NOT CONFLICT WITH OR VIOLATE ANY PROVISION OF THE ARTICLES OF
INCORPORATION, BYLAWS, LIMITED PARTNERSHIP AGREEMENT OR ANY SIMILAR INSTRUMENT
OF SUCH MEMBER PARTY, AS APPLICABLE AND (II) DO NOT CONFLICT WITH, VIOLATE, OR
BREACH OR CONSTITUTE A DEFAULT OR REQUIRE ANY CONSENT UNDER, ANY CONTRACTUAL
OBLIGATION OR COURT OR ADMINISTRATIVE ORDER BY WHICH SUCH MEMBER PARTY IS BOUND.
13.2
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF BMS.
BMS
REPRESENTS, WARRANTS AND COVENANTS TO GILEAD THAT:
(A)
EACH OF BMS PARENT AND BMS SUB (I) IS A
CORPORATION OR LIMITED LIABILITY COMPANY, AS THE CASE MAY BE, DULY ORGANIZED AND
IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE, AND (II) HAS FULL
POWER AND AUTHORITY AND THE LEGAL RIGHT TO OWN AND OPERATE ITS PROPERTY AND
ASSETS AND TO CARRY ON ITS BUSINESS AS IT IS NOW BEING CONDUCTED AND AS IT IS
CONTEMPLATED TO BE CONDUCTED BY THIS AGREEMENT.
(B)
NEITHER BMS NOR ANY OF ITS AFFILIATES HAS
BEEN DEBARRED OR IS SUBJECT TO DEBARMENT AND NEITHER BMS NOR ANY OF ITS
AFFILIATES SHALL USE IN ANY CAPACITY, IN CONNECTION WITH THE SERVICES TO BE
PERFORMED UNDER THIS AGREEMENT, ANY PERSON WHO HAS BEEN DEBARRED PURSUANT TO
SECTION 306 OF THE ACT, OR WHO IS THE SUBJECT OF A CONVICTION DESCRIBED IN SUCH
SECTION.
BMS AGREES TO INFORM GILEAD IN WRITING IMMEDIATELY IF IT OR ANY PERSON
WHO IS PERFORMING SERVICES UNDER THIS AGREEMENT IS DEBARRED OR IS THE SUBJECT OF
A CONVICTION DESCRIBED IN SECTION 306, OR IF ANY ACTION, SUIT, CLAIM,
INVESTIGATION OR LEGAL OR ADMINISTRATIVE PROCEEDING IS PENDING OR, TO THE
KNOWLEDGE OF BMS, IS THREATENED, RELATING TO THE DEBARMENT OR CONVICTION OF BMS
OR ANY PERSON PERFORMING SERVICES UNDER THIS AGREEMENT.
(C)
BMS HAS THE RIGHT TO GRANT THE LICENSE
UNDER THE BMS PATENTS THAT IS SET FORTH IN SECTION 6.1(B), AND HAS NOT, PRIOR TO
THE EFFECTIVE DATE, MADE A GRANT TO ANY THIRD PARTY OF ANY RIGHT OR LICENSE IN
RESPECT OF THE BMS PATENTS THAT WOULD CONFLICT WITH ANY GRANT OF RIGHTS OR
LICENSES TO GILEAD OR THE JV HEREUNDER.
THE BMS PATENTS ARE NOT SUBJECT TO ANY
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ENCUMBRANCE OR LIEN BY ANY THIRD PARTY (EXCEPT FOR ANY SUCH ENCUMBRANCES OR
LIENS AS WOULD NOT, IN THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT ON THE
LICENSE RIGHTS GRANTED TO THE JV AND GILEAD UNDER THIS AGREEMENT).
PRIOR TO THE
EFFECTIVE DATE, BMS HAS DELIVERED TO GILEAD A COPY (WITH FINANCIAL TERMS
REDACTED) OF ANY LICENSE OR SIMILAR GRANT OF RIGHTS BETWEEN BMS, ON THE ONE
HAND, AND A THIRD PARTY, ON THE OTHER HAND, (I) PURSUANT TO WHICH BMS OBTAINED
FROM SUCH THIRD PARTY A LICENSE OR OTHER RIGHTS WITH RESPECT TO ANY OF THE BMS
PATENTS, OR (II) PURSUANT TO WHICH BMS GRANTS TO ANY SUCH THIRD PARTY A LICENSE
OR OTHER RIGHTS WITH RESPECT TO ANY OF THE BMS PATENTS FOR EXPLOITATION IN THE
TERRITORY.
BMS COVENANTS AND AGREES THAT, EXCEPT FOR AGREEMENTS REFERRED TO IN