Exhibit 10.70


 


EXECUTION
COPY


 


THIRD AMENDMENT, dated as of November 7, 2008 (this “Amendment”),
to the CREDIT AGREEMENT dated as of May 11, 2007, as amended as of March 3,
2008 and June 13, 2008 (as further amended, supplemented, or otherwise
modified from time to time, the “Credit 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 “Acceptable
Replacement Facility” therein to read as follows:


 


“Acceptable
Replacement Facility” means a sale and repurchase transaction generally
comparable to that provided for in the World Trade Master Repurchase Agreement (a) under
which the Company or a Subsidiary will receive or retain net proceeds in an
amount at least equal to the principal or face amount payable as a result of
the exercise of the “put” under the World Trade Master Repurchase Agreement, (b) the
obligations of the Company and the Subsidiaries under which constitute
Repurchase Obligations and (c) under the terms of which none of the
Company or any Subsidiary can be required (other than as a result of a breach,
an event of default,
a change in law or a similar event) to repurchase the securities or other
assets that are the subject of such Repurchase Obligations prior to November 1,
2010.


 

















 


(b)  by changing the definition
of “Replacement Facility Requirement” therein to read as follows:


 


“Replacement Facility Requirement” means the requirement that (a) the
Company shall have entered into a definitive principal agreement to establish
an Acceptable Replacement Facility by and among the Company, one or more
Subsidiaries and one or more counterparties; (b) the closing of the
transactions provided for in such Acceptable Replacement Facility is scheduled
to occur on or prior to November 17, 2008, subject to applicable closing
conditions, (c) the Administrative Agent shall have received a certificate
of a Financial Officer attaching copies of such definitive principal agreement;
and (d) the Company shall have delivered to the Administrative Agent a
certificate of a Financial Officer confirming that all conditions to the
closing of the transactions provided for in such documentation have been
satisfied or are expected to be satisfied on or prior to November 17,
2008, and that to the best of such Financial Officer’s knowledge there is no
impediment to the closing of such transactions on or prior to November 17,
2008.


 


(c)  by changing clause
(a)(iii) of the definition of “Repurchase Obligation Restricted Cash”
therein to read as follows:


 


(iii) 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, an event of default, a
change in law or a similar event) to repurchase the securities or other assets
that are the subject of such Repurchase Obligation prior to November 1,
2010 (it being agreed, however, that,
at all times prior to November 17, 2008, the World Trade Restricted Cash
may at all times constitute Repurchase Obligation Restricted Cash notwithstanding
that the requirements of this clause (iii) are not satisfied with respect
thereto)


 


SECTION 3.  Amendment of
Article VII. The last sentence of Article VII of the Credit Agreement
is amended to read as follows:


 


Notwithstanding anything in paragraph (g) of this Article VII,
(i) the exercise of the “put” under the World Trade Master Repurchase
Agreement will not constitute an Event of Default or a Default prior to November 12,
2008 (at which time an Event of Default shall be deemed to have occurred except
as otherwise provided in clause (ii)); (ii) if, on or prior to November 12,
2008, the Company shall have satisfied the Replacement Facility Requirement, the
exercise of the “put” under the World Trade Master Repurchase Agreement will
not constitute an Event of Default or a Default unless and until the Company or
a Subsidiary shall be required to repurchase the securities or other assets
that are the subject of the “put” under the World Trade Master Repurchase
Agreement (at which time an Event of Default shall be deemed to have occurred
unless and until (A) such repurchase obligation shall be satisfied in full with
proceeds received 


 


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under, or
shall be eliminated as a result of the effectiveness of, an Acceptable
Replacement Facility or (B) if the condition in the preceding clause (A) shall
not be satisfied other than as a result of any act or failure to act (including
any failure to satisfy a condition) on the part of the Company or a Subsidiary, such repurchase
obligation shall be satisfied in full with Repurchase Obligation Restricted
Cash).


 


SECTION 4.  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 are true and correct in all material respects on and as
of the Third 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 Third Amendment Effective Date, after giving effect
to this Amendment, no Default or Event of Default will have occurred and be
continuing.


 


SECTION 5.  Effectiveness.  This Amendment shall become effective as of
the date (the “Third 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 6.  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 7.  Applicable Law.  THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 8.  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 9.  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, as
well as all other out-of-pocket 


 


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expenses
in connection with the Credit Agreement that have not yet been reimbursed.


 


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IN WITNESS WHEREOF, the parties
hereto have caused this Third 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/ Ann B. Kerns

  
	
   

  	
   

  	
   Name: Ann B. Kerns

  
	
   

  	
   

  	
   Title: Vice President

  



 


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


 


 


Name of Institution:


 


	
  BANK OF AMERICA, N.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  by:

  	
  /s/ Kevin McMahon

  	
   

  
	
   

  	
  Name:  Kevin McMahon

  	
   

  
	
   

  	
  Title:    Senior Vice President

  	
   

  



 


 


	
  by:

  	
   

  	
  (1)

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






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


 

















 


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


 


 


Name of Institution:


 


	
  Citibank, N.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  by:

  	
  /s/ Avram Spiegel

  	
   

  
	
   

  	
  Name:  Avram Spiegel

  	
   

  
	
   

  	
  Title:    Vice President

  	
   

  



 


 


	
  by:

  	
   

  	
  (1)

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






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


 


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To
approve the Third 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/ Christopher Reo Day

  	
  (1)

  
	
   

  	
  Name:   Christopher Reo Day

  	
   

  
	
   

  	
  Title:     Associate

  	
   

  



 






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


 


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


 


 


Name of Institution:


 


	
  STANDARD CHARTERED BANK

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  by:

  	
  /s/ Alok Gupta

  	
   

  
	
   

  	
  Name:  Alok Gupta

  	
   

  
	
   

  	
  Title:    Director

  	
   

  



 


 


	
  by:

  	
  /s/ Robert K. Reddington

  	
  (1)

  
	
   

  	
  Name:

  	
  Robert K. Reddington

  	
   

  
	
   

  	
  Title:

  	
  AVP/Credit Documentation

  	
   

  
	
   

  	
   

  	
  Credit Risk Control

  	
   

  
	
   

  	
   

  	
  Standard Chartered Bank N.Y.

  	
   

  



 






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


 


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