ex10-40_d12494


 
 EXHIBIT 10.40
   

 TERMINATION
  AGREEMENT  

      THIS
  TERMINATION AGREEMENT (“Termination Agreement”) is made and entered into
  as of the 15th day of April, 2003, by and between DEUTSCHE BANK AG, NEW YORK
  BRANCH, a duly licensed branch of Deutsche Bank AG, a German corporation,
  as Agent Lessor for the Lessors (the “Agent Lessor”), and as a Lessor
  (together with any permitted successors and assigns, each a “Lessor”
  and collectively the “Lessors”); and DEUTSCHE BANK AG, NEW YORK AND/OR
  CAYMAN ISLANDS BRANCH, as a Lender (together with the other financial institutions
  as may from time to time become lenders, the “Lenders”) and as Agent
  for the Lenders (in such capacity, the “Agent”) in favor of WIND RIVER
  SYSTEMS, INC., a Delaware corporation, as Lessee and Construction Agent
  (in its capacity as Lessee, the “Lessee” and in its capacity as Construction
  Agent, the “Construction Agent”). Capitalized terms used herein and not
  otherwise defined shall have the meanings assigned such terms in Annex A to
  the Participation Agreement (as defined below). 

 RECITALS:
  

  The Lessee, the Agent Lessor,
  the Lessor, the Lender, the Agent and Deutsche Bank Securities Inc.,
  (formerly known as Deutsche Banc Alex. Brown Inc.), as Arranger (the “Arranger”),
  are parties to that certain Participation Agreement, dated as of September 12,
  1997 (as amended, restated, supplemented or otherwise modified from time to
  time, the “Participation Agreement”); Agent Lessor and Lessee
  have entered in to that certain Lease, dated as of September 12, 1997 (as amended,
  restated, supplemented or otherwise modified from time to time, the “Lease”);
  Wind River Systems, Inc., as Landlord (the “Landlord”) and Deutsche Bank
  AG, New York Branch, as Tenant (the “Tenant”) have entered into that
  certain Ground Lease, dated as of March 31, 1999 (the “Ground Lease”);
  and Deutsche Bank AG, New York Branch, Borrower, Lenders and Agent are parties
  to that certain Credit Agreement, dated as of September 12, 1997 (the “Credit
  Agreement”), pursuant to which the Participants have provided certain lease
  facilities to the Lessee (collectively, the “Facility”). This Termination
  Agreement sets forth the amount required to be paid by the Lessee to the Agent
  (for distribution among the Agent and the Participants in accordance with the
  provisions of the Participation Agreement), calculated as of April 15, 2003
  (the “Payoff Calculation Date”), in order to pay off all outstanding
  obligations of the Lessee under the Facility and to simultaneously terminate
  the Ground Lease.

      The
  Lessee has exercised the Purchase Option under Section 20.1 of the Lease pursuant
  to a Purchase Notice delivered to Agent Lessor on January 30, 2003 (the “Purchase
  Notice”). In connection with the closing of the purchase of the Property
  pursuant to the Purchase Option, the parties desire to terminate those agreements
  listed in Section 3 including the Agent Lessor’s leasehold interest in the Land
  pursuant to the Ground Lease upon the satisfaction of the conditions set forth
  below. 

      NOW,
  THEREFORE, for good and valuable considerations, the receipt and sufficiency
  of which are hereby acknowledged, the parties hereby agree as follows: 



  
 Agreements
  

 1.     Purchase
  Calculation. The following is the amount of the Purchase Option Price required
  to be paid by the Lessee to the Agent (for distribution among the Agent and
  the Participants in accordance with the provisions of the Participation Agreement),
  calculated as of the Payoff Calculation Date, in order to pay off all outstanding
  obligations of the Lessee under the Facility and to simultaneously terminate
  the Ground Lease: 

	 	Principal Balance of
      the Notes:	     	$30,796,050.53
	 	Interest through Payoff
      Calculation Date:	 	$6,025.59
	          	Principal Balance
      of Lessor	 	 
	 	Contributions:	 	$1,620,844.76
	 	Lessor Yield through
      Payoff Calculation	 	 
	 	Date:	 	$317.13
	 	Total Through Payoff
      Calculation Date	 	$32,423,238.01
	 	 	 	 
	 	Date: April 15, 2003	 	 


If the payoff sum is not received
  on the Payoff Calculation Date interest on the Notes and yield on the Lessor
  Contributions shall accrue thereon at an annual rate equal to the ABR and shall
  continue to accrue as provided in the Participation Agreement from the Payoff
  Calculation Date through the date that the payoff sum is actually received by
  the Agent, together with any breakage charges applicable thereto. Any payment
  received by the Agent other than on a Business Day (or after 2:00 pm EST on
  any Business Day) shall be deemed not to have been received until the following
  Business Day. Wire instructions for delivery of the payoff sum are set forth
  below: 

	          	Bank:	 	Deutsche Bank Trust
      Company Americas
	 	ABA Routing #:	     	 
	 	Account Name:	 	Deutsche Bank NY Loan
      Operations
	 	Account #:	 	 
	 	Reference:	 	Wind River Lease
	 	Attention:	 	Claudia Zou


If payment will not be received
  by the Payoff Calculation Date, a new calculation of the Purchase Option Price
  should be requested from the Agent. 

 2.     
  Additional Fees and Disbursements. In addition to the payment described
  in Paragraph 1 above, Lessee agrees to pay the amounts identified on Schedule
  1 attached hereto, calculated as of the Payoff Calculation Date. Further, Lessee
  agrees to pay any fees or expenses arising subsequent to the execution of this
  Termination Agreement in connection with the administration of the Operative
  Agreements or in connection with Lessee’s exercise of the Purchase Option, including
  but not limited to additional Taxes, fees, out-of-pocket expenses and disbursements.
  

 3.      Termination
  of Operative Agreements. Upon Agent’s receipt of the payment required
  in  Paragraph 1 above, each
  of the following agreements, as amended from time to time (each an 

  2



  
 “Operative Agreement” and
  collectively the “Operative Agreements”), is hereby terminated subject to the
  provisions of Paragraph 4 below: 

      a)     
  Participation Agreement, dated as of September 12, 1997, among Lessee,
  Deutsche Bank AG, New York Branch, Deutsche Bank AG, New York and/or Cayman
  Islands Branch and Deutsche Morgan Grenfell, Inc.; 

      b)
      Lease, dated as of September 12, 1997, between
  Agent Lessor and Lessee, as assigned to Agent; 

      c)
      Lease Supplement No. 1, dated as of March 31,
  1999 between Lessor and Lessee and recorded in the real property records of
  Alameda County, California on April 2, 1999 as Instrument No.1999139731; 

      d)    
  Assignment of Leases and Rents, dated as of September 12, 1997, between
  Deutsche Bank AG, New York Branch and Agent; 

      e)
      Assignment of Leases and Rents-Supplement, dated
  as of March 31, 1999 supplementing the Assignment of Leases and Rents, dated
  as of September 12, 1997; 

      f)
       Lessee’s Consent, dated as of March
  18, 1999 by Wind River Systems, Inc. consenting to the Assignment of Leases
  and Rents dated as of September 12, 1997; 

      g)     Consent
  of Lessee to Supplement to Assignment of Lease, dated as of March 18, 1999
  by Wind River Systems, Inc. consenting to the Supplement to Assignment of Lease
  dated March 31, 1999; 

      h)
      Credit Agreement, dated as of September 12, 1997,
  between Deutsche Bank AG, New York Branch, the several Lenders from time to
  time parties thereto and Agent; 

      i)
       Note in the principal amount of Thirty-Three
  Million Two Hundred Fifty Thousand Dollars ($33,250,000), dated September 12,
  1997, by Deutsche Bank AG New York and/or Cayman Islands Branch for the benefit
  of Deutsche Bank AG New York Branch; 

      j)
       Construction Agreement, dated as of September
  12, 1997 between Agent Lessor and Lessee, as assigned to Agent; 

      k)
      Agency Agreement, dated as of September 12, 1997
  between Agent Lessor and Construction Agent; 

      l)
       Supplement to Agency Agreement, dated as
  of March 31, 1999 between Agent Lessor and Construction Agent; 

      m)
     Joinder of Lessee, dated as of September 12, 1997 between
  joining Wind River Systems, Inc. to the Deed of Trust; 

      n)
      Assignment of Contracts, dated as of September
  12, 1997, between Deutsche Bank AG, New York Branch and Agent; 

  3



  
      o)
       Consent, dated as of September 12, 1997
  by Wind River Systems, Inc. consenting to the Assignment of Contracts dated
  as of September 12, 1997; 

      p)
       Defeasance Deposit Agreement, dated as
  of September 12, 1997, between Lessee, Agent and Agent Lessor;

      q)
       Notice of Security Interest, dated as of
  September 12, 1997, between Wind River Systems, Inc. and Deutsche Bank AG, New
  York and/or Cayman Islands Branch, as Agent; 

      r)
       Ground Lease, dated as of March 31, 1999
  between Wind River Systems, Inc., as Landlord, and Deutsche Bank AG, New York
  Branch, as Tenant, as amended by that certain First Amendment to Ground Lease,
  dated as of April 15, 2003 

      s)
       Memorandum of Ground Lease, dated as of
  March 31, 1999 between Wind River Systems, Inc., as Landlord, and Deutsche Bank
  AG, New York Branch, as Tenant and recorded in the real property records for
  Alameda County, California on April 2, 1999 as Instrument No. 1999139729, as
  amended by that certain Amended and Restated Memorandum of Ground Lease,
  dated as of April 15, 2003 between Wind River Systems, Inc., as Landlord, and
  Deutsche Bank AG, New York Branch, as Tenant and recorded in the real property
  records for Alameda County, California on December 2, 1999 as Instrument No.2003______;
  

      t)
       Leasehold Construction Deed of Trust and Security
  Agreement, dated as of March 31, 1999, between Deutsche Bank AG, New York
  Branch, as Grantor, First American Title Guaranty Company, as Trustee and Deutsche
  Bank AG, New York and/or Cayman Islands Branch, as agent, Beneficiary and recorded
  on April 2, 1999 in the real property records for Alameda County, California
  as Instrument No.1999139730; and 

      u)
      UCC Financing Statements, each of the UCC Financing
  Statements listed on Exhibit A hereto. 

 4.   No Release
  of Indemnities. Neither Deutsche Bank AG, New York Branch nor Deutsche 
  Bank AG, New York and/or Cayman Islands
  Branch waives or releases the Lessee, its subsidiaries and related and affiliated
  corporations from any obligations, claims or demands arising from any indemnification
  or other provisions contained in any of the Operative Agreements which, by their
  respective terms, expressly survive the termination of the relevant Operative
  Agreement.

 5.   Release of Defeasance
  Deposit Collateral. Upon confirmation from Agent of the execution of this
  Termination Agreement and receipt of the Purchase Option Price, as calculated
  above, by Agent, Deutsche Bank AG, New York and/or Cayman Islands Branch, not
  in its individual capacity but solely as the Agent of the Account under the
  Defeasance Deposit Agreement, shall transfer to Lessee the Defeasance Deposit
  Collateral in accordance with instructions received from the Lessee and the
  Defeasance Deposit Agreement shall terminate as provided in Paragraph 3 and
  all liens, claims and encumbrances against such remaining Defeasance Deposit
  Collateral shall terminate as provided therein. 

  4



  
 6.   Execution of
  Additional Documents. Deutsche Bank AG, New York Branch and Deutsche Bank
  AG, New York and/or Cayman Islands Branch each agree, at Lessee’s sole
  cost and expense, to promptly execute such additional documents and instruments
  as are set forth on Schedule 2 hereto and such additional documents and instruments
  as are reasonably necessary or desirable to evidence the terminations set forth
  in Paragraph 3 above. 

 7.   Counterparts.
  This Termination Agreement may be signed in two or more counterparts.
  When at least one such counterpart
  has been signed by each party, this Termination Agreement shall be deemed to
  have been fully executed, each counterpart shall be deemed to be an original,
  and all counterparts shall be deemed to be one and the same agreement. 

 [REMAINDER OF PAGE
  INTENTIONALLY LEFT BLANK] 

  5



  
      IN
  WITNESS WHEREOF, the parties have caused this Termination Agreement to be executed
  by their respective duly authorized officers as of the day and year first above
  written. 

 

	 	WIND RIVER SYSTEMS, INC., as Lessee

      and Construction Agent
	 	 

       

	 	By:   
         /s/   Michael W. Zellner
	 	     	

	 	 	     Name: Michael W. Zellner

           Title:   Vice President of Finance and

                      Chief Financial Officer 
	 	 

       

	 	DEUTSCHE BANK AG, NEW YORK

      BRANCH, as Agent Lessor for the Lessors

      and as a Lessor 
	 	 
	 	By:      /s/
        John L.C. Ulrich 
	 	 	

	 	 	     Name: John L.C. Ulrich

           Title:    Vice President 
	 	 

       

	 	By:      /s/
        Gennaro R. D’Agostino
	 	 	

	 	 	     Name:
      Gennaro R. D’Agostino

           Title:    Vice President
	 	 

       

	 	 DEUTSCHE BANK
      AG, NEW YORK

      AND/OR CAYMAN ISLANDS

      BRANCH, as a Lender and as Agent for

      the Lenders 
	 	 

       

	 	By:     
      /s/   John L.C. Ulrich
	 	 	

	 	 	       Name:
      John L.C. Ulrich

           Title:    Vice President
	 	 

       

	 	By:     
      /s/   Gennaro R. D’Agostino
	 	 	

	 	 	     Name:
      Gennaro R. D’Agostino

           Title:    Vice President


 



  
 

	Agreed to and Accepted
      by: 	 
	 	 
	 DEUTSCHE BANK
      AG, NEW YORK

      AND/OR CAYMAN ISLANDS BRANCH 	 
	 	 
	By:     
      /s/   John L. C. Ulrich	 
	     	
	 
	 	     Name:
      John L.C. Ulrich

            Title:   Vice President	 
	 	 
	By:      /s/
        Gennaro R. D’Agostino	 
	 	
	 
	 	       Name:
      Gennaro R. D’Agostino

           Title:    Vice President 
    	 


 



  
 SCHEDULE 1 
  

 FEES AND DISBURSEMENTS 

 1.     McGuireWoods
  LLP, Counsel for the Agent           $_______________

          Wire
  instructions for delivery of fees to Counsel for the Agent are set forth below:
  

  

	BANK:	________________________________
	ABA:	________________________________
	Credit:	________________________________
	Account Number:	________________________________
	Reference:	________________________________
	McGuireWoods Accounting

            Contact:	________________________________
	Bank Contact:	________________________________


 

 2.      First
  American Title Insurance Company           $_______________

          Wire
  instructions for delivery of disbursements for First American Title Insurance
  Company

           as set forth below:
  

	BANK:	________________________________
	ABA:	________________________________
	Account Name:	________________________________
	Account Number:	________________________________
	Reference:	________________________________
	Escrow Officer:	________________________________


 



  
 SCHEDULE 2 
  

 TERMINATION DOCUMENTS
   

	1.     	Termination of
      Ground Lease and Amended and Restated Memorandum of Ground Lease;

        
	2.	Termination of
      Lease and Lease Supplement No. 1 and Termination of Assignment of Leases
      and Rents and Supplement to Assignment of Leases and Rents; and

        
	3.	Substitution of
      Trustee Deed of Full Reconveyance.

        




  
 EXHIBIT A 
  

 UCC Financing
  Statements 

	Jurisdiction	UCC-1

      Filing No.	Filing Date	UCC-3

      Filing
      No.	Filing Date	Document
	CA SOS	9728360532	10/9/1997	 	 	 
	CA SOS	9728360448	10/9/1997	 	 	 
	CA SOS	9728360388	10/9/1997	 	 	 
	CA SOS	97283C0448	10/9/1997	 	 	 
	NY County

      Recorder 	97PN49796	10/23/1997	 	 	 
	NY County

      Recorder 	97PN49797	10/23/1997