AMENDMENT AGREEMENT dated as of September 5, 2008 among EBAY INC. as the Borrower, BANK OF AMERICA, N.A., as Administrative Agent, and The Other Lenders Party Hereto WELLS FARGO BANK, N.A., as Syndication Agent BANC OF AMERICA SECURITIES LLC, and...
Exhibit 10.03
Execution
Copy
dated as of September 5, 2008
among
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
and
The Other Lenders Party Hereto
XXXXX FARGO BANK, N.A.,
as Syndication Agent
BANC OF AMERICA SECURITIES LLC,
and
XXXXX FARGO BANK, N.A.,
As Joint Lead Arrangers and Joint Book Managers
This AMENDMENT AGREEMENT (this “Amendment”) is
entered into as of September 5, 2008 among EBAY INC., a
Delaware corporation (the “Borrower”), the
several financial institutions party hereto (each a
“Lender” and, collectively, the
“Lenders”), and BANK OF AMERICA, N.A., as
Administrative Agent.
The Borrower, the Lenders party thereto and the Administrative
Agent entered into a Credit Agreement, dated as of
November 7, 2006, as amended by the Amendment Agreement,
dated as of August 2, 2007 (as in effect as of the date of
this Amendment, the “Credit Agreement”).
The Borrower has requested that the Lenders agree to a certain
amendment to the Credit Agreement, and the requisite Lenders
have agreed to such request, subject to the terms and conditions
of this Amendment.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
1. Definitions; References; Interpretation.
(a) Unless otherwise specifically defined herein, each term
used herein (including in the Recitals hereof) which is defined
in the Credit Agreement shall have the meaning assigned to such
term in the Credit Agreement.
(b) As used herein, “Amendment Documents”
means this Amendment and the Credit Agreement (as amended by
this Amendment).
(c) Each reference to “this Agreement”,
“hereof”, “hereunder”,
“herein” and “hereby” and each
other similar reference contained in the Credit Agreement, and
each reference to “the Credit Agreement” and
each other similar reference in the other Loan Documents, shall
from and after the Effective Date (as defined in
Section 2) refer to the Credit Agreement as amended
hereby.
(d) The rules of interpretation set forth in
Section 1.02of the Credit Agreement shall be
applicable to this Amendment.
2. Amendment to Credit
Agreement. Subject to the terms and
conditions hereof, the Credit Agreement is amended as follows,
effective as of the date of satisfaction of the conditions set
forth in Section 4 (the “Effective Date”):
(a) Amendment to Article II of the Credit Agreement.
Section 2.12(a)of the Credit Agreement is amended in
its entirety to provide as follows:
“(a) Requests for
Extension. The Borrower may, by notice to the
Administrative Agent (who shall promptly notify the Lenders) not
earlier than 60 Business Days and not later than 35 Business
Days prior to each of the first, second, third, fourth or fifth
anniversary of the Closing Date (each a “Relevant
Anniversary Date”), request that each Lender extend
such Lender’s Maturity Date for an additional year from the
Maturity Date then in effect hereunder (the “Existing
Maturity Date”).”
3. Representations and
Warranties. The Borrower hereby represents
and warrants to the Administrative Agent and the Lenders as
follows:
(a) No Default has occurred and is continuing (or would
result from the amendment of the Credit Agreement contemplated
hereby).
(b) The execution, delivery and performance by the Borrower
of the Amendment Documents have been duly authorized by all
necessary corporate and other action and do not and will not
require any registration with, consent or approval of, or notice
to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable.
(c) The Amendment Documents constitute the legal, valid and
binding obligations of the Borrower, enforceable against it in
accordance with their respective terms, subject to the effect of
applicable bankruptcy, insolvency, arrangement, moratorium and
other similar laws affecting creditors’ rights generally
and to the application of general principles of equity.
1
(d) All representations and warranties of the Borrower
contained in the Credit Agreement that are qualified by
materiality are true and correct and after giving effect
thereto, and that are not qualified by materiality are true and
correct in all material respects (except, in each case, to the
extent such representations and warranties specifically refer to
an earlier date, in which case they shall be true and correct as
of such earlier date, and except that for purposes of this
Section 3(d) the representations and warranties
contained in subsections (a) and (b) of
Section 5.05 of the Credit Agreement shall be deemed
to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of
Section 6.01 of the Credit Agreement.
(e) The Borrower is entering into this Amendment on the
basis of its own investigation and for its own reasons, without
reliance upon the Administrative Agent and the Lenders or any
other Person.
4. Conditions of Effectiveness.
(a) The effectiveness of Section 2 of this
Amendment shall be subject to the satisfaction of each of the
following conditions precedent:
(1) The Administrative Agent shall have received from the
Borrower and each of the requisite Lenders a duly executed
original (or, if elected by the Administrative Agent, an
executed facsimile copy) of this Amendment.
(2) The Administrative Agent shall have received evidence
of payment by the Borrower of all fees, costs and expenses due
and payable as of the Effective Date hereunder and under the
Credit Agreement, including any costs and expenses payable under
Section 5(g) of this Amendment (including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent, to the extent invoiced on or prior to the
Effective Date).
(3) The Administrative Agent shall have received from the
Borrower, in form and substance satisfactory to the
Administrative Agent and the Lenders, a copy of resolutions
passed by the board of directors (or related committee thereof)
of the Borrower, certified as of the Effective Date by the
Secretary or an Assistant Secretary of such Person, authorizing
the execution, delivery and performance of the Amendment
Documents.
(4) The Administrative Agent shall have received all other
documents it may reasonably request relating to any matters
relevant hereto, all in form and substance reasonably
satisfactory to the Administrative Agent.
(5) The representations and warranties in
Section 3 of this Amendment shall be true and
correct on and as of the Effective Date with the same effect as
if made on and as of the Effective Date.
(b) For purposes of determining compliance with the
conditions specified in Section 4(a), each Lender
that has signed this Amendment shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender
prior to the Effective Date specifying its objection thereto.
(c) From and after the Effective Date, the Credit Agreement
is amended as set forth herein. Except as expressly amended
pursuant hereto, the Credit Agreement shall remain unchanged and
in full force and effect and is hereby ratified and confirmed in
all respects.
(d) The Administrative Agent will notify the Borrower and
the Lenders of the occurrence of the Effective Date.
5. Miscellaneous.
(a) The Borrower acknowledges and agrees that the execution
and delivery by the Administrative Agent and the Lenders of this
Amendment shall not be deemed to create a course of dealing or
an obligation to execute similar waivers or amendments under the
same or similar circumstances in the future.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors
and assigns permitted by the Credit Agreement.
2
(c) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(d) This Amendment may be executed in counterparts (and by
different parties hereto in different counterparts), each of
which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Amendment and
the other Amendment Documents constitute the entire contract
among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except
as provided in Section 4, this Amendment shall
become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall
have received counterparts hereof that, when taken together,
bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this
Amendment by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment.
(e) This Amendment may not be amended except in accordance
with the provisions of Section 10.01 of the Credit
Agreement.
(f) If any provision of this Amendment or the other
Amendment Documents is held to be illegal, invalid or
unenforceable, (i) the legality, validity and
enforceability of the remaining provisions of this Amendment and
the other Amendment Documents and Loan Documents shall not be
affected or impaired thereby and (ii) the parties shall
endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity
of a provision in a particular jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
(g) The Borrower agrees to pay or reimburse all reasonable
out-of-pocket expenses incurred by the Administrative Agent and
its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent), in
connection with the preparation, negotiation, execution,
delivery and administration of this Amendment and the other
Amendment Documents or any amendments, modifications or waivers
of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be
consummated).
(h) This Amendment shall constitute a Loan Document.
[signature
pages follow]
3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
| By: |
/s/ Xxxxxxxx
Xxxxx
|
Name: Xxxxx Xxxxx
| Title: | Treasurer |
BANK OF AMERICA, N.A., as Administrative Agent
| By: |
/s/ Xxxx
X. Xxxxx
|
Name: Xxxx X. Xxxxx
| Title: | Vice President |
BANK OF AMERICA, N.A., as a Lender
| By: |
/s/ Xxxxxx
X. Xxxxxx
|
Name: Xxxxxx X. Xxxxxx
| Title: | Senior Vice President |
JPMORGAN CHASE BANK, N.A., as a Lender
| By: |
/s/ Xxxxx
X. Xxxxxx
|
Name: Xxxxx X. Xxxxxx
| Title: | Executive Director |
XXXXX FARGO BANK, N.A., as a Lender
| By: |
/s/ Xxxxxx
Xxxxxxxxx
|
Name: Xxxxxx Xxxxxxxxx
| Title: | Assistant Vice President |
X-0
XXXXXXX XXXXXX COMMITMENT CORPORATION (Recourse only to
assets of Xxxxxxx Street Corporation), as a Lender
| By: |
/s/ Xxxx
Xxxxxx
|
Name: Xxxx Xxxxxx
| Title: | Assistant Vice President |
XXXXXX XXXXXXX BANK, as a Lender
| By: |
/s/ Xxxxxx
Xxxxxx
|
Name: Xxxxxx Xxxxxx
| Title: | Authorized Signatory |
HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender
| By: |
/s/ Xxxxx
Xxxxxxxx
|
Name: Xxxxx Xxxxxxxx
| Title: | Managing Director |
CITIBANK N.A., as a Lender
| By: |
/s/ Xxxxxxxxxxx
X. Xxxxxx
|
Name: Xxxxxxxxxxx X. Xxxxxx
| Title: | Vice President |
S-2
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender
| By: |
/s/ Xxxx
Xxxxxx
|
Name: Xxxx Xxxxxx
| Title: | Director |
| By: |
/s/ Xxxxxxxx
Xxxxxxx
|
Name: Xxxxxxxx Xxxxxxx
| Title: | Assistant Vice President |
DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender
as a Lender
| By: |
/s/ Xxxxxx
Xxxxxxx
|
Name: Xxxxxx Xxxxxxx
| Title: | Director |
| By: |
/s/ Xxxxxx
Xxxxxxxxx
|
Name: Xxxxxx Xxxxxxxxx
| Title: | Vice President |
XXXXXX BROTHERS COMMERCIAL BANK,
as a Lender
as a Lender
| By: |
/s/ Xxxxx
Xxxxxxxxx
|
Name: Xxxxx Xxxxxxxxx
| Title: | VP Credit Officer |
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
as a Lender
| By: |
/s/ Xxxxxx
Xxxx
|
Name: Xxxxxx Xxxx
| Title: | Managing Director |
S-3
