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Exhibit
10.1
EXECUTION
COPY
WAIVER NO. 4
THIS WAIVER NO. 4 (this
“ Waiver ”) is being executed and delivered as
of July 9, 2007, 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. 3 to the Credit Agreement, dated as of March 9, 2007
(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(a) , 5.01(b)
and 5.01(c) of the Credit Agreement for (i) the second,
third and fourth quarters of the Borrower’s fiscal year
ending January 31, 2007, (ii) the entire fiscal year
ending January 31, 2007 and (iii) the first quarter of
the Borrower’s fiscal year ending January 31, 2008, and
the Borrower expects to fail to timely deliver the financial
statements and related documents required under such sections for
the second quarter of the Borrower’s fiscal year ending
January 31, 2008 (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) October 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 deem
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