exv10w03






 




    Exhibit 10.03



 




    Execution
    Copy



 






 


 



    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



 



    WELLS FARGO BANK, N.A.,




    As Joint Lead Arrangers and Joint Book Managers



 







    













 





 




    AMENDMENT
    AGREEMENT



 



    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.



 



    EBAY INC.



 


			
	 	    By: 
	
    /s/  Jennifer
    Ceran









    Name:     Jenny Ceran



			
	 	    Title: 
	
    Treasurer




 



    BANK OF AMERICA, N.A., as Administrative Agent



 


			
	 	    By: 
	
    /s/  Dora
    A. Brown









    Name:     Dora A. Brown



			
	 	    Title: 
	
    Vice President




 



    BANK OF AMERICA, N.A., as a Lender



 


			
	 	    By: 
	
    /s/  Ronald
    J. Drobny









    Name:     Ronald J. Drobny



			
	 	    Title: 
	
    Senior Vice President




 



    JPMORGAN CHASE BANK, N.A., as a Lender



 


			
	 	    By: 
	
    /s/  Peter
    B. Thauer









    Name:     Peter B. Thauer



			
	 	    Title: 
	
    Executive Director




 



    WELLS FARGO BANK, N.A., as a Lender



 


			
	 	    By: 
	
    /s/  Alicia
    Kachmarik









    Name:     Alicia Kachmarik



			
	 	    Title: 
	
    Assistant Vice President





    

    S-1








 






    WILLIAM STREET COMMITMENT CORPORATION (Recourse only to
    assets of William Street Corporation), as a Lender



 


			
	 	    By: 
	
    /s/  Mark
    Walton









    Name:     Mark Walton



			
	 	    Title: 
	
    Assistant Vice President




 



    MORGAN STANLEY BANK, as a Lender



 


			
	 	    By: 
	
    /s/  Daniel
    Twenge









    Name:     Daniel Twenge



			
	 	    Title: 
	
    Authorized Signatory




 



    HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender



 


			
	 	    By: 
	
    /s/  David
    Wagstaff









    Name:     David Wagstaff



			
	 	    Title: 
	
    Managing Director




 



    CITIBANK N.A., as a Lender



 


			
	 	    By: 
	
    /s/  Christopher
    L. Snider









    Name:     Christopher L. Snider



			
	 	    Title: 
	
    Vice President





    

    S-2








 






    CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender



 


			
	 	    By: 
	
    /s/  Karl
    Studer









    Name:     Karl Studer



			
	 	    Title: 
	
    Director




 


			
	 	    By: 
	
    /s/  Gilberto
    Fontela









    Name:     Gilberto Fontela



			
	 	    Title: 
	
    Assistant Vice President




 



    DEUTSCHE BANK AG NEW YORK BRANCH, 

    as a Lender



 


			
	 	    By: 
	
    /s/  Oliver
    Schwarz









    Name:     Oliver Schwarz



			
	 	    Title: 
	
    Director




 


			
	 	    By: 
	
    /s/  Stefan
    Freckmann









    Name:     Stefan Freckmann



			
	 	    Title: 
	
    Vice President




 



    LEHMAN BROTHERS COMMERCIAL BANK, 

    as a Lender



 


			
	 	    By: 
	
    /s/  Brian
    Halbeisen









    Name:     Brian Halbeisen



			
	 	    Title: 
	
    VP Credit Officer




 



    THE ROYAL BANK OF SCOTLAND PLC, 

    as a Lender



 


			
	 	    By: 
	
    /s/  Andrew
    Wynn









    Name:     Andrew Wynn



			
	 	    Title: 
	
    Managing Director





    

    S-3