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Exhibit
10.8
EXECUTION
COPY
WAIVER NO. 2
THIS WAIVER NO. 2 (this
“ Waiver ”) is being executed and delivered as
of December 8, 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, the
Administrative Agent and certain Lenders entered into Waiver
No. 1 to the Credit Agreement, dated as of October 6,
2006 (the “ Prior Waiver ”);
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 and
expects to fail to timely deliver the financial statements and
related documents required under such sections for the third
quarter of the Borrower's fiscal year ending January 31, 2007
(collectively, 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 Borrower and the Required
Lenders furthermore agree that, notwithstanding anything contained
in the Prior Waiver to the contrary, (a)
Section 4.02(a) of the Credit Agreement shall be deemed
to apply, 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 and the Reporting Default
and (b) Section 4.02(b) of the Credit Agreement
shall be deemed to apply to the Specified Defaults. Notwithstanding
anything contained herein to the contrary, the waiver granted
hereunder 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) March 9, 2007, (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 (1) 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 and
(2) the Availability Period and the commitments of the Lenders
to make additional Loans and of the Issuing Bank to issue, amend,
renew or extend any Letters of Credit shall be deemed suspended,
the Lenders shall have no obligation to make a Loan
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