<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL QUARTER ENDED SEPTEMBER 30, 1998, OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________ TO __________.
COMMISSION FILE NUMBER: 000-23193
___________
APPLIED MICRO CIRCUITS CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 94-2586591
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6290 SEQUENCE DRIVE
SAN DIEGO, CA 92121
(Address of principal executive offices)
Registrant's telephone number, including area code: (619) 450-9333
___________
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), during the preceding 12 months (or for
such shorter period that the Registrant was required to file such reports) and
(2) has been subject to such filing requirements for the past 90 days.
YES [x] NO [_]
As of September 30, 1998, 23,191,697 shares of the Registrant's Common Stock
were issued and outstanding.
<PAGE>
APPLIED MICRO CIRCUITS CORPORATION
INDEX
PAGE
----
Part I. FINANCIAL INFORMATION:
Item 1. a) Condensed Consolidated Balance Sheets at September
30, 1998 (unaudited) and March 31, 1998............... 1
b) Condensed Consolidated Statements of Income
(unaudited) for the three months ended and six months
ended September 30, 1998 and 1997...................... 2
c) Condensed Consolidated Statements of Cash Flows
(unaudited) for the six months ended September 30,
1998 and 1997......................................... 3
d) Notes to Condensed Consolidated Financial Statements
(unaudited)............................................ 4
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 6
Part II. OTHER INFORMATION
Item 1. Legal Proceedings......................................... 24
Item 2. Changes in Securities and Use of Proceeds................. 25
Item 3 Defaults upon Senior Securities........................... 25
Item 4. Submission of Matters to a Vote of Security Holders....... 25
Item 5. Other Information......................................... 26
Item 6. Exhibits and Reports on Form 8-K.......................... 26
Signatures............................................................. 27
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
APPLIED MICRO CIRCUITS CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
SEPTEMBER 30, MARCH 31,
1998 1998
------------- ---------
(UNAUDITED)
<S> <C> <C>
ASSETS
------
Current assets:
Cash and cash equivalents........................................................... $ 6,431 $ 6,460
Short-term investments - available-for-sale......................................... 60,330 61,436
Accounts receivable, net of allowance for doubtful accounts of $337 and $350
at September 30, 1998 (unaudited) and March 31, 1998, respectively................ 17,582 12,179
Inventories......................................................................... 9,450 8,185
Deferred income taxes............................................................... 3,282 3,882
Notes receivable from officer and employees......................................... 828 87
Other current assets................................................................ 2,144 2,297
-------- --------
Total current assets...................................................... 100,047 94,526
Property and equipment, net.............................................................. 21,141 17,218
Other assets............................................................................. 2,061 1,090
-------- --------
Total assets........................................................................... $123,249 $112,834
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
Current liabilities:
Accounts payable.................................................................... $ 4,282 $ 5,215
Accrued payroll and related expenses................................................ 4,053 5,057
Other accrued liabilities........................................................... 3,618 2,344
Deferred revenue.................................................................... 1,219 1,873
Current portion of long-term debt................................................... 681 567
Current portion of capital lease obligations........................................ 1,119 2,053
-------- --------
Total current liabilities................................................. 14,972 17,109
Long-term debt, less current portion..................................................... 2,853 2,736
Long-term capital lease obligations, less current portion................................ 952 1,355
Stockholders' equity:
Preferred Stock, $0.01 par value:
2,000,000 shares authorized, none issued and outstanding........................... - -
Common Stock, $0.01 par value:
Authorized shares 60,000,000
Issued and outstanding shares - 23,191,697 at September 30, 1998 (unaudited)
and 22,536,013 at March 31, 1998........................................ 232 225
Additional paid-in capital........................................................... 90,424 86,660
Deferred compensation, net........................................................... (392) (472)
Retained earnings.................................................................... 14,663 5,722
Notes receivable from stockholders................................................... (455) (501)
-------- --------
Total stockholders' equity................................................ 104,472 91,634
-------- --------
Total liabilities and stockholders' equity............................................. $123,249 $112,834
======== ========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
1
<PAGE>
APPLIED MICRO CIRCUITS CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(in thousands, except per share data)
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ -----------------
1998 1997 1998 1997
-------- ------- ------- -------
<S> <C> <C> <C> <C>
Net revenues.................................................... $25,096 $18,155 $48,783 $35,208
Cost of revenues................................................ 9,347 8,378 18,746 16,534
------- ------- ------- -------
Gross profit.................................................... 15,749 9,777 30,037 18,674
Operating expenses:
Research and development..................................... 4,873 3,477 9,529 6,002
Selling, general and administrative.......................... 4,086 3,391 8,182 6,730
------- ------- ------- -------
Total operating expenses................................... 8,959 6,868 17,711 12,732
------- ------- ------- -------
Operating income................................................ 6,790 2,909 12,326 5,942
Interest income, net............................................ 832 85 1,643 151
------- ------- ------- -------
Income before income taxes...................................... 7,622 2,994 13,969 6,093
Provision for income taxes...................................... 2,743 78 5,028 159
------- ------- ------- -------
Net income...................................................... $ 4,879 $ 2,916 $ 8,941 $ 5,934
======= ======= ======= =======
Basic earnings per share:
Earnings per share........................................... $0.22 $0.55 $0.40 $1.14
======= ======= ======= =======
Shares used in calculating basic earnings per share.......... 22,497 5,338 22,277 5,185
======= ======= ======= =======
Diluted earnings per share:
Earnings per share........................................... $0.20 $0.16 $0.36 $0.32
======= ======= ======= =======
Shares used in calculating diluted earnings per share........ 24,604 18,594 24,538 18,768
======= ======= ======= =======
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
2
<PAGE>
APPLIED MICRO CIRCUITS CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(in thousands)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
SEPTEMBER 30,
--------------------
1998 1997
--------- --------
<S> <C> <C>
Operating Activities
Net income........................................................................................ $ 8,941 $ 5,934
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation and amortization............................................................... 3,311 2,731
Write-offs of inventories................................................................... - 598
Amortization of deferred compensation....................................................... 80 47
Changes in assets and liabilities:
Accounts receivable..................................................................... (5,403) (1,391)
Inventories............................................................................. (1,265) (1,029)
Other current assets.................................................................... 153 (163)
Accounts payable........................................................................ (933) 2,302
Accrued payroll and other accrued liabilities........................................... 2,321 (1,115)
Deferred income taxes................................................................... 600 (1,096)
Deferred revenue........................................................................ (654) 123
-------- -------
Net cash provided by operating activities........................................... 7,151 6,941
Investing Activities
Proceeds from sales and maturities of short-term investments....................................... 93,046 6,463
Purchase of short-term investments................................................................. (91,940) (7,715)
Payments on notes receivable from officer and employees............................................ 235 (123)
Purchase of property and equipment and other assets................................................ (9,181) (4,008)
-------- -------
Net cash used for investing activities.............................................. (7,840) (5,383)
Financing Activities
Proceeds from issuance of common stock, net........................................................ 1,720 259
Repurchase of preferred stock...................................................................... - (3,877)
Payments on notes receivable from stockholders..................................................... 46 12
Payments on capital lease obligations.............................................................. (1,174) (1,362)
Proceeds from long-term debt....................................................................... 533 -
Payments on long-term debt......................................................................... (465) (37)
-------- -------
Net cash provided by (used for) financing activities................................ 660 (5,005)
-------- -------
Net decrease in cash and cash equivalents.......................................... (29) (3,447)
Cash and cash equivalents at beginning of period.......................................................... 6,460 5,488
-------- -------
Cash and cash equivalents at end of period................................................................ $ 6,431 $ 2,041
======== =======
Supplemental disclosure of cash flow information:
Cash paid for:
Interest....................................................................................... $ 242 $ 261
Income taxes................................................................................... $ 1,104 $ 1,700
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
3
<PAGE>
APPLIED MICRO CIRCUITS CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
INTERIM FINANCIAL INFORMATION (UNAUDITED)
The accompanying unaudited condensed financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. The accompanying financial statements reflect all
adjustments (consisting of normal recurring accruals) which are, in the opinion
of management, considered necessary for a fair presentation of the results for
the interim periods presented. Interim results are not necessarily indicative of
results for a full year. The Company has experienced significant quarterly
fluctuations in operating results and it expects that these fluctuations in
sales, expenses and net income or losses will continue.
The financial statements and related disclosures have been prepared with the
presumption that users of the interim financial information have read or have
access to the audited financial statements for the preceding fiscal year.
Accordingly, these financial statements should be read in conjunction with the
audited financial statements and the related notes thereto contained in the
Company's Annual Report on Form 10-K filed with the Securities and Exchange
Commission for the year ended March 31, 1998.
EARNINGS PER SHARE
In February 1997, the Financial Accounting Standards Board issued SFAS 128.
"Earnings per Share," which supersedes APB Opinion No. 15. SFAS 128 replaces the
presentation of primary earnings per share (EPS) with "Basic EPS" which includes
no dilution and is based on weighted-average common shares outstanding for the
period. Companies with complex capital structures, including AMCC, are also
required to present "Diluted EPS" that reflects the potential dilution of
securities such as employee stock options and warrants to purchase common stock.
SFAS 128 is effective for financial statements issued for periods ending after
December 15, 1997. On February 3, 1998, the SEC issued Staff Accounting Bulletin
(SAB) No. 98 which revised the previous instructions for determining the
dilutive effects in earnings per share computations of common stock and common
stock equivalents issued at prices below the Company's initial public offering
(the "IPO") price prior to the effectiveness of the IPO.
4
<PAGE>
The reconciliation of shares used to calculate basic and diluted earnings
per share consists of the following (in thousands):
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
--------------------------- ----------------------------
1998 1997 1998 1997
------------ ------------ ------------ -------------
<S> <C> <C> <C> <C>
Shares used in Basic Earnings Per Share
Computations - Weighted average common
shares outstanding 22,497 5,338 22,277 5,185
Effect of conversion of preferred stock from
date of issuance - 10,728 - 11,660
Net effect of dilutive common share
equivalents based on the treasury stock method 2,107 2,528 2,261 1,923
------ ------ ------ ------
Shares used in diluted earnings per share
computations 24,604 18,594 24,538 18,768
====== ====== ====== ======
</TABLE>
NEW ACCOUNTING STANDARDS
On April 1, 1998 the Company adopted, the Statement of Financial Accounting
Standards (SFAS) No. 130, Reporting Comprehensive Income, and SFAS No. 131,
Segment Information. SFAS No. 130 requires that all components of comprehensive
income, including net income, be reported in the financial statements in the
period in which they are recognized. Comprehensive income is defined as the
change in equity during a period from transactions and other events and
circumstances from non-owner sources. Comprehensive income for the six months
ended September 30, 1998 and 1997 did not differ from net income for the same
periods. SFAS No. 131 amends the requirements for public enterprises to report
financial and descriptive information about its reportable operating segments.
Operating segments, as defined in SFAS No. 131, are components of an enterprise
for which separate financial information is available and is evaluated regularly
by the Company in deciding how to allocate resources and in assessing
performance. The Company believes it operates in one business and operating
segment. The adoption of SFAS No. 131 did not have a material impact on the
Company's operations or financial position.
2. CERTAIN FINANCIAL STATEMENT INFORMATION
<TABLE>
<CAPTION>
SEPTEMBER 30, MARCH 31,
1998 1998
------------- ---------
<S> <C> <C>
Inventories (in thousands):
Raw materials $1,273 $1,207
Work in process 6,300 5,161
Finished goods 1,877 1,817
------ ------
$9,450 $8,185
====== ======
</TABLE>
5
<PAGE>
3. RIGHT TO PURCHASE LAND
In July 1998 the Company acquired the right to purchase, in the form of a
ground lease, a parcel of land as a site for its new wafer fabrication facility.
This parcel of land is located approximately one quarter mile from the Company's
headquarters in San Diego, California. The Company made payments of $0.9
million related to this transaction in July 1998. The lease provides the Company
with the option, subject to certain conditions, to acquire the land for
additional payments of approximately $3.8 million through May 31, 1999.
However, if certain conditions are met the landlord can require the Company to
purchase the land by May 31, 1999. This lease may not be extended beyond May
31, 1999.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Consolidated
Financial Statements and the notes thereto and with Management's Discussion and
Analysis of Financial Condition and Results of Operations that are included in
the Annual Report on Form 10-K for the year ended March 31, 1998 for Applied
Micro Circuits Corporation (the "Company" or "AMCC"). This quarterly report on
Form 10-Q, and in particular Management's Discussion and Analysis of Financial
Condition and Results of Operations, contains forward-looking statements
regarding future events or the future performance of the Company that involve
certain risks and uncertainties including those discussed in "Factors that May
Affect Future Results" below. Actual events or the actual future results of the
Company may differ materially from any forward-looking statements due to such
risks and uncertainties. Readers are cautioned not to place undue reliance on
these forward-looking statements, which reflect management's analysis only as of
the date hereof. The Company assumes no obligation to update these forward-
looking statements to reflect actual results or changes in factors or
assumptions affecting such forward-looking assumptions.
OVERVIEW
AMCC designs, develops, manufactures and markets high-performance, high-
bandwidth silicon solutions for the world's communications infrastructure. The
Company tailors solutions to customer and market requirements by using a
combination of high-frequency, mixed-signal design expertise, system-level
knowledge and multiple silicon process technologies. AMCC believes that its
internal bipolar and BiCMOS processes, complemented by advanced CMOS and planned
silicon germanium BiCMOS processes from external foundries, enable the Company
to offer high-performance, high-speed solutions optimized for specific
applications and customer requirements. The Company further believes that its
products provide significant cost, power, performance and reliability advantages
for systems OEMs in addition to accelerating time to market. The Company also
provides products for the automated test equipment ("ATE"), high-speed computing
and military markets.
In fiscal 1997, the Company substantially reorganized its management team
and increased its focus on becoming the leading supplier of high-performance,
high-bandwidth connectivity integrated circuits ("ICs") for the world's
communications infrastructure. Accordingly, the Company accelerated the pace of
development of new products for high-performance telecommunications and data
communications markets. Following the reorganization of the Company's management
team in fiscal 1997 and its renewed focus on application specific standard
products ("ASSPs") for the telecommunications and data communications markets,
the Company returned to profitability after two years of incurring net losses.
The Company's revenues have increased in each of the last ten fiscal quarters.
In addition, as a result primarily of the $30.5 million of net income generated
in fiscal 1997, fiscal 1998 and the first half of fiscal 1999, the Company
transitioned from an accumulated deficit of $15.4 million at March 31, 1996 to
retained earnings of $14.7 million at September 30, 1998.
6
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth certain consolidated statement of operations
data as a percentage of revenues for the periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------------------- -------------------------
1998 1997 1998 1997
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Net revenues................................................ 100.0% 100.0% 100.0% 100.0%
Cost of revenues............................................ 37.2% 46.1% 38.4% 47.0%
----- ----- ----- -----
Gross profit................................................ 62.8% 53.9% 61.6% 53.0%
Operating expenses:
Research and development.................................. 19.4% 19.2% 19.5% 17.0%
Selling, general and administrative....................... 16.3% 18.7% 16.8% 19.1%
----- ----- ----- -----
Total operating expenses............................... 35.7% 37.9% 36.3% 36.1%
----- ----- ----- -----
Operating income............................................ 27.1% 16.0% 25.3% 16.9%
Net interest income......................................... 3.3% 0.5% 3.3% 0.4%
----- ----- ----- -----
Income before provisions for income taxes................... 30.4% 16.5% 28.6% 17.3%
Provision for income taxes.................................. 11.0% .4% 10.3% .4%
----- ----- ----- -----
Net income.................................................. 19.4% 16.1% 18.3% 16.9%
===== ===== ===== =====
</TABLE>
Net Revenues. Net revenues for the three months and six months ended
September 30, 1998 were approximately $25.1 million and $48.8 million
representing increases of 38% and 39%, respectively, over net revenues of $18.2
million and $35.2 million for the three months and six months ended September
30, 1997, respectively. Revenues from sales of communications products increased
from 45% and 46% of net revenues for the three months and six months ended
September 30, 1997, respectively, to 51% of net revenues for both the three
months and six months ended September 30, 1998, reflecting unit growth in
shipments of existing products, as well as the introduction of new products for
these markets. Revenues from sales of products to other markets, consisting of
the ATE, high-speed computing and military markets, decreased from 55% and 54%
of net revenues during the three months and six months ended September 30, 1997,
respectively, to 49% of net revenues for both the three months and six months
ended September 30, 1998, although aggregate revenues from sales to these other
markets increased in absolute dollars. The increase in revenues in absolute
dollars attributable to these other markets was primarily due to $2.9 million of
shipments in the three months ended September 30, 1998 relating to the partial
fulfillment of an end-of-life order from Raytheon Systems Co. See "--Backlog"
and "--Factors That May Affect Future Results-- Fluctuations in Operating
Results" and "-- Customer Concentration." Sales to Nortel accounted for 16% and
17% of net revenues for the three months and six months ended September 30,
1998, respectively, as compared to 18% and 19% for the three months and six
months ended September 30, 1997, respectively. Sales to Raytheon Systems Co.
accounted for 18% and 12% of net revenues for the three months and six months
ended September 30, 1998, respectively, and were less than 10% of revenues in
previous periods. Sales to Insight Electronics, Inc., the Company's domestic
distributor, accounted for 13% and 11% of net revenues in the three months and
six months ended September 30, 1998, respectively. Sales outside of North
America accounted for 26% and 27% of net revenues for the three months and six
months ended September 30, 1998, respectively, as compared to 25% for both the
three months and six months ended September 30, 1997. Although less than eight
percent of the Company's revenues were attributable to sales in Asia during the
six months ended September 30, 1998, the recent economic instability in certain
Asian countries could adversely affect the Company's business, financial
condition and operating results, particularly to the extent that this
instability impacts the sales of products manufactured by the Company's
customers. See "-- Factors That May Affect Future Results-- International
Sales."
Gross Margin. Gross margin (gross profit as a percentage of net revenues)
was 62.8% and 61.6% for the three months and six months ended September 30,
1998, respectively, as compared to 53.9% and 53.0% for the three months and six
months ended September 30, 1997, respectively. The increase in gross margin
resulted from increased utilization of the Company's wafer fabrication facility,
as well as cost reductions of approximately $600,000 and $1 million for the
three months and six months ended September 30, 1998, respectively, on purchased
parts, direct materials and services. The Company's gross margin is primarily
impacted by factory utilization, wafer yields, product mix and the Company's
timing of depreciation expense and other costs associated with expanding its
manufacturing capacity. Although AMCC does not expect its gross margin to
continue to increase at the rates reflected above, its strategy is to maximize
factory utilization whenever possible, maintain or
7
<PAGE>
improve its manufacturing yields, and focus on the development and sales of
high-performance products that can have higher gross margins. There can be no
assurance, however, that the Company will be successful in achieving these
objectives or that the trend of increasing gross margins will continue. In
addition, these factors can vary significantly from quarter to quarter, which
would likely result in fluctuations in quarterly gross margin and net income.
See "Factors That May Affect Future Results--Fluctuations in Operating Results."
Research and Development. Research and development ("R&D") expenses
increased to approximately $4.9 million, or 19.4% of net revenues, for the three
months ended September 30, 1998, from approximately $3.5 million, or 19.2% of
net revenues, for the three months ended September 30, 1997, and increased to
approximately $9.5 million, or 19.5% of net revenues, for the six months ended
September 30, 1998 from approximately $6.0 million, or 17.0% of net revenues for
the six months ended September 30, 1997. The increases in R&D expenses for both
the three months and six months ended September 30, 1998 were due to accelerated
new product and process development efforts including increases in personnel
costs of $600,000 and $1.4 million, respectively, and increases in prototyping
and outside contractor costs of $1.0 million and $2.3 million, respectively
which increases were partially offset by decreases in certain other expenses.
The Company believes that a continued commitment to R&D is vital to maintain a
leadership position with innovative communications products. Accordingly, the
Company expects R&D expenses to increase in absolute dollars in the future.
Currently, R&D expenses are primarily focused on the development of products and
processes for the telecommunications and data communications markets, and the
Company expects to continue this focus.
Selling, General and Administrative. Selling, general and administrative
("SG&A") expenses were approximately $4.1 million, or 16.3% of net revenues, for
the three months ended September 30, 1998, as compared to approximately $3.4
million, or 18.7% of net revenues, for the three months ended September 30, 1997
and were approximately $8.2 million, or 16.8% of net revenues, for the six
months ended September 30, 1998, as compared to approximately $6.7 million, or
19.1% of net revenues, for the six months ended September 30, 1997. The increase
in SG&A expenses in absolute dollars for the three months and six months ended
September 30, 1998, primarily reflected increases of $500,000 and $900,000,
respectively, in personnel costs, increases of $100,000 and $200,000,
respectively, in product promotion expenses, and an increase of $200,000 in
commissions earned by third-party sales representatives in both the three months
and six months ended September 30, 1998. The decreases in SG&A expenses as a
percentage of net revenues in the three months and six months ended September
30, 1998 were a result of net revenues increasing more rapidly than SG&A
expenses. The Company expects SG&A expenses to increase in the future due to
additional staffing in its sales and marketing departments, due to increased
spending on information technology and due to increased product promotion
expenses.
Operating Margin. The Company's operating margin increased to 27.1% and
25.3% of net revenues for the three months and six months ended September 30,
1998, respectively, compared to 16.0% and 16.9% for the three months and six
months ended September 30, 1997, respectively, principally as a result of the
increase in gross margin and the decrease in SG&A expenses as a percentage of
net revenues, offset partially by increases in R&D expense as a percentage of
net revenues.
Net Interest Income. Net interest income increased to $832,000 for the
three months ended September 30, 1998 from $85,000 for the three months ended
September 30, 1997 and increased to $1.6 million for the six months ended
September 30, 1998 from $151,000 for the six months ended September 30, 1997.
These increases were due principally to higher interest income from larger cash
and short-term investment balances generated by the proceeds from the Company's
public offerings completed in the second half of the fiscal year ended March 31,
1998.
Income Taxes. The Company's estimated annual effective tax rate used for
the six months ended September 30, 1998 was 36%, compared to an effective tax
rate of 2.6% for the six months ended September 30, 1997. This increase in the
tax rate was to due to the Company's expectation that its effective tax rate
will approximate statutory rates in fiscal 1999. Fiscal 1998's effective tax
rate was decreased from statutory rates due to the reduction of a valuation
allowance recorded against deferred tax assets for net operating loss
carryforwards and credits.
8
<PAGE>
Deferred Compensation. In connection with the grant of certain stock
options to employees during the six months ended September 30, 1997, the Company
recorded aggregate deferred compensation of $599,000, representing the
difference between the fair value of the Common Stock at the date of grant for
accounting purposes and the option exercise price of such options. Such amount
is presented as a reduction of stockholders' equity and amortized ratably over
the vesting period of the applicable options. Amortization of deferred
compensation recorded for the six months ended September 30, 1998 was $80,000.
The Company currently expects to record amortization of deferred compensation
with respect to these option grants of approximately $159,000, $159,000,
$129,000 and $25,000 during the fiscal years ended March 31, 1999, 2000, 2001
and 2002, respectively.
Backlog. The Company's sales are made primarily pursuant to standard
purchase orders for delivery of products. Quantities of the Company's products
to be delivered and delivery schedules are frequently revised to reflect changes
in customer needs, and customer orders can be canceled or rescheduled without
significant penalty to the customer. For these reasons, the Company's backlog as
of any particular date is not representative of actual sales for any succeeding
period, and the Company therefore believes that backlog is not a good indicator
of future revenue. The Company's backlog for products requested to be shipped
and nonrecurring engineering services to be completed in the next six months was
$40.0 million on September 30, 1998, compared to $24.2 million on September 30,
1997. Included in backlog at September 30, 1998 is the $16.2 million balance of
an order received during the six months ended September 30, 1998 from Raytheon
Systems Co. related to a end-of-life buy for integrated circuits used in its
high speed radar systems. See "Factors That May Affect Future Results--
Fluctuations in Operating Results."
Recently Adopted Accounting Standards. In April 1998, the Company adopted
Statement of Financial Accounting Standards (SFAS) No. 130, "Reporting
Comprehensive Income" and SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information". The adoption of these standards did not
effect the operations or financial position of the Company at September 30, 1998
or for the three months and six months then ended.
Year 2000. As a semiconductor manufacturer with its own wafer fabrication
facility, the Company is dependent on computer systems and manufacturing
equipment with embedded hardware or software to conduct its business. The
Company has developed and is currently executing a risk-based plan designed to
make its computer systems, applications, computer and manufacturing equipment
and facilities Year 2000 ready. The plan covers five stages including (i)
inventory, (ii) assessment, (iii) remediation, (iv) testing, and (v) contingency
planning. As of September 30, 1998, the Company is in the process of performing
the inventory and assessment stages and expects to complete these stages in
January 1999. The Company will primarily utilize internal resources to
reprogram, or replace where necessary, and test the software for Year 2000
modifications. The remediation, testing and contingency planning stages are
targeted to be completed in September 1999.
The Company is initiating communications with its critical external
suppliers to determine the extent to which the Company may be vulnerable to such
parties' failure to resolve their own Year 2000 issues. Where practicable, the
Company will assess and attempt to mitigate its risks with respect to the
failure of these entities to be Year 2000 ready. The effect, if any, on the
Company's results of operations from the failure of such parties to be Year 2000
ready, is not reasonably estimable.
To date, the Company has incurred and expensed approximately $150,000
related to the Year 2000 project and expects to incur an additional $750,000 on
completing the Year 2000 project. Approximately one-half of the costs
associated with the Year 2000 project are expected to relate to internal
resources that have been reallocated from other projects, with the balance of
costs reflecting incremental spending for equipment and software upgrades. The
costs of the Year 2000 Project are expected to be funded through operating cash
flows with the cost of internal resources expensed as incurred and the cost of
equipment and software upgrades capitalized or expensed in accordance with the
Company's policy on property and equipment.
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The costs of the project and the date on which the Company plans to
complete the Year 2000 modifications are based on management's best estimates,
which were derived utilizing numerous assumptions of future events including the
continued availability of certain resources, third party modification plans and
other factors. However, there can be no guarantee that these estimates will be
achieved and actual results could differ materially from those plans. Specific
factors that might cause such material differences include, but are not limited
to, the availability and cost of personnel trained in this area, the ability to
locate and correct all relevant computer codes, the ability to identify and
correct equipment with embedded hardware or software and similar uncertainties.
See "--Factors That May Affect Future Results--Year 2000".
Liquidity and Capital Resources
The Company's principal source of liquidity as of September 30, 1998
consisted of $66.8 million in cash, cash equivalents and short-term investments.
Working capital as of September 30, 1998 was $85.1 million, compared to $77.4
million as of March 31, 1998.
For the six months ended September 30, 1998 and 1997, net cash provided by
operating activities was $7.2 million and $6.9 million, respectively. Net cash
provided by operating activities for the six months ended September 30, 1998
primarily reflected net income before depreciation and amortization expense plus
increased accrued liabilities less increased accounts receivable and
inventories. Net cash provided by operating activities for the six months ended
September 30, 1997 primarily reflected net income before depreciation and
amortization expense plus increased accounts payables less increased accounts
receivables, deferred income taxes, and inventories and less decreased accrued
liabilities.
Capital expenditures and the purchase of other assets totaled $9.2 million
and $4.0 million for the six months ended September 30, 1998, and 1997,
respectively, of which $500,000 was financed using debt for the six months ended
September 30, 1998. The Company intends to increase its capital expenditures for
manufacturing equipment, test equipment and computer hardware and software. The
Company has tentative plans to initiate construction of a new six-inch wafer
fabrication facility during 1999 and to complete the physical plant during 2000.
The Company believes the new facility will not begin commercial production prior
to 2001. However, the Company is also evaluating other alternatives to provide
for additional capacity and process development. The Company currently expects
to spend approximately $8.5 million on capital expenditures and the purchase of
other assets in the second half of fiscal 1999, of which approximately $1.6
million is currently estimated to be related to the expansion of capacity of its
existing wafer fabrication facility and approximately $900,000 is planned to
relate to the initial site acquisition and planning of the Company's new wafer
fabrication facility. In July 1998 the Company acquired the right to purchase,
in the form of a ground lease, a parcel of land as a site for its new wafer
fabrication facility. This parcel of land is located approximately one-quarter
mile from the Company's headquarters in San Diego, California. The Company made
payments of $0.9 million related to this transaction in July 1998. The lease
provides the Company with the option, subject to certain conditions, to acquire
the land for total additional payments of approximately $3.8 million through May
31, 1999. However, the lease provides that, if certain conditions are met, the
landlord can require the Company to purchase the land by May 31, 1999. The
lease may not be extended beyond May 31, 1999. In the course of acquiring land
and securing financing for the proposed new facility, the Company may be
required to expend additional funds and to provide marketable securities as
collateral. The Company estimates that the total cost of the new wafer
fabrication facility will be at least $80.0 million, of which at least $35.0
million relates to the purchase of land and construction of the facility and at
least $45.0 million relates to capital equipment purchases. The Company plans to
finance the new wafer fabrication facility through a combination of available
cash, cash equivalents and short term investments, cash from operations and debt
and lease financing. The Company is also exploring other alternatives for the
expansion of its manufacturing capacity, including purchasing a wafer
fabrication facility or entering into strategic relationships to obtain
additional capacity. Although the Company believes that it will be able to
obtain financing for a significant portion of the planned capital expenditures
at competitive rates and terms from its existing and new financing sources,
there can be no assurance that the Company will be successful in these efforts
or that the new facility will be completed and in volume production within its
current budget or within the period currently
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scheduled by the Company. Furthermore, there can be no assurance that other
alternatives to constructing a new wafer fabrication facility will be available
on a timely basis or at all. See "Factors That May Affect Future Results--
Manufacturing Capacity Limitations; New Production Facility," "--Dependence on
Third-Party Manufacturing and Supply Relationships" and "--Need For Additional
Capital."
The Company believes that its available cash, cash equivalents and short-
term investments, and cash generated from operations, will be sufficient to meet
the Company's capital requirements for the next 12 months, although the Company
could be required, or could elect, to seek to raise additional capital during
such period. The Company expects that it will need to raise additional debt or
equity financing in the future. There can be no assurance that such additional
debt or equity financing will be available on commercially reasonable terms or
at all. See " Factors That May Affect Future Results--Need for Additional
Capital."
FACTORS THAT MAY AFFECT FUTURE RESULTS
Fluctuations in Operating Results
AMCC has experienced and may in the future experience fluctuations in its
operating results. The Company had fluctuating revenues and incurred net losses
in fiscal 1995 and 1996. The Company's quarterly and annual operating results
are affected by a wide variety of factors that could materially and adversely
affect revenues, gross profit and operating income, including, but not limited
to: the rescheduling or cancellation of orders by customers; fluctuations in the
timing and amount of customer requests for product shipments; fluctuations in
manufacturing output and yields and inventory levels; changes in product mix;
the Company's ability to introduce new products and technologies on a timely
basis; the announcement or introduction of products and technologies by the
Company's competitors; the availability of external foundry capacity, purchased
parts and raw materials; competitive pressures on selling prices; the timing of
costs associated with warranties and product returns; the timing of investments
in research and development; market acceptance of the Company's and its
customers' products; the timing of depreciation and other expenses to be
incurred by the Company in connection with its proposed new wafer fabrication
facility; costs associated with compliance with applicable environmental
regulations; costs associated with future litigation, if any, including without
limitation, litigation or settlements relating to the use or ownership of
intellectual property; general semiconductor industry conditions; and general
economic conditions, including, but not limited to, economic conditions in Asia.
The Company's expense levels are relatively fixed and are based, in part,
on its expectations of future revenues. Because the Company is continuing to
increase its operating expenses for personnel and new product development and is
limited in its ability to reduce expenses quickly in response to any revenue
shortfalls, the Company's business, financial condition and operating results
would be adversely affected if increased revenues are not achieved. Furthermore,
sudden shortages of raw materials or production capacity constraints can lead
producers to allocate available supplies or capacity to customers with resources
greater than those of the Company, which could interrupt the Company's ability
to meet its production obligations. Finally, average selling prices in the
semiconductor industry historically have decreased over the life of a product,
and as a result, the average selling prices of the Company's products may be
subject to significant pricing pressures in the future. In response to such
pressures, the Company may take pricing or other actions that could have a
material adverse effect on the Company's business, financial condition and
operating results.
The Company's business is characterized by short-term orders and shipment
schedules, and customer orders typically can be canceled or rescheduled without
significant penalty to the customer. Due to the absence of substantial
noncancellable backlog, the Company typically plans its production and inventory
levels based on internal forecasts of customer demand, which is highly
unpredictable and can fluctuate substantially. In addition, from time to time,
in response to anticipated long lead times to obtain inventory and materials
from its outside foundries, the Company may order materials in advance of
anticipated customer demand, which might result in excess inventory levels or
unanticipated inventory write-downs if expected orders fail to materialize or
other factors render the customer's products less marketable. Furthermore, the
Company currently anticipates that an increasing portion of its revenues in
future periods will be derived from sales of application-specific standard
products
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("ASSPs"), as compared to application-specific integrated circuits ("ASICs").
Customer orders for ASSPs typically have shorter lead times than orders for
ASICs, which may make it increasingly difficult for the Company to predict its
revenues and inventory levels and adjust production appropriately in future
periods. A failure by the Company to plan inventory and production levels
effectively could have a material adverse effect on the Company's business,
financial condition and operating results.
As a result of the foregoing or other factors, the Company may experience
fluctuations in future operating results on a quarterly or annual basis that
could materially and adversely affect its business, financial condition and
operating results. For example, as a result of the termination of a relationship
with a strategic foundry partner, decreased orders from two major customers,
charges associated with a reduction in the Company's workforce and charges for
excess inventory, the Company experienced revenue fluctuations and incurred net
losses in fiscal 1995 and 1996. Accordingly, the Company believes that period-
to-period comparisons of its operating results should not be relied upon as an
indication of future performance. In addition, the results of any quarterly
period are not indicative of results to be expected for a full fiscal year.
There can be no assurance that the Company will be able to achieve increased
sales or maintain its profitability in any future period. In certain future
quarters, the Company's operating results may be below the expectations of
public market analysts or investors. In such event, the market price of the
Company's Common Stock could be materially and adversely affected.
Manufacturing Yields
The fabrication of semiconductors is a complex and precise process. Minute
levels of contaminants in the manufacturing environment, defects in masks used
to print circuits on a wafer, difficulties in the fabrication process or other
factors can cause a substantial percentage of wafers to be rejected or a
significant number of die on each wafer to be nonfunctional. In addition, the
Company's ongoing expansion of the manufacturing capacity of its existing wafer
fabrication facility could increase the risk to the Company of contaminants in
such facility. Many of these problems are difficult to diagnose, time consuming
and expensive to remedy and can result in shipment delays. As a result,
semiconductor companies often experience problems in achieving acceptable wafer
manufacturing yields, which are represented by the number of good die as a
proportion of the total number of die on any particular wafer, particularly in
connection with the commencement of production in a new fabrication facility or
the transfer of manufacturing operations between fabrication facilities. Because
the majority of the Company's costs of manufacturing are relatively fixed,
maintenance of the number of shippable die per wafer is critical to the
Company's results of operations. Yield decreases can result in substantially
higher unit costs and may result in reduced gross profit and net income. The
Company has in the past experienced yield problems in connection with the
manufacture of its products. For example, in the second quarter of fiscal 1997
the Company experienced a decrease in internal yields primarily due to the
Company's increasing volume production of a single product at less than normal
production yields in support of a customer's delivery requirements. This
decrease in internal yields adversely impacted the Company's gross margin for
the quarter by approximately $600,000. The Company estimates yields per wafer in
order to estimate the value of inventory. If yields are materially different
than projected, work-in-process inventory may need to be revalued. The Company
has in the past and may in the future from time to time take inventory write-
downs as a result of decreases in manufacturing yields. There can be no
assurance that the Company will not suffer periodic yield problems in connection
with new or existing products or in connection with the commencement of
production in the Company's proposed new manufacturing facility or the transfer
of the Company's manufacturing operations to such facility, any of which
problems could cause the Company's business, financial condition and operating
results to be materially and adversely affected. See "--Manufacturing Capacity
Limitations; New Production Facility."
Semiconductor manufacturing yields are a function both of product design
and process technology. In cases where products are manufactured for the Company
by an outside foundry, the process technology is typically proprietary to the
manufacturer. Since low yields may result from either design or process
technology failures, yield problems may not be effectively determined or
resolved until an actual product exists that can be analyzed and tested to
identify process sensitivities relating to the design rules that are used. As a
result, yield problems may not be identified until well into the production
process, and resolution of yield problems would require cooperation by and
communication between the Company and the manufacturer. In some cases this risk
could be compounded
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<PAGE>
by the offshore location of certain of the Company's manufacturers, increasing
the effort and time required to identify, communicate and resolve manufacturing
yield problems. If the Company develops relationships with additional outside
foundries, yields could be adversely affected due to difficulties associated
with adapting the Company's technology and product design to the proprietary
process technology and design rules of such new foundries. Because of the
Company's limited access to wafer fabrication capacity from its outside
foundries for certain of its products, any decrease in manufacturing yields of
such products could result in an increase in the Company's per unit costs for
such products and force the Company to allocate its available product supply
among its customers, thus potentially adversely impacting customer relationships
as well as revenues and gross margin. There can be no assurance that the
Company's outside foundries will achieve or maintain acceptable manufacturing
yields in the future. Furthermore, the Company also faces the risk of product
recalls resulting from design or manufacturing defects which are not discovered
during the manufacturing and testing process. Any of the foregoing factors could
have a material adverse effect on the Company's business, financial condition
and operating results.
Increasing Dependence on Telecommunications and Data Communications Markets and
Increasing Dependence on Application-Specific Standard Products
An important part of the Company's strategy is to continue its focus on the
telecommunications market and to leverage its technology and expertise to
penetrate further the data communications market for high-speed ICs. The Company
anticipates that sales to its other traditional markets will grow more slowly or
not at all and, in some instances, as in the case of military markets, may
decrease over time. The telecommunications and data communications markets are
characterized by extreme price competition, rapid technological change, industry
standards that are continually evolving and, in many cases, short product life
cycles. These markets frequently undergo transitions in which products rapidly
incorporate new features and performance standards on an industry wide basis.
If, at the beginning of each such transition, the Company's products are unable
to support the new features or performance levels being required by OEMs in
these markets, the Company would be likely to lose business from an existing or
potential customer and, moreover, would not have the opportunity to compete for
new design wins until the next product transition occurs. There can be no
assurance that the Company will be able to penetrate the telecommunications or
data communications market successfully. A failure by the Company to develop
products with required features or performance standards for the
telecommunications or data communications markets, a delay as short as a few
months in bringing a new product to market or a failure by the Company's
telecommunications or data communications customers to achieve market acceptance
of their products by end-users could significantly reduce the Company's revenues
for a substantial period, which would have a material adverse effect on the
Company's business, financial condition and operating results.
A significant portion of the Company's revenues in recent periods has been,
and is expected to continue to be, derived from sales of products based on the
Synchronous Optical Network ("SONET")/Synchronous Digital Hierarchy ("SDH")
transmission standards and the Asynchronous Transfer Mode ("ATM") transmission
standard. If the communications market evolves to new standards, there is no
assurance the Company will be able to successfully design and manufacture new
products that address the needs of its customers or that such new products will
meet with substantial market acceptance. Although the Company has developed
products for the Gigabit Ethernet and Fibre Channel communications standards,
volume sales of these products have only recently commenced, and there is no
assurance AMCC will be successful in addressing the market opportunities for
products based on these standards. See "--Rapid Technological Change; Necessity
to Develop and Introduce New Products."
The Company has under development a number of ASSPs for the
telecommunications and data communications markets, from which it expects to
derive an increasing portion of its future revenues. The Company has a limited
operating history in selling ASSPs, particularly to customers in the
telecommunications and data communications markets, upon which an evaluation of
the Company's prospects in such markets can be based. In addition, the Company's
relationships with certain customers in these markets have been established
recently. The Company's future success in selling ASSPs, and in particular,
selling ASSPs to customers in the telecommunications and data communications
markets, will depend in large part on whether the Company's
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<PAGE>
ASSPs are developed on a timely basis and whether such products achieve market
acceptance among new and existing customers, and on the timing of the
commencement of volume production of the OEMs' products, if at all. The Company
has in the past encountered difficulties in introducing new products in
accordance with customers' delivery schedules and the Company's initial
expectations. There can be no assurance the Company will not encounter such
difficulties in the future or that the Company will be able to develop and
introduce ASSPs in a timely manner so as to meet customer demands. Any such
difficulties or a failure by the Company to develop and timely introduce such
ASSPs could have a material adverse effect on the Company's business, financial
condition and operating results. See "--Rapid Technological Change; Necessity to
Develop and Introduce New Products."
Dependence on the Automated Test Equipment Market
The Company historically has derived significant revenues from product sales
to customers in the Automated Test Equipment ("ATE") market and currently
anticipates that it will continue to derive significant revenues from sales to
customers in this market in the near term. Customers in the ATE market have
recently experienced decreased demand due primarily to changing growth in the
slower semiconductor industry and economic turmoil in Asia. Accordingly, the
Company's net revenues in the ATE markets have declined for two consecutive
quarters, and the Company believes that revenue from the ATE market will decline
further.
There can be no assurance that conditions in the semiconductor industry
will improve or that the economic situation in Asia will improve. Because the
Company's revenues in the ATE market depend on the demand for its customers' ATE
products, any further reduction in such demand due to further downturns in the
semiconductor industry or continued economic turmoil in Asia could adversely
affect the Company's business, operating results and financial condition .
Dependence on High-Speed Computing Market
The Company historically has derived significant revenues from product
sales to customers in the high-speed computing market and currently anticipates
that it will continue to derive significant revenues from sales to customers in
this market in the near term. The market for high-speed computing IC products is
subject to extreme price competition. The Company believes that the average
selling prices of the Company's IC products for the high-speed computing market
will decline in future periods and that the Company's gross margin on sales of
such products may also decline in future periods. There can be no assurance that
the Company will be able to reduce the costs of manufacturing its high-speed
computing IC products in response to declining average selling prices. Even if
the Company successfully utilizes new processes or technologies to reduce the
manufacturing costs of its high-speed computing products in a timely manner,
there can be no assurance that the Company's customers in the high-speed
computing market will purchase such new products. A failure by the Company to
reduce its manufacturing costs sufficiently or a failure by the Company's
customers to purchase such products could have a material adverse effect on the
Company's business, financial condition and operating results. Furthermore, the
Company expects that certain of its competitors may seek to develop and
introduce products that integrate the functions performed by the Company's high-
speed computing IC products on a single chip. In addition, one or more of the
Company's customers may choose to utilize discrete components to perform the
functions served by the Company's high-speed computing IC products or may use
their own design and fabrication facilities to create a similar product. In
either case, the need for high-speed computing customers to purchase the
Company's IC products could be eliminated, which could adversely affect the
Company's business, financial condition and operating results. See "--Intense
Competition."
Rapid Technological Change; Necessity to Develop and Introduce New Products
The markets for the Company's products are characterized by rapidly
changing technologies, evolving and competing industry standards, short product
life cycles, changing customer needs, emerging competition, frequent new product
introductions and enhancements and rapid product obsolescence. The Company's
future success will depend, in large part, on its ability to develop, gain
access to and use leading technologies in a cost-effective and timely manner and
on its ability to continue to develop its technical and design expertise. The
Company's ability to
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have its products designed into its customers' future products, to maintain
close working relationships with key customers in order to develop new products,
particularly ASSPs, that meet customers' changing needs and to respond to
changing industry standards and other technological changes on a timely and
cost-effective basis will also be a critical factor in the Company's future
success. Furthermore, once a customer has designed a supplier's product into its
system, the customer typically is extremely reluctant to change its supply
source due to significant costs associated with qualifying a new supplier.
Accordingly, the failure by the Company to achieve design wins with its key
customers could have a material adverse effect on the Company's business,
financial condition and results of operations.
Products for telecommunications and data communications applications, as
well as for high-speed computing applications are based on industry standards
that are continually evolving. The Company's ability to compete in the future
will depend on its ability to identify and ensure compliance with evolving
industry standards. The emergence of new industry standards could render the
Company's products incompatible with products developed by major systems
manufacturers. As a result, the Company could be required to invest significant
time and effort and to incur significant expense to redesign the Company's
products to ensure compliance with relevant standards. If the Company's products
are not in compliance with prevailing industry standards for a significant
period of time, the Company could miss opportunities to achieve crucial design
wins. There can be no assurance that the Company will be successful in
developing or using new technologies or in developing new products or product
enhancements on a timely basis, or that such new technologies, products or
product enhancements will achieve market acceptance. In the past, the Company
has encountered difficulties in introducing new products and product
enhancements in accordance with customers' delivery schedules and the Company's
initial expectations. The Company could encounter such difficulties in the
future. The Company's pursuit of necessary technological advances may require
substantial time and expense. A failure by the Company, for technological or
other reasons, to develop and introduce new or enhanced products on a timely
basis that are compatible with industry standards and satisfy customer price and
performance requirements could have a material adverse effect on the Company's
business, financial condition and operating results. See "--Fluctuations in
Operating Results," and "--Increasing Dependence on Telecommunications and Data
Communications Markets and Increasing Dependence on Application-Specific
Standard Products."
Intense Competition
The semiconductor market is highly competitive and subject to rapid
technological change, price erosion and heightened international competition.
The telecommunications, data communications, ATE and high-speed computing
industries in particular are intensely competitive. The Company believes that
the principal factors of competition in its markets are price, product
performance, product quality and time-to-market. The ability of the Company to
compete successfully in its markets depends on a number of factors, including
success in designing and subcontracting the manufacture of new products that
implement new technologies, product quality, reliability, price, the efficiency
of production, design wins for its IC products, ramp up of production of the
Company's products for particular systems manufacturers, end-user acceptance of
the systems manufacturers' products, market acceptance of competitors' products
and general economic conditions. In addition, the Company's competitors may
offer enhancements to existing products or offer new products based on new
technologies, industry standards or customer requirements that are available to
customers on a more timely basis than comparable products from the Company or
that have the potential to replace or provide lower-cost alternatives to the
Company's products. The introduction of such enhancements or new products by the
Company's competitors could render the Company's existing and future products
obsolete or unmarketable. Furthermore, once a customer has designed a supplier's
product into its system, the customer is extremely reluctant to change its
supply source due to the significant costs associated with qualifying a new
supplier. Finally, the Company expects that certain of its competitors and other
semiconductor companies may seek to develop and introduce products that
integrate the functions performed by the Company's IC products on a single chip,
thus eliminating the need for the Company's products. Each of these factors
could have a material adverse effect on the Company's business, financial
condition and results of operations. See "--Dependence on High-Speed Computing
Market."
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In the telecommunications and data communications markets, the Company
competes primarily against gallium arsenide ("GaAs") based companies such as
Giga, Rockwell International, TriQuint and Vitesse, and silicon based products
from companies such as Giga, Hewlett-Packard, Maxim, Philips, Sony and Texas
Instruments. In certain circumstances, most notably with respect to ASICs
supplied to Nortel, AMCC's customers or potential customers have internal IC
manufacturing capabilities, and this internal source is an alternative available
to the customer. In the ATE market, the Company's products compete primarily
against GaAs based products offered by Vitesse and silicon ECL and BiCMOS
products offered principally by semiconductor manufacturers such as Analog
Devices, Lucent Technologies and Maxim. In the high-speed computing market, the
Company competes primarily against Chrontel, Cypress, ICS, PLX and Tundra. Many
of these companies and potential new competitors have significantly greater
financial, technical, manufacturing and marketing resources than the Company.
There can be no assurance that the Company will be able to develop new products
to compete with new technologies on a timely basis or in a cost-effective
manner. Any failure by the Company to compete successfully in its target
markets, particularly in the telecommunications and data communications markets,
could have a material adverse effect on the Company's business, financial
condition and results of operations. See "-- Increasing Dependence on
Telecommunications and Data Communications Markets and Increasing Dependence on
Application-Specific Standard Products."
Manufacturing Capacity Limitations; New Production Facility
The Company currently manufactures a majority of its IC products at its
four-inch wafer fabrication facility located in San Diego, California. The
Company believes that, upon the completion of further potential expansion of
capacity at its existing fabrication facility, it will be able to satisfy its
production needs of products produced in its fabrication facility through early
2001, although this date may vary depending on, among other things, the
Company's rate of growth. The Company will be required to hire, train and manage
additional production personnel in order to increase its production capacity as
scheduled. In the event the Company's expansion of the manufacturing capacity of
its fabrication facility is not completed on a timely basis, the Company could
face production capacity constraints, which could have a material adverse effect
on the Company's business, financial condition and operating results.
Based on the Company's current forecasts of its future need for
manufacturing capacity, the Company has tentative plans for the construction of
a new six-inch wafer fabrication facility, initially to complement, and
potentially to replace, its existing facility in San Diego. The Company is also
exploring other alternatives for the expansion of its manufacturing capacity,
including purchasing a wafer fabrication facility or entering into strategic
relationships to obtain additional capacity. In July 1998 the Company acquired
the right to purchase, in the form of a ground lease, a parcel of land as a site
for its new wafer fabrication facility. This parcel of land is located
approximately one quarter mile from the Company's headquarters in San Diego,
California. The Company made payments of $0.9 million related to this
transaction in July 1998. This lease provides the Company with the option,
subject to certain conditions, to acquire the land for total additional payments
of approximately $3.8 million through May 31, 1999. However, the lease provides
that if certain conditions are met, the landlord can require the Company to
purchase the land by May 31, 1999. The lease may not be extended beyond May 31,
1999. The Company currently plans to acquire the site to which it has rights by
mid-1999, to initiate construction of the new facility during 1999 and to
complete the physical plant during 2000. Following the completion of the
physical plant, the Company must install equipment and perform necessary testing
prior to commencing commercial production at the facility, a process which the
Company anticipates will take at least nine months. Accordingly, the Company
believes the new facility will not commence commercial production prior to 2001.
This new fabrication facility will have room for additional equipment and
manufacturing capacity. The Company estimates that the cost of the new wafer
fabrication facility will be at least $80.0 million, of which at least $35.0
million relates to the purchase of land and construction of the building and at
least $45.0 million relates to capital equipment purchases necessary to
establish the initial manufacturing capacity of the facility. The Company
currently anticipates that a significant portion of these capital equipment
purchases will occur prior to the end of 1999. The Company intends to fund
approximately $24.0 million of the total cost of the new facility with a portion
of the proceeds from the Company's initial and secondary public offering which
are now invested in short-term investments. The balance of the cost of this
facility is expected to be funded through a combination of available cash, cash
equivalents and
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short-term investments, cash from operations and additional debt, lease or
equity financing. There can be no assurance that the Company will be able to
obtain the additional financing necessary to fund the construction and
completion of the new manufacturing facility. Any failure by the Company to
obtain such financing on a timely basis could delay the completion of the
facility and have a material adverse effect on the Company's business, financial
condition and results of operations. As the rights to acquire the site for the
Company's proposed new manufacturing facility are subject to certain conditions,
there can be no assurance that the Company will be able to acquire the site in a
timely manner, if at all. Any significant delay by the Company in acquiring the
site or, if such site becomes unavailable, finding a new site for the potential
wafer fabrication facility, could have a material adverse effect on the
Company's business, financial condition and operating results. In addition, the
Company's existing wafer fabrication facility is, and its proposed new wafer
fabrication facility is expected to be, located in California. There can be no
assurance that these facilities will not be subject to natural disasters such as
earthquakes or floods. In addition, the depreciation and other expenses to be
incurred by the Company in connection with the expansion of its existing
manufacturing facility and in connection with its proposed new wafer fabrication
facility may adversely effect the Company's gross margin in any future fiscal
period. Furthermore, there can be no assurance that other alternatives to
constructing a new wafer fabrication facility will be available on a timely
basis or at all. See "--Dependence on Third-Party Manufacturing and Supply
Relationships" and "--Need For Additional Capital."
The construction of the new wafer fabrication facility entails significant
risks, including shortages of materials and skilled labor, unforeseen
environmental or engineering problems, work stoppages, weather interferences and
unanticipated cost increases, any of which could have a material adverse effect
on the building, equipping and production start-up of the new facility. In
addition, unexpected changes or concessions required by local, state or federal
regulatory agencies with respect to necessary licenses, land use permits, site
approvals and building permits could involve significant additional costs and
delay the scheduled opening of the facility and could reduce the Company's
anticipated revenues. Also, the timing of commencement of operation of the new
facility will depend upon the availability, timely delivery and successful
installation and testing of the necessary process equipment. As a result of the
foregoing and other factors, there can be no assurance that the new facility
will be completed and in volume production within its current budget or within
the period currently scheduled by the Company, which could have a material
adverse effect on its business, financial condition and operating results.
Furthermore, if the Company is unable to achieve adequate manufacturing
yields in its proposed new fabrication facility in a timely manner or if the
Company's revenues do not increase commensurate with the anticipated increase in
manufacturing capacity associated with the new facility, the Company's business,
financial condition and operating results could also be materially adversely
affected. In addition, in the future, the Company may be required for
competitive reasons to make capital investments in its existing wafer
fabrication facility or to accelerate the timing of the construction of its new
wafer fabrication facility in order to expedite the manufacture of products
based on more advanced manufacturing processes. To the extent such capital
investments are required, the Company's gross profit and, as a result, its
business, financial condition and operating results, could be materially and
adversely affected. See "--Manufacturing Yields."
The successful operation of the Company's proposed new wafer fabrication
facility, if completed, as well as the Company's overall production operations,
will also be subject to numerous risks. The Company has no prior experience with
the operation of the equipment or the processes involved in producing finished
six-inch wafers, which differ significantly from those involved in the
production of four-inch wafers. The Company will be required to hire, train and
manage production personnel in order to effectively operate the new facility.
The Company does not have sufficient excess production capacity at its existing
San Diego facility to fully offset any failure of the proposed new wafer
fabrication facility to meet planned production goals. The Company may transfer
its current San Diego manufacturing operations into the proposed new wafer
fabrication facility subsequent to its completion. Should this transfer occur,
there can be no assurance that the Company will not experience delays in
completing product testing and documentation required by customers to qualify or
requalify the Company's products from this facility as being from an approved
source as a result of this transfer, which could materially adversely affect the
Company's business, financial condition and operating results. The Company will
also have to effectively coordinate and manage two manufacturing facilities to
successfully meet its overall production goals. The
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Company has no experience in coordinating and managing production facilities
that are located at different sites or in the transfer of manufacturing
operations from one facility to another. As a result of these and other factors,
the failure of the Company to successfully operate the proposed new wafer
fabrication facility, to successfully coordinate and manage the two sites or to
transfer the Company's manufacturing operations could adversely affect the
Company's overall production and could have a material adverse effect on its
business, financial condition and operating results.
Transition to New Process Technologies
The markets for the Company's products are characterized by rapid changes
in manufacturing process technologies. To provide competitive products to its
target markets, the Company must develop or otherwise gain access to improved
process technologies. The Company's future success will depend, in large part,
upon its ability to continue to improve its existing process technologies,
develop new process technologies, and adapt its process technologies to emerging
industry standards. The Company may in the future be required to transition one
or more of its products to process technologies with smaller geometries, other
materials or higher speeds in order to reduce costs and/or improve product
performance. There can be no assurance that the Company will be able to improve
its process technologies and develop or otherwise gain access to new process
technologies, including, but not limited to silicon germanium process
technologies, in a timely or affordable manner or that such improvements or
developments will result in products that achieve market acceptance. A failure
by the Company to improve its existing process technologies or processes or
develop or otherwise gain access to new process technologies in a timely or
affordable manner could adversely affect the Company's business, financial
condition and operating results. See "--Rapid Technological Change; Necessity to
Develop and Introduce New Products," and "--Manufacturing Capacity Limitations;
New Production Facility."
Dependence on Third-Party Manufacturing and Supply Relationships
The Company relies on outside foundries for the manufacture of certain of
its products, including all of its products designed on CMOS processes, and all
of its products that it anticipates will be designed on silicon germanium
processes. The Company generally does not have long-term wafer supply agreements
with its outside foundries that guarantee wafer or product quantities, prices or
delivery lead times. Instead, the Company's products that are manufactured by
outside foundries are manufactured on a purchase order basis. The Company
expects that, for the foreseeable future, certain of its products will be
manufactured by a single outside foundry. Because establishing relationships
with new outside foundries takes several months, there is no readily available
alternative source of supply for these products. A manufacturing disruption
experienced by one or more of the Company's outside foundries would impact the
production of the Company's products for a substantial period of time, which
could have a material adverse effect on the Company's business, financial
condition and operating results. Furthermore, in the event that the transition
to the next generation of manufacturing technologies at one or more of the
Company's outside foundries is unsuccessful or delayed, the Company's business,
financial condition and operating results could be materially and adversely
affected.
There are additional risks associated with the Company's dependence upon
third-party manufacturers for certain of its products, including, but not
limited to, reduced control over delivery schedules, quality assurance,
manufacturing yields and costs, the potential lack of adequate capacity during
periods of excess demand, limited warranties on wafers or products supplied to
the Company, increases in prices and potential misappropriation of the Company's
intellectual property. With respect to certain of its products, the Company
depends upon external foundries to produce wafers and, in some cases, finished
products of acceptable quality, to deliver those wafers and products to the
Company on a timely basis and to allocate to the Company a portion of their
manufacturing capacity sufficient to meet the Company's needs. On occasion, the
Company has experienced difficulties in causing these events to occur
satisfactorily. The Company's wafer and product requirements typically represent
a very small portion of the total production of these external foundries. The
Company is subject to the risk that a producer will cease production on an older
or lower-volume process that is used to produce the Company's parts.
Additionally, there can be no assurance that such external foundries will
continue to devote resources to the production of the Company's products or
continue to advance the process design technologies on which the manufacturing
of the
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Company's products are based. Any such difficulties could have a material
adverse effect on the Company's business, financial condition and operating
results. See "--Manufacturing Yields."
Certain of the Company's products are assembled and packaged by third-party
subcontractors. The Company does not have long-term agreements with any of these
subcontractors. Such assembly and packaging is conducted on a purchase order
basis. As a result of its reliance on third-party subcontractors to assemble and
package its products, the Company cannot directly control product delivery
schedules, which could lead to product shortages or quality assurance problems
that could increase the costs of manufacturing, assembly or packaging of the
Company's products. In addition, the Company may, from time to time, be required
to accept price increases for such assembly or packaging services that could
have a material adverse effect on the Company's business, financial condition
and operating results. Due to the amount of time normally required to qualify
assembly and packaging subcontractors, product shipments could be delayed
significantly if the Company is required to find alternative subcontractors. In
the future, the Company may contract with third parties for the testing of its
products. Any problems associated with the delivery, quality or cost of the
assembly, testing or packaging of the Company's products could have a material
adverse effect on the Company's business, financial condition and operating
results.
Due to an industry transition to six-inch and eight-inch wafer fabrication
facilities, there is a limited number of suppliers of the four-inch wafers used
by the Company to build products in its existing manufacturing facility, and the
Company relies on a single supplier for such wafers. Although the Company
believes that it will have sufficient access to four-inch wafers to support
production in its existing fabrication facility for the foreseeable future,
there can be no assurance that the Company's current supplier will continue to
supply the Company with four-inch wafers on a long-term basis. Additionally, the
availability of manufacturing equipment needed for a four-inch process is
limited and certain new equipment required for more advanced processes may not
be available for a four-inch process. If the Company is not able to obtain a
sufficient supply of four-inch wafers or to obtain the requisite equipment for
be four-inch process, the Company's business, financial condition and operating
results would be materially adversely affected.
Customer Concentration
Historically, a relatively small number of customers has accounted for a
significant portion of the Company's revenues in any particular period. The
Company has no long-term volume purchase commitments from any of its major
customers. In fiscal 1997, fiscal 1998, the first half of fiscal 1999 and the
quarter ended September 30, 1998, the Company's five largest customers accounted
for approximately 44%, 46%, 55% and 61% of the Company's revenues in each of
such periods and sales to Nortel accounted for approximately 20%, 21%, 17% and
16% of the Company's revenues in each of such periods. Raytheon Systems Co.
accounted for 18% and 12% of the net revenues for the three months and six
months ended September 30, 1998, including $2.9 million of shipments in the
three months ending September 30, 1998, relating to the partial fulfillment of
an end-of-life order for integrated circuits used in its high speed radar
systems. The Company believes that the $16.2 million balance of this end-of-life
order, which is included in the Company's backlog of $40.0 million at September
30, 1998, is expected to be shipped over the next 3 to 5 quarters. The Company
anticipates that sales of its products to relatively few customers will continue
to account for a significant portion of its revenues. In the event of a
reduction, delay or cancellation of orders from one or more significant
customers or if one or more of its significant customers select products
manufactured by one of the Company's competitors for inclusion in future product
generations, the Company's business, financial condition and operating results
could be materially and adversely affected. There can be no assurance that the
Company's current customers will continue to place orders with the Company, that
orders by existing customers will continue at current or historical levels or
that the Company will be able to obtain orders from new customers. The loss of
one or more of the Company's current significant customers could materially and
adversely affect the Company's business, financial condition and operating
results. See"--Intense Competition," and "Management's Discussion and Analysis
of Financial Condition and Results of Operations".
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<PAGE>
Management of Growth
The Company has experienced, and may continue to experience, periods of
rapid growth and expansion, which have placed, and could continue to place, a
significant strain on the Company's limited personnel and other resources. To
manage these expanded operations effectively, the Company will be required to
continue to improve its operational, financial and management systems and to
successfully hire, train, motivate and manage its employees. The Company's
ability to manage growth successfully will require such personnel to work
together effectively. In addition, the expansion of the Company's current wafer
fabrication facility, the construction and operation of the Company's planned
wafer fabrication facility, the initial integration of the proposed new wafer
fabrication facility with the Company's current facility and the subsequent
potential transfer of the Company's manufacturing operations to the proposed new
wafer fabrication facility will require significant management, technical and
administrative resources. There can be no assurance that the Company will be
able to manage its growth or effectively integrate its planned wafer fabrication
facility into its current operations, and a failure to do so could have a
material adverse effect on the Company's business, financial condition and
operating results.
Dependence on Qualified Personnel
The Company's future success depends in part on the continued service of
its key design engineering, sales, marketing and executive personnel and its
ability to identify, hire and retain additional personnel. There is intense
competition for qualified personnel in the semiconductor industry, in particular
design engineers, and there can be no assurance that the Company will be able to
continue to attract and train such engineers or other qualified personnel
necessary for the development of its business or to replace engineers or other
qualified personnel who may leave the Company's employ in the future. The
Company's anticipated growth is expected to place increased demands on the
Company's resources and will likely require the addition of new management
personnel and the development of additional expertise by existing management
personnel. Although the Company has entered into an "at-will" employment
agreement with David M. Rickey, the Company's President and Chief Executive
Officer, the Company has not entered into fixed term employment agreements with
any of its executive officers. In addition, the Company has not obtained key-man
life insurance on any of its executive officers or key employees. Loss of the
services of, or failure to recruit, key design engineers or other technical and
management personnel could be significantly detrimental to the Company's product
and process development programs or otherwise have a material adverse effect on
the Company's business, financial condition and operating results.
Need for Additional Capital
The Company requires substantial working capital to fund its business,
particularly to finance inventories and accounts receivable and for capital
expenditures. The Company believes its available cash, cash equivalents and
short-term investments and cash generated from operations, will be sufficient to
meet the Company's capital requirements through the next 12 months, although the
Company could be required, or could elect, to seek to raise
20
<PAGE>
additional financing during such period. The Company's future capital
requirements will depend on many factors, including the costs associated with
the expansion of its manufacturing operations, the rate of revenue growth, the
timing and extent of spending to support research and development programs and
expansion of sales and marketing, the timing of introductions of new products
and enhancements to existing products, and market acceptance of the Company's
products. The Company expects that it will need to raise additional debt or
equity financing in the future, primarily for purposes of financing the
acquisition of property for its proposed new wafer fabrication facility, the
construction of the proposed new wafer fabrication facility and the purchase of
equipment for the proposed new wafer fabrication facility. There can be no
assurance that such additional debt or equity financing will be available on
commercially reasonable terms or at all.
Uncertainty Regarding Patents and Protection of Proprietary Rights
The Company relies in part on patents to protect its intellectual property.
There can be no assurance that the Company's pending patent applications or any
future applications will be approved, or that any issued patents will provide
the Company with competitive advantages or will not be challenged by third
parties, or that if challenged, will be found to be valid or enforceable, or
that the patents of others will not have an adverse effect on the Company's
ability to do business. Furthermore, there can be no assurance that others will
not independently develop similar products or processes, duplicate the Company's
products or processes or design around any patents that may be issued the
Company.
To protect its intellectual property, the Company also relies on the
combination of mask work protection under the Federal Semiconductor Chip
Protection Act of 1984, trademarks, copyrights, trade secret laws, employee and
third-party nondisclosure agreements and licensing arrangements. Despite these
efforts, there can be no assurance that others will not independently develop
substantially equivalent intellectual property or otherwise gain access to the
Company's trade secrets or intellectual property, or disclose such intellectual
property or trade secrets, or that the Company can meaningfully protect its
intellectual property. A failure by the Company to meaningfully protect its
intellectual property could have a material adverse effect on the Company's
business, financial condition and operating results.
As a general matter, the semiconductor industry is characterized by
substantial litigation regarding patent and other intellectual property rights.
The Company in the past has been and in the future may be notified that it may
be infringing the intellectual property rights of third parties. The Company has
certain indemnification obligations to customers with respect to the
infringement of third-party intellectual property rights by its products. There
can be no assurance that infringement claims by third parties or claims for
indemnification by customers or end users of the Company's products resulting
from infringement claims will not be asserted in the future or that such
assertions, if proven to be true, will not materially adversely affect the
Company's business, financial condition or operating results. In March 1997, the
Company received a written notice from legal counsel for Dr. Chou Li asserting
that the Company manufactures certain of its products in ways that appear to
such counsel to infringe a United States patent held by Dr. Li (the "Li
Patent"). After a review of its technology in light of such assertion, the
Company believes that the Company's processes do not infringe any of the claims
of this patent. On January 6, 1998, in a lawsuit between a third party and Dr.
Li filed in Federal District Court for the Eastern District of Virginia, the
court ruled that the Li Patent was invalid for inequitable conduct. On July 31,
1998, the Lemelson Medical, Education & Research Foundation Limited Partnership
(the "Lemelson Partnership") filed a lawsuit in the U.S. District Court for the
District of Arizona against 26 companies, including the Company, engaged in the
manufacture and/or sale of IC products. The complaint alleges infringement by
the defendants of certain U.S. patents (the "Lemelson Patents") held by the
Lemelson Partnership relating to certain semiconductor manufacturing processes.
The complaint seeks, among other things, injunctive relief and unspecified
treble damages. Previously, the Lemelson Partnership has offered the Company a
license under the Lemelson patents. The Company is monitoring this matter and,
although the ultimate outcome of this matter is not currently determinable, the
Company believes, based in part on the licensing terms previously offered by the
Lemelson Partnership, that the resolution of this matter will not have a
material adverse effect on the Company's financial position or liquidity;
however, there can be no assurance that the ultimate resolution of this matter
will not have a
21
<PAGE>
material adverse effect on the Company's results of operations for any quarter.
Furthermore, there can be no assurance that the Company would prevail in any
such litigation.
Any litigation relating to the intellectual property rights of third
parties, including, but not limited to the Lemelson Patents, whether or not
determined in the Company's favor or settled by the Company, would at a minimum
be costly and could divert the efforts and attention of the Company's management
and technical personnel, which could have a material adverse effect on the
Company's business, financial condition or operating results. In the event of
any adverse ruling in any such matter, the Company could be required to pay
substantial damages, which could include treble damages, cease the
manufacturing, use and sale of infringing products, discontinue the use of
certain processes or obtain a license under the intellectual property rights of
the third party claiming infringement. There can be no assurance, however, that
a license would be available on reasonable terms or at all. Any limitations on
the Company's ability to market its products, any delays and costs associated
with redesigning its products or payments of license fees to third parties or
any failure by the Company to develop or license a substitute technology on
commercially reasonable terms could have a material adverse effect on the
Company's business, financial condition and operating results.
International Sales
International sales (including sales to Canada) accounted for 40%, 42% and
42% of revenues in fiscal 1997, fiscal 1998 and the first half of fiscal 1999,
respectively. The Company anticipates that international sales may increase in
future periods and may account for an increasing portion of the Company's
revenues. As a result, an increasing portion of the Company's revenues may be
subject to certain risks, including changes in regulatory requirements, tariffs
and other barriers, timing and availability of export licenses, political and
economic instability, difficulties in accounts receivable collections, natural
disasters, difficulties in staffing and managing foreign subsidiary and branch
operations, difficulties in managing distributors, difficulties in obtaining
governmental approvals for telecommunications and other products, foreign
currency exchange fluctuations, the burden of complying with a wide variety of
complex foreign laws and treaties and potentially adverse tax consequences.
Although less than eight percent of the Company's revenues were attributable to
sales in Asia during the six months ended September 30, 1998, the recent
economic instability in certain Asian countries could adversely affect the
Company's business, financial condition and operating results, particularly to
the extent that this instability impacts the sales of products manufactured by
the Company's customers. The Company is also subject to the risks associated
with the imposition of legislation and regulations relating to the import or
export of high technology products. The Company cannot predict whether quotas,
duties, taxes or other charges or restrictions upon the importation or
exportation of the Company's products will be implemented by the United States
or other countries. Because sales of the Company's products have been
denominated to date primarily in United States dollars, increases in the value
of the United States dollar could increase the price of the Company's products
so that they become relatively more expensive to customers in the local currency
of a particular country, leading to a reduction in sales and profitability in
that country. Future international activity may result in increased foreign
currency denominated sales. Gains and losses on the conversion to United States
dollars of accounts receivable, accounts payable and other monetary assets and
liabilities arising from international operations may contribute to fluctuations
in the Company's results of operations. Some of the Company's customer purchase
orders and agreements are governed by foreign laws, which may differ
significantly from United States laws. Therefore, the Company may be limited in
its ability to enforce its rights under such agreements and to collect damages,
if awarded. Any of the foregoing factors could have a material adverse effect on
the Company's business, financial condition and operating results.
Environmental Regulations
The Company is subject to a variety of federal, state and local
governmental regulations related to the use, storage, discharge and disposal of
toxic, volatile or otherwise hazardous chemicals used in its manufacturing
process. Any failure to comply with present or future regulations could result
in the imposition of fines on the Company, the suspension of production or a
cessation of operations. In addition, such regulations could restrict the
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<PAGE>
Company's ability to expand its facilities at its present location or construct
or operate its planned wafer fabrication facility or could require the Company
to acquire costly equipment or incur other significant expenses to comply with
environmental regulations or clean up prior discharges. In this regard, since
1993 the Company has been named as a potentially responsible party ("PRP") along
with a large number of other companies that used Omega Chemical Corporation
("Omega") in Whittier, California to handle and dispose of certain hazardous
waste material. The Company is a member of a large group of PRPs that has agreed
to fund certain remediation efforts at the Omega site, which efforts are
ongoing. To date, the Company's payment obligations with respect to such funding
efforts have not been material and the Company believes that its future
obligations to fund such efforts will not have a material adverse effect on its
business, financial condition or operating results. Although the Company
believes that it is currently in material compliance with applicable
environmental laws and regulations, there can be no assurance that the Company
is or will be in material compliance with such laws or regulations or that the
Company's future obligations to fund any remediation efforts, including those at
the Omega site, will not have a material adverse effect on the Company's
business, financial condition or operating results.
The Company uses significant amounts of water throughout its manufacturing
process. Previous droughts in California have resulted in restrictions being
placed on water use by manufacturers and residents in California. In the event
of future drought, reductions in water use may be mandated generally, and it is
unclear how such reductions will be allocated among California's different
users. There can be no assurance that near term reductions in water allocations
to manufacturers will not occur, which could have a material adverse affect on
the Company's business, financial condition or operating results.
Volatility of Stock Price
The market price of the Common Stock has fluctuated significantly to date.
In addition, the market price of the Common Stock could be subject to
significant fluctuations due to general market conditions and in response to
quarter-to-quarter variations in the Company's anticipated or actual operating
results; announcements or introductions of new products; technological
innovations or setbacks by the Company or its competitors; conditions in the
semiconductor, telecommunications, data communications, ATE, high-speed
computing or military markets; the commencement of litigation; changes in
estimates of the Company's performance by securities analysts; and other events
or factors. In addition, the stock market in recent years has experienced
extreme price and volume fluctuations that have affected the market prices of
many high technology companies, particularly semiconductor companies, and that
have often been unrelated or disproportionate to the operating performance of
companies. These fluctuations, as well as general economic and market
conditions, may affect adversely the market price of the Common Stock.
Year 2000
- ----------
As a semiconductor manufacturer with its own wafer fabrication facility,
the Company is dependent on computer systems and manufacturing equipment with
embedded hardware or software to conduct its business. The Company has
developed and is currently executing a risk-based plan designed to make its
computer systems, applications, computer and manufacturing equipment and
facilities Year 2000 ready. The plan covers five stages including (i)
inventory, (ii) assessment, (iii) remediation, (iv) testing, and (v) contingency
planning. As of September 30, 1998, the Company is in the process of performing
the inventory and assessment stages and expects to complete these stages in
January 1999. The Company will primarily utilize internal resources to
reprogram, or replace where necessary, and test the software for Year 2000
modifications. The remediation, testing and contingency planning stages are
targeted to be completed in September 1999.
The Company is initiating communications with its critical external
suppliers to determine the extent to which the Company may be vulnerable to such
parties' failure to resolve their own Year 2000 issues. Where practicable, the
Company will assess and attempt to mitigate its risks with respect to the
failure of these entities to be Year 2000 ready. The effect, if any, on the
Company's results of operations from the failure of such parties to be Year 2000
ready, is not reasonably estimable.
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<PAGE>
To date, the Company has incurred and expensed approximately $150,000
related to the Year 2000 project and expects to incur an additional $750,000 on
completing the Year 2000 project. Approximately one-half the costs associated
with the Year 2000 project will be internal resources that have been reallocated
from other projects with the balance of costs reflecting incremental spending
for equipment and software upgrades. The costs of the Year 2000 Project will be
funded through operating cash flows with the cost of internal resources expensed
as incurred and the cost of equipment and software upgrades capitalized or
expensed in accordance with the Company's policy on property and equipment.
The costs of the project and the date on which the Company plans to
complete the Year 2000 modifications are based on management's best estimates,
which were derived utilizing numerous assumptions of future events including the
continued availability of certain resources, third party modification plans and
other factors. However, there can be no guarantee that these estimates will be
achieved and actual results could differ materially from those plans. Specific
factors that might cause such material differences include, but are not limited
to, the availability and cost of personnel trained in this area, the ability to
locate and correct all relevant computer codes, the ability to identify and
correct equipment with embedded hardware or software and similar uncertainties.
See "--Factors That May Affect Future Results--Year 2000".
Effect of Anti-Takeover Provisions
The Company's Board of Directors has the authority to issue up to 2,000,000
shares of Preferred Stock and to determine the price, rights, preferences and
privileges and restrictions, including voting rights, of those shares without
any further vote or action by the Company's stockholders. The rights of the
holders of Common Stock will be subject to, and may be adversely affected by,
the rights of the holders of any shares of Preferred Stock that may be issued in
the future. The issuance of Preferred Stock may delay, defer or prevent a change
in control of the Company, as the terms of the Preferred Stock that might be
issued could potentially prohibit the Company's consummation of any merger,
reorganization, sale of substantially all of its assets, liquidation or other
extraordinary corporate transaction without the approval of the holders of the
outstanding shares of Preferred Stock. In addition, the issuance of Preferred
Stock could have a dilutive effect on stockholders of the Company. Section 203
of the Delaware General Corporation Law, to which the Company is subject,
restricts certain business combinations with any "interested stockholder" as
defined by such statute. The statute may delay, defer or prevent a change of
control of the Company.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On July 31, 1998, the Lemelson Medical, Education & Research Foundation
Limited Partnership (the "Lemelson Partnership") filed a lawsuit in the
U.S. District Court for the District of Arizona against 26 companies,
including the Company, engaged in the manufacture and/or sale of IC
products. The Company has not to date been served in the litigation. The
complaint alleges infringement by the defendants of certain U.S. patents
(the "Lemelson Patents") held by the Lemelson Partnership relating to
certain semiconductor manufacturing processes. The complaint seeks, among
other things, injunctive relief and unspecified treble damages. Previously,
the Lemelson Partnership has offered the Company a license under the
Lemelson patents. The Company is monitoring this matter and, although the
ultimate outcome of this matter is not currently determinable, the Company
believes, based in part on the licensing terms previously offered by the
Lemelson Partnership, that the resolution of this matter will not have a
material adverse effect on the Company's financial position or liquidity;
however, there can be no assurance that the ultimate resolution of this
matter will not have a material adverse effect on the Company's results of
operations for any quarter. Furthermore, there can be no assurance that
the Company would prevail in such litigation.
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The Company is party to various claims and legal actions arising in the
normal course of business, including notification of possible infringement
on the intellectual property rights of third parties. In addition, since
1993 the Company has been named as a potentially responsible party ("PRP")
along with a large number of other companies that used Omega Chemical
Corporation ("Omega") in Whittier, California to handle and dispose of
certain hazardous waste material. The Company is a member of a large group
of PRPs that has agreed to fund certain remediation efforts at the Omega
site for which the Company has accrued approximately $50,000. Although the
ultimate outcome of these matters is not presently determinable, management
believes that the resolution of all such pending matters, net of amounts
accrued, will not have a material adverse affect on the Company's financial
position or liquidity; however, there can be no assurance that the ultimate
resolution of these matters will not have a material impact on the
Company's results of operations in any period.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(c) Use of Proceeds
(1) Registration Statement on Form S-1 (the "Registration
Statement") File No. 333-37609 which was declared effective on
November 24, 1997
As of September 30, 1998, the Company had invested the net offering
proceeds of $25,111,000 in short-term investments consisting of United
States Treasury Notes, obligations of United States government agencies and
corporate bonds with maturities ranging from October 1, 1998 to November
13, 2001. The use of proceeds described herein does not represent a
material change in the use of proceeds described in the prospectus of the
Registration Statement.
(2) Registration Statement on Form S-1, File No. 333-46071 which
was declared effective on March 11, 1998
As of September 30, 1998, the Company had invested the net offering
proceeds of $26,882,000 in short-term investments consisting of United
States Treasury Notes, obligations of United States government agencies and
corporate bonds with maturities ranging from October 1, 1998 to November
13, 2001. The use of proceeds described herein does not represent a
material change in the use of proceeds described in the prospectus of the
Secondary Registration Statement.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its Annual Meeting of Stockholders (the "Annual
Meeting") on August 4, 1998. Of the 22,784,553 shares of Common Stock
which could be voted at the Annual Meeting, 16,184,458 shares of Common
Stock, representing 71%, were represented at the Annual Meeting in
person or by proxy, which constituted a quorum. Voting results were as
follows:
(a) Election of the following persons to the Company's Board of
Directors, to hold office until the next annual meeting of
stockholders and until their successors have been duly elected and
qualified:
For Withheld
---------- --------
William K. Bowes, Jr. 16,158,216 26,242
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R. Clive Ghest 16,164,446 20,012
Franklin P. Johnson, Jr. 16,157,216 27,242
David M. Rickey 16,161,447 23,011
Roger A. Smullen, Sr. 16,161,447 23,011
Arthur B. Stabenow 16,149,071 35,387
(b) Approval of the Company's 1998 Employee Stock Purchase Plan and
reserve up to 400,000 shares of Common Stock for issuance thereunder:
For Against Abstain
---------- ------- -------
15,983,837 170,757 100
(c) Ratification of the appointment of Ernst & Young LLP as the
independent auditors of the Company for the fiscal year ending March
31, 1999:
For Against Abstain
---------- ------- -------
16,177,242 50 7,166
ITEM 5 OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBITS
10.24 (*) 1998 Employee Stock Purchase Plan and form of
Subscription Agreement
10.25 Agreements related to the Company's right to acquire
land:
a) Ground Lease, by and between Applied Micro Circuits
Corporation and Kilroy Realty L.P.
b) Agreement for Consulting Services
27.1 Financial Data Schedule
(*) Incorporated by reference to Appendix I filed with the
Registrant's Proxy Statement for the 1998 Annual Meeting of
Stockholders filed on June 15, 1998.
(B) REPORTS ON FORM 8-K
No Reports on Form 8-K were filed during the quarter ended
September 30, 1998
26
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: November 16, 1998 Applied Micro Circuits Corporation
By: /s/ Joel O. Holliday
--------------------
Joel O. Holliday
Vice President, Finance and Administration
And Chief Financial Officer
(Duly Authorized Signatory and Principal
Financial and Accounting Officer)
27
<PAGE>
Exhibit Index
-------------
Exhibit
Number Description
- ------- -----------
10.24 (*) 1998 Employee Stock Purchase Plan and form of
Subscription Agreement
10.25 Agreements related to the Company's right to acquire
land:
a) Ground Lease, by and between Applied Micro Circuits
Corporation and Kilroy Realty L.P.
b) Agreement for Consulting Services
27.1 Financial Data Schedule
(*) Incorporated by reference to Appendix I filed with the
Registrant's Proxy Statement for the 1998 Annual Meeting of
Stockholders filed on June 15, 1998.
<PAGE>
EXHIBIT 10.25(a)
GROUND LEASE
By and Between
APPLIED MICRO CIRCUITS CORPORATION,
a Delaware corporation
as
"Tenant"
And
KILROY REALTY L.P.,
a Delaware limited partnership
as
"Landlord"
<PAGE>
GROUND LEASE
------------
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE 1 PREMISES.......................................... 5
ARTICLE 2 TERM.............................................. 5
ARTICLE 3 RENT; IMPOSITIONS; SPECIAL COVENANTS.............. 6
ARTICLE 4 LOT LINE ADJUSTMENT............................... 7
ARTICLE 5 DESIGN APPROVAL................................... 8
ARTICLE 6 USE, COMPLIANCE WITH LAWS......................... 9
ARTICLE 7 ENVIRONMENTAL MATTERS............................. 10
ARTICLE 8 INSURANCE AND INDEMNIFICATION..................... 10
ARTICLE 9 EMINENT DOMAIN.................................... 12
ARTICLE 10 DEFAULT........................................... 13
ARTICLE 11 SURRENDER OF THE PREMISES......................... 15
ARTICLE 12 ASSIGNMENT AND SUBLETTING......................... 15
ARTICLE 13 OPTIONS TO PURCHASE AND SELL THE PREMISES......... 15
ARTICLE 14 RESCISSION OPTIONS................................ 16
ARTICLE 15 TRANSFERS BY LANDLORD............................. 17
ARTICLE 16 LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS.... 17
ARTICLE 17 HOLDING OVER...................................... 18
ARTICLE 18 NOTICES........................................... 18
ARTICLE 19 ESTOPPEL CERTIFICATES............................. 19
ARTICLE 20 ENFORCEMENT AND ATTORNEYS' FEES................... 20
ARTICLE 21 NO MERGER......................................... 20
ARTICLE 22 QUIET ENJOYMENT -- LANDLORD'S RIGHT TO INSPECT.... 21
ARTICLE 23 GENERAL........................................... 21
-i-
<PAGE>
EXHIBITS
- --------
Exhibit "A" Legal Description of the Land
Exhibit "B" Modified Leased Premises
Exhibit "C" Permitted Exceptions
Exhibit "D" Project Documents
Exhibit "E" Form of Agreement to Sell and Purchase and Escrow Instructions
Exhibit "F" Memorandum of Ground Lease
-ii-
<PAGE>
INDEX OF MAJOR DEFINED TERMS
----------------------------
LOCATION OF
DEFINITION IN
DEFINED TERMS GROUND LEASE
- ------------- -------------
Affiliate...................................................... 2
Anniversary Date............................................... 2
Approved Lot Line Adjustment................................... 7
Architectural Committee Approval............................... 8
City........................................................... 7
Closing Date................................................... 6
Commencement Date.............................................. 2
Conditions..................................................... 7
Control........................................................ 2
Design Approval................................................ 8
Effective Date................................................. 8
Environmental Laws............................................. 2
Estoppel Certificate........................................... 20
Event of Default............................................... 12
Events of Default.............................................. 12
Existing CC&Rs................................................. 8
Extension Notice............................................... 5
Extension Option............................................... 5
Extension Payment.............................................. 6
Extension Term................................................. 5
Force Majeure Event............................................ 21
General Instruments............................................ 8
Gen-Probe Easement............................................. 6
GI Approval.................................................... 8
Hazardous Substances........................................... 2
Imposition..................................................... 3
Indemnified Parties............................................ 3
Indemnified Party.............................................. 3
Insurance Proceeds............................................. 3
Land........................................................... 1
Landlord....................................................... 1
Landlord Indemnified Parties................................... 11
Landlord's Estate.............................................. 3
Lease.......................................................... 1
Lease Expiration Date.......................................... 3
Legal Requirements............................................. 3
Memorandum..................................................... Exhibit C
Modified Leased Premises....................................... 4
New CC&Rs...................................................... 9
Official Records............................................... 4
Permitted Exceptions........................................... 4
Premises....................................................... 4
Processing Costs............................................... 7
Project Documents.............................................. 4
Purchase Agreement............................................. 16
-iii-
<PAGE>
Purchase Option........................................................ 15
Purchase Option Notice................................................. 15
Rent................................................................... 4
Rescission Notice...................................................... 16
Rescission Option...................................................... 16
Sale Option............................................................ 15
Sale Option Notice..................................................... 16
SCR.................................................................... 9
Sublease............................................................... 4
Subtenant.............................................................. 4
Tenant................................................................. 1
Tenant Indemnified Parties............................................. 11
Tenant's Estate........................................................ 4
Term................................................................... 5
-iv-
<PAGE>
GROUND LEASE
------------
THIS GROUND LEASE ("Lease"), is made effective as of January 1, 1998 (the
"Effective Date"), by and between APPLIED MICRO CIRCUITS CORPORATION, a Delaware
corporation ("Tenant"), and KILROY REALTY L.P., a Delaware limited partnership
("Landlord"), with respect to the following facts:
RECITALS
--------
A. Landlord is the fee owner of Lots 20 and 21 of Lusk Mira Mesa Business
Park East II, Unit No. 2 in the City of San Diego, County of San Diego, State of
California, which real property is legally described on Exhibit "A" attached
-----------
hereto, together with all rights and interest, if any, of Landlord in and to the
land lying in the streets and roads in front thereof and adjoining thereto and
in and to any easements or other rights appurtenant thereto (the "Land").
B. Landlord and Tenant desire to reduce the leased premises subject to
this Lease to a portion of the Land comprising approximately 205,000 gross
square feet and generally shown on Exhibit "B" attached hereto (the "Modified
-----------
Leased Premises"). Landlord and Tenant have agreed to process with the City of
San Diego a lot line adjustment as more particularly provided in Article 4 of
the Lease.
C. Upon recordation with the Official Records of San Diego County of the
Approved Lot Line Adjustment pursuant to Article 4 of the Lease and upon the
fulfillment of certain other conditions, Tenant desires an option to purchase
and acquire the Modified Leased Premises, and Landlord desires the right and
option to sell the Modified Leased Premises to Tenant, all as more particularly
provided in Article 13 of the Lease.
D. In the event an Approved Lot Line Adjustment is not recorded with
respect to the Modified Leased Premises on or before December 30, 1998, Tenant
desires the right and option to rescind this Lease as more particularly provided
in Article 14 of the Lease or extend the term of this Lease by up to five months
(until not later than May 31, 1999) as more particularly provided in Article 2.
E. Tenant desires to lease from Landlord and Landlord desires to lease to
Tenant the Land (and subsequent to recordation of the Approved Lot Line
Adjustment, the Modified Leased Premises), together with all rights, privileges,
easements, improvements, reversions and appurtenances thereto.
<PAGE>
TERMS
-----
NOW, THEREFORE, in consideration of the above recitals, and the
representations, warranties, covenants and conditions contained herein and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Landlord and Tenant agree as follows:
DEFINITIONS
-----------
As used in this Lease, the following capitalized terms shall have the
meanings set forth below:
"Affiliate" means any Person (1) which directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under common
control with, the Tenant or Landlord, or (2) which owns beneficially or of
record twenty-five percent (25%) or more of the equity interest of Tenant or
Landlord, or (3) twenty-five percent (25%) or more of the equity interest of
which is held beneficially or of record by the Tenant or Landlord, as the
context may require. "Control" means the possession, directly or indirectly, of
the power to cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, family
relationship or otherwise.
"Anniversary Date" means the date exactly one (1) year after the date
on which an event occurred in a previous calendar year.
"Approved Lot Line Adjustment" is defined in Article 4 of the Lease.
"Commencement Date" means the Effective Date.
"Effective Date" means January 1, 1998.
"Environmental Laws" means the following: all federal, state and local
laws, ordinances, rules and regulations now or hereafter in force, as amended
from time to time, interpreting or enforcing any of the foregoing, in any way
relating to or regulating human health or safety, or industrial hygiene or
environmental conditions, or protection of the environment, or pollution or
contamination of the air, soil, surface water or groundwater, and includes
without limitation the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. (S) 9601, et seq., the Resource Conservation
-------
and Recovery Act, 42 U.S.C. (S) 6901 et seq., and the Clean Water Act, 33 U.S.C.
-------
(S) 1251 et seq.
-------
"Hazardous Substances" means any hazardous or toxic substances,
materials or wastes, including, but not limited to, those substances, materials,
and wastes listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302); Hazardous Chemicals as defined in the
OSHA Hazard Communication Standard; Hazardous Substances as defined in the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
(S) 9601, et seq.; Hazardous Substances as defined in the Toxic Substances
-------
Control Act,
-2-
<PAGE>
15 U.S.C. (S) 26012671; all substances now or hereafter designated as "hazardous
wastes" in Section 25117 of the California Health & Safety Code or as "hazardous
substances" in Section 25316 of the California Health & Safety Code; all
substances now or hereafter designated by the Governor of the State of
California pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986
as being known to cause cancer or reproductive toxicity, and all substances now
or hereafter designated as "hazardous substances," "hazardous materials" or
"toxic substances" under any other federal, state or local laws or in any
regulations adopted and publications promulgated pursuant to said laws, and
amendments to all such laws and regulations thereto, or such substances,
materials, and wastes which are or become regulated under any applicable local,
state or federal law.
"Imposition" means all taxes (including possessory interest, real property,
ad valorem, and personal property taxes), assessments, charges, license fees,
municipal liens, levies, excise taxes, impact fees, or imposts, whether general
or special, ordinary or extraordinary imposed by any governmental or quasi-
governmental authority pursuant to law directly as a result of Tenant's
leasehold ownership of the Premises which may be levied, assessed, charged or
imposed, or may be or become a lien or charge upon the Premises, or any part
thereof, or upon the leasehold estate hereby created; and shall also include any
assessments levied by an owners association having jurisdiction over the
Premises.
"Indemnified Parties" means either the Landlord Indemnified Parties or the
Tenant Indemnified Parties, as applicable; an "Indemnified Party" means any
individual within either such group, as applicable.
"Insurance Proceeds" means any amount received by Tenant from an insurance
carrier, after deducting therefrom the reasonable fees and expenses of
collection, including but not limited to reasonable attorneys' fees and experts'
fees.
"Land" means the real property to be leased to Tenant hereunder, as legally
described on Exhibit "A" attached hereto.
-----------
"Landlord's Estate" means all of Landlord's right, title, and interest in
its fee estate in the Premises, together with all rights, privileges, easements,
appurtenances, entitlements, approvals, licenses, permits and warranties
relating thereto, its reversionary interest in the Improvements pursuant hereto,
and all other Rent and benefits due Landlord hereunder.
"Lease Expiration Date" means the earlier to occur of the following dates:
(a) that date which is three hundred and sixty-four (364) days following the
Commencement Date (December 30, 1998) plus such additional period, if any,
through which Tenant extends the term of this Lease (i.e., the Closing Date (as
defined in Article 2.2)), or (b) that date upon which this Lease is sooner
terminated pursuant to the provisions of this Lease or the mutual agreement of
the parties hereto.
"Legal Requirements" means all present and future laws, statutes,
requirements, ordinances, orders, judgments, regulations, administrative or
judicial determinations, even if unforeseen or extraordinary, of every
governmental or quasi-governmental authority, court or
-3-
<PAGE>
agency claiming jurisdiction over the Premises now or hereafter enacted or in
effect (including, but not limited to, Environmental Laws and those relating to
accessibility to, usability by, and discrimination against, disabled
individuals), and all covenants, restrictions, and conditions now or hereafter
of record which may be applicable to Tenant or to all or any portion of the
Premises, or to the use, occupancy, possession, operation, maintenance,
alteration, repair or restoration of any of the Premises, even if compliance
therewith necessitates changes to the Premises or the making of improvements to
the Premises, or results in interference with the use or enjoyment of any of the
Premises.
"Modified Leased Premises" means that portion of the Land to be more
particularly described pursuant to the Approved Lot Line Adjustment and which is
generally shown on Exhibit "B" attached hereto.
-----------
"Official Records" means the Official Records of San Diego County,
California.
"Permitted Exceptions" means those matters described in Exhibit "C"
-----------
attached hereto affecting Landlord's title to the Land which have been approved
by Tenant.
"Premises" shall mean the Land (or the Modified Leased Premises).
"Processing Costs" has the meaning given such term in Article 4.
"Project Documents" means and refers to those documents relating to
the Land more particularly described in Exhibit "D" attached hereto.
-----------
"Purchase Option" has the meaning given such term in Article 13.
"Rescission Option" has the meaning given such term in Article 14.
"Rent" means the Base Rent and all other sums due and payable to
Landlord by Tenant hereunder.
"Sale Option" has the meaning given such term in Article 13.
"Sublease" means any present or future ground sublease, space
sublease, use, or occupancy agreement, entered into in accordance with Article
12 below, and any modification, extension or termination of any of the foregoing
entered into in accordance with Article 12 below.
"Subtenant" means any person or entity entitled to the use of all or
any portion of the Premises under any Sublease.
"Tenant's Estate" means all of Tenant's right, title and interest in
its leasehold estate in the Premises and its interest under this Lease.
-4-
<PAGE>
ARTICLE 1
---------
PREMISES
--------
1.1 Lease of Premises. Landlord hereby leases to Tenant and Tenant hereby
-----------------
hires from Landlord, the Premises, together with all rights, privileges,
easements, and appurtenances belonging to or in any way appertaining thereto,
including but not limited to, any and all surface easements, rights,
entitlements, titles, and privileges of Landlord now or hereafter existing in
and to adjacent streets, sidewalks and alleys for the Term, at the rental, and
upon all of the covenants and conditions set forth herein.
1.2 Condition of Title. Landlord shall deliver possession of the Land to
------------------
Tenant upon the Effective Date, subject to the following matters to the extent
that they affect the Premises:
(a) The Permitted Exceptions to the extent valid and subsisting and
affecting the Premises as of the Effective Date;
(b) The effect of all present building restrictions and regulations
and present and future zoning laws, ordinances, resolutions, and regulations of
the City (which are of general application in the City) and the County of San
Diego and all present ordinances, regulations and orders of all boards, bureaus,
commissions and bodies of the City (which are of general application in the
City) and any county, state or federal agency, now having, or hereafter having
acquired, jurisdiction of the Premises and the use and improvement thereof;
(c) The condition and state of repair of the Premises on the Effective
Date;
(d) All taxes (including local improvement rates), duties,
assessments, special assessments, water charges and sewer rents, and any other
Impositions, accrued or unaccrued, fixed or not fixed, prorated as hereinafter
more fully provided; and
(e) All matters set forth in the Project Documents.
ARTICLE 2
---------
TERM
----
2.1 Term. The term of this Lease ("Term") shall commence on the Effective
----
Date and shall expire on December 30, 1998 unless sooner terminated or extended
as provided herein.
2.2 Extension Option. Tenant may in its sole discretion extend the term
----------------
of this Lease by up to five (5) months (but to a date not later than May 31,
1999) (the "Extension Option"; the length of such extension shall be referred to
herein as the "Extension Term") by giving Landlord written notice (the
"Extension Notice") on or before December 30, 1998. To be
-5-
<PAGE>
effective, the Extension Notice Option must state the date through which the
Tenant wishes to extend this Lease (the "Closing Date"). Unless Tenant expressly
states that it is exercising the Extension in order to obtain the Approved Lot
Line Adjustment (as defined in Article 4) provided such item has not already
been obtained, Tenant's exercise of the Extension Option and issuance of the
Extension Notice shall be deemed to be an exercise of the Purchase Option (as
defined in Article 13.1(a)) and issuance of the Purchase Option Notice (as
defined in Article 13.1(b)) except that the Close of Escrow (as defined in the
Agreement to Sell and Purchase and Escrow Instructions attached hereto as
Exhibit "E") shall occur on the Closing Date. As consideration for such
exercising of the Extension Option, Tenant shall pay Landlord as Base Rent for
the Extension Term an amount equal to $878.84 for each day of the Extension Term
(the "Extension Payment"). The Extension Payment shall be due and payable on or
before December 30, 1998.
ARTICLE 3
---------
RENT; IMPOSITIONS: SPECIAL COVENANTS
------------------------------------
Notwithstanding anything to the contrary contained in the Lease, the
following provisions shall apply with respect to the Term.
(a) The Base Rent shall be $420,000.00, and shall be due and payable
by Tenant and earned by Landlord as of and concurrently with Tenant's execution
of this Lease. Notwithstanding a recordation of the Approved Lot Line Adjustment
or exercise of a Purchase Option or Sale Option during the Term, there shall be
no proration or reduction of the Base Rent payable with respect to the Term.
(b) During the Term and any Extension Term Landlord shall (i) pay
before delinquency all Impositions upon the Premises assessed for such period
and (ii) cause the Premises to comply with all applicable Legal Requirements,
including all Environmental Laws. In the event Landlord fails to timely pay any
Imposition affecting the Premises which Landlord is obligated to pay, the non-
payment of which could impair the validity or priority of the Tenant's Estate,
Tenant may pay such Imposition and Landlord shall, promptly on demand, reimburse
Tenant for the amount of any such payment(s).
(c) During the Term and any Extension Term, Tenant may not encumber
Tenant's Estate or commence construction of any improvements upon the Premises.
(d) During the Term and any Extension Term, Landlord shall provide all
routine maintenance of the Premises such as weed control and such other
maintenance as may be required to maintain the Premises in substantially the
same condition as on the Commencement Date.
(e) Landlord covenants that it will exercise commercially reasonable
efforts and cooperate with Tenant to obtain and record a termination of that
certain temporary easement, as its relates to the Modified Leased Premises,
granted to Gen-Probe and recorded on March 17, 1995 pursuant to which Gen-Probe
may use portions of the Land in connection with its construction of certain
improvements to its property (the "Gen-Probe Easement"). Landlord
-6-
<PAGE>
and Tenant shall exercise diligent efforts in attempting to obtain the
termination of the Gen-Probe Easement by September 30, 1998. Notwithstanding
anything to the contrary in this Lease, Landlord's covenants under this Article
3(e) shall survive the expiration, termination (except where the Rescission
Option is exercised) or assignment of this Lease or the purchase of the Modified
Leased Premises by Tenant or Tenant's assignee.
The parties acknowledge that termination of the Gen-Probe
Easement is not a condition precedent to any of the parties' respective rights
or obligations under this Lease and, if the Purchase Option or Sale Option is
exercised, the Purchase Agreement.
ARTICLE 4
---------
LOT LINE ADJUSTMENT
-------------------
Landlord agrees to use commercially reasonable efforts to process for
final approval by the City of San Diego (the "City"), subject only to those
conditions, reservations and stipulations (collectively, "Conditions")
reasonably acceptable to Landlord and Tenant, a lot line adjustment, parcel map
or amended final subdivision map so as to cause the Modified Leased Premises to
be one single legal parcel (the "Approved Lot Line Adjustment"). Tenant agrees
to cooperate with and, if necessary, assist Landlord to obtain the Approved Lot
Line Adjustment. Attached hereto as Exhibit "B" is a draft parcel map prepared
-----------
by Latitude 33 for the Modified Leased Premises which has been approved by
Landlord and Tenant which they shall cause to be submitted to the City for
processing and approval as the Approved Lot Line Adjustment. Tenant may retain
one or more consultants to assist Tenant with the processing of the Lot Line
Adjustment. Tenant shall pay all costs, fees and expenses of any such
consultants retained by Tenant. Subject to recordation of the Approved Lot Line
Adjustment, Tenant shall reimburse Landlord for actual out-of-pocket costs and
expenses reasonably and actually incurred by Landlord and/or any consultants
retained by Landlord with respect to the processing of the Approved Lot Line
Adjustment in excess of $26,500 ("Processing Costs"); provided, however, that
Landlord has delivered to Tenant reasonable evidence of the Processing Costs.
Landlord shall be solely responsible for the Processing Costs if; for any
reason, the Lot Line Adjustment is not recorded during the Term and any
Extension Term. Upon approval or conditional approval of the Lot Line Adjustment
by the City, Landlord and Tenant shall evaluate any Conditions imposed with
respect to such approval and the Conditions shall be subject to the approval by
Landlord and Tenant, which approval may be withheld in each party's sole
discretion. The parties acknowledge that any Conditions imposed with respect to
the Lot Line Adjustment and applicable to the Modified Leased Premises shall be
satisfied by Tenant at Tenant's sole cost and expense. The Lot Line Adjustment
and the Conditions as approved by the City, Landlord and Tenant shall constitute
the "Approved Lot Line Adjustment."
If Landlord fails to obtain the Approved Lot Line Adjustment on or
before December 30, 1998, Tenant may attempt to obtain the Approved Lot Line
Adjustment during the Extension Term. In the event Tenant exercises the
Extension Option due to Landlord's failure to obtain the Approved Lot Line
Adjustment, Tenant shall notify Landlord in the Extension Notice
-7-
<PAGE>
that it is exercising the Extension Option in order to attempt to obtain the
Approved Lot Line Adjustment.
From and after recordation with the Official Records of the County of
San Diego of the Approved Lot Line Adjustment, all references in this Lease to
Land or Premises shall mean and refer to the Modified Leased Premises and any
Improvements constructed thereon.
ARTICLE 5
---------
DESIGN APPROVAL
---------------
5.1 Landlord and GI Approval. Tenant shall submit to Landlord, for
------------------------
its review and approval ("Landlord Approval"), plans and specifications for the
improvements Tenant proposes to construct upon the Modified Leased Premises (the
"Project") which will show, in reasonable detail, the siting and elevations of
such improvements, all exterior design features and treatments (including
building materials, colors, window treatments, and entryways), exterior
mechanical systems (both ground level and roof mounted), parking areas, exterior
lighting, building signage, loading docks, loading areas, circulation, and
landscaping. Landlord shall approve or disapprove such plans and specifications
within fifteen (15) days from Landlord's receipt thereof Landlord's approval
shall not be unreasonably withheld and any disapproval shall be in writing and
shall specify the reasons for disapproval and recommended changes, if
incorporated into the plans and specifications, which would be acceptable to
Landlord. Landlord hereby agrees to use commercially reasonable efforts and
cooperate with Tenant to obtain on or before September 30, 1998 The GI Realty
Trust 1996's ("General Instruments") written approval of improvements Tenant
intends to construct on the Modified Leased Premises (the "GI Approval" and
together with the Landlord Approval referred to as the "Design Approval"). The
GI Approval, the form and substance of which shall be acceptable to Tenant in
its sole and reasonable discretion, shall fulfill, and expressly state that it
fulfills, any and all approval requirements necessary from General Instruments
for the improvements Tenant intends to construct on the Modified Leased Premises
and set forth in that certain Agreement to Sell and Purchase and Escrow
Instructions dated November 12, 1997 by and between Landlord and General
Instruments. Tenant shall cooperate with and assist Landlord to obtain the GI
Approval by providing to Landlord by not later than August 15, 1998, all site
plans, building elevations and specifications reasonably required by Landlord
and General Instruments in order to obtain the GI Approval. If Tenant has not
obtained the Design Approval on or before September 30, 1998, Tenant may
exercise its rights under Article 14 of the Lease. Tenant's ability to exercise
its rights under Article 14 with respect to Design Approval shall expire if
Tenant fails to exercise such rights on or before October 1, 1998.
5.2 City Approval. Tenant shall use its best efforts to (a) obtain an
-------------
approval for the Project from the Architectural Committee (the "Architectural
Committee Approval") established by that certain Declaration of Covenants,
Conditions and Restrictions for Lusk Mira Mesa Business Park East II (the
"Existing CC&Rs"), which such Architectural Committee Approval Tenant shall be
able to use in connection with any review required pursuant to the Lusk Mira
Mesa Business Park East Planned Industrial Development Permit 86-0975 dated
October 7,
-8-
<PAGE>
1988, as amended December 19, 1988, and (b) have completed the City of San
Diego's substantial conformance review of the Project (the "SCR"). If Tenant has
not obtained the Architectural Committee Approval and/or the SCR approval has
not been completed or progressed to a level acceptable to Tenant, as determined
by Tenant in its sole discretion, on or before September 30, 1998, Tenant may
exercise its rights under Article 14 of this Lease. Tenant's ability to exercise
its rights under Article 14 with respect to the Architectural Committee Approval
and/or the SCR shall expire if Tenant fails to exercise such rights on or before
October 1, 1998.
5.3 Except as set forth in this Article 5.3, Landlord represents and
warrants that neither Landlord nor the Premises is a party to or otherwise bound
under any agreement under which Gen-Probe (or any successor to Gen-Probe as the
owner of the property referenced in the Gen-Probe Easement) has the right to
review or approve any improvements proposed for construction upon the Premises,
and, to Landlord's actual knowledge, Gen-Probe has no such approval rights.
Notwithstanding the foregoing, Tenant acknowledges that (a) if the Premises are
annexed into the Existing CC&Rs, Gen-Probe may have certain approval rights
under the Existing CC&Rs and (b) if the Premises are subjected to a new set of
covenants, conditions and restrictions (the "New CC&Rs"), as currently
contemplated, that Gen-Probe may have certain approval rights under the New
CC&Rs. Tenant further acknowledges that as an owner of property in the vicinity
of the Premises, Gen-Probe, as would any other such owner, have certain rights
which it may exercise regarding matters before the City of San Diego and other
agencies having jurisdiction concerning land use approvals, variances from or
amendments to entitlement documents, and the like regarding the Premises and
other property. Landlord's representation and warranty under this Article 5.3
shall survive the expiration, termination or assignment of this Lease or the
purchase of the Premises by Tenant or Tenant's assignee.
ARTICLE 6
---------
USE. COMPLIANCE WITH LAWS
-------------------------
6.1 Use. Tenant may use the Premises for any uses permitted by Legal
---
Requirements.
6.2 Compliance With Laws. Tenant, in the use, occupation, control and
--------------------
enjoyment of the Premises and in the prosecution and conduct of its business
thereon, shall comply with all Legal Requirements. Tenant shall have the right,
at its own cost and expense, to contest or review by appropriate legal or
administrative proceeding the validity or legality of any such Legal
Requirement, and during such contest Tenant may refrain from complying therewith
provided that compliance therewith may legally be held in abeyance without
subjecting Landlord to any liability, civil or criminal, of whatsoever nature
for failure so to comply therewith and without the incurrence of a lien, charge
or liability against the Premises or Landlord's Estate; and provided further
that all such proceedings shall be prosecuted by Tenant with due diligence.
6.3 Maintenance. Except as otherwise provided in Article 3, Tenant
-----------
shall, during the Term and any Extension Term hereof, keep and maintain the
Premises and all appurtenances thereto in good order and repair, and shall allow
no nuisance to exist or be
-9-
<PAGE>
collectible insurance carried by the other party and shall be with insurance
companies authorized to do business in the State of California with a rating of
A-VIII or better as cited in the most recent edition of Best's Insurance Reports
unless otherwise approved in writing by Landlord. Each such policy shall provide
that the policy cannot be canceled or altered without thirty (30) days prior
written notice to Landlord. Certificates of insurance evidencing these policies
shall be delivered to Landlord upon the Effective Date. Tenant shall, prior to
the expiration of such policies maintained by it, furnish Landlord with renewals
or binders in form satisfactory to Landlord. If Tenant fails to maintain the
insurance required under this Article 8, then Landlord, following ten (10) days
written notice to Tenant, may (but shall not be required to) procure said
insurance on Tenant's behalf and charge Tenant the premium therefor.
8.3 Waiver of Subrogation. Landlord and Tenant each hereby waive any
---------------------
and all rights of recovery against the other or against the shareholders,
directors, members, partners, officers, employees, agents and representatives of
the other, on account of loss or damage to the Premises, and to all property,
whether real, personal or mixed located in or about the Premises by reason of
fire or other casualty to the extent that such loss or damage is insured against
under any insurance policies which either may have in force at the time of such
loss or damage. Tenant and Landlord shall, upon obtaining policies of insurance
required hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease, and Tenant
and Landlord shall cause each insurance policy obtained by it to provide that
the insurance company waives all right of recovery by way of subrogation against
either Landlord or Tenant in connection with any damage covered by any such
policy.
8.4 Indemnification.
---------------
(a) Tenant's Indemnity. Tenant shall indemnify, defend (by
------------------
counsel reasonably acceptable to Landlord) and hold harmless Landlord,
Landlord's Affiliates and their respective partners, members, shareholders,
trustees, beneficiaries, officers, directors, employees, attorneys, agents,
heirs, representatives, successors and assigns ("Landlord Indemnified Parties")
from and against all claims, liabilities, penalties, fines, judgments, losses,
costs or expenses (including reasonable attorneys fees) (collectively "Claims")
arising from, relating to, or in connection with (i) the breach of Tenant's
obligations under this Lease, and (ii) the negligence or willful misconduct of
Tenant (whether or not such misconduct constitutes a violation of applicable
Legal Requirements or of this Lease) or its agents, employees or contractors;
except to the extent such injury, loss, claims or damage is caused by the
negligence or willful misconduct of the Landlord Indemnified Parties.
(b) Landlord's Indemnity. Landlord shall indemnify, defend (by
--------------------
counsel reasonably acceptable to Tenant) and hold harmless Tenant, Tenant's
Affiliates and their respective partners, members, shareholders, trustees,
beneficiaries, officers, directors, employees, attorneys, agents, heirs,
representatives, successors and assigns ("Tenant Indemnified Parties") from and
against all Claims arising from, related to, or in connection with (i) the
breach of Landlord's obligations under this Lease, and (ii) the negligence or
willful misconduct of Landlord (whether or not such misconduct constitutes a
violation of applicable Legal Requirements or of this Lease) or its agents,
employees or contractors; except to the extent such injury, loss, claims or
damage is caused by the negligence or willful misconduct of the Tenant
Indemnified Parties.
-11-
<PAGE>
(c) Actions Against Indemnified Parties. In the event that any action
-----------------------------------
or proceeding is brought against any of the Indemnified Parties by reason of any
or all of the foregoing liabilities, the indemnifying party, upon written notice
from any Indemnified Party, will, at the indemnifying party's sole cost and
expense, resist or defend such action or proceeding with counsel reasonably
acceptable to such Indemnified Party, or if the indemnifying party shall fail to
do so, fund or reimburse such Indemnified Party for the reasonable cost for such
Indemnified Party to do so. Each of Landlord and Tenant, as the case may be,
shall, promptly after receipt of written notice thereof; give the other party
written notice of any claims, actions or proceedings brought against any of the
Indemnified Parties to which such party believes the indemnifying party's
indemnification obligations apply.
(d) Relation to Other Provisions. The provisions set forth in this
----------------------------
Section 8.4 shall not apply with respect to injury, loss, claims, damage,
liabilities, judgments, awards, costs or expenses relating to the presence in,
on, under or around the Premises of Hazardous Substances.
(e) Survival. Each party's indemnity obligations under this Article 8
--------
and elsewhere in this Lease arising prior to the expiration, termination or
assignment of this Lease shall not survive the purchase of the Modified Leased
Premises by Tenant or Tenant's assignee.
ARTICLE 9
---------
EMINENT DOMAIN
--------------
In the event of any material taking or threatened taking of the Premises
during the Term or any Extension Term, notwithstanding any other provision in
the Lease to the contrary, Tenant shall have the right and option, within ten
(10) business days of receipt of notice of any such taking or threatened taking,
to rescind and terminate this Lease upon written notice to Landlord, in which
event Landlord shall be entitled to all proceeds and awards with respect to such
taking and the provisions of Article 14 shall apply. As used herein the term
"material" shall mean a taking or threatened taking affecting more than ten
percent (10%) of the Modified Leased Premises.
ARTICLE 10
----------
DEFAULT
-------
10.1 Events of Default. A breach of this Lease by Tenant shall exist if
-----------------
any of the following events (individually an "Event of Default" and collectively
"Events of Default") shall occur:
(a) Tenant shall have failed to pay the Rent when due and such failure
shall not have been cured within ten (10) days after receipt of written notice
from Landlord respecting such overdue payment; or
-12-
<PAGE>
(b) Tenant shall have failed to pay any other charge or obligation
of Tenant requiring the payment of money under the terms of this Lease (other
than the payment of Rent) when due and such failure shall not have been cured
within thirty (30) days after receipt of written notice from Landlord respecting
such overdue payment; or
(c) Tenant shall have failed to perform any material term,
covenant, or condition of this Lease to be performed by Tenant, except those
requiring the payment of money, and Tenant shall have failed to cure same within
thirty (30) days after written notice from Landlord, delivered in accordance
with the provisions of this Lease, where such failure could reasonably be cured
within said thirty (30) day period (subject to the occurrence of a Force Majeure
Event); provided, however, that where such failure could not reasonably be cured
within said thirty (30) day period, Tenant shall not be in default unless it has
failed to promptly commence and thereafter be continuing to make diligent and
reasonable efforts to cure such failure as soon as practicable (subject to the
occurrence of a Force Majeure Event).
(d) The subjection of any right or interest of Tenant under this
Lease to attachment, execution, or other levy, or to seizure under legal
process, if not released or appropriately bonded within ninety (90) days after
receipt of written notice by Landlord; or
(e) The appointment of a receiver to take possession of the
Premises and/or Improvements or of Tenant's Estate or of Tenant's operations at
the Premises for any reason if not discharged within ninety (90) days of such
appointment, including but not limited to, assignment for the benefit of
creditors or voluntary or involuntary bankruptcy proceedings, but not including
receivership (i) pursuant to administration of the estate of any deceased or
incompetent Tenant or of any deceased or incompetent individual partner of
Tenant, or (ii) instituted by Landlord, the event of default being not the
appointment of a receiver at Landlord's instance but the event justifying the
receivership, if any; or
(f) An assignment by Tenant for the benefit of creditors or the
filing of a voluntary or involuntary petition by or against Tenant under any law
for the purpose of adjudicating Tenant as bankrupt; or for extending time for
payment, adjustment or satisfaction of Tenant's liabilities to creditors
generally; or for reorganization, dissolution, or arrangement on account of or
to prevent bankruptcy or insolvency; unless the assignment or proceeding, and
all consequent orders, adjudications, custodies, and supervisions are dismissed,
vacated, or otherwise permanently stayed or terminated within ninety (90) days
after the assignment, filing, or other initial event.
10.2 Notice to Certain Persons. Landlord shall, before pursuing any
-------------------------
remedy, give written notice of any Event of Default to Tenant and to all
Subtenants who have requested the same from Landlord. Each notice of an Event of
Default shall specify the Event of Default and shall describe any damage
resulting from any such act, and all such notices to such parties (other than
Tenant) shall be given at the time and in the manner given to Tenant.
10.3 Landlord's Remedies. If any Event of Default by Tenant shall
-------------------
continue uncured, following notice of default as required by this Lease, for the
period applicable to the default under the applicable provision of this Lease,
Landlord has the following remedies:
-13-
<PAGE>
(a) Termination. Landlord may at its election terminate this Lease
-----------
by giving Tenant written notice of termination. On the giving of the notice, all
of Tenant's rights in the Premises shall terminate. Promptly after notice of
termination, Tenant shall surrender and vacate the Premises and Landlord may
reenter and take possession of the Premises and eject all parties in possession.
(b) Damages. Should this Lease be terminated by Landlord as a
-------
result of an Event of Default by Tenant, Landlord shall be entitled to damages
equal to the aggregate of the worth at the time of award (as defined by Section
1951.2 of the California Civil Code) of the unpaid rent that had been earned at
the time of termination plus interest thereon at the rate set forth in Section
1951.2 of the California Civil Code; (ii) the worth at the time of award of the
amount by which the unpaid rent that would have been earned after termination
until the time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; and (iii) the worth at the time of
award of the amount by which the unpaid rent for the balance of the Term after
the award exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided (with the "worth at the time of award to be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%)).
10.4 Exclusive Remedies. The remedies expressly given to Landlord
------------------
herein shall be exclusive.
10.5 Waiver of Breach. No waiver by a party of any default by the
----------------
other shall constitute a waiver of any other breach or default by the other,
whether of the same or any other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a party shall give the
other any contractual right by custom, estoppel, or otherwise. The subsequent
acceptance of rent pursuant to this Lease shall not constitute a waiver of any
preceding default by Tenant other than a default in the payment of the
particular rental payment so accepted, regardless of Landlord's knowledge of the
preceding breach at the time of accepting the rent, nor shall acceptance of rent
or any other payment after termination constitute a reinstatement, extension, or
renewal of this Lease or revocation of any notice or other act by Landlord.
10.6 Tenant Remedies. In the event Landlord shall neglect or fail to
---------------
perform or observe any of the covenants, provisions or conditions contained in
this Lease on its part to be performed or observed within thirty (30) days after
written notice of default (or if more than thirty (30) days shall be required
because of the nature of the default, if Landlord shall fail to proceed
diligently to cure such default after written notice thereof), then in that
event Landlord shall be liable to Tenant for any and all actual damages
sustained by Tenant as a result of Landlord's breach.
-14-
<PAGE>
ARTICLE 11
----------
SURRENDER OF THE PREMISES
-------------------------
On the Lease Expiration Date or earlier termination of this Lease
pursuant to the provisions hereof, and subject to the provisions of Articles 13
and 14 hereof, Tenant shall quit and surrender the Premises to Landlord without
delay, and in good order, condition and repair, ordinary wear and tear excepted.
Such surrender of the Premises shall be accomplished without the necessity for
any payment therefor by Landlord.
ARTICLE 12
----------
ASSIGNMENT AND SUBLETTING
-------------------------
12.1 No Sublease. Except as set forth in Section 12.3, Tenant shall
-----------
have no right to sublease all or any portion of the Premises during the Term
hereof
12.2 Assignment. Except as set forth in Section 12.3, Tenant may not
----------
sell, assign, convey or otherwise transfer its interest in this Lease without
Landlord's prior written consent, which may be withheld in Landlord's sole and
absolute discretion. Notwithstanding the foregoing, Landlord hereby consents to
an assignment by Tenant of its interest in this Lease to an Affiliate of Tenant.
12.3 Permitted Assignments and Subleases. Notwithstanding anything
-----------------------------------
to the contrary in this Lease, Landlord expressly consents to any assignment or
sublease by Tenant of (a) all or any part of its interest in or rights under
this Lease, (b) all or any part of its interest in or rights to the Premises
and/or (c) any improvements constructed thereon to an entity affiliated with any
bank, trust or financial institution as may be required in connection with
Tenant's financing.
ARTICLE 13
----------
OPTIONS TO PURCHASE AND SELL THE PREMISES
-----------------------------------------
13.1 Purchase Option. Landlord hereby grants to Tenant an option
---------------
exercisable in Tenant's sole and absolute discretion to purchase Landlord's
Estate in the Modified Leased Premises ("Purchase Option"), on the following
terms and conditions:
(a) Exercise Period. The Purchase Option may be exercised at
---------------
any time after recordation of the Approved Lot Line Adjustment.
(b) Method of Exercising. Tenant shall exercise its Purchase
--------------------
Option by giving written notice thereof ("Purchase Option Notice") to Landlord.
13.2 Sale Option. Tenant hereby grants to Landlord an option to
-----------
sell Landlord's Estate in the Modified Leased Premises to Tenant (the "Sale
Option") on the following terms and conditions:
-15-
<PAGE>
(a) Exercise Period. The Sale Option may only be exercised after
the occurrence of all of the following: (i) the recordation of the Approved Lot
Line Adjustment, (ii) December 30, 1998 and (iii) Tenant's failure to have
previously exercised the Purchase Option, Extension Option and/or Rescission
Option. Notwithstanding the foregoing, in the event Tenant has exercised the
Extension Option in order to obtain the Approved Lot Line Adjustment, the Sale
Option may be exercised following recordation of the Approved Lot Line
Adjustment.
(b) Method of Exercising. Landlord shall exercise its sale option
by giving written notice thereof ("Sale Option Notice") to Tenant.
13.3 Escrow Instructions. If Tenant elects to exercise the Purchase
-------------------
Option, or Landlord elects to exercise the Sale Option, then Landlord and Tenant
shall execute and deliver an Agreement to Sell and Purchase and Escrow
Instructions ("Purchase Agreement") in the form attached hereto as Exhibit "E'
-----------
within ten (10) days of delivery by Tenant of a Purchase Option Notice or
delivery by Landlord of a Sale Option Notice and deposit such Purchase Agreement
with the Escrow Holder identified therein, and shall consummate the purchase and
sale of the Landlord's Estate in accordance with the terms set forth in the
Purchase Agreement.
ARTICLE 14
----------
RESCISSION OPTIONS
------------------
If for any reason whatsoever (including without limitation any Force
Majeure Event) (a) Tenant has not received Design Approval, the Architectural
Committee Approval and/or the SCR has not been completed or progressed to a
level acceptable to Tenant as determined by Tenant, in its sole discretion, on
or before September 30, 1998, or (b) an Approved Lot Line Adjustment has not
been recorded with the Official Records of San Diego County on or before
December 30, 1998 or the Closing Date if Tenant exercises the Extension Option
in order to obtain the Approved Lot Line Adjustment, Tenant shall have the
option ("Rescission Option") to rescind and terminate the Lease. The Rescission
Option must be exercised by Tenant, if at all, by delivery of written notice
thereof to Landlord (i) on or before October 1, 1998 with respect to the
approvals referenced in subsection (a), or (ii) on or before January 15, 1999,
or if Tenant exercises the Extension Option to obtain the Approved Lot Line
Adjustment June 30, 1999, with respect to the approvals referenced in subsection
(b) ("Rescission Notice"). The rescission and termination of the Lease shall be
effective as of the date of the Rescission Notice. Within ten (10) days of the
exercise of a Rescission Option, any and all Base Rent and other sums paid by
Tenant to Landlord during the Term under the terms of this Lease including the
Extension Payment if, and only if; Tenant exercised the Extension Option to
obtain the Approved Lot Line Adjustment and it was not obtained by the Closing
Date, shall be returned and repaid to Tenant by Landlord, with interest thereon
at a rate of eight percent (8%) per annum from and after the date such payments
were received by Landlord until returned to Tenant. Landlord and Tenant shall
execute such other documents and take such other further actions as may be
necessary or reasonably requested by other party so as to properly evidence the
rescission and termination of the Lease including, without limitation, execution
and acknowledgment of a memorandum of the rescission and termination of the
Lease and a quitclaim deed executed by Tenant in favor of Landlord as to
-16-
<PAGE>
any interest the Tenant may have in and to the Premises. The provisions of this
Article 14 shall survive the expiration or earlier termination of this Lease.
ARTICLE 15
----------
TRANSFERS BY LANDLORD
---------------------
Subject to the Lease and Tenant's rights and interests hereunder,
including, without limitation, the Purchase Option and Rescission Option,
Landlord may sell, assign, convey or otherwise transfer all or any portion of
Landlord's Estate and Landlord's rights and interests under this Lease,
including, without limitation, the Sale Option at any time; provided, however,
that prior to September 30, 1998, recordation of the Approved Lot Line
Adjustment and Tenant's receipt of the Design Approval, Landlord receives
Tenant's prior written consent to any assignment to a person or entity other
than and Affiliate of Landlord, which consent shall not be unreasonably
withheld. Landlord shall be released from any ongoing obligations hereunder from
and after the date of any such transfer of Landlord's Estate provided (a) the
party to which Landlord has assigned Landlord's Estate is financially and
operationally suitable to manage real estate investments of the size and
magnitude of the Premises and (b) assumes in writing all obligations of Landlord
hereunder arising after the date of such transfer. Landlord may not encumber or
otherwise subject Landlord's Estate or any portion thereof to any lien unless
such lien or encumbrance is made expressly subordinate and subject to this Lease
and the Purchase Option and Rescission Option, and any such matter must be
eliminated or ameliorated to Tenant's satisfaction in the event of Tenant's
exercise of the Purchase Option.
ARTICLE 16
----------
LANDLORD'S RIGHT TO
-------------------
PERFORM TENANT'S COVENANTS
--------------------------
If Tenant shall at any time fail to make any payment or perform any
other act on its part to be made or performed under this Lease (including the
expiration of any applicable notice and cure periods), Landlord may, at its
option, after first giving Tenant ten (10) days written notice of its intention
to make such payment or perform such other act, but without any obligation to do
so (implied or otherwise), and without waiving or relieving Tenant from any
obligation of Tenant under this Lease, make such payment or perform such other
act to the extent Landlord may deem desirable, and in connection therewith, pay
necessary expenses and employ counsel. All sums so paid by Landlord and all
expenses, penalties, interest, and costs in connection therewith shall be due
and payable by Tenant to Landlord within ten (10) days of written demand
(accompanied by reasonable supporting documentation evidencing such expenditures
and the date of such advance) for payment of same, together with simple interest
thereon at the rate of ten percent (10%) per annum.
-17-
<PAGE>
ARTICLE 17
----------
HOLDING OVER
------------
This Lease shall terminate without any further notice as of the Lease
Expiration Date. Except as provided otherwise herein, any holding over by Tenant
after the Lease Expiration Date, if any, shall not constitute a renewal or
extension or give Tenant any rights in or to the Premises except as expressly
provided in this Lease. Any holding over after the Lease Expiration Date with
the consent of Landlord shall be construed to be a tenancy from month to month,
at a Base Rent equal to one hundred ten percent (110%) of the Base Rent paid for
the Term hereof, but shall otherwise be on the same terms and conditions herein
specified insofar as applicable.
ARTICLE 18
----------
NOTICES
-------
All notices or other communications required or permitted hereunder
shall be in writing, and shall be personally delivered, sent by overnight mail
(Federal Express or the like) or sent by registered or certified mail, postage
prepaid, return receipt requested, telegraphed, delivered or sent by telex,
telecopy, facsimile, fax or cable to the respective addresses set forth below
and shall be deemed received upon the earlier of (i) if personally delivered,
the date of delivery to the address of the person to receive such notice, (ii)
if sent by overnight mail, the business day following its deposit in such
overnight mail facility, (iii) if mailed, four (4) business days after the date
of posting by the United States post office, or (iv) if given by telex,
telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or
other communication sent by cable, telex, telecopy, facsimile or fax must be
confirmed within forty-eight (48) hours by letter mailed or delivered in
accordance with the foregoing.
If to Tenant: Applied Micro Circuits Corporation
6290 Sequence Drive
San Diego, California
Attention: Mr. Joel Holliday, Chief Financial
Officer
Fax No.: (619) 535-6800
-18-
<PAGE>
With a copy to: Brobeck, Phleger & Harrison LLP
550 West "C" Street, Suite 1300
San Diego, CA 92101
Attention: Todd J. Anson, Esq.
Fax No.: (619) 234-3848
and
Luce, Forward, Hamilton, Scripps, LLP
600 West Broadway, Suite 2600
San Diego, CA 92101
Attention: David M. Hymer, Esq.
Fax No: (619) 232-8311
If to Landlord: Kilroy Realty L.P.
4365 Executive Drive, Suite 850
San Diego, California 92121-2130
Attention: Mr. Steven L. Black,
Executive Vice President
Fax No.: (619) 550-1935
With a copy to: Kilroy Realty Corporation
2250 E. Imperial Highway
El Segundo, California 90245
Attention: Mr. Jeffrey C. Hawken
Executive Vice-President
and Chief Operating Officer
Fax No.: (310) 322-5981
and
Allen, Matkins, Leck, Gamble &
Mallory LLP
501 West Broadway, Suite 900
San Diego, California 92101
Attention: Vernon C. Gauntt, Esq.
Fax No.: (619)233-1158
Either Landlord or Tenant may change its respective address by giving written
notice to the other in accordance with the provisions of this Section.
ARTICLE 19
----------
ESTOPPEL CERTIFICATES
---------------------
Tenant agrees promptly following request by Landlord to execute and
deliver an Estoppel Certificate to whichever of them has requested the same.
Landlord agrees promptly following request by Tenant to execute and deliver an
Estoppel Certificate to whichever of them
-19-
<PAGE>
has requested the same. The term "Estoppel Certificate" shall mean an estoppel
certificate, certifying (a) that this Lease is unmodified and in full force and
effect, or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect and the date to
which the Rent and other charges are paid in advance, if any, (b) that there are
no uncured Events of Default on the part of Landlord and Tenant hereunder, or if
there exist any uncured Events of Default on the part of Landlord and/or Tenant
hereunder stating the nature of such uncured defaults on the part of Landlord
and/or Tenant, and (c) the correctness of such other information respecting the
status of this Lease as may be reasonably required by in the case of a Tenant
the Mortgagee or the party hereto requesting execution of such Estoppel
Certificate. A party's failure to so execute and deliver an Estoppel Certificate
within ten (10) business days following written request as required above, shall
be conclusive upon such party that as of the date of said request for the same
(a) that this Lease is in full force and effect, without modification except as
may be represented by the party hereto requesting execution of such Estoppel
Certificate, (b) that there are no uncured Events of Default in Landlord's or
Tenant's obligations under this Lease except as may be represented by the party
hereto requesting execution of such Estoppel Certificate, and (c) that no Rent
has been paid in advance except as may be represented by the party hereto
requesting execution of such Estoppel Certificate.
ARTICLE 20
----------
ENFORCEMENT AND ATTORNEYS' FEES
-------------------------------
In any proceeding or controversy, including any arbitration pursuant
to Section 23.14 hereof; associated with or arising out of this Lease or a
claimed or actual breach hereof; the prevailing party shall be entitled to
recover from the other party as a part of the prevailing party's costs, such
party's actual attorneys', appraiser's and other professionals' fees and court
costs. The award for legal expenses shall not be computed in accordance with any
court schedule, but shall be as necessary to fully reimburse all attorneys' and
other professionals' fees and other expenses actually incurred in good faith,
regardless of the size of the judgment, it being the intention of the parties to
fully compensate the prevailing party for all the attorneys' and other
professionals' fees and other expenses paid in good faith.
ARTICLE 21
----------
NO MERGER
---------
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof; shall not work a merger.
-20-
<PAGE>
ARTICLE 22
----------
QUIET ENJOYMENT--
-----------------
LANDLORD'S RIGHT TO INSPECT
---------------------------
Landlord covenants that Landlord has full right to make this Lease and
provided no Event of Default has occurred under the terms of this Lease,
Landlord covenants that Tenant shall have quiet and peaceful possession of the
Premises as against Landlord and any person claiming the same by, through or
under Landlord. Landlord reserves the right to enter the Premises for purposes
of performing Landlord's maintenance obligations (Section 3(d)) and conducting
normal and periodic inspections of the Premises.
ARTICLE 23
----------
GENERAL
-------
23.1 Captions. The captions used in this Lease are for the purpose of
--------
convenience only and shall not be construed to limit or extend the meaning of
any part of this Lease.
23.2 Counterparts. Any executed copy of this Lease shall be deemed an
------------
original for all purposes. This Lease may be executed in one or more
counterparts, each of which shall be an original, and all of which together
shall constitute a single instrument.
23.3 Time of Essence. Time is of the essence for the performance of
---------------
each covenant and term of this Lease. Notwithstanding the foregoing, any non-
monetary obligation of Tenant or Landlord which cannot be satisfied due to war,
strikes, acts of God or other events which are beyond the reasonable control of
Tenant or Landlord, as the case may be despite the reasonable efforts of such
party (each, a "Force Majeure Event"), shall be excused until the cessation of
such Force Majeure Event. In addition, Tenant's Rent obligation hereunder, and
all dates for the performance of any of Tenant's other obligations hereunder,
shall be automatically extended on a day for day basis in the event of any act
of Landlord in violation of this Lease which actually delays Tenant's
performance, as hereinabove set forth in this Lease, provided that Tenant has
previously notified Landlord of such fact in writing and Landlord has not cured
the cause of such delay within three (3) days of the receipt of said notice. If
Landlord disputes Tenant's assertion that Landlord has caused a delay in
Tenant's performance under this Lease, such dispute shall be resolved as
provided in Section 23.14 below prior to Tenant extending performance of its
obligations as provided above.
23.4 Severability. If any one or more of the provisions contained
------------
herein shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had not been contained herein.
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<PAGE>
23.5 Interpretation. This Lease shall be construed and enforced in
--------------
accordance with the laws of the State of California. The language in all parts
of this Lease shall in all cases be construed as a whole according to its fair
meaning, and not strictly for or against either Landlord or Tenant. When the
context of this Lease requires, the neuter gender includes the masculine, the
feminine, a partnership or corporation or joint venture or other entity, and the
singular includes the plural.
23.6 Successors and Assigns. The covenants and agreements contained
----------------------
in this Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted heirs, successors, and assigns.
23.7 Waivers. The waiver of any breach of any term, covenant or
-------
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained.
23.8 Remedies. Except as otherwise specifically provided herein, all
--------
remedies herein conferred shall be deemed cumulative and no one remedy shall be
exclusive of any other remedy herein conferred or created by law.
23.9 Good Faith. Except where a party hereto is specifically
----------
permitted to act in its sole and absolute discretion, each party hereto agrees
to act reasonably and in good faith with respect to the performance and
fulfillment of the terms of each and every covenant and condition contained in
this Lease.
23.10 No Partnership. The parties hereto agree that nothing contained
--------------
in this Lease shall be deemed or construed as creating a partnership, joint
venture, or association between Landlord and Tenant, or cause either party to be
responsible in any way for the debts or obligations of the other party, and
neither the method of computing Rent nor any other provision contained in this
Lease nor any acts of the parties hereto shall be deemed to create any
relationship between Landlord and Tenant other than the relationship of landlord
and tenant.
23.11 Integration. This Lease and the Exhibits and addendums, if any,
-----------
attached hereto constitute the entire agreement between the parties, and there
are no agreements or representations between the parties except as expressed
herein. All prior negotiations and agreements between Landlord and Tenant with
respect to the subject matter hereof are superseded by this Lease. Except as
otherwise provided herein, no subsequent change or addition to this Lease shall
be binding unless in writing and signed by the parties hereto.
23.12 General Covenants. Representations and Warranties of Landlord.
---------------------------------------------------- --------
Landlord hereby represents and warrants that Landlord has due authority to enter
into this Lease and that the individuals signing this Lease on behalf of
Landlord are authorized to execute this Lease and that, upon such execution,
this Lease shall be legally binding upon Landlord. Tenant hereby represents and
warrants that Tenant has due authority to enter into this Lease and that the
individuals signing this Lease on behalf of Tenant are authorized to execute
this Lease and that, upon such execution, this Lease shall be legally binding
upon Tenant.
-22-
<PAGE>
23.13. Survival. Unless stated otherwise in this Lease, the
--------
provisions (including, without limitation, covenants, agreements,
representations, warranties, obligations, and liabilities described therein) of
this Lease which from their sense and context are intended to survive the
expiration or earlier termination of this Lease (whether or not such provision
expressly provides as such) shall not survive such expiration or earlier
termination of this Lease and shall not continue to be binding upon the
applicable party.
23.14 Arbitration. All controversies and claims which this Lease
-----------
provides will be resolved pursuant to this Section 23.14 shall be arbitrated
pursuant to the applicable rules of the American Arbitration Association. The
arbitration shall occur in the County of San Diego, State of California.
Judgment upon any award rendered by the arbitrator(s) may be entered in any
court having jurisdiction over such matter. The Federal Arbitration Act shall
apply to the construction and interpretation of this agreement to arbitrate. A
single arbitrator shall have the power to render a maximum award of Two Hundred
Thousand Dollars ($200,000.00). When any party files a claim in excess of such
amount, the arbitration decision shall be made by the majority vote of three
arbitrators. This Section 23.14 shall not apply to or limit any other provision
of this Lease except for those provisions which specifically are made subject
hereto.
-23-
<PAGE>
23.15 Memorandum. Landlord and Tenant shall execute, acknowledge and
----------
record a Memorandum of Ground Lease in the form of Exhibit "F" attached hereto
concurrently with the execution of the Lease. Recordation of the Memorandum of
Ground Lease shall be a condition precedent to Tenant's obligation to pay Rent.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the Effective Date.
"Tenant" APPLIED MICRO CIRCUITS CORPORATION, a Delaware
corporation
By: ____________________________________________
Name: ______________________________________
Title:______________________________________
"Landlord" KILROY REALTY L.P.,
a Delaware limited partnership
By: Kilroy Realty Corporation
a Maryland corporation, its General Partner
By: /s/ STEVEN L. BLACK
-------------------------------------------
Name: Steven L. Black
Title: Executive Vice President
<PAGE>
23.15 Memorandum. Landlord and Tenant shall execute, acknowledge and
----------
record a Memorandum of Ground Lease in the form of Exhibit "F" attached hereto
concurrently with the execution of the Lease. Recordation of the Memorandum of
Ground Lease shall be a condition precedent to Tenant's obligation to pay Rent.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the Effective Date.
"Tenant" APPLIED MICRO CIRCUITS CORPORATION,
a Delaware corporation
By: /s/ JOEL O. HOLIDAY
------------------------------------------
Name: Joel O. Holiday
-----------------------------------
Title: Vice President
-----------------------------------
"Landlord" KILROY REALTY L.P.,
a Delaware limited partnership
By: Kilroy Realty Corporation
a Maryland corporation, its General Partner
By: ----------------------------------------
Name: Steven L Black
Title: Executive Vice President
<PAGE>
EXHIBIT "A"
-----------
LEGAL DESCRIPTION OF LAND
-------------------------
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
LOTS 20 AND 21 OF LUSK MIRA MESA BUSINESS PARK EAST II, UNIT NO. 2, IN THE CITY
OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. 12685, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
AUGUST 15, 1990.
TOGETHER WITH THE SOUTHERLY HALF OF SEQUENCE DRIVE (FORMERLY TOP GUN STREET)
WHICH WESTERLY LIMIT IS THE CENTERLINE OF GENETIC CENTER DRIVE (FORMERLY
STEADMAN STREET) AND THE EASTERLY LIMIT IS LYING ADJACENT AND PERPENDICULAR TO
THE EASTERLY BOUNDARY OF LOT 20; AND THE NORTHERLY HALF OF MIRA MESA BOULEVARD
WHICH WESTERLY LIMIT IS THE CENTERLINE OF GENETIC CENTER DRIVE (FORMERLY
STEADMAN STREET) AND THE EASTERLY LIMIT IS LYING ADJACENT AND PERPENDICULAR TO
THE EASTERLY BOUNDARY OF LOT 20, ALL AS SHOWN ON MAP NO. 12685 OF LUSK MIRA MESA
BUSINESS PARK EAST II, UNIT NO. 2, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, WHICH BY CLOSING WOULD REVERT BY OPERATION OF LAW TO SAID
LOTS.
EXHIBIT "A"
-1-
<PAGE>
EXHIBIT "B"
MODIFIED LEASED PREMISES
(See Attached)
EXHIBIT "B"
-1-
<PAGE>
[ PARCEL MAP NO. ]
<PAGE>
EXHIBIT C
---------
PERMITTED EXCEPTIONS
--------------------
All items described in that Preliminary Title Report prepared by First
American Title Insurance Company, dated as of June 1, 1998, Order No. 1184959-
20, a copy of which is attached hereto. Tenant may, at its option, select
Chicago Title Company as title company in connection with this transaction. If
Tenant exercises this option, all items described in a preliminary title report
prepared by Chicago Title Company shall be deemed permitted exceptions.
All matters disclosed by that ALTA/ACSM Land Title Survey, dated as of
November 18, 1997, prepared by Latitude 33, pertaining to the Land, a copy of
which has been furnished to Tenant.
EXHIBIT C
-1-
<PAGE>
ORDER NO. 1184959-20
FIRST AMERICAN TITLE INSURANCE COMPANY
411 IVY STREET, SAN DIEGO, CALIFORNIA 92101
P.O. BOX 808, SAN DIEGO, CALIFORNIA 92112 (619) 238-1776
June 10, 1998
FIRST AMERICAN TITLE
411 IVY ST.
SAN DIEGO, CA 92101
ATTN: ANGELIQUE SIZEMORE
YOUR REF: 98-6944AS
OUR ORDER NO. 1184959-20
BUYER: TO BE FURNISHED
IN RESPONSE TO THE HEREIN REFERENCED APPLICATION FOR A POLICY OF TITLE
INSURANCE, THIS COMPANY HEREBY REPORTS THAT IT IS PREPARED TO ISSUE, OR CAUSE TO
BE ISSUED, AS OF THE DATE HEREOF, A POLICY OR POLICIES OF TITLE INSURANCE
DESCRIBING THE LAND AND THE ESTATE OR INTEREST THEREIN HEREINAFTER SET FORTH,
INSURING AGAINST LOSS WHICH MAY BE SUSTAINED BY REASON OF ANY DEFECT, LIEN OR
ENCUMBRANCE NOT SHOWN OR REFERRED TO AS OR NOT EXCLUDED FROM COVERAGE PURSUANT
TO THE PRINTED SCHEDULES, CONDITIONS AND STIPULATIONS OF SAID POLICY FORMS.
THE PRINTED EXCEPTIONS AND EXCLUSIONS FROM THE COVERAGE OF SAID POLICY OR
POLICIES ARE SET FORTH HEREIN. COPIES OF THE POLICY FORMS SHOULD BE READ. THEY
ARE AVAILABLE FROM THE OFFICE WHICH ISSUED THIS REPORT.
PLEASE READ THE EXCEPTIONS SHOWN OR REFERRED TO BELOW AND THE EXCEPTIONS AND
EXCLUSIONS SET FORTH IN EXHIBIT A OF THIS REPORT CAREFULLY. THE EXCEPTIONS AND
EXCLUSIONS ARE MEANT TO PROVIDE YOU WITH NOTICE OF MATTERS WHICH ARE NOT COVERED
UNDER THE TERMS OF THE TITLE INSURANCE POLICY AND SHOULD BE CAREFULLY
CONSIDERED.
IT IS IMPORTANT TO NOTE THAT THIS PRELIMINARY REPORT IS NOT A WRITTEN
REPRESENTATION AS TO THE CONDITION OF TITLE AND MAY NOT LIST ALL LIENS, DEFECTS,
AND ENCUMBRANCES AFFECTING TITLE TO THE LAND.
THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE
PURPOSE OF FACILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND NO
LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO
THE ISSUANCE OF A POLICY OF TITLE INSURANCE, A BINDER OR COMMITMENT SHOULD BE
REQUESTED.
DATED AS OF JUNE 1, 1998 AT 7:30 A.M.
/s/ RALPH SNYDER
-------------------------------------
RALPH SNYDER TITLE OFFICER
DIRECT DIAL PHONE 231-4605
FAX NO. 231-4629
PAGE 1
<PAGE>
ORDER NO. 1184959-20
THE FORM OF POLICY TITLE INSURANCE CONTEMPLATED BY THIS REPORT IS:
ALTA EXTENDED OWNERS
TITLE TO SAID ESTATE OR INTO. REST AT THE DATE HEREOF IS VESTED IN:
KILROY REALTY, L.P., A DELAWARE LIMITED PARTNERSHIP
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED
BY THIS REPORT IS:
FEE
THE LAND REFERRED TO HEREIN IS DESCRIBED AS FOLLOWS:
(SEE ATTACHED LEGAL DESCRIPTION)
AT THE DATE HEREOF EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS
AND EXCLUSIONS CONTAINED IN SAID POLICY FORM WOULD BE AS FOLLOWS:
1. GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-99, A LIEN, NOT YET
PAYABLE.
2. SUPPLEMENTAL TAXES OR ASSESSMENTS PURSUANT TO THE CALIFORNIA REVENUE AND
TAXATION CODE. PARCEL NO. 879-455-50-37.
ORIGINAL 1ST INSTALLMENT $3,486.31 (DELINQUENT ON 06/30/98)
ORIGINAL 2ND INSTALLMENT $3,486.31 (DELINQUENT ON 10/31/98)
DELINQUENCY CHARGES: $348.63 1ST PENALTY
$358.63 2ND PENALTY
AFFECTS LOT 20.
3. SUPPLEMENTAL TAXES OR ASSESSMENTS PURSUANT TO THE CALIFORNIA
REVENUE AND TAXATION CODE.
PARCEL NO. 879-485-50-47.
ORIGINAL 1ST INSTALLMENT $3,650.74 (DELINQUENT ON 06/30/98)
ORIGINAL 2ND INSTALLMENT $3,650.74 (DELINQUENT ON 10/31/98)
DELINQUENCY CHARGES: $365.07 1ST PENALTY
$365.07 2ND PENALTY
AFFECTS LOT 21.
PAGE 2
<PAGE>
ORDER NO. 11849S9-20
4. THE LIEN OF SUPPLEMENTAL TAXES OR ASSESSMENTS, IF ANY, ASSESSED PURSUANT TO
CHAPTER 3.5 COMMENCING WITH SECTION 75 OF THE CALIFORNIA REVENUE AND
TAXATION CODE AND ANY OTHER APPLICABLE STATUTES OF THE CALIFORNIA REVENUE
AND TAXATION CODE.
5. THE PRIVILEGE AND RIGHT TO EXTEND DRAINAGE STRUCTURES, EXCAVATION AND
EMBANKMENT SLOPES BEYOND THE LIMITS OF THE RIGHT OF WAY GRANTED THEREIN
WHERE REQUIRED FOR THE CONSTRUCTION AND MAINTENANCE OF SAID EASEMENT AS
GRANTED IN DEED RECORDED AUGUST 19, 1982 AS FILE NO. 82-256437 OF OFFICIAL
RECORDS.
AFFECTS LOTS 20 AND 21.
6. PLANNING DIRECTOR RESOLUTION NO. 4457 GRANTING HILLSIDE REVIEW PERMIT NO.
82-0440, ISSUED BY THE PLANNING DIRECTOR OF THE CITY OF SAN DIEGO, RECORDED
OCTOBER 4, 1983, AS FILE NO. 83-355406 OF OFFICIAL RECORDS.
7. HILLSIDE REVIEW PERMIT NO. 82-0441 PLANNING DIRECTOR, ISSUED BY THE PLANNING
DIRECTOR OF THE CITY OF SAN DIEGO TO LUSK-SMITH/MIRA MESA NORTH, A LIMITED
PARTNERSHIP, OWNER/PERMITTEE, UNDER THE CONDITIONS IN SECTION 101.04S4 OF
THE MUNICIPAL CODE OF THE CITY OF SAN DIEGO, RECORDED OCTOBER 4, 1983, AS
FILE NO. 83-355407 OF OFFICIAL RECORDS.
8. THE TERMS, CONDITIONS AND PROVISIONS CONTAINED IN PLANNED INDUSTRIAL
DEVELOPMENT PERMIT NO. 86-0975, AS DISCLOSED BY INSTRUMENT RECORDED DECEMBER
4, 1989 AS FILE NO. 89-653459 OF OFFICIAL RECORDS.
9. THE FACT THAT SAID LAND LIES WITHIN THE ASSESSMENT DISTRICT PLAT NO. 4008,
AS DISCLOSED BY INSTRUMENT RECORDED MARCH 16, 1988 AS FILE NO. 88-120421 OF
OFFICIAL RECORDS AND AN AMENDMENT RECORDED NOVEMBER 13, 1991 AS FILE NO. 91-
0585802 AND OCTOBER 30, 1995 AS FILE NO. 1995-0489310 AND AUGUST 20, 1996 AS
FILE NO. 1996-0423519, BOTH, BOTH OF OFFICIAL RECORDS.
A NOTICE OF ASSESSMENT RECORDED MARCH 16, 1988 AS FILE NO. 88-120422 OF
OFFICIAL RECORDS AND AN AMENDMENT RECORDED NOVEMBER 13, 1991 AS FILE NO. 91-
0585803 AND AUGUST 20, 1996 AS PILE NO. 1996-0423520, BOTH OF OFFICIAL
RECORDS.
10. AN AGREEMENT BETWEEN THE CITY OF SAN DIEGO AND LUSK / MIRA MESA BUSINESS
PARK EAST OWNERS' ASSOCIATION, OWNER, RECORDED AUGUST 23, 1990 AS FILE NO.
90-462148 OF OFFICIAL RECORDS, RELATING TO THE INSTALLATION, MAINTENANCE AND
POSSIBLE REMOVAL OF LANDSCAPING, TREES, IRRIGATION OVER AND ACROSS PUBLIC
RIGHT OF WAY FOR THE USE AND BENEFIT OF THE PROPERTY OWNERS ASSOCIATION,
SUBJECT TO THE TERMS, COVENANTS AND CONDITIONS CONTAINED THEREIN.
PAGE 3
<PAGE>
ORDER NO. 1184959-20
11. AN AGREEMENT BETWEEN THE CITY OF SAN DIEGO AND LUSK-SMITH/MIRA MESA NORTH, A
LIMITED PARTNERSHIP, OWNER, RECORDED AUGUST 23, 1990 AS FILE NO. 90-462149
OF OFFICIAL RECORDS, RELATING TO THE INSTALLATION, MAINTENANCE AND POSSIBLE
REMOVAL OF PRIVATE STORM DRAIN FOR THE USE AND BENEFIT OF OWNER'S PROPERTY,
OVER, UNDER AND ACROSS PUBLIC STREETS AND EASEMENTS, SUBJECT TO THE TERMS,
COVENANTS AND CONDITIONS CONTAINED THEREIN.
12. AN EASEMENT FOR UNDERGROUND FACILITIES, PIPELINES, COMMUNICATION FACILITIES
AND INCIDENTAL PURPOSES IN FAVOR OF SAN DIEGO GAS AND ELECTRIC COMPANY, A
CORPORATION, RECORDED OCTOBER 31, 1990 AS FILE NO. 90-590533 OF OFFICIAL
RECORDS, DESCRIBED AS FOLLOWS:
THE EASEMENT SHALL BE A STRIP OF LAND, INCLUDING ALL OF THE AREA LYING
BETWEEN THE EXTERIOR SIDELINES, WHICH SIDELINES SHALL BE 3 FEET, MEASURED AT
RIGHT ANGLES, ON EACH EXTERIOR SIDE OF EACH AND EVERY FACILITY INSTALLED
WITHIN SAID PROPERTY ON OR BEFORE OCTOBER 31, 1993.
THE ROUTE OR LOCATION OF SAID EASEMENT CANNOT BE DETERMINED FROM THE RECORD.
REFERENCE IS MADE TO SAID INSTRUMENT FOR FURTHER PARTICULARS.
13. AN INFRASTRUCTURE IMPROVEMENT, TEMPORARY EASEMENT AND SUBORDINATION
AGREEMENT DATED MARCH 16, 1995, UPON THE TERMS, COVENANTS, AND CONDITIONS
CONTAINED THEREIN. EXECUTED BY AND BETWEEN: LUSK-SMITH/MIRA MESA NORTH,
A CALIFORNIA PARTNERSHIP AND
GEN-PROBE INCORPORATED,
A DELAWARE CORPORATION.
RECORDED: MARCH 17, 1995 AS FILE NO. 1995-0112527 OF OFFICIAL RECORDS.
THE ROUTE OF SAID EASEMENT IS SET OUT IN SAID DOCUMENT AND AFFECTS A PORTION
OF THE HEREIN DESCRIBED PROPERTY .
REFERENCE IS MADE TO SAID INSTRUMENT FOR FURTHER PARTICULARS.
AN ASSIGNMENT OF INFRASTRUCTURE IMPROVEMENT, TEMPORARY EASEMENT AND
SUBORDINATION AGREEMENT, DATED MARCH 16, 1995, UPON THE TERMS, COVENANTS,
AND CONDITIONS CONTAINED THEREIN, EXECUTED BY AND BETWEEN LUSK-SMITH/MIRA
MESA NORTH, A CALIFORNIA LIMITED PARTNERSHIP, GEN-PROBE INCORPORATED, A
DELAWARE CORPORATION AND CHUGAI HOLDING, U.S.A., A DELAWARE CORPORATION,
RECORDED MARCH 17, 1995 AS FILE NO. 199B-0112529 OF OFFICIAL RECORDS.
PAGE 4
<PAGE>
ORDER NO. 1184959-20
1997-1998 TAX INFORMATION
CODE AREA: 08012
PARCEL NO.: 311-521-14-00
1ST INSTALLMENT: $2,539.00 PAID
2ND INSTALLMENT: $2,539.00 PAID
LAND VALUE: $443,000
IMPROVEMENTS: $- 0 -
EXEMPT: $- 0 -
AFFECTS LOT 20.
CODE AREA: 08012
PARCEL NO.: 311-521-15-00
1ST INSTALLMENT: $2,659.26 PAID
2ND INSTALLMENT: $2,659.26 PAID
LAND VALUE: $464,000
IMPROVEMENTS: $- 0 -
EXEMPT: $- 0 -
AFFECTS LOT 21.
PAGE 5
<PAGE>
ORDER NO. 1184959-20
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
LOTS 20 AND 21 OF LUSK MIRA MESA BUSINESS PARK EAST II, UNIT NO. 2, IN THE CITY
OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. 12685, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
AUGUST 15, 1990.
TOGETHER WITH THE SOUTHERLY HALF OF SEQUENCE DRIVE (FORMERLY TOP GUN STREET)
WHICH WESTERLY LIMIT IS THE CENTERLINE OF GENETIC CENTER DRIVE (FORMERLY
STEADMAN STREET) AND THE EASTERLY LIMIT IS LYING ADJACENT AND PERPENDICULAR TO
THE EASTERLY BOUNDARY OF LOT 20; AND THE NORTHERLY HALF OF MIRA MESA BOULEVARD
WHICH WESTERLY LIMIT IS THE CENTERLINE OF GENETIC CENTER DRIVE(FORMERLY STEADMAN
STREET) AND THE EASTERLY LIMIT IS LYING ADJACENT AND PERPENDICULAR TO THE
EASTERLY BOUNDARY OF LOT 20, ALL AS SHOWN ON MAP NO. 12685 OF LUSK MIRA MESA
BUSINESS PARK EAST II, UNIT NO. 2, FILED, IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, WHICH BY CLOSING WOULD REVERT BY OPERATION OF LAW TO SAID
LOTS.
PAGE 6
<PAGE>
[MAP OF LUSK MIRA MESA BUSINESS PARK]
<PAGE>
EXHIBIT D
---------
Due Diligence List
------------------
1. Mira Mesa - Public Facilities Plan & Facilities Benefit Assessment Fiscal
Year 1997
2. Mira Mesa - Public Facilities Plan & Facilities Benefit Assessment - Draft
Fiscal Year 1998
3. Articles of Incorporation of Sorrento Rim Owner Association - Draft, dated
March 2, 1997
4. Architectural Development Standards for Lusk/Mira Mesa Business Park East,
December 10, 1984
5. Mitigated Negative Declaration EQD 86-0975, November 22, 1988, 'Final'
6. Report of Geotechnical Services, Lusk Mira Mesa Business Park East II, Unit
11, Lots 10- 17 & 20 - 24, prepared by: Dames & Moore, July 22, 1996; with
identification letter dated November 6, 1997
7. Lusk Mira Mesa Business Park East Planned Industrial Development (Amendments
of Units I and II), amended October 7, 1988
8. Phase I Environmental Site Assessment 24-Acre Vacant Parcel, Lusk Mira Mesa
Business Park East II, prepared by Dames & Moore, April 8, 1996
9. Report of Geotechnical Services, Lusk Mira Mesa Business Park East II - Unit
2, prepared by: Moore & Taber, October 15, 1991
10. Declaration of Covenants, Conditions & Restrictions for Lusk/Mira Mesa
Business Park East II, November 15, 1990
11. Environmental Impact Report, City of San Diego Planning Department May 24,
1983, 'Final'
12. Letter from Rick Engineering Company, re Lusk Mira Mesa Business Park East
II - Lot Exhibits J- 11210, July 18, 1990
13. Subdivision Board Resolution No. 5406, December 19, 1988
14. Planning Director Resolution No. 7747, December 19, 1988
15. Letter from Kilroy Realty Corp. to Bob Didion, dated November 13, 1997
EXHIBIT D
-1-
<PAGE>
16. Letter from AGRA Earth & Environmental re: review of subsurface conditions
underlying lots 20-24, dated November 14, 1997
17. Geotechnical investigation for Sorrento Rim Business Park II, prepared by
AGRA Earth & Environmental, dated April 9, 1998
18. Genetic Center Drive - improvement plans Latitude 33, dated February 14,
1995, Sheet 27646-5-D
19. ALTA Survey Lots 20-24 prepared by Latitude 33 Instruments, dated November
18, 1997
20. ALTA Survey Lots 10-17, 20-24 Lusk Mira Mesa Business Park East II, Latitude
33, August 7, 1996
21. As-built Plans for Improvement of Sequence Drive, Sheets 25270-7-D, 25270-8-
D, 25270-10-D
22. Plans for Improvement for General Instruments, Sheets 28317-I-D through 12-
D, for the improvements of Sequence Drive
Kilroy Realty, L.P. is not warranting the correctness or completeness of any of
the above-described materials.
EXHIBIT D
-2-
<PAGE>
EXHIBIT E
---------
FORM OF AGREEMENT TO SELL AND PURCHASE AND ESCROW
-------------------------------------------------
INSTRUCTIONS
------------
EXHIBIT "E"
-1-
<PAGE>
AGREEMENT TO SELL
AND PURCHASE
AND ESCROW INSTRUCTIONS
Between
KILROY REALTY, L.P.
As
"Seller"
and
________________________________
as
"Purchaser"
<PAGE>
AGREEMENT TO SELL AND PURCHASE
AND ESCROW INSTRUCTIONS
-----------------------
THIS AGREEMENT TO SELL AND PURCHASE AND ESCROW INSTRUCTIONS (this
"Agreement") is dated as of ____________________, 199_ (the "Effective Date")
and entered into by and between KILROY REALTY, L.P., a Delaware limited
partnership ("Seller"), and _______________,a _________________ ("Purchaser"),
with reference to the following facts and intentions:
R E C I T A L S:
- - - - - - - -
A. Seller, as Landlord, and Purchaser, as Tenant, are parties to
that certain Ground Lease effective as of January 1, 1998 (the "Ground Lease").
Capitalized terms used herein and not separately defined shall have the meanings
ascribed to them in the Ground Lease.
B. The parties have caused this Agreement to be executed and
delivered pursuant to the exercise of the Purchase Option by Purchaser or the
Sale Option by Seller as provided under the Ground Lease.
NOW, THEREFORE, for the consideration hereafter set forth, and other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, Seller and Purchaser hereby agree as follows:
1. Agreement of Purchase and Sale.
------------------------------
Seller shall convey, and Purchaser shall purchase and acquire in
accordance with the terms set forth herein:
A. That certain real property located in the City of San Diego,
County of San Diego, State of California, more particularly described in Exhibit
A attached hereto and incorporated herein by this reference (the "Land").
B. All of Seller's right, title and interest in and to any
improvements, if any, affixed to the Land (collectively the "Improvements").
C. All of Seller's rights, privileges, entitlements, easements,
approvals, licenses, permits and appurtenances pertaining to the Land and the
Improvements, including any right, title and interest of Seller (but without
warranty whether statutory, express or implied) in and to adjacent streets,
alleys or rights-of-way.
-1-
<PAGE>
D. All of Seller's right, title and interest in and to any
intangible Warranties, guaranties, contract rights and/or other claims, to the
extent assignable, relating to the Land and/or the Improvements.
The items described in Sections 1(A) through 1(C) above are
--------
hereinafter called the "Real Property;" the items described in Section i(D) are
called the "Intangible Property;" and the Real Property and the Intangible
Property are collectively referred to as the "Property."
2. Purchase Price.
--------------
The purchase price ("Purchase Price") for the Property shall be:
$3,564,167 plus an amount equivalent to simple interest accrued thereon at a
rate of 8% per annum from October 1, 1998 through and including the earlier to
occur of December 31, 1998 or the Closing Date.
3. Payment of Purchase Price.
-------------------------
The Purchase Price shall be paid as follows:
A. As part of the Opening of Escrow (as defined below), Purchaser
shall deliver, at Purchaser's sole option, to Chicago Title Company or to First
American Title Insurance Company ("Escrow Holder" and "Title Company") a deposit
of ___________________ Dollars ($______________) [insert (A) $100,000 if
Extension Option was either not exercised or was exercised to obtain Approved
Lot Line Adjustment; and otherwise (B) $1,000] (the "Deposit"). The Deposit
shall be in the form of wire transfer, cash or a certified or bank cashier's
check for immediately available funds. Escrow Holder shall place the Deposit in
an interest-bearing account acceptable to Purchaser and Seller. All interest
earned on the Deposit shall be included within the meaning of the term "Deposit"
in this Agreement such that Purchaser shall receive the benefit of any interest
earned thereon through a credit at the Close of Escrow.
B. Upon the Close of Escrow, Purchaser shall deposit or cause to be
deposited with Escrow Holder, in cash, by a certified or bank cashier's check
made payable to Escrow Holder or by a confirmed wire transfer of funds, the
balance of the Purchase Price plus closing costs and other charges payable by
Purchaser pursuant to this Agreement.
4. Escrow Instructions.
-------------------
A. Opening of Escrow. As soon as reasonably practicable following
-----------------
the mutual execution of this Agreement, but in no event later than two (2)
business days thereafter, the parties shall open an escrow ("Escrow") with the
Escrow Holder in order to consummate the purchase and sale of the Property in
-2-
<PAGE>
accordance with the terms and provisions hereof by depositing the Deposit and a
signed original of this Agreement in the Escrow. The provisions hereof shall
constitute joint primary escrow instructions to the Escrow Holder; provided,
--------
however, that the parties shall execute such additional instructions as
- -------
requested by the Escrow Holder not inconsistent with the provisions hereof
unless such additional instructions state that these instructions are being
modified, state the modification in full and are signed by both parties. The
date as of which the Escrow Holder shall receive (i) the Deposit and (ii) an
original of this Agreement executed on behalf of both Seller and Purchaser
(which execution may be effected in multiple counterparts) shall constitute the
"Opening of Escrow." Escrow Holder shall deliver written confirmation of the
date of the Opening of Escrow to the parties in the manner set forth in Section
14 of this Agreement.
B. Documents and Funds Delivered to or by Escrow. The following shall
---------------------------------------------
be delivered into the Escrow or by Escrow in connection with the transfer of the
Property:
(1) Delivery by Seller into Escrow. At least two (2) business days
------------------------------
prior to the Closing Date (as defined below), Seller shall deposit into Escrow:
(a) a grant deed (the "Grant Deed") to the Property in recordable
form, duly executed and acknowledged by Seller in substantially the same form as
set forth in Exhibit "B" attached hereto;
-----------
(b) two (2) originals of an assignment and assumption of
intangible property (the "Assignment of Intangible Property"), duly executed by
Seller in substantially the same form as set forth in Exhibit "C" attached
-----------
hereto;
(c) two (2) originals of an affidavit from Seller which satisfies
the requirements of Section 1445 of the Internal Revenue Code, as amended (the
"Section 1445 Affidavit") in substantially the same form as set forth in Exhibit
-------
"D" attached hereto;
- ---
(d) two (2) originals of a Withholding Exemption Certificate,
California Form 590 (the "Certificate"), in substantially the same form as set
forth in Exhibit "E" attached hereto;
-----------
(e) two (2) originals of the Termination of Ground Lease and
Termination of Memorandum of Ground Lease in substantially the same forms as set
forth in Exhibits "F-l" and "F-2" attached hereto (the "Termination of Ground
Lease");
-3-
<PAGE>
(f) a duly executed certificate of Seller ("Seller's Bringdown
Certificate") in the form of Exhibit "G"; and
-----------
(g) such other instruments and documents as may be reasonably
requested by Escrow Holder relating to Seller, to the Property and/or as
otherwise required to transfer the Property to Purchaser.
(2) Delivery of Documents by Purchaser into Escrow. Prior to the
----------------------------------------------
Closing Date, Purchaser shall deposit into Escrow executed counterparts of the
documents referred under Subsections B(1) (b), (e) and (g) above.
(3) Delivery by Escrow. At least two (2) business days prior to the
------------------
Close of Escrow, Escrow Holder shall deliver to Purchaser and Seller a pro forma
closing statement which sets forth, in a manner satisfactory to Purchaser and
Seller, the prorations and other credits and debits contemplated by this
Agreement.
C. Conditions to Close. Escrow shall not close unless and until the
-------------------
following conditions precedent and contingencies have been satisfied or waived
in writing by the party for whose benefit the conditions have been included:
(1) All funds and instruments described in this Section 4 have
been delivered to the Escrow Holder.
(2) The Title Company is in a position and is unconditionally
committed to issue to Purchaser the Title Policy described in Section 6 below.
-
(3) All representations and warranties made by Seller in Section
8 below and Purchaser in Section 9 below shall be true and correct in all
---------
material respects as of the Closing Date.
(4) Except as expressly provided in this Section 4(c) (4),
Seller and Purchaser shall each have performed, observed and complied with all
of their respective covenants, agreements and conditions required by this
Agreement to be performed, observed and/or complied with by Seller and
Purchaser, as the case may be, prior to, or as of, the Closing. If Seller fails
to deposit into Escrow the Section 1445 Affidavit or the Certificate as required
by this Agreement, Purchaser may at its option either (i) delay Close of Escrow
until such time as Seller has complied with the conditions set forth herein
(which adjournment shall not place Purchaser in default of its obligations
hereunder) or (ii) withhold from the Purchase Price and remit to the Internal
Revenue Service, a sum equal to ten percent (10%) of the gross selling price of
the Property and such other sum as shall be required in accordance with the
withholding
-4-
<PAGE>
obligations imposed upon Purchaser pursuant to Section 1445 of the Internal
Revenue Code, as amended, and the laws of the State of California. Such
withholding shall not place Purchaser in default under this Agreement, and
Seller shall not be entitled to claim that such withholding shall excuse
Seller's performance under this Agreement.
If Closing shall have occurred with the consent of both parties, any
non-material condition not otherwise satisfied or waived as of the Closing shall
be deemed fully satisfied or waived by the party for whose benefit the condition
had been included.
D. Recordation and Transfer. Upon satisfaction of the conditions set
------------------------
forth in Section 4(C) above, Escrow Holder shall transfer the Property as
-------
follows:
(1) Cause the Termination of Memorandum of Ground Lease and Grant
Deed to be recorded in the Official Records of San Diego County, California and
deliver conformed copies thereof to each of Seller and Purchaser;
(2) Deliver to Purchaser one (1) fully executed original of the
Termination of Ground Lease, the Section 1445 Affidavit, the Assignment of
Intangible Property, the Seller's Bringdown Certificate, and the Certificate;
(3) Deliver to Seller one (1) fully executed original of the
Termination of Ground Lease, the Section 1445 Affidavit, the Assignment of
Intangible Property, the Seller's Bringdown Certificate, and the Certificate;
(4) Deliver to the parties entitled thereto any other closing
documents, including, without limitation, the final closing statement for the
Escrow (the "Final Statement"), which shall contain no material differences from
the pro forma closing statement previously delivered to, and approved by, each
party;
(5) Disburse all funds deposited with Escrow Holder by Purchaser
pursuant to Section 3 as follows:
(a) deliver to Seller the Purchase Price less amounts
chargeable to Seller pursuant to instructions to be delivered by Seller to
Escrow Holder; and
(b) disburse any remaining balance of the funds deposited by
Purchaser to Purchaser upon the Close of Escrow pursuant to instructions to be
delivered by Purchaser to Escrow Holder less amounts chargeable to Purchaser.
E. Close of Escrow; Extension. Escrow shall close upon the
--------------------------
recordation of the Grant Deed in accordance with
-5-
<PAGE>
the terms and conditions hereof ("Close of Escrow" or "Closing Date" or
"Closing"). The Close of Escrow shall be _______ [insert that date which is five
($) business days after the Opening of Escrow or such other date as may be
mutually agreed upon by the parties, unless Purchaser exercised the Extension
Option along with its Purchase Option and specified an extended Closing Date, in
which case insert the Closing Date specified in the Extension Option] or such
other date as the Parties may mutually agree upon in writing.
5. Condition of Title. It shall be a condition to the Close of
------------------
Escrow for Purchaser's benefit that title to the Real Property be conveyed to
Purchaser by Seller subject only to the following approved condition of title
("Approved Condition of Title"):
(a) The matters referred to in Part 1, Schedule B of the Title
Policy;
(b) Non-delinquent general and special real
estate taxes;
(c) The Permitted Exceptions described in Exhibit "C" to the
Ground Lease and any additional matters expressly approved by Purchaser arising
from or relating to the Approved Lot Line Adjustment; and
(d) Such other matters created by Purchaser.
Upon the Opening of Escrow, Seller, at its sole cost and expense,
shall cause the Title Company to prepare and deliver to Seller and Purchaser an
updated preliminary title report for the Real Property (the "Title Report") and
shall cause Latitude 33 to prepare, issue and certify to Purchaser and Title
Company a revised ALTA/ACSM survey of the Real Property consistent with the
Approved Lot Line Adjustment (the "Survey"). Purchaser shall reimburse Seller at
Closing, for the cost of the Survey.
Seller covenants and agrees that during the term of the Escrow, it
will not cause or permit (without objection) title to the Real Property to
differ from the Approved Condition of Title described in this Section 5. Any
liens, encumbrances, encroachments, easements, restrictions, conditions,
covenants, rights, rights-of-way, or matters other than those contained with the
Approved Condition of Title shall also be subject to Purchaser's approval and
must be eliminated or ameliorated to Purchaser's satisfaction and for
Purchaser's benefit prior to the Close of Escrow as a condition of the Close of
Escrow.
6. Title Policy. Title to the Real Property shall be evidenced by the
------------
unconditional commitment of the Title Company to issue its ALTA Extended
Coverage (Form B-1970) Owner's Policy of
-6-
<PAGE>
Title Insurance ("Title Policy") in the amount of the Purchase Price, insuring
fee title to the Real Property vested in Purchaser subject only to the Approved
Condition of Title. The issuance of the Title Policy shall be in lieu of any
express or implied warranty of Seller concerning title to the Property.
Purchaser agrees that its only remedy for damages incurred by reason of any
defect in title shall be against the Title Company.
7. AS-IS SALE. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT,
----------
IT IS UNDERSTOOD AND AGREED THAT WITH RESPECT TO THE LEGAL, PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE PROPERTY, THE PROPERTY IS BEING SOLD AND CONVEYED
HEREUNDER AND PURCHASER AGREES TO ACCEPT THE PROPERTY "AS IS," "WHERE IS" AND
--- -- ------ ---
"WITH ALL FAULTS" AND SUBJECT TO ANY PHYSICAL CONDITION, INCLUDING ANY
- ----- --- -------
ENVIRONMENTAL CONDITION, WHICH MAY EXIST, WITHOUT ANY REPRESENTATION OR WARRANTY
BY SELLER EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 OF THIS AGREEMENT.
PURCHASER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT (i) PURCHASER SHALL BE
SOLELY RESPONSIBLE FOR DETERMINING THE STATUS AND CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, EXISTING ZONING CLASSIFICATIONS, BUILDING
REGULATIONS AND GOVERNMENTAL ENTITLEMENT AND DEVELOPMENT REQUIREMENTS APPLICABLE
TO THE PROPERTY AND PURCHASER HAS OR WILL HAVE PRIOR TO THE CLOSING DATE,
THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT DEEMED NECESSARY BY
PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE THE PURCHASE OF THE PROPERTY
AND (ii) PURCHASER IS RELYING SOLELY UPON SUCH INSPECTIONS, EXAMINATION, AND
EVALUATION.
PURCHASER SHALL NOT BE RELIEVED OF ITS OBLIGATIONS UNDER THIS AGREEMENT BY THE
PENDENCY, THREATENING OR PASSING, OF ANY INITIATIVE, OR BY THE IMPOSITION OF ANY
MORATORIUM ON DEVELOPMENT, OR SIMILAR ACTIONS ADVERSELY AFFECTING THE PROPERTY,
AND SUCH INITIATIVES, MORATORIA AND ACTIONS SHALL NOT BE CONSIDERED AS PART OF
PURCHASER'S INSPECTION OF THE PROPERTY. PURCHASER HEREBY ASSUMES THE RISK THAT
CERTAIN CONDITIONS, INCLUDING ENVIRONMENTAL CONDITIONS, MAY EXIST ON THE
PROPERTY AND HEREBY RELEASES SELLER OF AND FROM ANY AND ALL CLAIMS, ACTIONS,
DEMANDS, RIGHTS, DAMAGES, COSTS OR EXPENSES WHICH MIGHT ARISE OUT OF OR IN
CONNECTION WITH THE CONDITION OF THE PROPERTY.
As used herein, the term "Environmental Condition" shall mean any
condition with respect to the Property which could or does result in any damage,
loss, cost, expense or liability to or against the owner of the Property by any
third party (including without limitation any governmental entity) including,
without limitation, any condition resulting from operations conducted on the
Property or on property adjacent thereto.
8. Representations and Warranties of Seller.
----------------------------------------
A. Seller represents and warrants to Purchaser that as of the
date hereof and as of the Close of Escrow:
-7-
<PAGE>
(1) Seller is a limited partnership, duly organized, validly existing
and in good standing under the laws of the Sate of Delaware. Seller is qualified
to do business and is in good standing under the laws of the State of
California. Seller has the right, power and authority to make and perform its
obligations under this Agreement, and the execution, delivery and performance of
this Agreement (i) does not violate the partnership agreement of Seller or any
contract, agreement or commitment to which Seller is a party or by which Seller
is bound and is evidence that the general partner of Seller has approved this
transaction and (ii) have been duly authorized by all necessary action on the
part of Seller and its partners, shareholders and/or board of directors, as
applicable. In addition, the person executing this Agreement on behalf of Seller
has the authority to do so.
(2) Other than Purchaser as Tenant under the Ground Lease, there are
no parties in possession of any portion of the property as lessees, tenants at
sufferance or trespassers.
(3) Seller has received no written notice from any governmental
authority advising that the Property is not in compliance with applicable
building codes, zoning, subdivision, and land use laws and other local, state
and federal laws and regulations.
(4) This Agreement constitutes the legal, valid and binding obligation
of Seller, enforceable 'in accordance with its terms, subject to laws applicable
generally to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles affecting or limiting the right of
contracting parties generally.
(5) The Property is not presently the subject of any pending claims,
litigation, legal action, or eminent domain proceeding, and to Seller's
knowledge, no such claim, litigation or proceeding is currently threatened or
planned.
(6) There are no management, service, supply or maintenance contracts
affecting the Property in effect on the date of this Agreement or which shall
affect the Property on or following the Close of Escrow.
(7) Seller is not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code of 1986 (i.e., Seller is not a non-resident
alien, foreign corporation, foreign partnership, foreign trust or foreign estate
as those terms are defined in the Code and regulations promulgated thereunder).
(8) Seller (a) is not in receivership or dissolution; (b) has not made
any assignment for the benefit of
-8-
<PAGE>
creditors; (c) has not admitted in writing its inability to pay its debts as
they mature; (d) has not been adjudicated a bankrupt; (e) has not filed a
petition in voluntary bankruptcy, a petition or answer seeking reorganization,
or an arrangement with creditors under the Federal Bankruptcy Law or any other
similar law or statute of the United States or any state, or (f) does not have
any such petition described in Subparagraph (e) above filed against Seller.
(9) Seller shall immediately give Purchaser notice of any event
or occurrence which would cause any of Seller's above representations and
warranties to cease to be true or correct in any respect.
B. As used in this Section 8, the term "to Seller's knowledge" (i)
shall mean and apply to the knowledge of Steven L. Black and Steve Scott of
Kilroy Realty Corporation (collectively, the "Involved Parties"), who are the
representatives of Seller who are or were directly engaged in the acquisition by
Seller of the Property, the management of the Property and/or the sale and
purchase transaction described herein, and not to any other parties, (ii) shall
mean the current knowledge of such Involved Parties, or the knowledge such
Involved Parties would have had following a reasonable investigation or inquiry;
and (iii) shall not mean such Involved Parties are charged with knowledge of the
acts, omissions and/or knowledge of the predecessors in title to the Property or
with knowledge of the acts, omissions and/or knowledge of Seller's agents,
consultants or employees. The Involved Parties shall be reasonably available to
Purchaser during Seller's normal business hours to confirm such matters as are
identified in this Section 8 as subject to Seller's knowledge thereof.
C. The representations of Seller herein shall survive the
Close of Escrow for a period of two (2) years.
D. PURCHASER ACKNOWLEDGES AND AGREES THAT, OTHER THAN THE LIMITED
REPRESENTATIONS SET FORTH IN THIS SECTION 8, SELLER MAKES NO REPRESENTATIONS OR
---------
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PROPERTY. PURCHASER HEREBY WAIVES AND
RELINQUISHES ALL RIGHTS AND PRIVILEGES ARISING OUT OF, OR WITH RESPECT OR IN
RELATION TO, ANY REPRESENTATIONS (OTHER THAN THE LIMITED REPRESENTATIONS SET
FORTH IN THIS SECTION 8), WARRANTIES OR COVENANTS, WHETHER EXPRESS OR IMPLIED,
------- -
WHICH MAY HAVE BEEN MADE OR GIVEN, OR WHICH MAY BE DEEMED TO HAVE BEEN MADE
OR GIVEN, BY SELLER EXCEPT FOR THOSE COVENANTS SET FORTH HEREIN WHICH ARE
EXPRESSLY TO SURVIVE THE CLOSING. PURCHASER HEREBY FURTHER ACKNOWLEDGES AND
AGREES THAT WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
ARE EXCLUDED FROM THE TRANSACTION CONTEMPLATED HEREBY, AS ARE ANY WARRANTIES
ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND THAT THE SELLER HAS NOT
WARRANTED, AND DOES NOT HEREBY WARRANT, THAT THE PROPERTY NOW OR IN THE FUTURE
WILL MEET OR COMPLY WITH THE REQUIREMENTS OF
-9-
<PAGE>
ANY SAFETY CODE OR REGULATION OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR
JURISDICTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER HEREBY
ASSUMES ALL RISK AND LIABILITY (AND AGREES THAT SELLER SHALL NOT BE LIABLE FOR
ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES) RESULTING OR
ARISING FROM OR RELATING TO THE OWNERSHIP, USE, CONDITION, LOCATION,
MAINTENANCE, REPAIR, OR OPERATION OF THE PROPERTY. PURCHASER ACKNOWLEDGES AND
AGREES THAT THE SALE PROVIDED FOR HEREIN IS MADE WITHOUT ANY WARRANTY BY SELLER
AS TO THE NATURE OR QUALITY OF THE PROPERTY; THE DEVELOPMENT POTENTIAL OF THE
PROPERTY; THE PRIOR HISTORY OF OR ACTIVITIES ON THE PROPERTY; THE QUALITY OF
LABOR AND/OR MATERIALS INCLUDED IN ANY OF THE IMPROVEMENTS; THE FITNESS OF THE
PROPERTY FOR AND/OR THE SOIL CONDITIONS EXISTING AT THE PROPERTY FOR ANY
PARTICULAR PURPOSE OR DEVELOPMENT POTENTIAL; THE PRESENCE OR SUSPECTED PRESENCE
OF HAZARDOUS WASTE OR SUBSTANCES ON, ABOUT, OR UNDER THE PROPERTY OR THE
IMPROVEMENTS; OR THE ZONING OR OTHER LEGAL STATUS OF THE PROPERTY. EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT, NO PERSON ACTING ON BEHALF OF SELLER
IS AUTHORIZED TO MAKE, AND BY THE EXECUTION HEREOF PURCHASER HEREBY ACKNOWLEDGES
THAT NO PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY,
GUARANTY OR PROMISE REGARDING THE PROPERTY, OR THE TRANSACTION CONTEMPLATED
HEREIN, OR REGARDING THE ZONING, CONSTRUCTION, PHYSICAL CONDITION OR OTHER
STATUS OF THE PROPERTY, AND NO REPRESENTATION, WARRANTY, AGREEMENT, STATEMENT,
GUARANTY OR PROMISE, IF ANY, MADE BY ANY PERSON ACTING ON BEHALF OF SELLER WHICH
IS NOT CONTAINED HEREIN SHALL BE VALID OR BINDING UPON SELLER.
9. Representations and Warranties of Purchaser.
-------------------------------------------
A. Purchaser represents and warrants to Seller that:
(1) Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of Delaware. The execution and
delivery by Purchaser of, and Purchaser's performance under, this Agreement, are
within Purchaser's powers and Purchaser (and the person(s) executing this
Agreement on behalf of Purchaser) has the authority to execute and deliver this
Agreement.
(2) This Agreement constitutes the legal, valid and binding
obligation of Purchaser enforceable in accordance with its terms, subject to
laws applicable generally to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles affecting or limiting the
rights of contracting parties generally.
(3) Execution and performance of this Agreement will not
result in any breach of, or constitute any default under, any agreement or other
instrument to which Purchaser is a party.
-10-
<PAGE>
(4) Purchaser (a) is not in receivership or dissolution, (b) has
not made any assignment for the benefit of creditors, (c) has not admitted in
writing its inability to pay its debts as they mature, (d) has not been
adjudicated a bankrupt, (e) has not filed a petition in voluntary bankruptcy, a
petition or answer seeking reorganization, or an arrangement with creditors
under the federal bankruptcy law, or-any other similar law or statute of the
United States or any state, or (f) does not have any such petition described in
(e) filed against Purchaser.
B. The representations of Purchaser herein shall survive the
Close of Escrow for a period of two (2) years.
10. Condemnation.
------------
Promptly upon obtaining knowledge of the institution of the
proceedings for the condemnation of part of the Property, Seller or Purchaser
will notify the other of the pendency of such proceedings. In the event of the
condemnation or threatened condemnation of any material (i.e., more than 10% of
the Property) or the sale of any material portion of the Property in lieu of
condemnation prior to the Closing which would entitle Purchaser to terminate the
Ground Lease, Purchaser may elect to terminate this Agreement (provided
Purchaser also elects to terminate the Ground Lease) by notice in writing to
Seller within ten (10) business days following the date on which Purchaser or
Seller received actual notice of such condemnation of the Property or conveyance
in lieu thereof, in which event the Deposit and all Rent and other charges paid
by Purchaser pursuant to the Ground Lease or this Agreement shall be returned to
Purchaser and the parties shall have no further right or obligation hereunder
except as specifically provided herein. If Purchaser does not elect to terminate
within said ten (10) business day period, Purchaser shall be deemed to waive all
rights to terminate pursuant to this provision and this Agreement shall remain
in full force and effect, without reduction in the Purchase Price, but with any
condemnation award or proceeds being paid and/or assigned to Purchaser. In all
events, Seller shall solely be entitled to any award attributed to any property,
other than the Property, which is owned by Seller.
11. Prorations and Costs Upon Closing.
---------------------------------
A. Impositions relating to the Property shall be prorated as of
October 1, 1998. If the Closing shall occur before the actual taxes for the then
current fiscal year are known, the apportionment of taxes shall be upon the
basis of taxes for the Property for the immediately preceding year, provided
that, if the taxes for the current fiscal year are thereafter determined to be
more or less than the taxes for the preceding fiscal year (after any appeal of
the assessed valuation thereof is concluded), Seller and Purchaser promptly
shall adjust the proration of such taxes and Seller or Purchaser, as the case
may
-11-
<PAGE>
be, shall pay to the other any amount required as a result of such adjustment.
All Impositions assessed for the period from and after October 1, 1998, shall be
paid or reimbursed by Purchaser at the Closing. Purchaser shall only be
obligated to pay those Impositions and assessments prorated hereunder applicable
to the Property. To the extent the tax bills upon which the prorations are based
include real property in addition to the Property, the amount of such taxes and
assessments to be prorated between the parties shall be that fraction which the
aggregate square footage of the Property bears to the aggregate square footage
of all real property covered by such tax bills.
(1) At Closing, Purchaser shall pay (1) documentary transfer tax
(or any other taxes imposed on account of the conveyance of the Property to
Purchaser) in the amount Escrow Holder determines to be required by law: (2) the
cost of the Title Policy described in Section 6 above and any endorsements
requested by Purchaser; (3) Escrow Holder's escrow fee; and (4) other closing
charges, recording fees and expenses imposed by Escrow Holder.
(2) If Escrow shall fail to close because of failure of Seller to
comply with its obligations hereunder, without limitation of Purchaser's other
rights and remedies against Seller by reason thereof, the costs customarily
charged and incurred in connection with Escrow, including the cost of any
cancellation fees or other costs of Title company, shall be paid by Seller
(excluding any special Escrow cost incurred by Purchaser prior to the Close of
Escrow, premiums or fees paid for a commitment, or any other title insurance
product). If Escrow shall fail to close because of failure of Purchaser to
comply with its obligations hereunder, such costs shall be paid by Purchaser. If
Escrow shall fail to close for any other reason, such costs shall be equally
divided between the parties (excluding any special Escrow cost incurred by
Purchaser prior to the Close of Escrow, premiums or fees paid for a commitment,
or any other title insurance product).
12. Remedies.
--------
A. IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR AS A RESULT OF
SELLER'S DEFAULT UNDER THIS AGREEMENT AND NOT DUE TO PURCHASER'S MATERIAL
DEFAULT, PURCHASER, AS ITS SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT,
EXCEPT AS OTHERWISE PROVIDED HEREIN, SHALL RECEIVE A REFUND OF THE DEPOSIT AND
SHALL BE ENTITLED TO (i) PURSUE THE SPECIFIC PERFORMANCE OF THE CONVEYANCE OF
THE PROPERTY PURSUANT TO THIS AGREEMENT OR (ii) PURSUE SELLER FOR ACTUAL
DAMAGES; PROVIDED, HOWEVER, (1) IN NO EVENT SHALL PURCHASER BE ENTITLED TO A
-------- -------
RECOVERY OR CLAIM AGAINST SELLER FOR ACTUAL DAMAGES IN EXCESS OF AN AMOUNT EQUAL
TO THE AMOUNT OF THE RENT PAID UNDER THE GROUND LEASE AND (2) SELLER SHALL NOT
BE LIABLE TO PURCHASER FOR ANY PUNITIVE, SPECULATIVE OR CONSEQUENTIAL DAMAGES.
- -12-
<PAGE>
B. PROVIDED PURCHASER HAS NOT ELECTED TO TERMINATE THIS AGREEMENT
PURSUANT TO ANY OF PURCHASER'S RIGHTS TO DO SO CONTAINED HEREIN, IF PURCHASER
COMMITS A DEFAULT UNDER THIS AGREEMENT AND THE CLOSE OF ESCROW FAILS TO OCCUR
SOLELY BY REASON OF SUCH DEFAULT, THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY,
MAY TERMINATE THIS AGREEMENT BY NOTIFYING PURCHASER THEREOF AND RECEIVE OR
RETAIN THE DEPOSIT. THE PARTIES AGREE THAT SELLER WILL SUFFER DAMAGES IN THE
EVENT OF PURCHASER'S DEFAULT ON ITS OBLIGATIONS. ALTHOUGH THE AMOUNT OF SUCH
DAMAGES IS DIFFICULT OR IMPOSSIBLE TO DETERMINE, THE PARTIES AGREE THAT THE
AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF SELLER'S LOSS IN THE EVENT OF
PURCHASER'S DEFAULT. THUS, SELLER SHALL ACCEPT AND RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES BUT NOT AS A PENALTY. SUCH LIQUIDATED DAMAGES SHALL
CONSTITUTE SELLER'S SOLE AND EXCLUSIVE REMEDY IN LIEU OF ANY OTHER RELIEF, RIGHT
OR REMEDY, AT LAW OR IN EQUITY TO WHICH SELLER WOULD OTHERWISE BE ENTITLED BY
REASON OF PURCHASER'S DEFAULT, INCLUDING WITHOUT LIMITATION, ANY AND ALL RIGHTS
SELLER WOULD HAVE OTHERWISE HAD UNDER CALIFORNIA CIVIL CODE SECTION 3389.
PURCHASER ACKNOWLEDGES AND AGREES THAT NO TECHNICAL OR NON-MATERIAL DEFAULT BY
SELLER UNDER THIS AGREEMENT SHALL IN ANY WAY AFFECT ANY RIGHTS OR REMEDIES OF
SELLER AGAINST PURCHASER HEREUNDER. IN THE EVENT SELLER IS ENTITLED TO THE
DEPOSIT AS LIQUIDATED DAMAGES AND TO THE EXTENT SELLER HAS NOT ALREADY RECEIVED
THE DEPOSIT, THE DEPOSIT SHALL BE IMMEDIATELY PAID TO SELLER BY THE ESCROW
HOLDER UPON RECEIPT OF WRITTEN NOTICE FROM SELLER THAT PURCHASER HAS DEFAULTED
UNDER THIS AGREEMENT, AND PURCHASER AGREES TO TAKE ALL SUCH ACTIONS AND TO
EXECUTE AND DELIVER ALL SUCH DOCUMENTS NECESSARY OR APPROPRIATE TO EFFECT SUCH
PAYMENT. IN CONSIDERATION OF SELLER RECEIVING THE LIQUIDATED DAMAGES, SELLER
WILL BE DEEMED TO HAVE WAIVED ALL OF ITS RIGHTS AND REMEDIES AGAINST PURCHASER
FOR DAMAGES WITH RESPECT TO SUCH BREACH OR DEFAULT. NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED IN THIS SECTION 12(B), IF PURCHASER BRINGS AN ACTION
AGAINST SELLER FOR AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS
UNDER THIS AGREEMENT, AND, IN CONNECTION WITH THAT ACTION, RECORDS A LIS PENDENS
OR OTHERWISE ENJOINS OR RESTRICTS SELLER'S ABILITY TO SELL OR TRANSFER THE
PROPERTY ("PURCHASER'S ACTION"), SELLER SHALL NOT BE RESTRICTED BY THE
PROVISIONS OF THIS SECTION 12(B) FROM SEEKING EXPUNGEMENT OR RELIEF FROM THAT
LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND RECOVERING DAMAGES, COSTS OR
EXPENSES (INCLUDING ATTORNEYS' FEES) WHICH SELLER MAY SUFFER OR INCUR AS A
RESULT OF PURCHASER'S ACTION, AND THE AMOUNT OF ANY SUCH DAMAGES AWARDED TO
SELLER SHALL NOT BE LIMITED TO THE LIQUIDATED DAMAGES SET FORTH HEREIN.
FURTHERMORE, IN NO EVENT SHALL THIS SECTION 12(B) HAVE ANY APPLICATION TO OR
LIMIT SELLER'S RIGHTS AGAINST PURCHASER IN CONNECTION WITH ANY OF THE FOLLOWING:
(i) SECTION 13 OF THIS AGREEMENT, (ii) SECTION 15 OF THIS AGREEMENT, (iii)
SECTION 24 OF THIS AGREEMENT, OR (iv) ANY DUTY OR OBLIGATION OF PURCHASER TO
INDEMNIFY SELLER AS PROVIDED IN THIS AGREEMENT AND WHICH DUTY OR OBLIGATION
EXPRESSLY SURVIVES TERMINATION OF THIS AGREEMENT.
-13-
<PAGE>
SELLER AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND
THE PROVISIONS OF THE FOREGOING LIQUIDATED DAMAGES PROVISION AND BY THEIR
SIGNATURES IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
Seller: Purchaser:
KILROY REALTY, L.P. _________________________________
By: KILROY REALTY CORPORATION
Its: General Partner
By:_________________________________________By:______________________________
Its:________________________________________Its:_____________________________
C. Except as provided below, in the event the Close of Escrow
fails to occur for any reason, and in addition to the respective rights and
obligations of the parties set forth in subsections A and B above, Purchaser may
exercise the Rescission Option as more particularly set forth in Article 14 of
the Ground Lease. If Purchaser exercised the Extension Option along with its
Purchase Option, and the Approved Lot Line Adjustment had been recorded prior to
December 30, 1998, Purchaser may not exercise such Rescission Option.
13. Real Estate Commissions.
Except for David Marino of The Irving Hughes Group, Inc. whom
Purchaser has retained as its agent and will compensate pursuant to a separate
agreement, each party hereto represents to the other that it has not authorized
any broker or finder to act on its behalf in connection with the sale and
purchase hereunder and that such party has not dealt with any broker or finder
purporting to act on behalf of any other party. Each party hereto agrees to
indemnify, defend and hold harmless the other party from and against any and all
losses, liens, claims, judgments, liabilities, costs, expenses or damages
(including reasonable attorneys' fees and court costs) of any kind or character
arising out of or resulting from any agreement, arrangement or understanding
(except as set forth above with respect to the Agent) alleged to have been made
by such party or on its behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby.
14. Notices.
-------
Any notice or communication required or permitted hereunder shall be
given in writing, sent by (a) personal delivery delivered by a representative of
the party giving such notice, or (b) delivery service with proof of delivery, or
(c)
-14-
<PAGE>
United States mail, postage prepaid, registered or certified mail, or (d)
telecopier, addressed as follows:
If to Purchaser, to: Applied Micro Circuits Corporation
6290 Sequence Drive
San Diego, California 92121
Attention: Mr. Joel Holliday
Chief Financial Officer
Telecopier: (619) 535-6800
With a copy to: Luce, Forward, Hamilton & Scripps, LLP
600 W. Broadway, Suite 2600
San Diego, California 92101
Attention: David Hymer, Esq.
Telecopier: (619) 232-8311
With additional copy to: Brobeck, Phleger & Harrison, LLP
550 West "C" Street, Suite 1300
San Diego, CA 92101
Attention: Todd J. Artson, Esq.
Telecopier: (619) 234-3848
If to Seller, to: Kilroy Realty L.P.
4365 Executive Drive, Suite 850
San Diego, California 92121-2130
Attention: Mr. Steven L. Black,
Executive Vice-President
Telecopier: (619) 550-1935
With a copy to: Kilroy Realty Corporation
2250 E. Imperial Highway
E1 Segundo, California 90245
Attention: Mr. Jeffrey C. Hawken
Executive Vice-President and Chief Operating
Officer Telecopier: (310) 322-5981
With an additional Allen, Markins, Leck, Gamble &
copy to: Mallory LLP
501 W. Broadway, Suite 900
San Diego, California 92101
Attention: Vernon C. Gauntt, Esq.
Telecopier: (619) 233-1158
or to such other address or to the attention of such other person as
hereafter shall be designated in writing by the applicable party sent in
accordance herewith. Any such notice or communication shall be deemed to have
been delivered either at the time of personal delivery when actually received by
the addressee or a representative of the addressee at the address provided above
or, if delivered on a business day in the case of delivery service or as to
certified or registered mail, as of the
-15-
<PAGE>
earlier of the date delivered or the date 72 hours following the date deposited
in the United States mail at the address provided herein, or if by telecopier,
upon electronic confirmation of good receipt by the receiving telecopier.
15. Assignment.
----------
Purchaser shall not have the right to assign its interest in this
Agreement without obtaining the prior written consent of Seller except to an
entity controlled by, under common control with, or controlling, Purchaser.
Notwithstanding the foregoing, Seller expressly consents to an assignment of
this Agreement to an entity affiliated with any bank, trust or financial
institution as may be required in connection with Purchaser's financing.
16. Section Headings.
------------------
The Section headings contained in this Agreement are for convenience
only and shall in no way enlarge or limit the scope or meaning of the various
and several Sections hereof.
17. Entire Agreement.
----------------
This Agreement and the Ground Lease embodies the entire agreement
between the parties hereto and supersedes any prior understandings or written or
oral agreements between the parties concerning the Property. Further, this
Agreement cannot be varied, modified, amended, altered or terminated except by
the written agreement of the parties.
18. Applicability.
--------------
The terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns, except as expressly set forth herein.
19. Time.
-----
TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THE PARTIES' OBLIGATIONS
UNDER THIS AGREEMENT.
20. Gender and Number.
-----------------
Within this Agreement, words of any gender shall be held and construed
to include any other gender, and words in the singular number shall be held and
construed to include the plural, unless the context otherwise requires.
21. Reporting of Foreign Investment.
-------------------------------
-16-
<PAGE>
Seller and Purchaser agree to comply with any and all reporting
requirements applicable to the transaction which is the subject of this
Agreement which are set forth in any law, statute, ordinance, rule, regulation,
order or determination of any governmental authority, including, but not limited
to, The International Investment Survey Act of 1976, The Agricultural Foreign
Investment Disclosure Act of 1978, The Foreign Investment in Real Property Tax
Act of 1980 and the Tax Reform Act of 1984 and further agree upon request of one
party to furnish the other party with evidence of such compliance.
22. Counterpart Execution.
---------------------
This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one document.
23. Applicable Law.
--------------
This Agreement shall be construed and interpreted in accordance with
the laws of the State of California.
24. Confidentiality.
---------------
Notwithstanding anything to the contrary contained elsewhere herein,
Purchaser hereby agrees and acknowledges that all information furnished by
Seller to Purchaser or obtained by Purchaser in the course of Purchaser's
investigation and inspection of the Property, or in any way arising from or
relating to any and all studies or entries upon the Property by ' Purchaser, its
agents or representatives, shall be treated as confidential information.
Purchaser further hereby agrees and acknowledges that if any such confidential
information is disclosed to third parties, Seller may suffer damages and
irreparable harm. In connection therewith, Purchaser hereby expressly
understands, acknowledges, covenants and agrees (a) that unless such disclosure
is reasonably required to comply with securities rules or regulations applicable
to Purchaser or any of its affiliates, Purchaser will not make any press release
or other public disclosure concerning this transaction or disclose any of the
contents or information contained in or obtained as a result of any reports or
any other studies made in connection with Purchaser's investigation of the
Property, in any form whatsoever (including, but not limited to, any oral
information received by Purchaser during the course of Purchaser's inspection
and investigation of the Property), to any party other than (i) the Seller,
Seller's employees, agents or representatives, or Purchaser's agents, employees,
representatives, attorneys, accountants, or consultants, without the prior
express written consent of Seller (which consent shall not be unreasonably
withheld), (ii) in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or as otherwise required
to comply with laws; (iii)
-17-
<PAGE>
or to Purchaser's lenders or prospective lenders and their affiliates,
respective directors, officers, employees, agents and consultants; and (iv) to
any permitted transferee or assignee of Purchaser and their respective
directors, officers, employees and agents; (b) that in making any disclosure of
such information as permitted hereunder except for a disclosure reasonably
required to comply with securities rules or regulations, Purchaser will advise
said parties of the confidentiality of such information and the potential of
damage to Seller and the liability of Purchaser and such other party as a result
of any disclosure of such information by said party and be responsible for said
party's compliance; (c) to furnish Seller with copies of all reports or studies
made in connection with Purchaser's inspection, study or investigation of the
Property (other than internal analyses and any confidential attorney client or
attorney work product privileged documents) within a reasonable time (not to
exceed ten (10) days) of receipt of Seller's written request by Purchaser; and
(d) that Seller is relying on Purchaser's covenant not to disclose any of the
contents or information contained in any such reports or investigations to third
parties (all of which is deemed to be confidential information by the provisions
of this Section) except in accordance with this Agreement. In the event this
Agreement is terminated, Purchaser agrees to return to Seller all information,
studies, and Due Diligence Reports Purchaser or Purchaser's agents have obtained
or commissioned with respect to the Property or the condition of the Property.
The provisions of this Section 24 shall terminate and be of no further force or
----------
effect upon the Close of Escrow. The parties consent and understand that either
of them may desire or be required to file this Agreement, the Ground Lease, the
Consulting Agreement and other agreements related to this transaction with the
Securities and Exchange Commission or other regulatory authorities.
25. Time Calculations.
-----------------
Should the calculation of any of the various time periods provided for
herein result in an obligation becoming due on a Saturday, Sunday or legal
holiday, then the due date of such obligation or scheduled time of occurrence of
such event shall be delayed until the next business day.
26. No Recordation.
--------------
Seller and Purchaser hereby agree and acknowledge that neither this
Agreement nor any memorandum or affidavit thereof shall be recorded with the
county recorder of the applicable California county.
27. Merger Provision.
----------------
Except as expressly set forth herein, any and all rights of action of
Purchaser for any breach by Seller of any
-18-
<PAGE>
representation, warranty or covenant contained in this Agreement shall not merge
with the Grant Deed and other instruments executed at Closing, and shall survive
the Closing.
28. Further Assurances.
------------------
Purchaser and Seller agree to execute all documents and instruments
reasonably required in order to consummate the purchase and sale herein
contemplated.
29. Severability.
------------
If any portion of this Agreement is held to be unenforceable by a
court of competent jurisdiction, the remainder of this Agreement shall remain in
full force and effect.
30. Additional Instructions to Escrow Holder.
----------------------------------------
Notwithstanding anything to the contrary contained in this Agreement,
Escrow Holder's General Provisions, are incorporated by reference herein to the
extent they are not inconsistent with the provisions of this Agreement. If there
is any inconsistency between those General Provisions and any of the provisions
of this Agreement, the provisions of this Agreement shall control. If any
requirements relating to the duties or obligations of Escrow Holder are
unacceptable to Escrow Holder, or if Escrow Holder requires additional
instructions, the parties agree to make any deletions, substitutions and
additions, as counsel for Purchaser and Seller shall mutually approve, and which
do not materially alter the terms of this Agreement. Any supplemental
instructions shall be signed only as an accommodation to Escrow Holder and shall
not be deemed to modify or amend the rights of Purchaser and Seller, as between
Purchaser and Seller, unless those signed supplemental instructions expressly so
provide. If Escrow Holder is the prevailing party in any action or proceeding
between Escrow Holder and one or both of the parties to the Escrow, Escrow
Holder shall be entitled to all costs, expenses and reasonable attorneys' fees
expended or incurred in connection therewith. If Escrow Holder is required to
respond to any legal summons or proceedings not involving a breach or fault upon
Escrow Holder's part, the parties to this Agreement agree to share equally all
costs, expenses and reasonable attorneys' fees expended or incurred by Escrow
Holder. In the event costs, expenses and attorneys' fees are reimbursed to
Escrow Holder, Purchaser and Seller agree that the prevailing party between
Purchaser and Seller shall be awarded reimbursement of such costs, expenses and
attorneys' fees paid by it to Escrow Holder hereunder.
31. Amendments.
----------
This Agreement may be amended only by written agreement signed by both
of the parties hereto.
-19-
<PAGE>
32. Exhibits Incorporated by Reference.
----------------------------------
All exhibits attached to this Agreement are incorporated into this
Agreement by reference.
33. Preliminary Change of Ownership Report.
--------------------------------------
Purchaser shall be fully responsible for all matters in connection
with the filing of a Preliminary Change of Ownership Report in accordance with
the California Revenue and Taxation Code Section 480.3.
34. Attorneys' Fees.
---------------
In any action to enforce the terms of this Agreement, the prevailing
party shall be entitled to an award of reasonable attorneys' fees and court
costs from the non-prevailing party. As used herein, the term "prevailing party"
shall mean the party which obtains the principal relief it has sought, whether
by compromise, settlement or judgment. If the party which shall have instituted
suit shall dismiss it as against the other party without the concurrence of such
other party, such other party shall be deemed the prevailing party.
35. New Association and CC&Rs.
-------------------------
Purchaser acknowledges that the Property is currently not subject to
governance by the Lusk Mira Mesa Business Park East II Owners' Association (the
"Existing Association"), established for the purpose of owning, operating and
maintaining certain landscape maintenance areas, structural maintenance areas
and common areas pursuant to a certain Declaration of Covenants, Conditions and
Restrictions for Lusk Mira Mesa Business Park East II (the "Existing CC&Rs"),
and as contemplated under the articles of incorporation and bylaws of the
Existing Association. Purchaser further acknowledges that Seller has provided
Purchaser with drafts of a declaration of covenants, conditions and restrictions
and formation documents for an owners' association to be formed and to be
effective against the Land together with certain other property, including other
property owned by Seller, adjacent to the Land. Seller and certain other
adjoining land owners currently contemplate entering into such covenants,
conditions and restrictions (the "New CC&Rs") and forming an owners' association
for the enforcement thereof (the "New Association"). Purchaser shall reasonably
consider subjecting the Property to the New CC&Rs; provided, however, the New
CC&Rs do not adversely affect the value or utility of the Property.
Notwithstanding the foregoing, Seller agrees that the recording and
implementation of the New CC&Rs will be subject to Purchaser's prior written
approval of the New CC&Rs, as well as Purchaser's demand that certain provisions
of the New CC&Rs which may affect the improvements Tenant plans to build on the
Property be waived with respect to
-20-
<PAGE>
Tenant (e.g., any design approval). In the event Purchaser does not enter into
the New CC&Rs or join the New Association, or Seller and said other adjoining
land owners are unable, or elect not, to form the New Association and cause
their properties to be subject to the New CC&Rs, Purchaser may voluntarily or,
upon written demand from Seller (if Purchaser's failure to do so would subject
Seller to liability therefor) or the City (which demand may be contested by
Purchaser in good faith) Purchaser shall, subject the Property to the lien of
the Existing CC&Rs and shall join the Existing Association; provided, however,
that Purchaser receive an estoppel certificate from an authorized officer of the
Existing Association stating that Purchaser is not in violation of the Existing
CC&Rs.
IN WITNESS WHEREOF, this Agreement is executed as of the date set
forth above.
"PURCHASER"
--------------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
"SELLER"
KILROY REALTY, L.P., a Delaware limited
partnership
By: KILROY REALTY CORPORATION, a Maryland
corporation
Its: General Partner
Name:
---------------------------------------
Title:
--------------------------------------
-21-
<PAGE>
An original fully executed copy of this Agreement, together with the
Deposit, has been received by the Escrow Holder this _________ day of ________,
199_, and by the execution hereof the Escrow Holder hereby covenants and agrees
to be bound by the terms of this Agreement.
"Escrow Holder"
- -----------------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Escrow No.
- ----------
-22-
<PAGE>
EXHIBIT "A"
-----------
PROPERTY DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
[To be attached]
EXHIBIT "A"
-----------
<PAGE>
EXHIBIT "B"
-----------
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
- -----------------------------
- -----------------------------
- -----------------------------
Attention:
-------------------
================================================================================
(Space Above For Recorder's Use)
GRANT DEED
----------
For valuable consideration, receipt of which is acknowledged, KILROY
REALTY, L.P., a Delaware limited partnership (Grantor"), hereby grants to
_____________________________, a _____________________ ("Grantee"), all right,
title and interest in (i) the real property in the City of San Diego, County of
San Diego, State of California, described in Exhibit A attached hereto and made
a part hereof, (ii) any improvements permanently affixed to said real property,
and (iii) all entitlements, easements and appurtenances that pertain to said
real property, including over adjacent streets, alleys or rights-of-way (the
"Property").
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed
by its authorized agent "hereunto duly authorized.
Dated: ____________, 1998 KILROY REALTY, L.P., a Delaware limited
partnership
By: Kilroy Realty Corporation, a Maryland
corporation Its General Partner
By:
------------------------------------
Name:
--------------------------------
Title:
-------------------------------
EXHIBIT "B"
-----------
<PAGE>
- OPTIONAL SECTION -
CAPACITY CLAIMED BY SIGNER
Although statute does not require the Notary to fill in the data below, doing so
may prove invaluable to persons relying on the document.
[_] INDIVIDUAL
[_] CORPORATE OFFICER(S)
- ----------------------------------
Title(s)
- ----------------------------------
Title (s)
[_] PARTNER(S) [_] LIMITED
[_] GENERAL
[_] ATTORNEY-IN-FACT
[_] TRUSTEE(S)
[_] GUARDIAN/CONSERVATOR
[_] OTHER:__________________________________
SIGNOR IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
- ----------------------------------
- ----------------------------------
- ----------------------------------
STATE OF ________________)
) ss.
COUNTY OF __________________)
On ______________, before me, _______________ , a Notary Public in and for said
state, personally appeared _______________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her authorized capacity, and that by his/her signature on the
instrument, the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
----------------------------------------------------
Notary Public in and for said State
EXHIBIT "B"
-----------
<PAGE>
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
-----------------
[TO BE ATTACHED]
EXHIBIT "A"
<PAGE>
EXHIBIT "C"
-----------
FORM OF ASSIGNMENT OF INTANGIBLE PROPERTY
-----------------------------------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
THIS ASSIGNMENT OF INTANGIBLE PROPERTY (the "Assignment") is made this
____________ day of ______________, 19__, by and between KILROY REALTY, L.P., a
Delaware limited partnership ("Assignor") and _______________________, a
______________________ corporation ("Assignee"), with reference to the following
facts:
A. Assignor has used or acquired (or may have acquired) certain
intangible rights in connection with the Property described on the attached
Exhibit "A", including, but not limited to, any licenses, permits, air rights,
building rights and other entitlements, certificates of occupancy, rights of
way, sewer agreements, water line agreements, utility agreements, water rights
and oil, gas and mineral rights (collectively, the "Intangibles").
B. Pursuant to the terms of that certain Agreement of Purchase and
Sale and Escrow Instructions entered into by Assignor, as Seller, and Assignee,
as Purchaser (the "Purchase Agreement"), Assignor now desires to assign and
transfer to Assignee all of its right, title and interest in and to the
Intangibles, to the extent such right, title and interest may exist and is
assignable by Assignor, and Assignee desires to accept any such Intangibles to
the extent they exist and are assignable.
NOW THEREFORE, in consideration of the mutual covenants and conditions
hereinbelow set forth, it is agreed:
1. Assignment. Effective as of the Close of Escrow, as that
----------
phrase is defined in the Purchase Agreement, Assignor assigns and transfers to
Assignee and its successors and assigns, all of Assignor's right, title and
interest in and to the Intangibles, to the extent such right, title and interest
may exist and is assignable by Assignor.
2. Assumption. Effective as of the Close of Escrow, Assignee
----------
accepts the assignment of the Intangibles and shall be entitled to all rights
and benefits accruing to Assignor thereunder and hereby assumes all obligations
thereunder from and after the Close of Escrow.
3. No Rights in Trade Names. Nothing herein shall be construed to
------------------------
allow Assignee any right, title or interest in Assignor's trade names or marks,
or to use said names or marks in any manner.
EXHIBIT "C"
-----------
<PAGE>
4. Counterparts. This Assignment may be executed in counterparts
-------------
which taken together shall constitute one and the same instrument.
5. Successors and Assigns. The provisions of this instrument shall
----------------------
be binding upon and inure to the benefit of Assignor and Assignee and their
respective successors and assigns.
6. Further Assurances. Assignor hereby covenants that it will, at
------------------
any time and from time to time, at no material cost or expense to Assignor,
execute any documents and take such additional actions as Assignee or its
successors or assigns shall reasonably require in order to more completely or
perfectly carry out the transfers intended to be accomplished by this
Assignment.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of the date set forth above.
"ASSIGNOR"
KILROY REALTY, L.P., a Delaware limited
partnership
By: Kilroy Realty Corporation,
a Maryland corporation
Its: General Partner
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
"ASSIGNEE"
--------------------------------------------,
a
-------------------------------------------
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT "C"
-----------
<PAGE>
EXHIBIT "A"
-----------
TO
ASSIGNMENT OF INTANGIBLE PROPERTY
LEGAL DESCRIPTION
-----------------
EXHIBIT "A"
<PAGE>
EXHIBIT "D"
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
------------------------------------------------
To inform ____________________________________, a _________________
(the "Transferee") that withholding of tax under Section 1445 of the Internal
Revenue Code of 1954, as amended ("Code") will not be required by KILROY REALTY,
L.P., a Delaware limited partnership, (the "Transferor"), the undersigned hereby
certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, foreign estate or foreign person (as those terms are defined in
the Code and the Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer or tax identification number is
__________________;
The Transferor understands that this Certification may be disclosed to
the Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of the Transferor.
"Transferor" KILROY REALTY, L.P.,
a Delaware limited partnership
By: KILROY REALTY CORPORATION
a Maryland corporation,
General Partner
By:
------------------------------
Dated:
------------------
EXHIBIT "D"
-----------
<PAGE>
EXHIBIT "E"
-----------
YEAR Withholding Exemption Certificate for CALIFORNIA FORM
- ---- Real Estate Sales (For use by sellers of California real ---------------
1998 estate) 590-RE
================================================================================
File this form with your withholding agent or buyer. Withholding agent's name
- --------------------------------------------------------------------------------
Seller's name
Kilroy Realty, L.P., a Delaware limited partnership
- --------------------------------------------------------------------------------
Seller's address (number and street) Seller's daytime telephone number
4365 Executive Drive, Suite 850 ( )
- --------------------------------------------------------------------------------
City State Zip Code
San Diego CA 92121-2130
- --------------------------------------------------------------------------------
Read the following carefully and check the box that applies to the seller:
[_] Certificate of Residency - Individuals:
--------------------------------------
I am a resident of California and I reside at the address shown above.
See Side 2 for the definition of a resident.
[_] Certificate of Principal Residence - Individuals:
------------------------------------------------
The California real property located at _________________________________
qualifies as my principal residence within the meaning of the Internal
Revenue Code Section 1034. See Side 2 for the definition of a principal
residence.
[_] Corporations:
------------
The above-named corporation has a permanent place of business in
California at the address shown above or is qualified to do business in
California. See Side 2 for the definition of a permanent place of
business.
[X] Partnerships:
------------
The above-named entity is a partnership and the recorded title to the
property is in the name of the partnership. The partnership will file a
California return to report the sale and will withhold on foreign and
domestic nonresident partners when required.
[_] Limited Liability Companies (LLC's):
-----------------------------------
The above-named entity is an LLC and the recorded title to the property
is in the name of the LLC. The LLC will file a California return to
report the sale and will withhold on foreign and domestic nonresident
partners when required.
[_] Tax-Exempt Entities and Nonprofit Organizations:
-----------------------------------------------
The above-named entity is exempt from tax under California or federal
law.
[_] Irrevocable Trusts:
------------------
At least one trustee of the above-named irrevocable trust is a
California resident. The trust will file a California fiduciary return
reporting the sale and will withhold on foreign and domestic nonresident
beneficiaries when required.
[_] Certificate of Residency of Deceased Person - Estates:
-----------------------------------------------------
I am the executer of the above-named person's estate. The decedent was a
California resident at the time of death. The estate will file a
California fiduciary return reporting the sale and will withhold on
foreign and domestic nonresident beneficiaries when required.
- --------------------------------------------------------------------------------
CERTIFICATE: Please complete and sign below.
Under penalties of perjury, I hereby certify that the information provided
herein is, to the best of my knowledge, true and correct. If conditions change,
I will promptly inform the withholding agent.
KILROY REALTY, L.P.
a Delaware limited partnership
By: KILROY REALTY CORPORATION
a Maryland corporation, General Partner
By:
-------------------------------------
EXHIBIT "E"
-----------
<PAGE>
Date
----------------------
Seller's social security number, California
corporation number, FEIN or California
Secretary of State file number
----------------------------------
(NOTE: Failure to provide your identification number will render this
certificate void.)
EXHIBIT "E"
-----------
<PAGE>
EXHIBIT "F-1"
-------------
TERMINATION OF GROUND LEASE
---------------------------
THIS TERMINATION OF GROUND LEASE (this "Agreement") is entered into as
of the _______ day of __________, 19__, by and between KILROY REALTY, L.P., a
Delaware limited partnership ("Landlord") and ____________, a _______________
("Tenant").
R E C I T A L S :
- - - - - - - - -
A. Landlord and Applied Micro Circuits Corporation, a Delaware
corporation, as predecessor to Tenant, entered into that certain Ground Lease
made effective January 1, 1998 (the "Lease") whereby Landlord ground leased to
Tenant, and Tenant ground leased from Landlord, that certain real property
located in the City of San Diego, County of San Diego, State of. California,
more particularly described on Exhibit "A" attached hereto (the "Premises"). The
Lease is incorporated herein by this reference.
B. Pursuant to Article 13 of the Lease, Tenant has exercised its
Purchase Option or Landlord has exercised its Sale Option (as defined in the
Lease) with respect to a portion of the Premises, and Landlord and Tenant have
entered into that certain Agreement to Sell and Purchase and Escrow Instructions
dated __________, _______, in order to effectuate such purchase and sale (the
"Purchase Agreement").
C. Tenant and Landlord desire to enter into this Agreement in order
to terminate the Lease and to release one another from their respective
obligations thereunder, except as otherwise provided herein.
A G R E E M E N T :
- - - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing recitals and the
conditions and the covenants hereinafter contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of the Lease. Landlord and Tenant hereby agree that
------------------------
the Lease shall terminate and be of no further force or effect as of the date
hereof (the "Termination Date").
2. Release of Liability.
--------------------
EXHIBIT "F-1"
-------------
<PAGE>
(a) Landlord and Tenant shall, as of the Termination Date, be
fully and unconditionally released and discharged from their respective
obligations arising after the Termination Date from or connected with the
provisions of the Lease; and
(b) this Agreement shall fully and finally settle all demands,
charges, claims, accounts or causes of action of any nature, including, without
limitation, both known and unknown claims and causes of action that may arise
out of or in connection with the obligations of the parties under the Lease.
Each of the parties expressly waives the provisions of California
Civil Code Section 1542, which provides:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
Each party acknowledges that it has received the advice of legal
counsel with respect to the aforementioned waiver and understands the terms
thereof.
3. Representations of Landlord and Tenant. Landlord and Tenant each
--------------------------------------
represent and warrant to the other (except, in the case of Tenant, or Tenant's
predecessor, as permitted in the Lease or the Purchase Agreement) that: (a) it
has not heretofore assigned or sublet all or any portion of its interest in the
Lease; (b) no other person, firm or entity has any right, title or interest as
landlord or tenant in or under the Lease; and (c) it has the full right, legal
power and actual authority to enter into this Agreement and to terminate the
Lease without the consent of any other person, firm or entity. Notwithstanding
the termination of the Lease and the release of liability provided for herein,
the representations and warranties set forth in this Paragraph 3 shall survive
the Termination Date and Landlord and Tenant shall be liable to each other for
any inaccuracy or any breach thereof.
4. Attorney's Fees. Should any dispute arise between the parties
---------------
hereto or their legal representatives, successors and assigns concerning any
provision of this Agreement or the rights and duties of any person in relation
thereto, the party prevailing in such dispute shall be entitled, in addition to
such other relief that may be granted, to recover reasonable attorneys' fees and
legal costs in connection with such dispute.
EXHIBIT "F-l"
-------------
-2-
<PAGE>
5. Governing Law. This Agreement shall be governed and construed
-------------
under the laws of the State of California.
6. Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed an original, but such counterparts, when taken
together, shall constitute one agreement.
7. Binding Effect. This Agreement shall inure to the benefit of,
--------------
and shall be binding upon, the parties hereto and their respective legal
representatives, successors and assigns.
8. Time of the Essence. Time is of the essence of this Agreement and
-------------------
the provisions contained herein.
9. Further Assurances. Landlord and Tenant hereby agree to execute
------------------
such further documents or instruments as may be necessary or appropriate to
carry out the intention of this Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement
as of the day and year first above written.
"Tenant" ----------------------------------------,
a
---------------------------------------
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
"Landlord" KILROY REALTY L.P.,
a Delaware limited partnership
By: Kilroy Realty Corporation,
a Maryland corporation
Its General Partner
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT "F-l"
-------------
-3-
<PAGE>
EXHIBIT "A"
-----------
LEGAL DESCRIPTION OF THE PREMISES
---------------------------------
EXHIBIT "A"
<PAGE>
EXHIBIT "F-2"
-------------
TERMINATION OF MEMORANDUM OF GROUND LEASE
-----------------------------------------
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Kilroy Realty L.P.
4365 Executive Drive, Suite 850
San Diego, California 92121-2130
Attention: Mr. Steven L. Black
================================================================================
TERMINATION OF MEMORANDUM OF GROUND LEASE
-----------------------------------------
THIS TERMINATION OF GROUND LEASE (this "Agreement") is entered into as
of the ___________ day of __________, ____, by and between KILROY REALTY, L.P.,
a Delaware limited partnership ("Landlord") and _______________________, a
___________________ ("Tenant").
R E C I T A L S :
- - - - - - - - -
A. Landlord and Applied Micro Circuits Corporation, a Delaware
corporation, as predecessor to Tenant, entered into that certain Ground Lease
made effective January 1, 1998 (the "Lease") whereby Landlord ground leased to
Tenant, and Tenant ground leased from Landlord, that certain real property
located in the City of San Diego, County of San Diego, State of California, more
particularly described in Exhibit "A" attached hereto (the "Premises"). That
certain Memorandum of Ground Lease with regard to the Lease was recorded on
________________, _________, as Instrument No. ________, in the Official Records
of San Diego County, California (the "Memorandum").
B. In conjunction with Tenant's purchase of a portion of the
Premises, Tenant and Landlord entered into that certain Termination of Ground
Lease dated as of the date hereof (the "Termination"), terminating the Lease.
C. Landlord and Tenant desire to enter into this Agreement in order
to terminate of record the Memorandum.
EXHIBIT "F-2"
-------------
<PAGE>
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing recitals and the
conditions and the covenants hereinafter contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of the Memorandum. Landlord and Tenant hereby agree
-----------------------------
that the Lease has been terminated pursuant to the Termination and that the
Memorandum shall be and hereby is terminated and of no further force or effect
as of the date hereof.
2. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but such counterparts, when taken
together, shall constitute one agreement.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement
as of the day and year first above written.
"Tenant"
---------------------------------------,
a
--------------------------------------
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
"Landlord" KILROY REALTY L.P.,
a Delaware limited partnership
By: Kilroy Realty Corporation,
a Maryland corporation
Its General Partner
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
EXHIBIT "F-2"
-------------
<PAGE>
STATE OF ________________)
) ss.
COUNTY OF _________________)
On _____________________, before me, _________________, a Notary Public in and
for said state, personally appeared _______________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________________
Notary Public in and for said State
STATE OF )
________________
) ss.
COUNTY OF _________________)
On _____________________, before me, _________________ , a Notary Public in and
for said state, personally appeared _______________ and _____________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________________
Notary Public in and for said State
EXHIBIT "F-2"
-------------
<PAGE>
EXHIBIT "F"
MEMORANDUM OF GROUND LEASE
--------------------------
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Brobeck, Phleger & Harrison LLP
- -------------------------------
550 West "C" Street, Suite 1300
- -------------------------------
San Diego, CA 92101
- -------------------
Attention: Todd J. Artson.
- -------------------------
================================================================================
MEMORANDUM OF GROUND LEASE
--------------------------
This MEMORANDUM OF GROUND LEASE ("Memorandum"), is made as of this 1st
day of January, 1998 by and between KILROY REALTY L.P., a Delaware limited
partnership ("Landlord"), and APPLIED MICRO CIRCUITS CORPORATION, a Delaware
corporation ("Tenant").
1. Landlord and Tenant have entered into that certain Ground Lease
dated of even date herewith ("Lease"), pursuant to which Landlord has ground
leased to Tenant and Tenant has ground leased from Landlord that certain real
property located in the City of San Diego, County of San Diego, State of
California, and more particularly described on Exhibit "A" attached hereto (the
"Premises"), for a term of three hundred and sixty-four (364) days (the "Term"),
commencing on January 1, 1998, for the rental and subject to the terms and
covenants set forth in the Lease. The Term of the Lease expires on December 30,
1998. Tenant has the option to extend the term of the Lease for up to five (5)
months through May 31, 1999.
2. The Lease further provides that Tenant shall have an option to
purchase, and Landlord shall have the option to sell the Premises to Tenant
exercisable upon the occurrence of certain events more particularly described in
the Lease.
3. The purpose of this Memorandum is to give notice of the existence
of the Lease. To the extent that any provision of this Memorandum conflicts with
any provision of the Lease, the Lease shall control.
4. This Memorandum may be executed in counterparts, each of which
shall be deemed an original, but all of which, together shall constitute one and
the same instrument.
EXHIBIT "F"
-----------
-1-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum
as of the date and year first above written.
"Tenant" APPLIED MICRO CIRCUITS CORPORATION,
a Delaware corporation
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
"Landlord" KILROY REALTY L.P.,
a Delaware limited partnership
By: Kilroy Realty Corporation,
a Maryland corporation
Its: General Partner
By:
------------------------------
Its:
--------------------------
EXHIBIT "F"
-2-
<PAGE>
STATE OF ________________)
) ss.
COUNTY OF _______________)
On _____________________, before me, _________________ , a Notary Public in and
for said state, personally appeared _______________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________________
Notary Public in and for said State
STATE OF ________________)
) ss.
COUNTY OF _______________)
On _____________________, before me, _________________ , a Notary Public in and
for said state, personally appeared _______________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________________
Notary Public in and for said State
EXHIBIT "F"
-3-
<PAGE>
EXHIBIT "F"
-1-
<PAGE>
EXHIBIT "G"
-----------
[BRING DOWN CERTIFICATE]
This Certificate is dated and made effective _________, 199__, by
KILROY REALTY, L.P., a Delaware limited partnership ("Seller") in favor of
____________________ ("Purchaser") and is delivered pursuant to the terms and
provisions of that Agreement to Sell and Purchase and Escrow Instructions by and
between Seller and Purchaser dated ___________, 199__ (the "Purchase
Agreement").
Seller hereby certifies, represents and warrants to Purchaser that
Seller's representations and warranties set forth in Article 8 of the Purchase
Agreement are true and correct as of the date hereof.
"Seller" KILROY REALTY, L.P., a Delaware limited
partnership
By: Kilroy Realty Corporation,
a Maryland corporation,
General Partner
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
<PAGE>
EXHIBIT 10.25(b)
CONTRACT NO.____________
ACCOUNT NO.____________
AGREEMENT FOR CONSULTING SERVICES
(LUMP SUM)
THIS AGREEMENT FOR CONSULTING SERVICES (LUMP SUM) ("Agreement") is
effective as of the date set forth in Section 1.1 by and between the entity
------------
identified in Section 1.5 ("AMCC") and the consultant identified in Section 1.2
----------- -----------
("Consultant") with reference to the following facts and objectives:
A. Description of the Project. AMCC is ground leasing from Kilroy Realty,
--------------------------
L.P. ("Kilroy") Lots 20 and 21 of the Lusk Mira Mesa Business Park East II, Unit
No. 2, located in the City and County of San Diego, California ("Lots 20 and
21"). Kilroy and AMCC have agreed to process a lot line adjustment ("Lot Line
Adjustment") so as to create a separate legal parcel comprising a portion of
Lots 20 and 21 consisting of approximately 205,000 gross square feet as more
particularly depicted on Exhibit A attached hereto ("Site"). AMCC desires to
develop on the Site one three-story building for use by AMCC as an office,
research and development and manufacturing facility (the "Project"). Unless
otherwise defined herein, capitalized terms shall have the meanings set forth in
the Ground Lease made effective January 1, 1998 by and between AMCC and Kilroy
(the "Ground Lease").
B. Consulting Services. Subject to the terms and conditions of this
-------------------
Agreement, AMCC desires to retain Consultant to perform certain consulting
services ("Services") with respect to the Lot Line Adjustment and design,
budgeting, development and construction of the Project. The exact nature and
scope of the Services is described in the Description of Services attached
hereto as Exhibit "B".
-----------
1. Fundamental Provisions.
----------------------
1.1 Effective Date of Agreement: April 1, 1998
1.2 Consultant: Kilroy Realty Corporation, a
Maryland Corporation
Consultant's Designated
Representative: Mr. Steven L. Black
Executive Vice President
Consultant's address: 4365 Executive Drive, Suite 850
San Diego, CA 92121-2130
Attention: Mr. Steven L. Black
Telephone Number: (619) 550-1930
Telecopier Number: (619) 550-1935
Electronic Mail Address: _________________________
1.3 Other Key Personnel [if any]:______________________________________
1.4 Project Name: Applied Micro Circuits
Manufacturing Facility
-1-
<PAGE>
1.5 AMCC: Applied Micro Circuits Corporation
AMCC's Designated Representative: Mr. Joel Holliday, Chief Financial
Officer
AMCC's Address: 6290 Sequence Drive
San Diego, California 92121
Attention: Mr. Joel Holliday
Chief Financial Officer
Telephone Number: (619) 535-6535
Telecopier Number: (619) 535-6800
Electronic Mail Address: ________________________________
1.6 Exhibits. The following documents, drawings, and special provisions are
--------
attached hereto as Exhibits and made a part of this Agreement:
Exhibit "A" - Description of the Site
Exhibit "B" - Description of Services.
Exhibit "C" - Insurance Requirements.
2. Scope of Services.
-----------------
2.1 Services. AMCC hereby retains Consultant and Consultant hereby accepts
--------
its retention on all of the terms and conditions set forth herein. Consultant
shall perform all of the Services set forth in Exhibit "B" and such other
-----------
services as are customarily furnished in connection therewith. Consultant shall
perform the Services in a first-class manner and in accordance with AMCC's
guidelines and standards for the Project. In entering into this Agreement, AMCC
is relying upon Consultant's superior knowledge, experience and expertise with
respect to rendering the Services which Consultant has affirmatively represented
to AMCC. Consultant shall at all times faithfully, industriously and to the best
of the ability, experience and talents of Consultant and its employees and
representatives, consistent with industry standards for work of the type and
complexity of the Services, perform the Services required of and from it
pursuant to the express and implied terms hereof to the reasonable satisfaction
of AMCC.
2.2 Reports. Consultant shall prepare and send to AMCC at such times as
-------
AMCC may request, reports setting forth what has been done including results
achieved. Any sketches, drawings, specifications, studies, or documents
resulting from the Services shall be included as part of the reports.
2.3 Other Consultants. If Consultant intends to hire or retain any other
-----------------
person, firm or corporation to perform Services under this Agreement, the
selection of such other person, firm or corporation shall be subject to AMCC's
prior written approval, provided that nothing herein contained shall be deemed
to create any contractual relationship between AMCC and any consultant,
subcontractor or other professional so employed by Consultant. Any' such other
person, firm or corporation shall be employed at Consultant's own cost and
expense (except as otherwise expressly agreed by AMCC and Consultant), shall be
duly licensed in its respective field of specialization by the appropriate
governmental authorities. Consultant shall be fully responsible to AMCC for the
Services rendered by such other parties. Consultant shall secure the written
agreement of any such party that such party shall not be or act as an agent or
employee of AMCC or assume or create any commitment or obligation on behalf of
AMCC or bind AMCC in any respect whatsoever. Consultant shall provide AMCC with
a copy of each such written agreement.
2.4 Coordination. Consultant shall provide progress copies of drawings,
------------
reports, specifications and other necessary information, as required hereunder
or as requested by AMCC, to AMCC and AMCC's contractors and other consultants.
Consultant shall ascertain the requirements for the Services, shall confirm such
requirements to AMCC and inform AMCC of any additional information Consultant
needs from AMCC or AMCC's contractors or other consultants sufficiently ahead of
time to allow AMCC to obtain such additional information and shall promptly
notify AMCC of any deficiencies in the information provided to Consultant by
AMCC or AMCC's contractors or other consultants. AMCC will employ other
contractors, engineers and
-2-
<PAGE>
consultants in connection with the Project, and Consultant shall cooperate and
coordinate its Services with that of such other contractors, engineers and
consultants as required to facilitate reasonable, orderly, and timely completion
of the Project; provided that Consultant shall not be required to perform any
Services other than as set forth herein and those customarily furnished in
connection therewith.
2.5 Additional Services. When directed in writing by AMCC or AMCC's
-------------------
authorized representative, and subject to Section 5.3, Consultant shall provide
-----------
additional services not otherwise described herein or included as Services under
this Agreement ("Additional Services"). The nature of such Additional Services
shall be set forth in a writing specifically referring to this Agreement in a
form substantially similar to the Description of Services attached hereto as
Exhibit "B", and all terms of this Agreement shall apply to such Additional
- -----------
Services except as expressly provided otherwise in said writing.
3. Term.
-----
3.1 Commencement; Term. The term of this Agreement shall commence upon the
------------------
Date of Agreement set forth in Section 1.1 and shall continue through June 30,
-----------
1998.
4. Scheduling.
----------
4.1 Schedule of Services. Consultant at all times shall proceed diligently
--------------------
to complete the Services as expeditiously as is consistent with the generally
recognized standards of professional skill and care for Consultant's profession
on a project of similar size, scope, and complexity, and the orderly progress of
the Services. Consultant shall at all times provide sufficient personnel to
perform its Services.
4.2 Force Majeure. Consultant shall be excused only from such delay in
-------------
timely and satisfactory completion of its Services as is caused by acts of God,
or by strikes, lockouts, acts of public utilities or public bodies beyond the
reasonable control of Consultant, its consultants and subcontractors, or by any
default by AMCC hereunder; provided, however, that Consultant shall notify AMCC
in writing of the occurrence of any such excusable delay within five (5) days
after the occurrence thereof, and failing such notice Consultant shall be deemed
to have waived any right to an extension of time to complete its Services on
account of such occurrence. No act or default by Consultant, nor any controversy
or dispute of any kind between the parties hereto or between Consultant and any
other consultants, shall constitute a valid or compensable cause for delay or
stoppage of Consultant's Services or for an extension of time to complete such
Services, provided that (a) Consultant is given the necessary information to
continue its performance, and b) in case of any such controversy or dispute, all
payments not in dispute are made to Consultant when due.
5. Basis for Compensation.
----------------------
5.1 Consultant's Compensation. AMCC shall pay Consultant the amount set
-------------------------
forth in Exhibit "B" (the "Compensation") as total compensation for the
-----------
Services. The Compensation shall be paid to Consultant in accordance with
Exhibit "B".
5.2 Corrections. No compensation shall be paid to or claimed by Consultant
-----------
for Services required to correct deficiencies in any documents, reports, or
studies prepared by Consultant and attributable to errors or omissions of
Consultant.
5.3 Compensation for Additional Services. AMCC shall pay Consultant for all
------------------------------------
Additional Services authorized in advance and in writing by AMCC such amount as
shall be mutually agreed by AMCC and Consultant before AMCC directs Consultant
to perform such Additional Services, and such amount shall be paid in accordance
with Section 2.5.
-----------
-3-
<PAGE>
6. Reimbursable Costs.
------------------
Consultant shall not be entitled to any reimbursement from AMCC for any
costs or expenses incurred by Consultant in connection with the performance of
Consultant's obligations under this Agreement. Consultant's Compensation shall
be limited to the amount set forth in Exhibit "B" (Description of Services).
-----------
7. Consultant's Insurance.
-----------------------
7.1 Consultant's Insurance. Consultant, at Consultant's sole cost and
----------------------
expense, shall procure and maintain the policies of insurance set forth in
Exhibit "C".
- -----------
8. AMCC's and Consultant's Representatives.
---------------------------------------
AMCC has designated AMCC's Designated Representative set forth in Section
-------
1.5 to act as AMCC's agent and authorized representative in connection with this
- ---
Agreement. Consultant has authorized the person identified as Consultant's
Designated Representative in Section 1.2 to act on Consultant's behalf in
-----------
connection with the performance of Consultant's Services under this Agreement.
Such representatives shall render decisions pertaining thereto promptly in order
to avoid unreasonable delay in the progress of Consultant's Services. Consultant
shall not change Consultant's Designated Representative for the Project without
AMCC's prior written consent. Anything herein to the contrary notwithstanding,
no instruction given by AMCC's Designated Representative, whether oral or
written, shall add to (except as expressly provided herein) or modify the terms
and conditions of this Agreement unless the same shall be reduced to writing and
executed in accordance with Section 16.2. All invoices, statements and reports
------------
to be delivered by Consultant under this Agreement shall be sent directly to
AMCC.
9. Independent Contractor.
----------------------
Consultant is and shall perform its Services under this Agreement as an
independent contractor, and shall not act as nor be deemed an agent, employee,
partner, joint venturer or legal representative of AMCC. Consultant has no
authority to assume or create any commitment or obligation on behalf of AMCC or
bind AMCC in any respect whatsoever. Consultant shall not be entitled to any of
the benefits to which employees of AMCC may be entitled, such as group life,
health and similar medical plans, savings plans, incentive compensation plans,
vacations, sick pay or similar benefits. Consultant assumes all risks, hazards
and liability encountered in the performance of this Agreement and shall obtain
such liability or other forms of insurance as are required hereunder and such
additional insurance as Consultant deems appropriate in connection with its
furnishing of consulting Services.
10. Social Security and Taxes.
-------------------------
Consultant shall pay all withholding and other taxes required by any local,
state or federal law with respect to Consultant's employees and shall accept the
exclusive liability for such taxes. Consultant shall indemnify, defend, protect
and hold AMCC harmless against any such tax which may be assessed against either
AMCC with respect to Consultant's employees.
11. Unemployment Insurance.
----------------------
Consultant shall pay any required contribution under federal and state
unemployment insurance laws with respect to Consultant's employees, and shall
accept the exclusive liability for said contributions. Consultant shall
indemnify, defend, protect and hold AMCC harmless against any such contribution
which may be assessed against either of them.
-4-
<PAGE>
12. Rights in Results of Services.
-----------------------------
All documents and materials prepared by Consultant, and its consultants or
subcontractors, in connection with the performance of the Services under this
Agreement or which describe or relate to the Services performed or to be
performed hereunder or the results thereof, including, without limitation, all
writings, drawings, specifications, blueprints, pictures, recordings, computer
or machine readable data and all copies or reproductions thereof (collectively,
the "Documents"), and, to the extent assignable or transferable, all copyrights,
rights of reproduction and other interests relating thereto, are and shall
remain the property of AMCC and shall be delivered to AMCC, without charge, on
request. Submission or distribution of all or any portion of the Documents to
meet official regulatory requirements in connection with obtaining approvals
and/or permits for the Project or for other purposes in connection with the
development of the Project is not to be construed as publication in derogation
of the Consultant's and AMCC's rights.
13. Mechanics' Lien.
---------------
Consultant agrees that if any mechanic's lien is filed against the Project
for work done or Services claimed to have been rendered in connection with or
pursuant to this Agreement, provided Consultant has been paid for such work or
Services, Consultant shall cause such mechanic's lien to be discharged within
ten (10) days after filing, at Consultant's expense, by: (a) filing the
applicable bond required by the laws of the state where the Project is located;
or Co) providing AMCC with a court order discharging the lien; or (c) providing
AMCC with another form of protection against such lien which is acceptable to
AMCC, in its sole discretion. Upon Consultant's failure to discharge any such
lien, AMCC may, but shall not be required to, discharge such lien and the cost
thereof shall become a debt due to AMCC from Consultant and shall bear interest
of the lesser of (a) the Bank of America N.T. & S.A. Reference Rate plus two
percent (2%) per annum, or (b) the maximum interest rate that may be charged by
AMCC on such amounts under the applicable usury law (if any).
14. Non-Discrimination.
------------------
Consultant shall comply with all applicable laws, ordinances, rules,
regulations, writs and orders of public and governmental authorities relating to
the terms and conditions of employment of any person employed in connection with
the Services to be performed under this Agreement. Consultant hereby covenants
by and for itself, its heirs, executors, administrators, assigns, and all
persons claiming under or through Consultant, and this Agreement is made and
accepted upon and subject to the condition that, with respect to the terms and
conditions of employment of any person, firm, or corporation that is employed in
connection with the Services to be performed under this Agreement, there shall
be no discrimination against or segregation of any person or group of persons on
account of age, sex, sexual orientation, marital status, race, color, religion,
creed, national origin or ancestry.
15. Confidential Information.
------------------------
Consultant shall maintain confidential and secret and shall not divulge,
disclose or use, except in performance of this Agreement, any information
obtained or created by Consultant relating to AMCC's businesses or
investigations, which (a) is information not generally known to the public; or
(b) is proprietary information of AMCC or any of their customers, suppliers or
affiliated entities; or (c) represents the "know how" and the present and future
plans of AMCC relating to the fields of endeavor in which Consultant performs
Services for AMCC, as well as the nature of certain completed, existing or
proposed projects to which Consultant is or may be exposed and the identity of
persons working on such projects (collectively, "Confidential Information").
Upon AMCC's request, Consultant shall execute and shall cause each of
Consultant's employees to execute an agreement, in such form as AMCC may
require, to keep in confidence all Confidential Information. Consultant shall
return or deliver to AMCC prior to termination of this Agreement, all tangible
forms of Confidential Information in Consultant's possession or control,
including all copies and reproductions thereof. The obligations of this Article
shall survive the termination of this Agreement.
-5-
<PAGE>
16. General Provisions.
------------------
16.1 Waiver. The waiver by AMCC or Consultant of any breach of any term,
------
provision or condition contained in this Agreement, or the failure to insist
upon strict performance thereof shall be deemed to be a waiver of such term,
provision or condition as to any subsequent breach thereof or a waiver of any
other term, provision or condition contained in this Agreement. The acceptance
of performance by either party shall not be deemed to be a waiver of any breach
by the other party. The exercise of any right or remedy hereunder shall not be
deemed to preclude or affect the exercise of any other right or remedy provided
herein.
16.2 Entire Agreement. This Agreement (including Exhibits) constitutes the
----------------
entire agreement between AMCC and Consultant with respect to the Services
described in this Agreement and supersedes any and all prior and contemporaneous
oral or written understandings. This Agreement may not be altered, amended or
modified except by a written document executed by both AMCC and Consultant.
16.3 Assignment; Successors. Consultant shall not assign or delegate any
----------------------
rights or obligations under this Agreement, or permit any change in the persons
in effective control of Consultant's business, or subcontract the performance of
any portion of the Services required hereunder except as otherwise may be agreed
in writing by AMCC in its sole discretion. Any attempt to so assign or transfer
this Agreement or any rights or obligations hereunder without such consent shall
be null and void and of no force and effect. A change in Consultant's membership
of one or more partners, members or shareholders shall not constitute an
assignment for purposes of this provision provided that said change does not
constitute a substantial change in the membership or ownership of Consultant.
AMCC may assign its rights and obligations under this Agreement to any person or
entity which has an interest in the Project, to any lender for the Project or to
any successor to AMCC's interest in the Project, without releasing AMCC from
liability hereunder. This Agreement shall not inure to the benefit of any
trustee in bankruptcy, receiver or creditor of Consultant, whether by operation
of law or otherwise, without the prior written consent of AMCC. Subject to the
foregoing limitations on assignment, this Agreement shall bind and inure to the
benefit of the successors and assigns of the parties hereto.
16.4 Notices. All notices, consents, approvals, requests, demands and other
-------
communications (collectively "Notice") which AMCC, or Consultant are required or
desire to serve upon or deliver to any other party shall be in writing
(including telex, telecopy, telegram or other similar writing) and shall be
given to such party at its address or such electronic communication number as is
set forth in Article 1 or such address or electronic communication number as
---------
such party may hereafter specify for the purpose by Notice to the others. Each
Notice shall be deemed delivered to the party to whom it is addressed(a) if
personally served or delivered, upon delivery, (b) if given by electronic
communication, whether by telex, telegram or telecopier, upon the sender's
receipt of an appropriate answer-back, telephonic, or written confirmation of
receipt of the entire Notice, (c) if given by certified or registered mail,
return receipt requested, deposited with the United States Mail with first-class
postage prepaid, seventy-two (72) hours after such Notice is deposited with the
United States Mail, (d) if given by overnight courier, with courier charges
prepaid, one (1) business day after delivery to said overnight courier, or (e)
if given by any other means, upon delivery at the addresses specified in Article
-------
1. Rejection or other refusal to accept a Notice or the inability to deliver the
- -
same because of a changed address of which no Notice was given shall be deemed
to be receipt of the Notice sent.
16.5 Severability. If any term or provision of this Agreement, the deletion
------------
of which would not adversely affect the receipt of any material benefit by
either party hereto, shall be held invalid or unenforceable, the remaining
terms, conditions and provisions of this Agreement shall not be affected thereby
and each of said terms, conditions and provisions shall be valid and enforceable
to the fullest extent permitted by law.
16.6 Governing Law. This Agreement shall be interpreted and construed in
-------------
accordance with the laws of the State of California without regard to principles
of conflicts of laws.
16.7 Headings. The headings of the Articles and Sections of this Agreement
--------
are for convenience only and are not to be considered in construing said
Articles and Sections.
-6-
<PAGE>
16.8 Costs and Attorneys' Fees. If any action, arbitration or other
-------------------------
proceeding be commenced (including an appeal thereof) to enforce any of the
provisions of this Agreement or to enforce a judgment, whether or not such
action is prosecuted to judgment ("Action"), (a) the unsuccessful party therein
shall pay all costs incurred by the prevailing party therein, including
reasonable attorneys' fees and costs, court costs and reimbursements for any
other expenses incurred in connection therewith, and (b) as a separate right,
severable from any other rights set forth in this Agreement, the prevailing
party therein shall be entitled to recover its reasonable attorneys' fees and
costs incurred in enforcing any judgment against the unsuccessful party therein,
which right to recover post-judgment attorneys' fees and costs shall be included
in any such judgment. The right to recover post-judgment attorneys' fees and
costs shall (1) not be deemed waived if not included in any judgment, (2)
survive the final judgment in any Action, and (3) not be deemed merged into such
judgment. The rights and obligations of the parties under this Section 16.8
------------
shall survive the termination of this Agreement.
16.9 Mortgages. This Agreement shall be and remain absolutely and
---------
unconditionally subordinate to any valid recorded mortgage on the Project
whether already or hereafter recorded. The subordination of this Agreement shall
require the execution of no further documentation, but Consultant agrees to
execute any reasonable subordination agreement requested by AMCC.
-7-
<PAGE>
16.10 Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original, and all of which, together, shall constitute
one and the same instrument.
16.11 Time is of the Essence. Time is of the essence of this Agreement.
----------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Agreement set forth in Section 1.1.
-----------
"AMCC"
APPLIED MICRO CIRCUITS CORPORATION,
a Delaware corporation
By:
-----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
"CONSULTANT"
KILROY REALTY CORPORATION,
a Maryland corporation
By: /s/ STEVEN L. BLACK
-----------------------------------------
Name: Steven L. Black
Title: Executive Vice President
<PAGE>
16.10 Counterparts. This Agreement may be executed in counterparts, each of
--------------
which shall be deemed an original, and all of which, together, shall constitute
one and the same instrument.
16.11 Time is of the Essence. Time is of the essence of this Agreement.
------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Date of Agreement set forth in Section 1.1.
-----------
"AMCC"
APPLIED MICRO CIRCUITS CORPORATION,
a Delaware corporation
By: /s/ JOEL O. HOLIDAY
---------------------------------------
Name: Joel O. Holiday
--------------------------------
Title: Vice President
--------------------------------
"CONSULTANT"
KILROY REALTY CORPORATION,
a Maryland corporation
By:
---------------------------------------
Name: Steven L. Black
Title: Executive Vice President
<PAGE>
EXHIBIT "A"
-----------
DESCRIPTION OF SITE
Parcel 1 of attached draft Parcel Map comprising 4.718 acres.
EXHIBIT "A" - Page 1
<PAGE>
[PARCEL MAP APPEARS HERE]
<PAGE>
EXHIBIT "B"
-----------
DESCRIPTION OF SERVICES
-----------------------
Consultant shall provide the following services to AMCC during the term of
the Agreement (April 1, 1998 through June 30, 1998):
1. Supervise and coordinate on behalf of AMCC the preparation,
application and processing with the City of San Diego of the Lot Line
Adjustment. These services will include working and coordinating with engineers
and other professionals engaged to prepare and process the Lot Line Adjustment;
meeting with City Planning Department representatives and other City agencies
involved in the application and review process for the Lot Line Adjustment;
attending meetings with City representatives and officials and hearings relative
to the Lot Line Adjustment; assisting AMCC with negotiations of any conditions,
reservations or stipulations to approval of the Lot Line Adjustment.
2. Consult and advise AMCC with respect to siting, design, development
and construction of the Project. These services will include but are not
necessarily limited to: working with architect and design professionals and
contractors to be engaged by AMCC with respect to the Project relative to the
design, layout, and specific AMCC requirements for the Project; assist AMCC and
work with the design and construction professionals in developing preliminary
cost estimates for design alternatives for the Project; assist AMCC with
preparing project development schedules; consult with AMCC regarding the
necessary permits and entitlements for the Project and develop a critical path
schedule with AMCC for obtaining such entitlements and permits; and consult with
AMCC regarding facilities benefit assessments and other fees and exactions
payable with respect to the development of the Project.
Compensation. In consideration of the Services rendered by Consultant
------------
during the term of this Agreement, AMCC shall pay Consultant a lump sum payment
of $480,000.00 ("Compensation") payable upon signing this Agreement.
Rescission Option. AMCC and Consultant agree that if (a) AMCC has elected
-----------------
to terminate the Ground Lease, pursuant to Sections 9 or 14 thereof, or (b)
except as provided below, AMCC has not completed a purchase of the Site on or
before December 30, 1998 or by the Closing Date if AMCC exercises the Extension
Option, AMCC may elect to rescind this Agreement upon delivery of written notice
to Consultant ("Rescission Notice"). If the Approved Lot Line Adjustment has
been recorded by December 30, 1998, and AMCC has exercised the Extension Option,
AMCC may not elect to rescind this Agreement or deliver a Rescission Notice.
Upon receipt of a Rescission Notice, Consultant shall refund the Compensation to
AMCC plus an mount equivalent to interest accrued thereon at the rate of eight
percent (8%) per annum from and after the date of Consultant's receipt of such
Compensation.
EXHIBIT "B" - Page 1
<PAGE>
EXHIBIT "C"
-----------
INSURANCE REQUIREMENTS
Consultant, at its sole cost and expense, shall maintain the following
policies of insurance:
1. Worker's Compensation Insurance with statutory limits, as required
under California laws and Employers' Liability Insurance on an "occurrence"
basis with a limit of not less than $1,000,000.
2. Commercial General Liability Insurance on an "occurrence" basis,
covering all operations of Consultant as named insured, including (a) owner's
and consultant's protective liability, (b) products/completed operations
liability, (c) broad form property damage liability, and (d) broad form
contractual liability against claims for bodily injury, personal injury (with
employee and contractual exclusions deleted), property damage and death, with a
limit of not less than $2,000,000 per occurrence, and in the aggregate, with
aggregates applying separately to products/completed operations and all other
general liability coverages combined.
3. Commercial Automobile Liability Insurance on an "occurrence" basis,
with a limit of not less than $1,000,000 of the Agreement per occurrence against
bodily injury and property damage liability arising out of the use by or on
behalf of Consultant, its agents and employees, in pursuit of the Services
provided for in the Agreement, of any owned, non-owned or hired motor vehicle or
automotive equipment.
Consultant shall provide AMCC with originals of the endorsements to each of
the policies required by this Exhibit "C" (with the exception of the workers'
-----------
compensation insurance) which include the following wording:
It is agreed that Applied Micro Circuits Corporation, and its
members, managers, partners, officers, affiliates, agents and
employees, are additional insureds. The coverage under this policy
is primary insurance with regard to services performed by or at the
direction of Kilroy Realty Corporation, a Maryland corporation.
EXHIBIT "C" - Page 1
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
REGISTRANT'S CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE SIX
MONTHS ENDED SEPTEMBER 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> APR-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 6,431
<SECURITIES> 60,330
<RECEIVABLES> 17,919
<ALLOWANCES> (337)
<INVENTORY> 9,450
<CURRENT-ASSETS> 100,047
<PP&E> 21,141
<DEPRECIATION> 3,311
<TOTAL-ASSETS> 123,249
<CURRENT-LIABILITIES> 14,972
<BONDS> 0
0
0
<COMMON> 232
<OTHER-SE> 104,240
<TOTAL-LIABILITY-AND-EQUITY> 104,472
<SALES> 48,783
<TOTAL-REVENUES> 48,783
<CGS> (18,746)
<TOTAL-COSTS> (36,457)
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,643
<INCOME-PRETAX> 13,969
<INCOME-TAX> (5,028)
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,941
<EPS-PRIMARY> 22,277
<EPS-DILUTED> 24,538
</TABLE>
