EXHIBIT 10.30
Amendment No. 1 to Real Estate Promissory Note
This Amendment No. 1 to the Real Estate Promissory Note (this
"Amendment") is made as of March 26, 2002, by and between Borland Software
Corporation, formerly known as Inprise Corporation ("Borland") and Xxxx Xxxxx
("Employee") and Gre Barre (collectively, the "Borrower"). Certain capitalized
terms not otherwise defined herein are defined in the Original Note.
WHEREAS, Borland and Borrower previously entered into a Real Estate
Promissory Note dated June 26, 2000 (the "Original Note") whereby the Borrower
promised to pay to Borland as the holder of the Note (the "Note Holder") the
unpaid and unforgiven Principal Amount of $1,000,000, together with all accrued,
unpaid and unforgiven interest, pursuant to the terms and conditions contained
in the Original Note;
WHEREAS, the parties wish to amend certain terms of the Original Note;
and
WHEREAS, pursuant to Section 22 of the Original Note, the Original Note
may not be modified except in a writing duly executed by Note Holder and
Borrower.
NOW THEREFORE, in consideration of these premises, the parties hereto,
intending to be legally bound, hereby covenant and agree as follows:
1. Amendment: Note Holder and Borrower agree to amend the Original Note as
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follows:
(a) Section 4 of the Original Note is hereby deleted in its entirety
and replaced with the following:
"Forgiveness of Indebtedness. Notwithstanding any of the
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foregoing provisions of this Note, the Note Holder shall forgive the
Principal Amount and accrued interest, then due and owing, in one lump
sum amount on May 18, 2005, if on such date all the following
conditions are met:
(i) Employee has, at all times since the date of this Note
remained in the full-time employ of Borland; provided, however, that in
the event that Employee's employment with Borland is terminated without
Cause (as defined below) prior to the Due Date, the amount forgiven by
Note Holder shall be pro rated to that amount representing the unpaid
Principal Amount, together with all accrued and unpaid interest, for
the period of time beginning from the date of the Original Note to the
Employee's termination date; and
(ii) this Note has not been either (A) declared by the Note
Holder to be immediately due and payable pursuant to its option to
accelerate or (B) accelerated automatically by its terms."
(b) Section 5 of the Original Note is hereby amended by deleting the
first sentence in its entirety and replacing it with the following
sentence:
"The unpaid and unforgiven Principal Amount from time to time shall
bear interest at the rate of four and one-half percent (4.5%) per annum
(the "Interest Rate"), and shall be computed on the basis of a 365 day
year."
(c) Section 6 of the Original Note is hereby deleted in its entirety and
replaced with the following:
"Acceleration. It is hereby expressly agreed that the entire
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outstanding Principal Amount and accrued but unpaid interest owing under
this Note shall become due and payable, at the option of the Note Holder,
(i) upon the happening of any default in the performance of Borrower's
obligation under the Deed of Trust, this Note, the First Deed of Trust (as
defined in the Deed of Trust) or any note secured thereby, or other Loan
Documents to which Borrower is a party, or upon the happening of an event
by which, under the terms of the Deed of Trust, Note, First Deed of Trust
or any note secured thereby, said principal sum may or shall become due
and payable; (ii) upon the voluntary termination of Employee's employment
with Borland for any reason; (iii) upon the termination of Employee's
employment with Borland for Cause (as defined below); (iv) upon the death
of Employee; or (v) if Borrower breaches any of the representations made
thereby which are contained in this Note. Notwithstanding the forgoing, in
the event that Employee's employment with Borland is terminated without
Cause, the amount accelerated and due and payable to the Note Holder shall
be pro rated to that amount representing the unpaid and unforgiven
Principal Amount, together with unpaid and unforgiven interest, for the
period of time beginning from the Employee's termination date through the
Due Date.
(d) Section 25 of the Original Note shall be amended by adding the
following sentence at the end of the paragraph:
"For the purposes of this Note, termination for "Cause" shall mean
a termination of Employee based entirely on or in substantial part upon
any of the following reasons: (i) Employee's engagement in an act of
theft, embezzlement, misappropriation of funds or property, or fraud
against, or with respect to the business of Borland, (ii) Employee's
breach of any provisions of Employee's employment agreement, Borland's
Employee Confidentiality Agreement or any other agreement between Borland
and Employee, and if such breach is capable of being cured, the failure by
Employee to cure such breach within thirty (30) days of written notice of
such breach; (iii) if Employee is convicted of a felony that materially
impairs Employee's performance of its duties to Borland; or (iv) as a
result of Employee's reckless or willful misconduct, Employee commits any
act that causes or knowingly fails to take reasonable or appropriate
action to prevent, any material injury to the financial condition or
business reputation of Borland."
2. Effective Date. The effective date of this Amendment shall be retroactive to
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May 18, 2001.
3. Counterparts. This Amendment may be executed by facsimile transmission and
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in any number of counterparts, each of which shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
4. Governing Law. This Amendment shall be governed by and interpreted in
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accordance with the laws of the State of California without regard to conflicts
of laws principles. The parties agree to submit to personal jurisdiction in
California and further agree that any cause of action arising under this
Amendment shall be brought in a court in Santa Xxxxx County, California.
5. Entire Agreement. This Amendment constitutes the entire understanding and
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agreement of the parties with respect to the subject matter of this Amendment,
and any and all prior agreements, understandings or representations, oral, or
written, with respect to the subject matter hereof are hereby terminated and
canceled in their entirety.
6. Original Note Continuance. Except as amended herein, all other terms and
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conditions of the Original Note shall remain in full force and effect and are
hereby ratified by the Note Holder and Borrower. Except as expressly stated
herein, no present or future rights, remedies, benefits or power belonging or
accruing to Note Holder and Borrower shall be affected, prejudiced, limited or
restricted hereby.
7. Inconsistency. In the event of any conflict between this Amendment and the
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Original Note, the terms of this Amendment shall govern.
IN WITNESS WHEREOF, duly authorized representatives of Note Holder and
Borrower, respectively, have executed this Amendment.
Borland Software Corporation
(formerly known as Inprise Corporation)
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior V.P. Corporate Services & XXX
Xxxx Barre
By: /s/ Xxxx Xxxxx
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Gre Barre
By: /s/ Gre Barre
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