1
EXHIBIT 10.26
[COMERICA LOGO]
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of January 5, 2000 by and
between BROCADE COMMUNICATIONS, a Delaware corporation, with its principal place
of business at 0000 Xxxxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 ("Borrower"),
and COMERICA BANK-CALIFORNIA ("Bank"), a California banking corporation, with
its principal place of business at 000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxxxxxxxxx 00000.
RECITALS
A. Borrower wishes to obtain a standby letter of credit from Bank, and
Bank desires to issue such standby letter of credit. This Agreement sets forth
the terms on which Bank will issue the standby letter of credit to Borrower.
AGREEMENT
For good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as set forth below.
1. CERTAIN DEFINITIONS AND INDEX TO DEFINITIONS.
1.1 Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with GAAP consistently applied.
1.2 Definitions. Capitalized terms used but not otherwise
defined herein shall have the meaning given in the UCC. As used herein, and
unless otherwise defined herein, the following terms shall have the following
respective meanings except as the context shall otherwise require:
"Affiliate" means any Person, including any Person who is a
director, officer, partner or manager of such Person: (a) which directly or
indirectly controls, or is controlled by, or is under common control with, the
Borrower or a subsidiary; (b) which directly or indirectly beneficially owns or
holds five percent (5%) or more of any class of voting stock of the Borrower or
any subsidiary; or (c) five percent (5%) or more of the voting stock of which is
directly or indirectly beneficially owned or held by the Borrower or a
subsidiary. The term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
-1-
2
"Agreement" means this Credit Agreement as it may be amended,
supplemented or otherwise modified from time to time.
"Borrower's Account" means any general deposit account of
Borrower maintained with Bank.
"Current Assets" means all assets of Borrower which should, in
accordance with GAAP, be classified as current assets.
"Current Liabilities" means all liabilities of Borrower which
should, in accordance with GAAP, be classified as current liabilities, including
the principal balance of any revolving credit facility and the current portion
of long-term indebtedness required to be paid within one year, but excluding
warranty reserve and deferred revenue.
"Events of Default" -- See Section 10.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board that are applicable
to the circumstances as of the date of determination.
"Indebtedness" means all items of indebtedness which, in
accordance with GAAP would be deemed a liability as of the date as of which
indebtedness is to be determined and shall also include all indebtedness and
liabilities of others assumed or guaranteed or in respect of which such Borrower
is secondarily or contingently liable (other than by endorsement of instruments
in the course of collection) whether by reason of any agreement to acquire such
indebtedness, to supply or advance sums, or otherwise.
"Insolvency Proceeding" means any proceeding commenced by or
against any person or entity under any provision of the United States Bankruptcy
Code, as amended, or under any other bankruptcy or insolvency law, including
assignments for the benefit of creditors, formal or informal moratoria,
compositions, extension generally with its creditors, or proceedings seeking
reorganization, arrangement, or other relief.
"Investment" means any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
"Letter of Credit" means the standby letter of credit issued by
Bank for the account of Borrower, and for the benefit of Speiker Properties in
the amount of Six Million One Hundred Ninety Three Thousand Nine Hundred Four
and 00/100 Dollars ($6,193,904.00).
"Letter of Credit Agreement" means the Standby Letter of Credit
Application and Agreement dated the date hereof by and between Borrower and
Bank.
"Letter of Credit Documents" means this Agreement, the Letter of
Credit, and the Letter of Credit Agreement.
-2-
3
"Maturity Date" means September 30, 2002.
"Obligations" means all obligations (monetary or otherwise) of
Borrower to Bank arising under or in connection with the Letter of Credit
Documents and all other documents, instruments and agreements (including
financing statements and certificates) executed and delivered from time to time
in connection with the Letter of Credit Documents.
"Permitted Investment" means: (a) Investments existing on the
Statement Date; (b) marketable direct obligations issued or unconditionally
guaranteed by the United States of America or any agency or any State thereof
maturing within one (1) year from the date of acquisition thereof, (c)
commercial paper maturing no more than one (1) year from the date of creation
thereof and currently having the highest rating obtainable from either Standard
& Poor's Corporation or Xxxxx'x Investors Service, Inc., and (d) certificates of
deposit maturing no more than one (1) year from the date of investment therein
issued by Bank.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or governmental agency.
"Quick Ratio" means the ratio of Current Assets to Current
Liabilities.
"Tangible Effective Net Worth" means net worth as determined in
accordance with GAAP consistently applied, decreased by the following: patents,
licenses, goodwill, subscription lists, organization expenses, trade receivables
converted to notes, and money due from affiliates (including officers,
directors, subsidiaries and commonly held companies).
"UCC" means the Uniform Commercial Code as is in effect in the
State of California on the date of this Agreement.
2. INCORPORATION BY REFERENCE.
2.1 Letter of Credit Documents. The Letter of Credit Documents
are incorporated herein by this reference.
3. LETTER OF CREDIT.
3.1 Issuance of Letters of Credit. Subject to the terms and
conditions of the Letter of Credit Documents, Bank shall issue the Letter of
Credit.
3.2 Letter of Credit Fees. Borrower shall pay to Bank fees upon
the issuance of the Letter of Credit, and upon the payment by Bank of each draft
under the Letter of
-3-
4
Credit, in accordance with Bank's standard fees and charges in effect at the
time the Letter of Credit is issued or amended or any draft is paid. In
addition, Borrower shall prepay to Bank an annual fee with respect to the Letter
of Credit in an amount equal to one half of one percent (0.50%) per annum of the
original face amount of the Letter of Credit for the time period equal to the
date of issuance of the Letter of Credit to and including the Maturity Date.
3.3 Reimbursement by Borrower. Borrower shall immediately
reimburse Bank for all sums paid by Bank on account of the Letter of Credit in
accordance with the Letter of Credit Agreement. 3.4 Indemnity. Borrower shall
indemnify Bank as set forth in the Letter of Credit Agreement.
3.5 Payment of Drafts. Bank shall pay drafts as set forth in the
Letter of Credit Agreement.
4. PAYMENTS BY BORROWER.
4.1 General. All payments hereunder shall be made by Borrower to
Bank at Bank's offices set forth above, or at such other place as Bank may
designate in writing, in lawful money of the United States.
4.2 Debit of Borrower's Account. In order to satisfy any of the
Obligations, Bank is hereby authorized by Borrower to initiate electronic debit
or credit entries to Borrower's Account.
5. CONDITIONS PRECEDENT.
5.1 Issuance of the First Letter of Credit. As conditions
precedent to Bank's obligation to issue the Letter of Credit under this
Agreement, Borrower shall deliver, or cause to be delivered, to Bank:
5.1.1 A duly executed copy of this Agreement;
5.1.2 A duly executed copy of the Letter of Credit
Agreement;
5.1.3 Borrowing resolution, in form satisfactory to
Bank, evidencing that Borrower's officers have the appropriate authority to
execute this Agreement and the Letter of Credit Agreement;
5.1.4 the UCC-1 Financing Statement of Imperial Bank
shall have been terminated;
5.1.5 All representations and warranties of Borrower to
Bank set forth in the Letter of Credit Documents shall be accurate and complete
in all respects; and
-4-
5
5.1.6 There shall not exist an Event of Default or an
event which with the giving of notice of passage of time, or both, would be an
Event of Default.
6. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower represents and
warrants to Bank as follows:
6.1 Capacity. Borrower is duly organized, validly existing, and
in good standing under the laws of the State of Delaware, and is authorized to
do business in the jurisdictions in which its ownership of property or conduct
of business legally requires such authorization, and has full power, authority,
and legal right to own its properties and assets and to conduct its business as
presently conducted or proposed to be conducted.
6.2 Authority. Borrower has full power, authority and legal
right to execute and deliver, and to perform and observe the provisions of the
Letter of Credit Documents to be executed by Borrower. The execution, delivery
and performance of such Letter of Credit Documents have been duly authorized by
all necessary action, and when duly executed and delivered, will be legal,
valid, and binding obligations of Borrower enforceable in accordance with their
respective terms.
6.3 Compliance. The execution and delivery of the Letter of
Credit Documents and compliance with their terms will not violate any provision
of applicable law and will not result in a breach of any of the terms or
conditions of, or result in the imposition of any lien, charge, or encumbrance
upon any properties of Borrower pursuant to, or constitute a default (with due
notice or lapse o time or both) or result in an occurrence of an event pursuant
to which any holder or holders of Indebtedness may declare the same due and
payable under any indenture, agreement, order, judgment, or other instrument to
which Borrower is a party or by which Borrower or its property may be bound or
affected, or Borrower's charter documents or by-laws.
6.4 Financial Statements. Borrower has furnished Bank with its
balance sheet as of October 31, 1999 (the "Statement Date"), and related
statements of income and retained earnings for the twelve (12) month period
ending on the Statement Date. Such balance sheet and statements are correct and
complete and fairly present the financial condition and results of operations of
Borrower for such fiscal period.
6.5 Material Adverse Events. Since the Statement Date, neither
the business, properties, nor financial condition of Borrower has been
materially and adversely affected in any way.
6.6 Litigation. Except as heretofore disclosed by Borrower to
Bank in writing, there are no actions or proceedings (whether or not purportedly
on behalf of Borrower) pending, or to the knowledge of Borrower threatened,
against or affecting Borrower at law or in equity or before or by any Person,
which, if adversely determined, could have a material adverse
-5-
6
effect on the business, properties, or financial condition of Borrower or which
might materially affect the ability of Borrower to perform its obligations under
the Letter of Credit Documents. Borrower is not in default with respect to any
applicable laws or regulations which affect the operations or financial
condition of Borrower, nor is it in default with respect to any other writ,
injunction, demand, or decree of any court or any Person or in default under any
indenture, agreement, or other instrument to which Borrower is a party or by
which Borrower may be bound.
6.7 Taxes. Borrower has filed or caused to be filed all tax
returns which are required to be filed by it, pursuant to the laws, regulations,
or orders of each Person with taxing power over Borrower or the assets of
Borrower. Borrower has paid, or made provision for the payment of, all taxes
which have or may have become due pursuant to said returns or otherwise or
pursuant to an assessment received by Borrower, except such taxes, if any, as
are being contested in good faith and as to which adequate reserves have been
provided. The charges, accruals, and reserves in respect of income taxes on the
books of Borrower are adequate. Borrower knows of no proposed material tax
assessment against it and no extension of time for the assessment of federal,
state, or local taxes of Borrower is in effect or has been requested, except as
disclosed in the financial statements furnished to Bank.
7. AFFIRMATIVE COVENANTS OF BORROWER. Until payment in full of the
Obligations, Borrower agrees that: 7.1 Financial Statements, Reports and
Certifications. Borrower shall maintain a system of accounting established and
administered in accordance with sound business practices to permit preparation
of financial statements in conformity with GAAP. Borrower shall deliver to Bank
the financial statements and other reports described below:
7.1.1 Quarterly Reports. As soon as available and in any event
within forty-five (45) days after the end of each fiscal quarter, Borrower shall
deliver its Form 10-Q Quarterly Report filed pursuant to the Securities Exchange
Act of 1934, as amended from time to time, and any successor statute, and the
rules and regulations issued thereunder ("Exchange Act"), all as the same may be
in effect at the time.
7.1.2 Annual Report. As soon as available and in any
event within ninety (90) days after the end of each fiscal year, Borrower shall
deliver its Form 10-K Annual Report filed pursuant to the Exchange Act.
7.1.3 Other Information. Borrower shall, upon request,
furnish to Bank such information, statements, lists of property and accounts,
budgets, forecasts, or reports as Bank may reasonably request with respect to
the business, affairs, and financial condition of Borrower.
7.2 Deposit Accounts. Borrower shall maintain its principal
depository and operating accounts with Bank.
-6-
7
7.3 Expenses. Borrower shall pay all reasonable out-of-pocket
expenses of Bank including, but not limited to, attorneys' fees and costs,
incident to (a) preparation and negotiation of the Letter of Credit Documents
and any amendments, extensions and renewal thereof, (b) the protection of the
rights of Bank under the Letter of Credit Documents, or (c) defense by Bank
against all claims against Bank relating to any of its acts of commission or
omission directly or indirectly relating to the Letter of Credit Documents, all
whether by judicial proceedings or otherwise. Borrower shall also pay and save
Bank harmless from any and all liability with respect to any stamp or other
taxes (other than transfer or income taxes) which may be determined to be
payable in connection with the making of the Letter of Credit Documents.
7.4 Notice of Events. Borrower shall at once give Bank written
notice of any Event of Default or any event which with the giving or notice of
passage of time, or both, would become an Event of Default.
7.5 Performance of Other Covenants. Borrower shall observe and
perform all covenants and agreements in any of the Letter of Credit Documents
executed by Borrower.
8. FINANCIAL COVENANTS OF BORROWER. Borrower covenants and agrees that
until payment in full of all Obligations and termination of the Letter of
Credit, unless Bank shall otherwise give its prior written consent, Borrower
shall comply with all covenants in this Section 8.
8.1 Quick Ratio. Borrower shall maintain, as of the last day of
each fiscal quarter, a Quick Ratio of at least 2.00 to 1.0.
8.2 Tangible Effective Net Worth. Borrower shall maintain, as of
the last day of each fiscal quarter, a Tangible Effective Net Worth of not less
than Sixty Five Million and 00/100 Dollars ($65,000,000.00), provided however
that this amount shall be reset on an annual basis within one hundred twenty
(120) days of Borrower's fiscal year end.
8.3 Profitability. Borrower shall have a minimum net profit
greater than Zero and 00/100 Dollars ($0.00) on a rolling four quarter basis,
provided however that Bank shall exclude from its profitability calculation for
approved acquisitions, in process research and development charges and any other
non-cash acquisition related write-offs.
-7-
8
9. NEGATIVE COVENANTS OF THE BORROWER. Until payment in full of the
Obligations, without the prior written consent of Bank, Borrower shall not:
9.1 Liens. Create, incur, assume, or suffer to exist any lien
(including any encumbrance or security interest) of any kind upon any of its
assets, whether now owned or hereafter acquired, except: (a) liens disclosed in
Borrower's financial statements dated the Statement Date; or (b) liens for
purchase money obligations for Equipment; provided that: (i) the indebtedness
secured by any such lien does not exceed the purchase price of such Equipment;
and (ii) any such lien encumbers only the asset so purchased.
9.2 Negative Pledge. Enter into any agreement with any third
party which prohibits Borrower from granting Bank a security interest in any of
the assets of Borrower.
9.3 Dispositions. Convey, sell, lease, transfer or otherwise
dispose of (collectively, a "Transfer"), or permit any of its subsidiaries to
Transfer, all or any part of its assets, business or property, other than: (i)
Transfers of Inventory in the ordinary course of business; (ii) Transfers of
non-exclusive licenses and similar arrangements for the use of the property of
Borrower or its subsidiaries; or (iii) Transfers of worn-out or obsolete
Equipment.
9.4 Change in Business. Engage in any business, or permit any of
its subsidiaries to engage in any business, other than the businesses currently
engaged in by Borrower and any business substantially similar or related thereto
(or incidental thereto), or suffer a material change in Borrower's ownership.
Borrower will not, without thirty (30) days prior written notification to Bank,
relocate its chief executive office.
9.5 Change in Name. Change Borrower's name, or identity, or add
any new fictitious name. Borrower will give Lender at least thirty (30) days
advance written notice of any change of name or of any new trade name or
fictitious business name. Borrower's use of any trade name or fictitious
business name will be in compliance with all laws regarding the use of such
names.
9.6 Mergers or Acquisitions. Merge or consolidate, or permit any
of its subsidiaries to merge or consolidate, with or into any other business
organization, or acquire, or permit any of its subsidiaries to acquire, all or
substantially all of the capital stock or property of another Person, without
the prior written consent of Bank, further provided that Borrower remains the
surviving entity of any such merger or consolidation, Borrower's management
remain in their current positions, and no Event of Default results from such
merger or consolidation.
9.7 Distributions. Pay any dividends or make any other
distribution or payment on account of or in redemption, retirement or purchase
of any capital stock, provided that Borrower may repurchase its shares from
former employees, directors and agents in accordance with any repurchase
agreements so long as an Event of Default has not occurred or would exist after
giving effect of such repurchase.
-8-
9
9.8 Investments. Directly or indirectly acquire or own, or make
any Investment in or to any Person, or permit any of its subsidiaries so to do,
other than Permitted Investments.
9.9 Transactions with Affiliates. Directly or indirectly enter
into or permit to exist any material transaction with any Affiliate of Borrower
except for transactions that are in the ordinary course of Borrower's business,
upon fair and reasonable terms that are no less favorable to Borrower than would
be obtained in an arm's length transaction with a nonaffiliated Person.
10. EVENTS OF DEFAULT. One or more of the following events shall be an
"Event of Default"):
10.1 Payment Default. Borrower shall default in the due and
punctual payment of the Obligations or any part thereof, when the same become
due and payable, whether at maturity, upon acceleration, or otherwise;
10.2 Covenant Default. If Borrower fails to perform any
obligation hereunder or violates any of the covenants contained in this
Agreement, or fails or neglects to perform, keep, or observe any other material
term, provision, condition, covenant, or agreement contained in this Agreement,
in any of the Letter of Credit Documents, or in any other present or future
agreement between Borrower and Bank and as to any default under such other term,
provision, condition, covenant or agreement that can be cured, has failed to
cure such default within ten (10) business days after Borrower receives notice
thereof or any officer of Borrower becomes aware thereof; provided, however,
that if the default cannot by its nature be cured within the ten (10) day period
or cannot after diligent attempts by Borrower be cured within such ten (10) day
period, and such default is likely to be cured within a reasonable time, then
Borrower shall have an additional reasonable period (which shall not in any case
exceed thirty (30) days) to attempt to cure such default, and within such
reasonable time period the failure to have cured such default shall not be
deemed an Event of Default (provided that no Advances will be required to be
made during such cure period);
10.3 Material Adverse Change. If there occurs a material adverse
change in Borrower's business or financial condition, or if there is a material
impairment of the prospect of repayment of any portion of the Obligations;
10.4 Attachment. If any material portion of Borrower's assets is
attached, seized, subjected to a writ or distress warrant, or is levied upon, or
comes into the possession of any trustee, receiver or person acting in a similar
capacity and such attachment, seizure, writ or distress warrant or levy has not
been removed, discharged or rescinded within ten (10) business days, or if
Borrower is enjoined, restrained, or in any way prevented by court order from
continuing to conduct all or any material part of its business affairs, or if a
judgment or other claim becomes a lien or
-9-
10
encumbrance upon any material portion of Borrower's assets, or if a notice of
lien, levy, or assessment is filed of record with respect to any of Borrower's
assets by the United States Government, or any department, agency, or
instrumentality thereof, or by any state, county, municipal, or governmental
agency, and the same is not paid within ten (10) business days after Borrower
receives notice thereof, provided that none of the foregoing shall constitute an
Event of Default where such action or event is stayed or an adequate bond has
been posted pending a good faith contest by Borrower;
10.5 Insolvency. If Borrower becomes insolvent, or if an
Insolvency Proceeding is commenced by Borrower, or if an Insolvency Proceeding
is commenced against Borrower and is not dismissed or stayed within ten (10)
business days (provided that no Advances will be made prior to the dismissal of
such Insolvency Proceeding);
10.6 Other Agreements. If there is a default in any agreement to
which Borrower is a party with a third party or parties resulting in a right by
such third party or parties, whether or not exercised, to accelerate the
maturity of any Indebtedness in an amount in excess of One Million and 00/100
Dollars ($1,000,000) or that could have a Material Adverse Effect;
10.7 Judgments. If a judgment or judgments for the payment of
money in an amount, individually or in the aggregate, of at least Two Hundred
Fifty Thousand and 00/100 Dollars ($250,000) shall be rendered against Borrower
and shall remain unsatisfied and unstayed for a period of ten (10) business
days; or
10.8 Misrepresentations. If any material misrepresentation or
material misstatement exists now or hereafter in any warranty or representation
set forth herein or in any certificate delivered to Bank by any officer pursuant
to this Agreement or to induce Bank to enter into this Agreement or any other
Letter of Credit Document.
11. REMEDIES. Upon the occurrence of an Event of Default, at the option
of Bank, (a) Bank's obligations under this Agreement shall terminate and all
Obligations shall, without presentment, demand, protest, or notice of any kind,
all of which are hereby expressly waived, be forthwith due and payable, and Bank
may, immediately and without expiration of any period of grace, enforce payment
of all Obligations and exercise any and all other remedies granted to it at law,
in equity, or otherwise, including, without limitation, under the Letter of
Credit Documents, and (b) Borrower shall immediately pay to Bank, to be held by
Bank as cash collateral, an amount equal to the undrawn amount of all Letters of
Credit.
-10-
11
12. MISCELLANEOUS.
12.1 Entire Agreement. This Agreement, together with the Letter
of Credit Documents embodies the entire agreement and understanding among and
between the parties hereto, and supersedes all prior or contemporaneous
agreements and understandings between said parties, verbal or written, express
or implied, relating to the subject matter hereof. No promises of any kind have
been made by Bank or any third party to induce Borrower to execute this
Agreement. No course of dealing, course of performance or trade usage, and no
parol evidence of any nature, shall be used to supplement or modify any terms of
this Agreement.
12.2 No Waiver. No failure to exercise and no delay in
exercising any right, power, or remedy hereunder shall impair any right, power,
or remedy which Bank may have, nor shall any such delay be construed to be a
waiver of any of such rights, powers, or remedies, or any acquiescence in any
breach or default hereunder; nor shall any waiver by Bank of any breach or
default by Borrower hereunder be deemed a waiver of any default or breach
subsequently occurring. All rights and remedies granted to Bank hereunder shall
remain in full force and effect notwithstanding any single or partial exercise
of, or any discontinuance of action begun to enforce, any such right or remedy.
The rights and remedies specified herein are cumulative and not exclusive of
each other or of any rights or remedies which Bank would otherwise have. Any
waiver, permit, consent or approval by Bank of any breach or default hereunder
must be in writing and shall be effective only to the extent set forth in such
writing and only as to that specific instance.
12.3 Survival. All representations, warranties and agreements
herein contained on the part of Borrower shall survive the making of advances
hereunder and all such representations, warranties and agreements shall be
effective so long as the Obligations arising pursuant to the terms of this
Agreement remain unpaid or for such longer periods as may be expressly stated
therein.
12.4 Severability. In the event any one or more of the
provisions contained in this Agreement is held to be invalid, illegal or
unenforceable in any respect, then such provision shall be ineffective only to
the extent of such prohibition or invalidity, and the validity, legality, and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
12.5 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Borrower, Bank, and their respective successors
and assigns, provided, however, that Borrower may not transfer its rights under
this Agreement without the prior written consent of Bank.
12.6 Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
-11
12
12.7 Interpretation. This Agreement and all agreements relating
to the subject matter hereof are the product of negotiation and preparation by
and among each party and its respective attorneys, and shall be construed
accordingly. The parties waive the provisions of California Civil Code Section
1654.
12.8 Amendment and Waiver. Neither this Agreement nor any
provisions hereof may be changed, waived, discharged or terminated, nor may any
consent to the departure from the terms hereof be given, orally (even if
supported by new consideration), but only by an instrument in writing signed by
all parties to this Agreement. Any waiver or consent so given shall be effective
only in the specific instance and for the specific purpose for which given.
12.9 Headings. Section and paragraph headings and numbers have
been set forth for convenience only.
12.10 Venue. The parties agree that any suit, action or
proceeding arising out of the subject matter hereof, or the interpretation,
performance or breach of this Agreement, shall be instituted in any United
States District Court or any court of the State of California located in Santa
Xxxxx County.
12.11 JURY TRIAL WAIVER. IN RECOGNITION OF THE HIGHER COSTS AND
DELAY WHICH MAY RESULT FROM A JURY TRIAL, THE PARTIES HERETO WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING
HEREUNDER, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY
SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH
A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
12.12 Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
all signatures were upon the same instrument. Delivery of an executed
counterpart of the signature page to this Agreement by telefacsimile shall be
effective as delivery of a manually executed counterpart of this Agreement, and
any party delivering such an executed counterpart of the signature page to this
Agreement by telefacsimile to any other party shall thereafter also promptly
deliver a manually executed
-12-
13
counterpart of this Agreement to such other party, provided that the failure to
deliver such manually executed counterpart shall not affect the validity,
enforceability, or binding effect of this Agreement. 1.1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BROCADE COMMUNICATIONS
By: /s/ [Signature Illegible]
----------------------------------
Title: VP FINANCE -- CFO
-------------------------------
COMERICA BANK-CALIFORNIA
/s/ XXXX XXXX XXXX
-------------------------------------
Vice President
Xxxx Xxxx Xxxx
Vice President
-13-
