By:	 	 /s/ Bertram H. Tang




			
	Name: 	 	 Bertram H. Tang




			
	Title:	 	 Authorized Signatory




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	KEYBANK NATIONAL ASSOCIATION, as a Lender



			
		
	By:	 	 /s/ Thomas J. Purcell




			
	Name: 	 	 Thomas J. Purcell




			
	Title:	 	 Senior Vice President




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	BARCLAYS BANK PLC, as a Lender



			
		
	By:	 	 /s/ David Barton




			
	Name: 	 	 David Barton




			
	Title:	 	 Director




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	JPMORGAN CHASE BANK, N.A., as a Lender



			
		
	By:	 	 /s/ Vanessa Chiu




			
	Name: 	 	 Vanessa Chiu




			
	Title:	 	 Executive Director




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	MORGAN STANLEY BANK, as a Lender



			
		
	By:	 	 /s/ Agata Marczak




			
	Name: 	 	 Agata Marczak




			
	Title:	 	 Authorized Signatory




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	GOLDMAN SACHS BANK USA, as a Lender



			
		
	By:	 	 /s/ Lauren Day




			
	Name: 	 	 Lauren Day




			
	Title:	 	 Authorized Signatory




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	CREDIT SUISSE AG, Cayman Islands Branch [formerly CREDIT SUISSE, Cayman Islands Branch], as a Lender



			
		
	By:	 	 /s/ Ari Bruger




			
	Name: 	 	 Ari Bruger




			
	Title:	 	 Vice President




			
		
	By:	 	 /s/ Rahul Parmer




			
	Name: 	 	 Rahul Parmer




			
	Title:	 	 Associate




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	U.S. BANK NATIONAL ASSOCIATION, as a Lender



			
		
	By:	 	 /s/ David C. Mruk




			
	Name: 	 	 David C. Mruk




			
	Title:	 	 Vice President




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	 HSBC BANK USA, NATIONAL
 ASSOCIATION, as a Lender




			
		
	By:	 	 /s/ Jason A. Huck




			
	Name:	 	 Jason Huck




			
	Title:	 	 Vice President




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement









 
			
	INTESA SANPAOLO S.P.A., as a Lender



			
		
	By:	 	 /s/ Luca Sacchi




			
	Name: 	 	 Lucca Sacchi




			
	Title:	 	 Vice President




			
		
	By:	 	 /s/ Frank Maffei




			
	Name: 	 	 Frank Maffei




			
	Title:	 	 Vice President




  
 Gilead
Sciences, Inc. and Gilead Biopharmaceutics Ireland Corporation 
 Amendment No. 2 to Amended and Restated Credit Agreement