TABLE OF CONTENTS

 

Section			Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms			1
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions			20
SECTION 1.03. Accounting Terms			20
SECTION 1.04. Currency Equivalents Generally			20
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances			21
SECTION 2.02. Making the Advances			21
SECTION 2.03. Repayment of Advances			22
SECTION 2.04. Termination or Reduction of the Commitments			22
SECTION 2.05. Prepayments			22
SECTION 2.06. Interest			23
SECTION 2.07. Conversion of Advances			24
SECTION 2.08. Increased Costs, Etc.			24
SECTION 2.09. Payments and Computations			26
SECTION 2.10. Taxes			27
SECTION 2.11. Sharing of Payments, Etc.			30
SECTION 2.12. Use of Proceeds			30
SECTION 2.13. Evidence of Debt			31
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND OF LENDING
SECTION 3.01. Conditions Precedent			31
SECTION 3.02. Conditions Precedent to the Borrowing			36
SECTION 3.03. Determinations Under Section 3.01			36
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower			37

 

 

ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants		42
SECTION 5.02. Negative Covenants		45
SECTION 5.03. Reporting Requirements		47
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default		50
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action		52
SECTION 7.02. Agents’ Reliance, Etc.		53
SECTION 7.03. MLCC and Affiliates		54
SECTION 7.04. Lender Credit Decision		54
SECTION 7.05. Indemnification		54
SECTION 7.06. Successor Agents		55
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty; Limitation of Liability		56
SECTION 8.02. Guaranty Absolute		56
SECTION 8.03. Waivers and Acknowledgments		57
SECTION 8.04. Subrogation		58
SECTION 8.05. Subordination		59
SECTION 8.06. Continuing Guaranty; Assignments		60
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc.		60
SECTION 9.02. Notices, Etc.		61
SECTION 9.03. No Waiver; Remedies		63
SECTION 9.04. Costs and Expenses		63
SECTION 9.05. Right of Set-off		64
SECTION 9.06. Binding Effect		65
SECTION 9.07. Assignments and Participations		65
SECTION 9.08. Execution in Counterparts		68

 

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SECTION 9.09. Confidentiality		68
SECTION 9.10. Release of Collateral		69
SECTION 9.11. Patriot Act Notice		69
SECTION 9.12. Jurisdiction, Etc.		69
SECTION 9.13. Governing Law		70
SECTION 9.14. WAIVER OF JURY TRIAL		70

 

 

SCHEDULES
Schedule I	-	Commitments and Applicable Lending Offices
Schedule 4.01(b)	-	Transaction Parties
Schedule 4.01(x)	-	Foreign Plan Exclusions
Schedule 4.01(y)	-	Existing Debt
Schedule 5.02(a)	-	Existing Liens
EXHIBITS
Exhibit A	-	Form of Note
Exhibit B	-	Form of Notice of Borrowing
Exhibit C	-	Form of Assignment and Acceptance
Exhibit D	-	Form of Pledge Agreement
Exhibit E	-	Form of Solvency Certificate
Exhibit F	-	Form of Opinion of Jones Day, Counsel to the Loan Parties
Exhibit G	-	Form of Opinion of In-House Counsel to the Guarantor and the Borrower
Exhibit H	-	Form of Opinion of Walkers, Cayman Islands Counsel to the Loan Parties
Exhibit I	-	Form of Opinion of Arendt & Medernach, Luxembourg Counsel to the Loan Parties
Exhibit J	-	Form of Opinion of Baker & McKenzie, Dutch Counsel to the Loan Parties

 

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CREDIT AGREEMENT

 

CREDIT AGREEMENT dated as of December 14, 2005 among Agilent Technologies World Trade, Inc., a corporation organized under the laws of the State of Delaware (the “ Borrower ”), Agilent Technologies, Inc., a corporation organized under the laws of the State of Delaware (the “ Guarantor ”), the Lenders (as hereinafter defined), Merrill Lynch Capital Corporation (“ MLCC ”), as collateral agent (together with any successor collateral agent appointed pursuant to Article VII, the “ Collateral Agent ”) for the Secured Parties (as hereinafter defined), and MLCC, as administrative agent (together with any successor administrative agent appointed pursuant to Article VII, the “ Administrative Agent ” and, together with the Collateral Agent, the “ Agents ”) for the Lenders.

 

PRELIMINARY STATEMENTS:

 

(1)            The Guarantor has offered to re-purchase up to 73,000,000 shares of its common stock, par value $0.01 per share (the “ Guarantor Stock ”), at a price per share not less than $32.00 and not greater than $37.00 pursuant to a tender offer launched on November 15, 2005 (the “ Stock Re-Purchase ”).

 

(2)            The Borrower has requested that, upon the consummation of the Stock Re-Purchase, the Lenders lend to the Borrower up to $1,000,000,000 to allow the Guarantor to pay to the holders of the Guarantor Stock the cash consideration for their Guarantor Stock in the Stock Re-Purchase and pay transaction fees and expenses in connection therewith.  The Lenders have indicated their willingness to agree to lend such amounts on the terms and conditions of this Agreement.

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

SECTION 1.01.  Certain Defined Terms .  As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

 

“ Administrative Agent ” has the meaning specified in the recital of parties to this Agreement.

 

“ Administrative Agent’s Account ” means the account of the Administrative Agent specified by the Administrative Agent in writing to the Lenders from time to time.

 

“ Advance ” has the meaning specified in Section 2.01.

 

“ Affiliate ” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person.  For purposes of this definition, the term “control” (including the

 

 

terms “controlling,” “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise.

 

“ Agents ” has the meaning specified in the recital of parties to this Agreement.

 

“ Agilent Agreement ” means the Agilent Agreement dated as of December 14, 2005 by the Guarantor and the Borrower in favor of the Secured Parties or the trustee for the holders of the Trust Notes, as applicable, as amended to the extent permitted under the Loan Documents.

 

“ Agreement Value ” means, for any Hedge Agreement, on any date of determination, an amount determined by the Administrative Agent equal to the amount, if any, that would be payable by any Loan Party or any of its Subsidiaries to its counterparty to such Hedge Agreement in accordance with its terms, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreement and reflecting the mark-to-market value of such Hedge Agreement based upon one or more mid-market or other readily available quotations provided by any recognized dealer (which may include a Lender or an affiliate of a Lender) in the relevant market for the product type reflected in the relevant Hedge Agreement, as if (i) such Hedge Agreement was being terminated early on such date of determination and (ii) such Loan Party or Subsidiary was the sole “Affected Party”.

 

“ Applicable Lending Office ” means, with respect to any Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.

 

“ Applicable Margin ” means 0.00% per annum for Base Rate Advances and 0.30% per annum for Eurodollar Rate Advances.

 

“ Approved Fund ” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“ Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.07 or by the definition of “ Eligible Assignee ”), and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit C hereto or any other form approved by the Administrative Agent.

 

“ AT Europe ” means Agilent Technologies Europe B.V., a corporation organized under the laws of the Netherlands.

 

“ AT Europe Shares ” means all of the issued and outstanding shares of AT Europe.

 

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“ Bankruptcy Law ” means Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

 

“ Base Rate ” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher of:

 

(a)            the rate of interest per annum announced publicly from time to time by the Administrative Agent (or its designee) as its prime lending rate in effect at its principal lending office in New York City, which is not intended to be the lowest rate of interest charged by the Administrative Agent to debtors (any change in such prime lending rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change); and

 

(b)            ½ of 1% per annum above the Federal Funds Rate.

 

“ Base Rate Advance ” means an Advance that bears interest as provided in Section 2.06(a)(i).

 

“ Borrower ” has the meaning specified in the recital of parties to this Agreement.

 

“ Borrower’s Account ” means the account of the Borrower specified by the Borrower in writing to the Administrative Agent from time to time.

 

“ Borrowing ” means a borrowing consisting of simultaneous Advances of the same Type made by the Lenders.

 

“ Business Day ” means any day other than a Saturday or Sunday or a day on which banks are required or authorized by law to close in New York City; provided that if the applicable Business Day relates to any Eurodollar Rate Advances, the term “Business Day” shall also exclude any day on which dealings are not carried on in the London interbank market.

 

“ Capitalized Leases ” means, with respect to any Person, all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases on the balance sheet of such Person.

 

“ Cash Equivalents ” means any of the following:  (a) readily marketable direct obligations of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the United States of America, (b) certificates of deposit of or time deposits with any commercial bank that is a Lender or a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof and has combined capital and surplus of at least $1 billion, (c) commercial paper issued by any corporation organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s Investors Service, Inc. or “A-1” (or the then equivalent grade) by Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. or (d) Investments in money

 

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market funds that are registered under the Investment Company Act of 1940, as amended, that are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P and substantially all the portfolios of which consist of Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition.

 

“ Cayco ” means Agilent Technologies (Cayco) Limited, an exempted company organized under the laws of the Cayman Islands and an indirect, wholly owned Subsidiary of the Guarantor.

 

“ Cayco Custody Agreement ” means the Global Custody Agreement (Cash Investments) dated as of December 12, 2005 between Cayco and the Custodian relating to the Cayco Free Cash Account, as amended to the extent permitted under the Loan Documents.

 

“ Cayco Free Cash Account ” means the custody account established in the name of Cayco with the Custodian pursuant to the Cayco Custody Agreement.

 

“ Cayco Investment Management Agreement ” means the Investment Management Agreement dated as of December 14, 2005 between Cayco and Merrill Lynch Investment Managers, L.P. relating to the Cayco Free Cash Account, as amended to the extent permitted under the Loan Documents.

 

“ Cayco Permitted Investments Account ” means the custody account established in the name of Cayco with the Custodian pursuant to the IM Custody Agreement.

 

“ Cayco Shares ” means 100,000 common shares of Cayco, with a nominal value of US$0.01 each, representing all of the issued and outstanding common shares of Cayco.

 

“ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.

 

“ CERCLIS ” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

 

“ Certificate of Designations ” means the Certificate of Designations of Preferences, Limitations and Relative Rights of Class A Preferred Shares of Agilent Technologies (Cayco) Limited, as amended to the extent permitted under the Loan Documents.

 

“ Change of Control ” means the occurrence of any of the following:  (a) any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting Interests of the Guarantor (or other securities convertible into such Voting Interests) representing 30% or more of the combined voting power of all Voting Interests of the Guarantor; or (b) during any period of up to 24 consecutive calendar months, commencing before or after the date of this Agreement, Continuing Directors shall cease for any reason to constitute a

 

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majority of the board of directors of the Guarantor; or (c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Guarantor; or (d) the Guarantor shall cease to own 100% of the Equity Interests in the Borrower.

 

“ Class A Preferred ” means the Class A preferred shares of Cayco issued and outstanding in an aggregate initial liquidation amount of $1,500,000,000.

 

“ Collateral ” means all “Collateral” referred to in the Pledge Agreement and all other property that is or is intended to be subject to any Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

 

“ Collateral Agent ” has the meaning specified in the recital of parties to this Agreement.

 

“ Commitment ” means, with respect to any Lender at any time, the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “Commitment” or, if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “Commitment,” as such amount may be reduced at or prior to such time pursuant to Section 2.04.

 

“ Communications ” has the meaning specified in Section 9.02(b).

 

“ Confidential Information ” means information that any Loan Party furnishes to any Agent or any Lender in a writing designated as confidential, but does not include any such information that is or becomes generally available to the public or that is or becomes available to such Agent or such Lender from a source other than the Loan Parties.

 

“ Consolidated ” refers to the consolidation of accounts in accordance with GAAP.

 

“ Continuing Directors ” means, as to any period, the directors of the Guarantor on the first day of such period and each other director if, in each case, such other director’s nomination for election to the board of directors of the Guarantor is recommended by at least a majority of the then Continuing Directors.

 

“ Conversion ,” “ Convert ” and “ Converted ” each refer to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.07 or 2.08.

 

“ CPECs ” means those 10,753,377 convertible preferred equity certificates, having a par value of $35.00 each, issued by Luxco on December 6, 2005.

 

“ Custodian ” means The Bank of New York Trust Company (Cayman) Limited.

 

“ Debt ” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all Obligations of such Person for the deferred purchase

 

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price of property or services (other than trade payables not overdue by more than 60 days incurred in the ordinary course of such Person’s business), (c) all Obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all Obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) the capitalized amount of all Obligations of such Person as lessee under Capitalized Leases, (f) all Obligations of such Person under acceptance, letter of credit or similar facilities, (g) all Obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person or any warrants, rights or options to acquire such Equity Interests, valued, in the case of Redeemable Preferred Interests, at its involuntary liquidation preference plus accrued and unpaid dividends and, in the case of all other Equity Interests, the aggregate amount of all such Obligations in respect of such Equity Interests as of any date of determination, (h) all Obligations of such Person in respect of Hedge Agreements, valued at the Agreement Value thereof, (i) all Synthetic Debt of such Person and all Guaranteed Debt of such Person in respect of Debt of the type referred to in any of clauses (a) through (h) above or clause (j) below and (j) all indebtedness and other payment Obligations referred to in clauses (a) through (i) above of another Person secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment Obligations (the amount of such Debt being the lesser of (i) the principal amount of such indebtedness or other payment Obligation and (ii) the book value of any assets subject to such Liens).

 

“ Deed of Incorporation ” means the Deed of Incorporation of the Foundation dated as of December 6, 2005, as amended to the extent permitted under the Loan Documents.

 

“ Default ” means any Event of Default or any event that would constitute an Event of Default but for the passage of time or the requirement that notice be given or both.

 

“ Default Interest ” has the meaning set forth in Section 2.06(b).

 

“ Deposit Account Control Agreement ” has the meaning specified in the Pledge Agreement.

 

“ Domestic Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, as the case may be, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.

 

“ Effective Date ” has the meaning specified in Section 3.01.

 

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“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) MLCC; (d) an Approved Fund; or (e) any other Person (other than an individual) approved by the Administrative Agent and, unless an Event of Default has occurred and is continuing at the time, the Borrower (each such approval not to be unreasonably withheld or delayed); provided , however , that neither any Loan Party nor any Affiliate of a Loan Party shall qualify as an Eligible Assignee under this definition.

 

“ Environmental Action ” means any action, suit, demand, demand letter, claim, notice of non compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged injury or threat to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

 

“ Environmental Law ” means any Federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.

 

“ Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

 

“ Equity Interests ” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

“ ERISA Affiliate ” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414 of the Internal Revenue Code.

 

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“ ERISA Event ” means (a)(i) the occurrence of a material reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30 day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.

 

“ Eurocurrency Liabilities ” has the meaning specified in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

“ Eurodollar Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.

 

“ Eurodollar Rate ” means, for any Interest Period for all Eurodollar Rate Advances, an interest rate per annum equal to the rate per annum obtained by dividing (a) the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period for a period equal to such Interest Period ( provided that, if for any reason such rate is not available, the term “Eurodollar Rate” shall mean, for any Interest Period for all Eurodollar Rate Advances, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided , however , if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates) by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.

 

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“ Eurodollar Rate Advance ” means an Advance that bears interest as provided in Section 2.06(a)(ii).

 

“ Eurodollar Rate Reserve Percentage ” for any Interest Period for all Eurodollar Rate Advances means the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Advances is determined) having a term equal to such Interest Period.

 

“ Events of Default ” has the meaning specified in Section 6.01.

 

“ Excluded Asset Sales ” means (a) sales of inventory, equipment, goods or services in the ordinary course of business, (b) the granting of any option or other right to purchase, lease or otherwise acquire inventory, equipment, goods or services in the ordinary course of business and (c) sales, transfers or other dispositions of assets among the Loan Parties and their Subsidiaries.

 

“ Existing Debt ” means Debt of the Borrower (other than Debt owed to the Guarantor or any of its Subsidiaries) outstanding immediately before the occurrence of the Effective Date.

 

“ Extraordinary Receipt ” means any cash received by or paid to or for the account of any Person not in the ordinary course of business from proceeds of insurance (including, without limitation, any key man life insurance but excluding proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings) and condemnation awards (and payments in lieu thereof).

 

“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

“ Fee Letter ” means the fee letter dated November 11, 2005 between the Borrower, the Guarantor and MLCC, as amended.

 

“ Fiscal Year ” means a fiscal year of the Guarantor and its Consolidated Subsidiaries ending on October 31 in any calendar year.

 

“ Foreign Benefit Arrangement ” has the meaning specified in Section 4.01(x)(v).

 

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“ Foreign Plan ” has the meaning specified in Section 4.01(x)(v).

 

“ Foundation ” means Stichting Voting Trust Agilent Technologies (Luxco)       S.à r.l., a foundation ( stichting ) organized under the laws of the Netherlands, established by the Borrower on December 6, 2005 and to which the Borrower transferred all of the Luxco Shares, the PECs and the CPECs.

 

“ Fund ” means any Person (other than an individual) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

“ GAAP ” has the meaning specified in Section 1.03.

 

“ Governmental Authority ” means any nation or government, any state, province, city, municipal entity or other political subdivision thereof, and any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board, bureau or similar body, whether federal, state, provincial, territorial, local or foreign.

 

“ Governmental Authorization ” means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.

 

“ Granting Lender ” has the meaning specified in Section 9.07(j).

 

“ Guaranteed Debt ” means, with respect to any Person, any Obligation or arrangement of such Person to guarantee or intended to guarantee any Debt, leases, dividends or other payment Obligations (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the Obligation of a primary obligor, (b) the Obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (c) any Obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof.  The amount of any Guaranteed Debt shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guaranteed Debt is made (or,

 

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if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Guaranteed Debt) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

 

“ Guaranteed Obligations ” has the meaning specified in Section 8.01(a).

 

“ Guaranty ” means the guaranty of the Guarantor set forth in Article VIII.

 

“ Guarantor ” has the meaning specified in the recital of parties to this Agreement.

 

“ Guarantor Stock ” has the meaning specified in the Preliminary Statements.

 

“ Hazardous Materials ” means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.

 

“ Hedge Agreements ” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements.

 

“ IM Custody Agreement ” means the Global Custody Agreement (CP Investments) dated as of December 12, 2005 between Cayco and the Custodian relating to the Cayco Permitted Investments Account, as amended to the extent permitted under the Loan Documents.

 

“ IM Investment Management Agreement ” means the Investment Management Agreement dated as of December 14, 2005 between Cayco and Merrill Lynch Investment Managers, L.P. relating to the Cayco Permitted Investments Account, as amended to the extent permitted under the Loan Documents.

 

“ Indemnified Costs ” has the meaning specified in Section 7.05(a).

 

“ Indemnified Party ” has the meaning specified in Section 9.04(b).

 

“ Initial Lenders ” means the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the Initial Lenders.

 

“ Initial Pledged Equity ” has the meaning specified in the Pledge Agreement.

 

“ Insufficiency ” means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.

 

“ Interest Period ” means, for each Eurodollar Rate Advance, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion

 

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of any Base Rate Advance into such Eurodollar Rate Advance, and ending on the numerically corresponding day in the succeeding calendar month and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the numerically corresponding day in the succeeding calendar month; provided , however , that the Borrower may, upon notice received by the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of any Interest Period, select a period shorter than one month as the duration of such Interest Period if such shorter period is available at the time of selection to all Lenders; provided further that:

 

(a)            Interest Periods commencing on the same date shall be of the same duration;

 

(b)            any Interest Period that would otherwise end after the Maturity Date shall end on the Maturity Date;

 

(c)            whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided , however , that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and

 

(d)            whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the succeeding calendar month, such Interest Period shall end on the last Business Day of such succeeding calendar month.

 

“ Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

“ Investment ” in any Person means any loan or advance to such Person, any purchase or other acquisition of any Equity Interests or Debt or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation (or similar transaction) and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause (i) or (j) of the definition of “ Debt ” in respect of such Person.

 

“ Lead Arranger ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

“ Lenders ” means the Initial Lenders and each Person that shall become a Lender hereunder pursuant to Section 9.07 for so long as such Initial Lender or Person, as the case may be, shall be a party to this Agreement.

 

“ Lien ” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien

 

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or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

 

“ Loan Documents ” means (i) this Agreement, (ii) the Notes, (iii) the Pledge Agreement, (iv) the Agilent Agreement and (iv) the Fee Letter, in each case as amended.

 

“ Loan Parties ” means the Borrower and the Guarantor.

 

“ Luxco ” means Agilent Technologies Luxco S.à r.l., a limited liability company ( société à responsabilité limitée ) organized under the laws of the Grand-Duchy of Luxembourg.

 

“ Luxco Depositary Receipts ” means those depositary receipts issued by the Foundation on December 7, 2005, representing the economic interest in the Luxco Shares, the PECs and the CPECs.

 

“ Luxco Note ” means the promissory note issued by Luxco to the Borrower and contributed by the Borrower to Cayco in the principal amount of $1,578,750,000, as amended to the extent permitted under the Loan Documents.

 

“ Luxco Note Assignment Agreement ” means the Agreement of Assignment of a Note dated as of December 7, 2005 between the Borrower, as assignor, and Cayco, as assignee, as amended to the extent permitted under the Loan Documents.

 

“ Luxco Share Sale and Purchase Agreement ” means the Share Sale and Purchase Agreement dated as of December 6, 2005 between the Borrower and Luxco, pursuant to which the Borrower agreed to sell 84.1% of its AT Europe Shares in exchange for the Luxco Note, the PECs and the CPECs, as amended to the extent permitted under the Loan Documents.

 

“ Luxco Shares ” means 30,891,928 shares in the share capital of Luxco, having a par value of $35.00 each.

 

“ Luxco Subscription Form and Proxy Agreement ” means the Subscription Form and Proxy dated as of December 6, 2005 by Borrower acting as the sole shareholder of Luxco, pursuant to which the Borrower contributed 15.9% of its AT Europe Shares in exchange for the Luxco Shares (other than the Class A shares of Luxco), as amended to the extent permitted under the Loan Documents.

 

“ Luxco Subsidiary Notes ” means the promissory notes issued by Luxco to certain foreign Subsidiaries of AT Europe in an aggregate principal amount of $1,578,750,000, as amended to the extent permitted under the Loan Documents.

 

“ Margin Stock ” has the meaning specified in Regulation U.

 

“ Material Adverse Change ” means any material adverse change in the business, financial condition, assets or liabilities (contingent or otherwise) of the Guarantor and its Subsidiaries, taken as a whole.

 

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“ Material Adverse Effect ” means a material adverse effect on (a) the business, financial condition, assets or liabilities (contingent or otherwise) of the Guarantor and its Subsidiaries, taken as a whole, (b) the rights and remedies of any Agent or any Lender under any Transaction Document or (c) the ability of any Transaction Party to perform its Obligations under any Transaction Document to which it is or is to be a party.

 

“ Maturity Date ” means the date that is four months after the Effective Date.

 

“ Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

 

“ Multiple Employer Plan ” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

 

“ Net Cash Proceeds ” means, (a) with respect to any sale, lease, transfer or other disposition of any asset of the Guarantor or any of its Subsidiaries, including, with respect to the Class A Preferred, as a result of the redemption thereof by Cayco (other than any Excluded Asset Sale), the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such sale, lease, transfer or other disposition (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Debt (other than Debt under the Loan Documents) that is secured by such asset and that is required to be repaid in connection with such sale, lease, transfer or other disposition thereof, (B) the reasonable and customary out-of-pocket costs, fees, commissions, premiums and expenses incurred by the Guarantor or its Subsidiaries, (C) federal, state, provincial, foreign and local taxes reasonably estimated (on a Consolidated basis) to be actually payable within the current or the immediately succeeding tax year as a result of any gain recognized in connection with such sale, lease, transfer or other disposition, and (D) the amount of any reserves, not to exceed 5% of the cash and Cash Equivalents received in connection with such sale, lease, transfer or other disposition established by the Borrower to fund any contingent liabilities reasonably expected to arise (as determined in good faith by the Treasurer or Chief Financial Officer of the Borrower) within one year of such transaction that are directly attributable to such transaction (but excluding any contingent liability that, by its terms, will not under any circumstances be payable prior to the Maturity Date); provided , however , that, except in connection with a redemption of the Class A Preferred, Net Cash Proceeds shall not include any such amounts until the aggregate amount of cash and Cash Equivalents so received by the Guarantor and its Subsidiaries after the date hereof shall exceed $100,000,000, in which case Net Cash Proceeds shall constitute solely such amounts in excess thereof;

 

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(b)            with respect to the incurrence or issuance of any Stock Re-Purchase Debt, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such incurrence or issuance over (ii) the underwriting discounts and commissions or other similar payments, and other out-of-pocket cost, fees, commissions, premiums and expenses incurred by the Guarantor or any of its Subsidiaries in connection with such incurrence or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i);

 

(c)            with respect the incurrence of issuance of any Debt by the Guarantor or any of its Subsidiaries (other than Debt under the Loan Documents or Stock Re-Purchase Debt), the excess of (i) the sum of the cash and Cash Equivalents received in connection with such incurrence or issuance over (ii) the underwriting discounts and commissions or other similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses incurred by the Guarantor or any of its Subsidiaries in connection with such incurrence or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i); provided , however , that Net Cash Proceeds shall not include any such amounts until the aggregate amount of cash and Cash Equivalents so received by the Guarantor and its Subsidiaries after the date hereof shall exceed $100,000,000, in which case Net Cash Proceeds shall constitute solely such amounts in excess thereof;

 

(d)            with respect to the sale or issuance of any Equity Interests (including, without limitation, the receipt of any capital contribution from any Person other than a Loan Party or a wholly owned Subsidiary thereof) by any Person, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such sale or issuance over (ii) the underwriting discounts and commissions or similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses, incurred by the Guarantor or any of its Subsidiaries in connection with such sale or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i); provided , however , that Net Cash Proceeds shall not include any funds received in connection with the exercise of stock options granted to employees or directors of the Guarantor or any of its Subsidiaries; and

 

(e)            with respect to any Extraordinary Receipt that is not otherwise included in clauses (a), (b) or (c) above, the sum of the cash and Cash Equivalents received in connection therewith; provided , however , that Net Cash Proceeds shall not include any such amounts until the aggregate amount of cash and Cash Equivalents so received by the Guarantor and its Subsidiaries after the date hereof shall exceed $100,000,000, in which case Net Cash Proceeds shall constitute solely such amounts in excess thereof.

 

“ Notarial Deeds ” means the Dutch and Luxembourg notarial deeds dated December 6, 2005 between the Borrower and Luxco relating to the transfer of Equity Interests in AT Europe to Luxco, as amended to the extent permitted under the Loan Documents.

 

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“ Note ” means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Advance made by such Lender, as amended.

 

“ Notice of Borrowing ” has the meaning specified in Section 2.02(a).

 

“ NPL ” means the National Priorities List under CERCLA.

 

“ Obligation ” means, with respect to any Person, any payment, performance or other obligation of such Person of any kind, including, without limitation, any liability of such Person on any claim, whether or not the right of any creditor to payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 6.01(f).  Without limiting the generality of the foregoing, the Obligations of any Loan Party under the Loan Documents include (a) the obligation to pay principal, interest, commissions, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by such Loan Party under any Loan Document and (b) the obligation of such Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party.

 

“ Other Taxes ” has the meaning specified in Section 2.10(b).

 

“ Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation (or any successor).

 

 “ PECs ” means those 107,533,765 preferred equity certificates, having a par value of $35.00 each, issued by Luxco on December 6, 2005.

 

“ Permitted Liens ” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced:  (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b); (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s, warehousemen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days or that are being contested in good faith and by proper proceedings as to which appropriate reserves as required by GAAP are being maintained; (c) pledges or deposits in the ordinary course of business to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (d) deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business; (e) Liens securing judgments (or the payment of money related to such judgments) not constituting an Event of Default

 

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under Section 6.01(g) or securing appeal or other surety bonds related to such judgments, and (f) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the ordinary use of such property for its present purposes.

 

“ Person ” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.

 

“ Plan ” means a Single Employer Plan or a Multiple Employer Plan.

 

“ Platform ” has the meaning specified in Section 9.02(b).

 

“ Pledge Agreement ” has the meaning specified in Section 3.01(a)(ii).

 

“ Pledged Account Bank ” has the meaning specified in the Pledge Agreement.

 

“ Pledged Deposit Account ” has the meaning specified in the Pledge Agreement.

 

“ Post Petition Interest ” has the meaning specified in Section 8.05(b).

 

“ Preferred Interests ” means, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference or priority over any other Equity Interests issued by such Person upon any distribution of such Person’s property and assets, whether by dividend or upon liquidation.

 

“ Redeemable ” means, with respect to any Equity Interest, any such Equity Interest that (a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within the control of the issuer or (b) is redeemable at the option of the holder.

 

“ Register ” has the meaning specified in Section 9.07(d).

 

“ Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

“ Regulation X ” means Regulation X of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

“ Related Documents ” means the Certificate of Designations, the Cayco Custody Agreement, the Cayco Investment Management Agreement, the IM Custody Agreement, the IM Investment Management Agreement, the Luxco Note, the Luxco Note Assignment Agreement, the Luxco Share Sale and Purchase Agreement, the Luxco Subscription Form and Proxy Agreement, the Luxco Subsidiary Notes, the Notarial Deeds, the Subscription Agreement, the Transfer Agreement and the Trust Conditions.

 

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“ Required Lenders ” means, at any time, Lenders owed or holding at least a majority in interest of the aggregate principal amount of the Advances outstanding at such time.

 

“ Secured Obligations ” has the meaning specified in Section 2 of the Pledge Agreement.

 

“ Secured Parties ” means the Agents and the Lenders.

 

“ Significant Subsidiary ” has the meaning specified in Regulation S-X of the Securities and Exchange Commission, as in effect from time to time.

 

“ Single Employer Plan ” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

 

“ Solvent ” and “ Solvency ” mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“ SPC ” has the meaning specified in Section 9.07(j).

 

“ Stock Re-Purchase ” has the meaning specified in the Preliminary Statements.

 

“ Stock Re-Purchase Debt ” means (a) the Trust Notes, (b) any Debt (other than Debt under the Loan Documents) incurred or issued by the Guarantor or any of its Subsidiaries to finance the payment to the holders of Guarantor Stock of the cash consideration for their Guarantor Stock in the Stock Re-Purchase or otherwise in connection with the Stock Re-Purchase, and (c) any Debt incurred or issued by the Guarantor or any of its Subsidiaries, in lieu of or in addition to the Trust Notes, to extend the maturity of, or refund or refinance, in whole or in part, Debt under the Loan Documents.

 

“ Subordinated Obligations ” has the meaning specified in Section 8.05.

 

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“ Subscription Agreement ” means the Subscription Agreement in respect of the Class A Preferred and the Cayco Shares, to be dated on or before the Effective Date, between the Borrower and Cayco, as amended to the extent permitted under the Loan Documents.

 

“ Subsidiary ” of any Person means any corporation, partnership, joint venture, limited liability company, trust, estate or other business entity of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors (or the group of persons performing similar functions) of such corporation or similar business entity (irrespective of whether at the time capital stock of any other class or classes of such corporation or similar business entity shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture or limited liability company or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.

 

“ Supplemental Collateral Agent ” has the meaning specified in Section 7.01(c).

 

“ Synthetic Debt ” means, with respect to any Person, without duplication of any clause within the definition of “Debt,” all (a) Obligations of such Person under any lease that is treated as an operating lease for financial accounting purposes and a financing lease for tax purposes (i.e., a “synthetic lease”), (b) Obligations of such Person in respect of transactions entered into by such Person, the proceeds from which would be reflected on the financial statements of such Person in accordance with GAAP as cash flows from financings at the time such transaction was entered into (other than as a result of the issuance of Equity Interests) and (c) Obligations of such Person in respect of other transactions entered into by such Person that are not otherwise addressed in the definition of “Debt” or in clause (a) or (b) above that are intended to function primarily as a borrowing of funds.

 

“ Taxes ” has the meaning specified in Section 2.10(a).

 

“ Transaction ” means the Stock Re-Purchase and the transactions contemplated by the Transaction Documents.

 

“ Transaction Documents ” means, collectively, the Loan Documents and the Related Documents.

 

“ Transaction Parties ” means the Borrower, the Guarantor, Cayco, Luxco and the Foundation.

 

“ Transfer Agreement ” means the Securities Transfer Agreement dated as of December 7, 2005 between the Borrower and the Foundation pursuant to which the Borrower transferred the Luxco Shares, the PECs and the CPECs to the Foundation, as amended to the extent permitted under the Loan Documents.

 

“ Trust ” means Agilent Trust, a Delaware statutory trust to be established by the Borrower.

 

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“ Trust Conditions ” means the Deed of Adoption of Terms and Conditions of Administration, dated as of December 6, 2005, between the Foundation and Cayco, as amended to the extent permitted under the Loan Documents.

 

“ Trust Notes ” means the Senior Secured Floating Rate Notes to be issued by the Trust.

 

“ Type ” refers to the distinction between Advances bearing interest at the Base Rate and Advances bearing interest at the Eurodollar Rate.

 

“ Voting Interests ” means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

 

“ Welfare Plan ” means a welfare plan, as defined in Section 3(1) of ERISA, that is maintained for employees of any Loan Party or in respect of which any Loan Party could have liability.

 

“ Withdrawal Liability ” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.

 

SECTION 1.02.  Computation of Time Periods; Other Definitional Provisions .  In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word “ from ” means “from and including” and the words “ to ” and “ until ” each mean “to but excluding.”  References in the Loan Documents to any agreement or contract “ as amended ” shall mean and be a reference to such agreement or contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.

 

SECTION 1.03.  Accounting Terms .  All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(g) (“ GAAP ”).

 

SECTION 1.04.  Currency Equivalents Generally .  Any amount specified in this Agreement (other than in Articles II, VII and IX) or any of the other Loan Documents to be in U.S. dollars shall also include the equivalent of such amount in any currency other than U.S. dollars, such equivalent amount to be determined at the rate of exchange quoted by MLCC in New York, New York at the close of business on the Business Day immediately preceding any date of determination thereof, to prime banks in New York, New York for the spot purchase in the New York foreign exchange market of such amount in U.S. dollars with such other currency.

 

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ARTICLE II

 

AMOUNTS AND TERMS OF THE ADVANCES

 

SECTION 2.01.  The Advances .  Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single advance (an “ Advance ”) to the Borrower on any Business Day during the period from the Effective Date until the earlier of (i) February 13, 2006 and (ii) the date of issuance or incurrence of any Stock Re-Purchase Debt, in an amount not to exceed such Lender’s Commitment at such time.  The Borrowing shall consist of Eurodollar Rate Advances or Base Rate Advances made simultaneously by the Lenders ratably according to their Commitments.  Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed.

 

SECTION 2.02.  Making the Advances .  (a)  The Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing if the Borrowing is to be comprised of Eurodollar Rate Advances, or the first Business Day prior to the date of the proposed Borrowing if the Borrowing is to be comprised of Base Rate Advances, by the Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier or electronic communication.  Such notice of Borrowing (the “ Notice of Borrowing ”) shall be by telephone, confirmed immediately in writing, or by telecopier or electronic communication, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing and (iv) if the Borrowing is to be comprised of Eurodollar Rate Advances, initial Interest Period for each such Advance.  Each Lender shall, before 11:00 A.M. (New York City time) on the date of the Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, such Lender’s ratable portion of the Borrowing in accordance with the respective Commitments of such Lender and the other Lenders.  After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower by crediting the Borrower’s Account.

 

(b)            The Notice of Borrowing shall be irrevocable and binding on the Borrower.  If the Notice of Borrowing specifies that the Borrowing is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in the Notice of Borrowing for the Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of the Borrowing when such Advance, as a result of such failure, is not made on such date.

 

(c)            Unless the Administrative Agent shall have received notice from a Lender prior to the date of the Borrowing that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of the Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent

 

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may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.  If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at such time under Section 2.06 and (ii) in the case of such Lender, the Federal Funds Rate.  If such Lender shall pay to the Administrative Agent such corresponding amount, such amount so paid shall constitute such Lender’s Advance as part of the Borrowing for all purposes.

 

(d)            The failure of any Lender to make the Advance to be made by it as part of the Borrowing shall not relieve any other Lender of its obligation, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of the Borrowing.

 

SECTION 2.03.  Repayment of Advances .  The Borrower shall repay to the Administrative Agent for the ratable account of the Lenders on the Maturity Date the aggregate principal amount of the Advances then outstanding.

 

SECTION 2.04.  Termination or Reduction of the Commitments .  (a)  Optional .  The Borrower may, upon at least five Business Days’ notice to the Administrative Agent, terminate in whole or reduce in part the unused portions of the Commitments; provided , however , that each partial reduction (i) shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii) shall be made ratably among the Lenders in accordance with their Commitments.

 

(b)            Mandatory . (i) The Commitments shall be automatically and permanently terminated on the earlier of (A) February 13, 2006 and (B) the date of issuance or incurrence of any Stock Re-Purchase Debt, if the Borrowing has not occurred by such time.

 

(ii)            On the date of the Borrowing, after giving effect to the Borrowing, and from time to time thereafter upon each repayment or prepayment of the Advances, the aggregate Commitments of the Lenders shall be automatically and permanently reduced, on a pro rata basis, by an amount equal to the amount by which the aggregate Commitments immediately prior to such reduction exceed the aggregate unpaid principal amount of the Advances then outstanding.

 

SECTION 2.05.  Prepayments .  (a)  Optional .  The Borrower may, upon at least five Business Days’ notice to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding aggregate principal amount of the Advances in whole or ratably in part, together with accrued interest to the date of such prepayment on the aggregate principal amount prepaid; provided , however , that (x) each partial prepayment shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) if any prepayment of a

 

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Eurodollar Rate Advance is made on a date other than the last day of an Interest Period for such Advance, the Borrower shall also pay any amounts owing pursuant to Section 9.04(c).

 

(b)            Mandatory .  (i)  The Borrower shall, on the date of receipt of any Net Cash Proceeds by any Loan Party or any of its Subsidiaries, prepay an aggregate principal amount of the Advances in an amount equal to the amount of such Net Cash Proceeds.

 

(ii)            The Borrower shall, upon the occurrence of a Change of Control, prepay each Lender’s Advance in full.

 

(iii)           All prepayments under this subsection (b) shall be made together with accrued interest to the date of such prepayment on the principal amount prepaid, together with any amounts owing pursuant to Section 9.04(c).

 

SECTION 2.06.  Interest .  (a)  Scheduled Interest .  The Borrower shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

 

(i)             Base Rate Advances .  During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to time plus (B) the Applicable Margin, payable in arrears monthly on the first day of each month during such periods and on the date such Base Rate Advance shall be Converted to a Eurodollar Rate Advance or paid in full.

 

(ii)            Eurodollar Rate Advances .  During such periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such Interest Period for such Advance plus (B) the Applicable Margin, payable in arrears on the last day of such Interest Period and on the date such Eurodollar Rate Advance shall be Converted to a Base Rate Advance or paid in full.

 

(b)            Default Interest .  Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the request of the Required Lenders shall, require that the Borrower pay interest (“ Default Interest ”) on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (i) or (ii) of Section 2.06(a), as applicable, and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant to clause (i) or (ii) of Section 2.06(a), as applicable, and (ii) to the fullest extent permitted by applicable law, the amount of any interest, fee or other amount payable under this Agreement or any other Loan Document to any Agent or any Lender that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (i) of Section 2.06(a); provided , however , that following the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Advances due and payable pursuant to the provisions of Section 6.01, Default Interest

 

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shall accrue and be payable hereunder whether or not previously required by the Administrative Agent.

 

(c)            Notice of Interest Period and Interest Rate .  Promptly after receipt of the Notice of Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to Section 2.07 or a notice of selection of an Interest Period pursuant to the terms of the definition of “Interest Period,” the Administrative Agent shall give notice to the Borrower and each Lender of the applicable Interest Period and the applicable interest rate determined by the Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.

 

(d)            Failure to Select Duration of Interest Period .  If the Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the duration of such Interest Period shall be one month.

 

SECTION 2.07.  Conversion of Advances .  (a)  Optional .  The Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Section 2.08, Convert all or any portion of the Advances of one Type comprising the Borrowing into Advances of the other Type; provided , however , that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day of an Interest Period for such Eurodollar Rate Advances.  Each such notice of Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial Interest Period for such Advances.  Each notice of Conversion shall be irrevocable and binding on the Borrower.

 

(b)            Mandatory .  Upon the occurrence and during the continuance of any Default, (i) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to Convert Advances into Eurodollar Rate Advances shall be suspended.

 

SECTION 2.08.  Increased Costs, Etc .  (a)  If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority (whether or not having the force of law), in each case, that becomes effective after the date hereof, there shall be any increase in the cost to any Lender of agreeing to make or of making, funding or maintaining Eurodollar Rate Advances (excluding, for purposes of this Section 2.08, any such increased costs resulting from (x) Taxes, taxes or other charges which are excluded from the definition of Taxes in Section 2.10(a) hereof or Other Taxes (as to which Section 2.10 shall govern) and (y) changes in the basis of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof), then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost; provided , however , that a Lender claiming additional amounts under this Section 2.08(a) agrees to use reasonable efforts

 

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(consistent with its internal policy and legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such a designation would avoid the need for, or reduce the amount of, such increased cost that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.  A certificate as to the amount of such increased cost, submitted to the Borrower by such Lender, shall be conclusive and binding for all purposes, absent manifest error.

 

(b)            If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law), in each case, that becomes effective after the date hereof, affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of such type, then, upon demand by such Lender or such corporation (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender’s commitment to lend hereunder.  A certificate as to such amounts submitted to the Borrower by such Lender shall be conclusive and binding for all purposes, absent manifest error.

 

(c)            If, with respect to any Eurodollar Rate Advances, Lenders owed at least 50% of the then aggregate unpaid principal amount thereof notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to Convert Advances into Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that such Lenders have determined that the circumstances causing such suspension no longer exist.

 

(d)            Notwithstanding any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to continue to fund or maintain Eurodollar Rate Advances hereunder, then, on notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent, (i) each Eurodollar Rate Advance will automatically, upon such demand, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to Convert Advances into Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing such suspension no longer exist; provided , however , that, before making any such demand, such Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Eurodollar Lending Office if the making of such a designation would allow such Lender or its Eurodollar Lending Office to continue to perform its obligations to continue to fund or maintain Eurodollar Rate Advances and

 

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would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.

 

SECTION 2.09.  Payments and Computations .  (a)  The Borrower shall make each payment hereunder and under the other Loan Documents, irrespective of any right of counterclaim or set-off, not later than 2:00 P.M. (New York City time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative Agent’s Account in same day funds, with payments being received by the Administrative Agent after such time being deemed to have been received on the next succeeding Business Day.  The Administrative Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the Borrower is in respect of principal, interest, commitment fees or any other Obligation then payable hereunder and under the other Loan Documents to more than one Lender, to such Lenders for the account of their respective Applicable Lending Offices ratably in accordance with the amounts of such respective Obligations then payable to such Lenders and (ii) if such payment by the Borrower is in respect of any Obligation then payable hereunder to one Lender, to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.  Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.07(d), from and after the effective date of such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the other Loan Documents in respect of the interest assigned thereby to the assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

 

(b)            The Borrower hereby authorizes each Lender and each of its Affiliates, if and to the extent payment owed to such Lender is not made when due hereunder or under the other Loan Documents to charge from time to time, to the fullest extent permitted by law, against any or all of the Borrower’s accounts with such Lender or such Affiliate any amount so due.

 

(c)            All computations of interest based on the Base Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable.  Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

(d)            Whenever any payment hereunder or under the other Loan Documents shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or commitment or letter of credit fee or commission, as the case may be; provided , however , that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the immediately preceding Business Day.

 

(e)            Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to any Lender hereunder that the

 

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Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each such Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate.

 

SECTION 2.10.  Taxes .  (a)  Any and all payments by any Loan Party to or for the account of any Lender or any Agent hereunder or under any other Loan Document shall be made, in accordance with Section 2.09 or the applicable provisions of such other Loan Document, if any, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding , (i) in the case of each Lender and each Agent, taxes that are imposed on its overall net income by the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction under the laws of which such Lender or such Agent, as the case may be, is organized or any political subdivision thereof and, in the case of each Lender, taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof, and (ii) any branch profit tax imposed by the United States or any similar tax imposed by any other jurisdiction in which such Applicable Lending Office is located or where such Lender is organized (subject to the further exclusions provided in Section 2.10(e) hereof, all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under any other Loan Document being hereinafter referred to as “ Taxes ”).  If any Loan Party shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Lender or any Agent, (i) the sum payable by such Loan Party shall be increased as may be necessary so that after such Loan Party and the Administrative Agent have made all required deductions (including deductions applicable to additional sums payable under this Section 2.10) such Lender or such Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make all such deductions and (iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

 

(b)            In addition, each Loan Party shall pay any present or future stamp, documentary, excise, property, intangible, mortgage recording or similar taxes, charges or levies that arise from any payment made by such Loan Party hereunder or under any other Loan Documents or from the execution, delivery or registration of, performance under, or otherwise with respect to, this Agreement or the other Loan Documents (hereinafter referred to as “ Other Taxes ”).

 

(c)            The Loan Parties shall indemnify each Lender and each Agent for and hold them harmless against the full amount of Taxes and Other Taxes, and for the full amount of Taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.10, paid by such Lender or such Agent (as the case may be) and any liability (including

 

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penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto.  This indemnification shall be made within 30 days from the date such Lender or such Agent (as the case may be) makes written demand therefor.

 

(d)            Within 30 days after the date of any payment of Taxes by any Loan Party (or any agent acting on behalf of such Loan Party) pursuant to this Section 2.10, the appropriate Loan Party shall furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment, to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent.

 

(e)            Each Lender organized under the laws of a jurisdiction outside the United States shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as reasonably requested in writing by the Borrower (but only so long thereafter as such Lender remains lawfully able to do so), provide each of the Administrative Agent and the Borrower with two original Internal Revenue Service Forms W-8BEN, W-8IMY or W-8ECI or (in the case of a Lender that has certified in writing to the Administrative Agent that it is not (i) a “bank” acting in the manner described in Section 881(c)(3)(A) of the Internal Revenue Code), (ii) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign corporation that is a “related person” (within the meaning of Section 864(d)(4) of the Internal Revenue Code) of any Loan Party), the required statement (and any attachments) described in Treasury Regulation Section 1.871-14(c)(2) or any successor or other statement or form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or any other Loan Document.  If at the time a Lender first becomes a party to this Agreement such Lender is subject to a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms properly certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes prospectively for periods governed by such forms; provided , however , that if, at the effective date of the Assignment and Acceptance pursuant to which a Lender becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) of this Section 2.10 in respect of United States withholding tax with respect to interest paid at such date, then, only to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date.  If any form of document referred to in this subsection (e) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Form W-8BEN, W-8IMY or W-8ECI or the required statement described above, that the applicable Lender reasonably considers to be confidential, such Lender shall give notice thereof to the Borrower and shall not be obligated to include in such form or document such confidential information, provided , however , that if the exclusion of such confidential information results in the failure to secure a reduction in the rate of, or exemption from, any United States withholding tax, then such tax shall be excluded from the definition of Taxes in Section 2.10(a) hereof.  Each Lender shall promptly notify the Borrower and the Administrative

 

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Agent of any change in circumstances that would modify or render invalid any claimed exemption from, or reduction in rate of, any United States withholding tax.

 

(f)             For any period with respect to which a Lender has failed to provide the Borrower with the appropriate form, certificate or other document described in subsection (e) above (other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring after the date on which a form, certificate or other document originally was required to be provided or if such form, certificate or other document otherwise is not required under subsection (e) above), such Lender shall not be entitled to indemnification under subsection (a) or (c) of this Section 2.10 with respect to Ta