**Exhibit 10.1**

**EXECUTION COPY**

WAIVER NO. 5 

THIS WAIVER NO. 5 (this “Waiver”) is being executed and delivered as of October 9, 2007, by and among BEA Systems, Inc., a Delawarecorporation (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 lendersparty to said Credit Agreement. All capitalized terms used herein without definition shall have the same meanings as set forth in the Credit Agreement. 

WITNESSETH: 

WHEREAS, the Borrower, the Lenders and the Administrative Agent are currently party to thatcertain 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. 4 to the Credit Agreement, dated as of July 9, 2007(the “Prior Waiver”); 

WHEREAS, the Borrower has requested the Lenders and the Administrative Agent to waive certainprovisions of the Credit Agreement in certain respects; 

WHEREAS, certain of the Lenders and the Administrative Agent have agreed to waivecertain provisions of the Credit Agreement on the terms and conditions set forth in Section 1 hereof. 

NOW, THEREFORE, inconsideration 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 itsfinancial 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 AdministrativeAgent 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 fiscalyear ending January 31, 2007, (ii) the entire fiscal year ending January 31, 2007 and (iii) the first and second quarter of the Borrower’s fiscal year ending January 31, 2008, and the Borrower expects to fail to timelydeliver the financial statements and related documents required under such sections for the third quarter of the Borrower’s fiscal year ending January 31, 2008 (collectively, the “Reporting Default”). In accordance withthe 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 duringthe 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 theCredit 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 Borrowerand 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 aresult 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 thefiscal 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 FinancialStatements”) 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 theSpecified 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 WaiverExpiration 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 WaiverExpiration 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) January 9, 2008, (b) the date of delivery to the Administrative Agent or the Lenders of any modified or restated version of a Previous FinancialStatement 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 anyDefault 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 Agentand the Lenders of the financial statements and related documents which are the subject of the Reporting Default (other than with respect to the Borrower’s third quarter of its fiscal year ended January 31, 2008 if such financialstatements and related documents are not due at the time such Reporting Default is otherwise cured), the Applicable Rate shall be deemed to be based upon Category 2 in the definition of Applicable Rate and (2) the Availability Period and thecommitments 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 and the Issuing Bank shall have noobligation to issue, amend, renew or extend any Letter of Credit, in each case until the date of delivery to the Administrative Agent and the Lenders of (i) ratification and reaffirmation of the Previous Financial Statements or modified orrestated versions of the Previous Financial Statements which, in the reasonable opinion of the Required Lenders, do not materially adversely deviate from the original version thereof in a manner that negatively impacts the creditworthiness of theBorrower and (ii) the financial statements and related documents which are the subject of the Reporting Default (other than with respect to the Borrower’s third quarter of its fiscal year ended January 31, 2008 if such financialstatements and related documents are not due at the time such Reporting Default is otherwise cured) (it being understood that the foregoing shall not prohibit any conversion (from one Type to another Type) or continuation of any currentlyoutstanding Revolving Loan). 

 

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Pursuant to the provisions of Section 9.02 of the Credit Agreement, except as set forthherein, no failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power under the Credit Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partialexercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of theAdministrative Agent, the Issuing Bank and the Lenders under the Credit Agreement and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. All remedies contained in the LoanDocuments or by law as a result of the Specified Defaults are hereby reserved on behalf of the Administrative Agent and the Lenders following the Waiver Period. 

2. Conditions of Effectiveness. This Waiver shall be deemed to have become effective as of the date hereof, but such effectiveness shall be subject to the condition that the Administrative Agent shall havereceived executed counterparts of this Waiver duly executed and delivered by the Borrower and the Required Lenders. 

3. Representationand Warranties. The Borrower hereby represents and warrants that, other than in connection with the Reporting Default or, solely as a result of the Options Issue, Sections 3.04, 3.11 and 3.14 of the Credit Agreement insofaras such Sections relate to the Previous Financial Statements, (i) all of the representations and warranties of the Borrower set forth in the Credit Agreement are true and correct in all material respects on and as of the date hereof (except tothe extent such representations or warranties specifically relate to any earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date) and (ii) no Default hasoccurred or is continuing. 

4. No Implicit Waiver. Except as expressly set forth herein, (i) the execution, delivery andeffectiveness of this Waiver shall neither operate as a waiver of any rights, power or remedy of the Administrative Agent or the Lenders under the Credit Agreement or any other documents executed in connection with the Credit Agreement, norconstitute a waiver of any provision of the Credit Agreement nor any other document executed in connection therewith and (ii) the Credit Agreement shall remain in full force and effect in accordance with its original terms. Without limiting thegenerality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge ofsuch Default at the time. 

5. GOVERNING LAW. This Waiver No. 5 shall be construed in accordance with and governed by the law ofthe State of New York. 

[Signature Pages Follow] 

 

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IN WITNESS WHEREOF, this Waiver No. 5 has been duly executed as of the day and year first abovewritten. 

 
BEA SYSTEMS, INC.,as the BorrowerBy: /s/ Mark P. DentingerName: Mark P. DentingerTitle: 
Executive Vice President and

Chief Financial Officer

Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, individually as a Lender, as the Swingline Lender, as the Issuing Bank and as Administrative AgentBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

CITICORP USA, INC.,individually as a Lender and as Syndication AgentBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

BANK OF AMERICA, N.A.,individually as a Lender and as Co-Documentation AgentBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

COMERICA BANK,individually as a Lender and as Co-Documentation AgentBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

DEUTSCHE BANK AG NEW YORK BRANCH,individually as a Lender and as Co-Documentation AgentBy:  Name: Title: By:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

BNP PARIBAS,as a LenderBy:  Name: Title: By:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

SUMITOMO MITSUI BANKING CORPORATION,as a LenderBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

WELLS FARGO BANK, N.A.,as a LenderBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

HSBC BANK USA, NATIONAL ASSOCIATION,as a LenderBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

THE BANK OF NOVA SCOTIA,as a LenderBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

THE NORTHERN TRUST COMPANY,as a LenderBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

U.S. BANK NATIONAL ASSOCIATION,as a LenderBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement 

THE BANK OF NEW YORK,as a LenderBy:  Name: Title: 
Waiver No. 5 to 

BEA Systems, Inc. Credit Agreement