ex10-41_d12494


 
  EXHIBIT 10.41
  

 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 November 30, 1999 (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 November
  30, 1999 (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 November 30, 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 November 30, 1999
  (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:	$20,740,796.06
	Interest through
      Payoff Calculation Date:	$4,058.14
	Principal Balance of Lessor	 
	Contributions:	$4,248,114.85
	Lessor Yield through Payoff
      Calculation	 
	Date:	$949.19
	Total Through Payoff
      Calculation Date	$24,993,918.24
	 	 
	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 “Operative
  Agreement” and collectively the “Operative Agreements”), is hereby terminated
  subject to the provisions of Paragraph 4 below: 

  2



  
      a)     
  Participation Agreement, dated as of November 30, 1999, among Lessee,
  Deutsche Bank AG, New York Branch, Deutsche Bank AG, New York and/or Cayman
  Islands Branch and Arranger;

     b)
  Lease, dated as of November 30, 1999, between Agent Lessor and Lessee, as
  assigned to Agent and recorded in the real property records for Alameda County,
  California on December 2, 1999 as Instrument No. 1999433281; 

      c)
      Lease Supplement No. 1, dated as of November
  30, 1999 between Lessor and Lessee and recorded in the real property records
  of Alameda County, California on December 2, 1999 as Instrument No. 1999433282;
  

     d)
       Assignment of Leases and Rents, dated as
  of November 30, 1999, between Deutsche Bank AG, New York Branch and Agent and
  recorded in the real property records for Alameda County, California on December
  2, 1999 as Instrument No. 1999433283; 

     e)
       Assignment of Leases and Rents-Supplement,
  dated as of November 30, 1999 supplementing the Assignment of Leases and Rents,
  dated as of November 30, 1999, and recorded in the real property records in
  Alameda County, California on December 2, 1999 as Instrument No. 1999433284;
  

      f)
       Lessee’s Consent Declaration, dated
  as of November 30, 1999 by Wind River Systems, Inc. consenting to the Assignment
  of Leases and Rents dated as of November 30, 1999 and recorded in the real property
  records in Alameda County, California on December 2, 1999 as Instrument No.
  1999433285; 

      g)
      Credit Agreement, dated as of November 30, 1999,
  between Deutsche Bank AG, New York Branch, the several Lenders from time to
  time parties thereto and Agent; 

      h)
      Note in the principal amount of Twenty One Million
  Five Hundred Eighty Thousand Dollars ($21,580,000), dated November 30, 1999,
  by Deutsche Bank AG New York Branch for the benefit of Deutsche Bank AG New
  York and/or Cayman Islands Branch; 

      i)    
  Construction Agreement, dated as of November 30, 1999 between Agent Lessor
  and Lessee, as assigned to Agent; 

      j)
      Agency Agreement, dated as of November 30, 1999
  between Agent Lessor and Construction Agent; 

      k)
     Supplement to Agency Agreement, dated as of November
  30, 1999 between Agent Lessor and Construction Agent; 

      l)
      Assignment of Contracts, dated as of November
  30, 1999, between Deutsche Bank AG, New York Branch and Agent; 

      m)
    Consent, dated as of November 30, 1999 by Wind River Systems,
  Inc. consenting to the Assignment of Contracts dated as of November 30, 1999;
  

  3



  
      n)     
  Defeasance Deposit Agreement, dated as of November 30, 1999, between
  Lessee, Agent and Agent Lessor;

      o)    
  Control Agreement, dated as of November 30, 1999, among Lessee, Agent,
  Agent Lessor and Bank One Arizona, N.A.; 

      p)    
  Ground Lease, dated as of November 30, 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;
  

      q)
      Memorandum of Ground Lease, dated as of November
  30, 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 December 2, 1999 as Instrument No. 1999433280; 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______;
  

      r)
       Leasehold Construction Deed of Trust and Security
  Agreement, dated as of November 30, 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 December 2, 1999 in the real property records for Alameda County,
  California as Instrument No. 1999433286; and 

      s)
      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, Bank One Arizona, N.A., not in its individual
  capacity but solely as the securities intermediary of the Account under the
  Control Agreement, shall transfer to Lessee the Defeasance Deposit Collateral
  in accordance with instructions received from the Lessee and the Defeasance
  Deposit Agreement and the Control 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. 

 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 

  4



  
 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:  	 
	 

       
	 
	 BANK ONE TRUST COMPANY,
      N.A.  	 
	 successor in interest to  	 
	 BANK ONE ARIZONA,
      N.A.  	 
	 	 
	By:      /s/
        Norma Farrington	 
	     	
	 
	 	       Name:
      Norma Farrington

           Title:    Authorized Officer
       	 




  
 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	9934060595	12/01/1999	 	 	 
	CA SOS	9934060598	12/01/1999	 	 	 
	NY County	99PN65069	12/02/1999	 	 	 
	NY County	99PN65068	12/02/1999	 	 	 
	NY SOS	241824	12/01/1999	 	 	 
	NY SOS	241835	12/01/1999	 	 	 
	Alameda County

      Recorder	99432314	12/01/1999	 	 	 
	Alameda County

      Recorder 	99432315	12/01/1999