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Exhibit
10.1
EXECUTION
COPY
WAIVER NO. 1
THIS WAIVER NO. 1 (this
“ Waiver ”) is being executed and delivered as
of October 6, 2006, by and among BEA Systems, Inc., a Delaware
corporation (the “ Borrower ”), JPMorgan Chase
Bank, National Association, as administrative agent (the “
Administrative Agent ”) under the hereinafter
identified and defined Credit Agreement, and certain of the lenders
party to said Credit Agreement. All capitalized terms used herein
without definition shall have the same meanings as set forth in the
Credit Agreement.
W I T N E S S E T
H:
WHEREAS, the Borrower, the
Lenders and the Administrative Agent are currently party to that
certain Credit Agreement dated as of July 31, 2006 (as the
same may be amended, restated, supplemented or otherwise modified
from time to time, the “ Credit Agreement
”);
WHEREAS, the Borrower has
requested the Lenders and the Administrative Agent to waive certain
provisions of the Credit Agreement in certain respects;
WHEREAS, certain of the
Lenders and the Administrative Agent have agreed to waive certain
provisions of the Credit Agreement on the terms and conditions set
forth in Section 1 hereof.
NOW, THEREFORE, in
consideration of the foregoing premises, the terms and conditions
stated herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto,
such parties hereby agree as follows:
1. Waiver . The
Borrower has informed the Lenders of an internal review of its
historical stock option grants and related impact, if any, on its
financial performance and condition (the “ Options
Issue ”). The Borrower has also informed the Lenders that
a Default has occurred and is continuing as a result of the
Borrower’s failure to timely deliver to the Administrative
Agent and the Lenders the financial statements and related
documents required under Sections 5.01(b) and 5.01(c)
of the Credit Agreement for the second quarter of the
Borrower’s fiscal year ending January 31, 2007 (the
“ Reporting Default ”). In accordance with the
provisions of Section 9.02 of the Credit Agreement, the
Borrower has requested that, subject to the terms hereof, the
Required Lenders waive the hereinafter-defined Specified Defaults.
The Required Lenders hereby waive, solely during the Waiver Period
(as defined below), (x) the Reporting Default and (y) any
other Default that may have arisen by virtue of the Options Issue
from the making by the Borrower of the representations and
warranties in Sections 3.04 , 3.11 and 3.14 of
the Credit Agreement insofar as such Sections relate to the
Previous Financial Statements (as defined below) (the Reporting
Default and such other Defaults being collectively referred to
herein as the “ Specified Defaults ”). The
Required Lenders furthermore agree that, solely during the Waiver
Period and notwithstanding anything contained in Article II
and other applicable Sections of the Credit Agreement to the
contrary, (a) Section 4.02(a) of the Credit
Agreement shall not be deemed to apply, solely with respect to
matters arising as a result of the
Options Issue, to the representations
and warranties contained in Sections 3.04 , 3.11 and
3.14 of the Credit Agreement insofar as such Sections relate
to the Borrower’s financial statements as of and for the
fiscal year ended January 31, 2006 and as of and for the
fiscal quarter and portion of the fiscal year ended April 30,
2006 which have been delivered to the Lenders prior to the date
hereof (collectively, the “ Previous Financial
Statements ”) and which the Borrower is currently in the
process of investigating as disclosed to the Lenders or the
Reporting Default and (b) Section 4.02(b) of the
Credit Agreement shall not be deemed to apply to the Specified
Defaults. Notwithstanding anything contained herein to the
contrary, this Waiver shall remain in effect only during the period
(the “ Waiver Period ”) commencing on the date
hereof and expiring on the Waiver Expiration Date (it being
understood and agreed that it is an explicit condition to this
Waiver that the Reporting Default be cured by no later than the
Waiver Expiration Date and that, if the Reporting Default is not
cured on or before the Waiver Expiration Date, each Specified
Default shall be deemed to be (notwithstanding anything contained
in clause (e) of Article VII of the Credit Agreement to the
contrary) an Event of Default without the necessity of any notice
or lapse of time). As used herein, “ Waiver Expiration
Date ” means the earlier of (a) December 11,
2006, (b) the date of delivery to the Administrative Agent or
the Lenders of any modified or restated version of a Previous
Financial Statement which, in the reasonable opinion of the
Required Lenders, materially adversely deviates from the original
version thereof in a manner that negatively impacts the
creditworthiness of the Borrower and (c) the date of
occurrence of any Default or Event of Default other than the
Specified Defaults. Furthermore, the parties hereto agree that from
and after the date hereof until the earlier of the end of the
Waiver Period and the date of delivery to the Administrative Agent
and the Lenders of the financial statements and related documents
which are the subject of the Reporting Default, the Applicable Rate
shall be deemed to be based upon Category 2 in the definition of
Applicable Rate.
Pursuant to the provisions of
Section 9.02 of the Credit Agreement, except as set
forth herein, no failure or delay by the Ad
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