Exhibit 10.5


 


Execution Copy


 


FOURTH
AMENDMENT, dated as of August 17, 2009 (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 inserting a definition of “Acquisition Period,” reading as follows:


 


“Acquisition Period”
means the period beginning on August 17, 2009 and ending on the later of (i) August 1,
2010 and (ii) the first day of the month following the ninth full calendar
month after the closing of the merger provided for in the Varian Merger Agreement
(or, if the Varian Merger Agreement shall be terminated prior to August 1,
2010, the date of such termination).


 


(b)  by inserting a definition of “Acquisition Period Indebtedness,” reading as follows:


 


“Acquisition Period
Indebtedness” means Indebtedness (other than Repurchase Obligations
Indebtedness) incurred by the Company and its Subsidiaries during the period
beginning on August 17, 2009 and ending on the date of the closing of the
merger provided for in the Varian Merger Agreement (or, if the Varian Merger
Agreement shall be terminated prior to August 1, 2010, the date of such
termination), in an aggregate amount not to exceed $1,000,000,000.


 

















 


(c)  by changing the definition of “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 (and
guaranties thereof) and, during the Acquisition Period, other than Acquisition
Period Indebtedness, 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.


 


(d)  by changing the definition of “Adjusted Repurchase Obligation Indebtedness”
therein to read as follows:


 


“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) $2,000,000,000.


 


(e)  by inserting a definition of “Varian Merger Agreement,” reading as follows:


 


“Varian Merger Agreement” means the
Agreement and Plan of Merger between the Company, Cobalt Acquisition Corp and
Varian, Inc. dated July 26, 2009, as such agreement may from time to
time be amended.


 


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


 


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“World
Trade Master Repurchase Agreement” means the Master Repurchase Agreement
dated as of November 17, 2008, between Agilent Technologies World Trade, Inc.,
a wholly owned subsidiary of the Company, and Lloyds TSB Bank plc.  or any other person that shall succeed by
amendment or assignment to the rights and obligations of Lloyds TSB Bank plc. thereunder,
as such agreement may be amended from time to time.


 


SECTION 3.  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 sum of (A) $500,000,000 and (B) the amount of 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 4.  Amendment of Section 6.02.  Clause (j) of Section 6.02 of the
Credit Agreement is amended to read as follows:


 


(j)            other Liens securing or deemed to
exist in connection with Indebtedness and sales of accounts receivable and
interests therein pursuant to Securitization Transactions; provided that
the sum, without duplication, of (i) the aggregate principal amount of the
outstanding Indebtedness secured by Liens or deemed to exist in connection with
Securitization Transactions permitted by this clause (j), (ii) the
outstanding Indebtedness permitted by Section 6.01(i) and (iii) the
Attributable Debt in respect of Sale-Leaseback Transactions permitted by Section 6.03(b) does
not at any time exceed the greater of (A) $75,000,000 during the
Acquisition Period, or $300,000,000 at any time other than during the
Acquisition Period (and (B) 10% of Consolidated Stockholders’ Equity.


 


SECTION 5.  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.


 


(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.


 


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SECTION 6.  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 7.  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 8.  Applicable Law.  THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 9.  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 10.  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 Fourth Amendment to be duly executed by their respective authorized
officers as of the date first above written.


 


 


	
   

  	
  AGILENT
  TECHNOLOGIES, INC.,

  
	
   

  	
   

  
	
   

  	
  by:

  
	
   

  	
   

  	
  /s/Hillard
  C. Terry, III

  
	
   

  	
   

  	
  Name:

  	
  Hillard
  C. Terry, III 

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President, Treasurer

  



 


 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,

  
	
   

  	
   

  
	
   

  	
  by:

  
	
   

  	
   

  	
  /s/Ann
  B. Kerns

  
	
   

  	
   

  	
  Name:

  	
  Ann
  B. Kerns

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


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


 


 


	
  JPMORGAN
  CHASE BANK, N.A.,

  	
   

  
	
   

  	
   

  
	
  by:

  	
   

  
	
   

  	
  /s/Ann
  B. Kerns

  	
   

  
	
   

  	
  Name:

  	
  Ann
  B. Kerns 

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 


 


	
  BANK
  OF AMERICA, N.A.

  	
   

  
	
   

  	
   

  
	
  by:

  	
   

  
	
   

  	
  /s/Kevin
  McMahon

  	
   

  
	
   

  	
  Name:

  	
  Kevin
  McMahon

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  	
   

  



 


 


	
  CITIBANK,
  NA.

  	
   

  
	
   

  	
   

  
	
  by:

  	
   

  
	
   

  	
  /s/Avrum
  M. Spiegel

  	
   

  
	
   

  	
  Name:

  	
  Avrum
  M. Spiegel

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 


 


	
  CREDIT
  SUISSE, CAYMAN ISLANDS BRANCH

  	
   

  
	
   

  	
   

  
	
  by:

  	
   

  
	
   

  	
  /s/John
  D. Toronto

  	
   

  
	
   

  	
  Name:

  	
  John
  D. Toronto

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  



 


 


	
  by:

  	
   

  
	
   

  	
  /s/Christopher
  Reo Day

  	
   

  
	
   

  	
  Name:

  	
  Christopher
  Reo Day

  	
   

  
	
   

  	
  Title:

  	
  Associate

  	
   

  



 


6

















 


	
  STANDARD
  CHARTERED BANK,

  	
   

  
	
   

  	
   

  
	
  by:

  	
   

  
	
   

  	
  /s/James
  P. Hughes A2386

  	
   

  
	
   

  	
  Name:

  	
  James
  P. Hughes A2386

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  



 


 


	
  by:

  	
   

  
	
   

  	
  /s/Robert
  K. Reddington

  	
   

  
	
   

  	
  Name:

  	
  Robert
  K. Reddington

  	
   

  
	
   

  	
  Title:

  	
  AVP/Credit
  Documentation

  Credit Risk Control

  	
   

  



 


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