Exhibit 10.1


 


FIRST AMENDMENT, dated as of March 3, 2008 (this “Amendment”),
to the CREDIT AGREEMENT dated as of May 11, 2007 (the “Agreement”),
among AGILENT TECHNOLOGIES, INC. (the “Company”), a Delaware
corporation, the LENDERS party thereto and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.


 


WHEREAS, the
Lenders have agreed to extend credit to the Company under the Credit Agreement
on the terms and subject to the conditions set forth therein; and


 


WHEREAS, the
Company has requested that the Lenders amend certain provisions of the Credit
Agreement and the Lenders whose signatures appear below, constituting at least
the Required Lenders, are willing to amend the Credit Agreement on the terms
and subject to the conditions set forth herein;


 


NOW, THEREFORE,
in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:


 


SECTION 1.  Defined
Terms.  Capitalized terms used but
not otherwise defined herein (including in the recital hereto) have the
meanings assigned to them in the Credit Agreement.


 


SECTION 2.  Amendment
of Certain Definitions: Section 1.01 of the Credit Agreement is hereby
amended:


 


(a)  by
changing the definition of “Adjusted Consolidated Total Indebtedness” therein
to read as follows:


 


“Adjusted Consolidated Total
Indebtedness” means, at any time, (a) all Indebtedness of the Company
and the Subsidiaries at such time other than Repurchase Obligations, plus (b) Adjusted
Repurchase Obligation Indebtedness at such time, minus (c) all
Indebtedness at such time consisting of obligations of the Company and the
Subsidiaries as account parties in respect of letters of credit and letters of
guaranty that do not support Indebtedness, all determined on a consolidated
basis in accordance with GAAP. In the event that the Company or any Subsidiary
shall have completed since any date as of which Adjusted Consolidated Total
Indebtedness is to be determined an acquisition or disposition of any Person,
division or business unit in which the aggregate consideration paid or received
shall have exceeded $300,000,000, Adjusted Consolidated Total Indebtedness
shall be determined for such period on a pro forma basis as if such acquisition
or disposition, and any related incurrence or repayment of Indebtedness, had
occurred on such date.


 

















 


(b)  by
inserting the following definition of “Adjusted Repurchase Obligation Indebtedness”:


 


“Adjusted
Repurchase Obligation Indebtedness” means, at any time, an amount (but not
less than zero) equal to (a) the aggregate amount of all Indebtedness
consisting of Repurchase Obligations at such time minus (b) the lesser of (i) Adjusted
Repurchase Obligation Restricted Cash at such time and (ii) $1,500,000,000.


 


(c)  by deleting
the definition of “Adjusted World Trade Restricted Cash” and inserting
the following definition of “Adjusted Repurchase Obligation Restricted Cash”:


 


“Adjusted
Repurchase Obligation Restricted Cash” means, at any time, (a) the
aggregate amount of all Repurchase Obligation Restricted Cash at such time
(including the World Trade Restricted Cash at such time) minus (b) an
amount equal to the aggregate income, withholding and other Taxes that would
become payable by the Company and the Subsidiaries in the event such Repurchase
Obligation Restricted Cash were remitted through a dividend or series of
dividends to the Company, assuming an effective combined United States Federal
and state income tax rate of 25%.


 


(d)  by
changing the definition of “Consolidated Interest Expense” therein
to read as follows:


 


“Consolidated Interest Expense” means, for any period, total
interest expense (including that properly attributable to Capital Leases in
accordance with GAAP and amortization of debt discount and debt issuance costs)
of the Company and the Subsidiaries on a consolidated basis, including all
capitalized interest, all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financings and
net costs under interest rate protection agreements (including amortization of
discount), all as determined on a consolidated basis in accordance with GAAP,
but excluding that portion of interest expense with respect to Repurchase
Obligations that does not exceed the interest income attributable to Repurchase
Obligation Restricted Cash. In the event that the Company or any Subsidiary
shall have completed since the beginning of the relevant period an acquisition
or disposition of any Person, division or business unit in which the aggregate
consideration paid or received shall have exceeded $300,000,000, Consolidated
Interest Expense shall be determined for such period on a pro forma basis as if
such acquisition or disposition, and any related incurrence or repayment of
Indebtedness, had occurred at the beginning of such period.


 


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(e)  by
changing the definition of “Repurchase Obligations” therein to read as follows:


 


“Repurchase
Obligations” means, at any time, the sum of (a) the World Trade
Indebtedness at such time and (b) the aggregate amount of all other accrued
or contingent repurchase obligations of the Company and the Subsidiaries at
such time, in each case to the extent such amounts would be shown as
liabilities on a consolidated balance sheet of the Company as of such time
prepared in accordance with GAAP and in a manner consistent with the financial
statements referred to in Section 3.05.


 


(f)  by
inserting the following definition of “Repurchase Obligation Restricted Cash”:


 


“Repurchase
Obligation Restricted Cash” means, at any time, the aggregate amount of
cash and cash equivalents and the current market value of short-term investment
securities (such cash and cash equivalents and investment securities being
collectively called “Specified Assets”) held at such time by one or more
Subsidiaries to the extent such amount would be shown as
restricted cash on a consolidated balance sheet of the Company as of such time
prepared in accordance with GAAP and in a manner consistent with the financial
statements referred to in Section 3.05; provided that any
particular Specified Assets shall be counted as Repurchase
Obligation Restricted Cash only to the extent that (a) the
Subsidiary holding such Specified Assets shall have issued
securities that are subject to a Repurchase Obligation, the amount of such
Specified Assets shall not exceed the amount of such Repurchase Obligation and
under the terms of the Repurchase Obligation none of the Company or any
Subsidiary can be required (other than as a result of a breach, a change in law
or a similar event) to repurchase the securities or other assets that are the
subject of such Repurchase Obligation on fewer than 120 days notice, (b) such
Subsidiary is not engaged in any business or business
activities other than the holding of such Specified Assets, of investments in
its own subsidiaries and of dividends, distributions or other payments received
from such subsidiaries and the incurrence of Indebtedness referred to in clause
(c) below, (c) such Subsidiary is not an obligor (including under any
Guarantee or similar arrangement) with respect to any Indebtedness other than (i) such
Repurchase Obligation and (ii) Indebtedness owed to its own subsidiaries,
the holders of which have no recourse to, and have expressly agreed to assert
no claims against, any Specified Assets constituting Repurchase Obligation
Restricted Cash, (d) such Specified Assets are held in an account
controlled by the holder or holders of such Repurchase Obligation or its or
their representative and are subject to contractual restrictions prohibiting the
transfer or disposition thereof without the consent of the holder or holders of
such Repurchase Obligation or its or their representative, other than to
satisfy such Repurchase Obligation and (e) such Subsidiary and the persons
directly or indirectly owning its Equity Interests are not subject to any legal
or contractual restrictions (other than any restriction referred to in the
preceding clause (d)) that would prevent such Specified Assets from being remitted through
a dividend or series of dividends to the Company.


 


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(g)  by
inserting the following definition of “Unrestricted Cash”:


 


“Unrestricted
Cash” means cash and cash equivalents that are not controlled by or subject
to any Lien or other preferential arrangement in favor of any creditor (and
shall exclude, without limitation, all Repurchase Obligation Restricted Cash).


 


(h)  by
changing the definition of “World Trade Indebtedness” therein to read as
follows:


 


“World
Trade Indebtedness” means, at any time, the amount of the repurchase
obligations at such time of Agilent Technologies World Trade, Inc., a
wholly owned Subsidiary, under the World Trade Master Repurchase Agreement that
would be shown as liabilities on a consolidated balance sheet of the Company as
of such time prepared in accordance with GAAP and in a manner consistent with
the financial statements referred to in Section 3.05.


 


(i)  by
changing the definition of “World Trade Master Repurchase Agreement” therein to
read as follows:


 


“World Trade Master Repurchase Agreement”
means the Master Repurchase Agreement dated as of January 27, 2006,
between Agilent Technologies World Trade, Inc., a wholly owned subsidiary
of the Company, and Fenway Capital, LLC or any other person that shall succeed
by amendment or assignment to the rights and obligations of Fenway Capital, LLC
thereunder, as such agreement may be amended from time to time.


 


SECTION 3.   Amendment
of Section 4.02.  The following
new clause (c) is inserted immediately after clause (b) in Section 4.02
of the Credit Agreement:


 


(c) If a “put” or similar right in
respect of any securities or other assets that are the subject of any
Repurchase Obligation constituting Material Indebtedness shall have been
exercised and such exercise shall not have been withdrawn, the Company shall
have delivered to the Administrative Agent a certificate of a Financial Officer
to the effect that on the date of such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, the Company and
the Subsidiaries shall have Unrestricted Cash at least equal to the sum of $500,000,000.


 


SECTION 4.   Amendment
of Section 5.10.  Section 5.10
of the Credit Agreement is amended to read as follows:


 


Section 5.10.  Repurchase
Obligation Restricted Cash.  The
Company will cause the aggregate amount of the Repurchase Obligation Restricted
Cash at all times to equal or exceed the aggregate outstanding principal amount
of the Repurchase Obligations.


 


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SECTION 5.   Amendment
of Section 6.01.  Clause (c) of
Section 6.01 of the Credit Agreement is amended to read as follows:


 


(c) Repurchase Obligations in an amount
at any time outstanding not in excess of the lesser of (i) the World Trade
Indebtedness outstanding on the date hereof and (ii) the Repurchase
Obligation Restricted Cash at such time, and the preferred stock of Agilent
Technologies (Cayco) Limited (or any other Subsidiary referred to in the definition of Repurchase Obligation Restricted Cash in
Section 1.01) relating thereto;


 


SECTION 6.   Amendment
of Section 6.02.  Clause (i) of
Section 6.02 of the Credit Agreement is amended to read as follows:


 


(i)  Liens on cash collateral or government securities to secure
obligations under Hedging Agreements; provided that the aggregate value
of any collateral so pledged does not exceed $30,000,000 in the aggregate at
any time; and Liens existing or deemed to exist on cash and cash equivalents and short-term investment securities
constituting Repurchase Obligation Restricted Cash to secure the related
Repurchase Obligations; and


 


SECTION 7.   Amendment
of Article VII. The following new sentence is inserted at the end of Article VII
of the Credit Agreement:


 


Notwithstanding anything in paragraph (g) of this Article VII,  (i) the existence of an unexercised “put”
or similar right in respect of any securities or other assets that are the subject
of any Repurchase Obligation constituting Material Indebtedness will not, in
and of itself, constitute an Event of Default or a Default, and (ii) the
exercise of such a “put” or similar right by the holder or holders thereof or
its or their representative will not, in and of itself, constitute an Event of
Default or a Default unless and until the Company or a Subsidiary shall be
required to repurchase such securities or other assets within a period of fewer
than 30 days (at which time an Event of Default shall be deemed to have
occurred).


 


SECTION 8.   Representations,
Warranties and Agreements.  The Company
hereby represents and warrants to and agrees with each Lender and the
Administrative Agent that:


 


(a)  The
representations and warranties set forth in Article III of the Credit
Agreement, as amended hereby, are true and correct in all material respects on
and as of the Amendment Effective Date (as defined below) and after giving
effect to this Amendment, with the same effect as if made on and as of such
date, except to the extent such representations and warranties expressly relate
to an earlier date, in which case they were true and correct as of such earlier
date.


 


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(b)  As
of the Amendment Effective Date, after giving effect to this Amendment, no
Default or Event of Default will have occurred and be continuing.


 


SECTION 9.   Effectiveness.  This Amendment shall become effective as of
the date (the “Amendment Effective Date”) on which the Administrative
Agent shall have received duly executed counterparts hereof that, when taken
together, bear the authorized signatures of the Company and Lenders
constituting at least the Required Lenders.


 


SECTION 10.  Credit
Agreement.  Except as specifically
stated herein, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof. 
As used therein, the terms “Agreement”, “herein”, “hereunder”, “hereto”,
“hereof” and words of similar import shall, unless the context otherwise
requires, refer to the Credit Agreement as modified hereby.


 


SECTION 11.  Applicable
Law.  THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 12.  Counterparts.  This Amendment may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which, when taken together,
shall constitute a single instrument. Delivery of an executed counterpart of a
signature page of this Amendment by telecopy shall be effective as
delivery of a manually executed counterpart hereof.


 


SECTION  13.  Expenses.  The  Company  agrees  to  reimburse  the  Administrative  Agent  for  its  reasonable  out-of-pocket  expenses  in  connection  with  this  Amendment,  including  the  reasonable  fees,  charges  and  disbursements  of  Cravath,  Swaine  &  Moore  LLP,  counsel  for  the  Administrative  Agent.


 


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IN WITNESS
WHEREOF, the parties hereto have caused this First Amendment to be duly
executed by their respective authorized officers as of the date first above
written.


 


 


	
   

  	
  AGILENT TECHNOLOGIES, INC.,

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/ Hilliard C. Terry, III

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   Name:  Hilliard C. Terry, III

  
	
   

  	
   

  	
   

  	
   Title: Vice President, Treasurer

  
						



 


 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  INDIVIDUALLY AND AS ADMINISTRATIVE

  AGENT,

  
	
   

  	
   

  
	
   

  	
  by: 

  	
  /s/ William P. Rindfuss

  
	
   

  	
   

  
	
   

  	
    Name:  William P. Rindfuss

    Title:  Vice President

  
				



To approve the First Amendment to the AGILENT TECHNOLOGIES, INC. Credit
Agreement:


 


Name of Institution:


 


	
  CITIBANK,
  N.A.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   by:

  	
  /s/ James M.
  Walsh

  	
   

  
	
   

  	
  Name:  James
  M. Walsh

  	
   

  
	
   

  	
  Title:  Managing
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   by:

  	
   

  	
  (1)

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
				







(1) For any institution requiring a second signature line.


 


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To approve the First Amendment to the AGILENT TECHNOLOGIES, INC. Credit
Agreement:


 


 


Name of Institution:


 


	
  BANK OF
  AMERICA, N.A.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   by:

  	
  /s/ Fred L.
  Thorne

  	
   

  
	
   

  	
  Name:  Fred
  L. Thorne

  	
   

  
	
   

  	
  Title:  Managing
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   by:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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To approve the First Amendment to the AGILENT TECHNOLOGIES, INC. Credit
Agreement:


 


 


Name of Institution:


 


	
  CREDIT
  SUISSE, Cayman Islands Branch

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   by:

  	
  /s/ Rianka
  Mohan

  	
   

  
	
   

  	
  Name:  Rianka
  Mohan

  	
   

  
	
   

  	
  Title:  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   by:

  	
  /s/ James
  Neira

  	
   

  
	
   

  	
  Name:  James
  Neira

  	
   

  
	
   

  	
  Title:  Associate

  	
   

  
	
   

  	
   

  



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To approve the First Amendment to the AGILENT TECHNOLOGIES, INC. Credit
Agreement:


 


 


Name of Institution:


 


	
  STANDARD
  CHARTERED BANK

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   by:

  	
  /s/ Lalita
  Vadhri

  	
   

  
	
   

  	
  Name:  Lalita
  Vadhri

  	
   

  
	
   

  	
  Title:  Director,
  Global Corporates

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  March 3,
  2008

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   by:

  	
  /s/ Robert
  K. Reddington

  	
   

  
	
   

  	
  Name:  Robert
  K. Reddington

  	
   

  
	
   

  	
  Title:   AVP/Credit
  Documentation

  	
   

  
	
   

  	
              Credit
  Risk Control

  	
   

  
	
   

  	
              Standard
  Chartered Bank, N.Y.

  	
   

  
	
   

  	
   

  



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