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As Of Filer Filing For·On·As Docs:Size 11/06/19 Ionis Pharmaceuticals Inc 10-Q 9/30/19 66:10M |
Document/Exhibit Description Pages Size 1: 10-Q Ionis Pharmaceuticals Inc 10-Q 9-30-2019 HTML 1.45M 2: EX-10.1 Material Contract HTML 35K 3: EX-10.2 Material Contract HTML 37K 4: EX-10.3 Material Contract HTML 211K 5: EX-31.1 Certification -- §302 - SOA'02 HTML 28K 6: EX-31.2 Certification -- §302 - SOA'02 HTML 28K 7: EX-32.1 Certification -- §906 - SOA'02 HTML 23K 57: R1 Document and Entity Information HTML 74K 40: R2 Condensed Consolidated Balance Sheets (Unaudited) HTML 114K 19: R3 Condensed Consolidated Balance Sheets (Unaudited) HTML 35K (Parenthetical) 47: R4 Condensed Consolidated Statements of Operations HTML 97K (Unaudited) 54: R5 Condensed Consolidated Statements of Comprehensive HTML 45K Income (Loss) (Unaudited) 37: R6 Condensed Consolidated Statements of Stockholders' HTML 88K Equity (Unaudited) 16: R7 Condensed Consolidated Statements of Cash Flows HTML 127K (Unaudited) 46: R8 Basis of Presentation HTML 26K 59: R9 Significant Accounting Policies HTML 283K 49: R10 Investments HTML 145K 56: R11 Fair Value Measurements HTML 76K 39: R12 Operating Leases HTML 42K 18: R13 Income Taxes HTML 23K 48: R14 Collaborative Arrangements and Licensing HTML 97K Agreements 55: R15 Segment Information HTML 133K 38: R16 Basis of Presentation (Policies) HTML 29K 17: R17 Significant Accounting Policies (Policies) HTML 335K 45: R18 Significant Accounting Policies (Tables) HTML 182K 58: R19 Investments (Tables) HTML 146K 32: R20 Fair Value Measurements (Tables) HTML 73K 26: R21 Operating Leases (Tables) HTML 40K 44: R22 Collaborative Arrangements and Licensing HTML 74K Agreements (Tables) 66: R23 Segment Information (Tables) HTML 133K 31: R24 Basis of Presentation (Details) HTML 28K 25: R25 Significant Accounting Policies, Revenue HTML 73K Recognition (Details) 43: R26 Significant Accounting Policies, Contracts HTML 21K Receivable (Details) 65: R27 Significant Accounting Policies, Deferred Revenue HTML 22K (Details) 33: R28 Significant Accounting Policies, Cost of Products HTML 21K Sold (Details) 24: R29 Significant Accounting Policies, Noncontrolling HTML 29K Interest in Akcea (Details) 13: R30 Significant Accounting Policies, Cash, Cash HTML 23K Equivalents and Investments (Details) 35: R31 Significant Accounting Policies, Inventory HTML 25K Valuation (Details) 60: R32 Significant Accounting Policies, Leases (Details) HTML 30K 51: R33 Significant Accounting Policies, Basic and Diluted HTML 73K Net Income (Loss) per Share (Details) 14: R34 Significant Accounting Policies, Segment HTML 22K Information (Details) 36: R35 Significant Accounting Policies, Stock-Based HTML 101K Compensation Expense (Details) 61: R36 Significant Accounting Policies, Share Repurchase HTML 25K Program (Details) 52: R37 Investments, Contract Maturity of HTML 41K Available-for-Sale Securities (Details) 15: R38 Investments, Summary of Investments (Details) HTML 94K 34: R39 Investments, Investments Temporarily Impaired HTML 53K (Details) 21: R40 Fair Value Measurements (Details) HTML 96K 29: R41 Operating Leases (Details) HTML 85K 62: R42 Income Taxes (Details) HTML 23K 41: R43 Collaborative Arrangements and Licensing HTML 82K Agreements, Biogen (Details) 22: R44 Collaborative Arrangements and Licensing HTML 28K Agreements, Bayer (Details) 30: R45 Collaborative Arrangements and Licensing HTML 50K Agreements, GSK (Details) 64: R46 Collaborative Arrangements and Licensing HTML 53K Agreements, Roche (Details) 42: R47 Collaborative Arrangements and Licensing HTML 53K Agreements, Novartis (Details) 23: R48 Collaborative Arrangements and Licensing HTML 36K Agreements, Pfizer (Details) 28: R49 Segment Information (Details) HTML 100K 53: XML IDEA XML File -- Filing Summary XML 113K 50: XML XBRL Instance -- form10q_htm XML 3.15M 20: EXCEL IDEA Workbook of Financial Reports XLSX 88K 9: EX-101.CAL XBRL Calculations -- ions-20190930_cal XML 172K 10: EX-101.DEF XBRL Definitions -- ions-20190930_def XML 843K 11: EX-101.LAB XBRL Labels -- ions-20190930_lab XML 1.77M 12: EX-101.PRE XBRL Presentations -- ions-20190930_pre XML 1.07M 8: EX-101.SCH XBRL Schema -- ions-20190930 XSD 156K 27: JSON XBRL Instance as JSON Data -- MetaLinks 304± 464K 63: ZIP XBRL Zipped Folder -- 0000874015-19-000130-xbrl Zip 337K
(i) |
Promissory Note A-1, dated July 18, 2017, in the original principal amount of $36,350,000.00, executed by Borrower, as maker, in favor of Original Lender (“Note A-1”);
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(ii) |
Promissory Note A-2, dated July 18, 2017, in the original principal amount of $5,000,000.00, executed by Borrower, as maker, in favor of Original Lender (“Note A-2”);
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(iii) |
Promissory Note A-3, dated July 18, 2017, in the original principal amount of $10,000,000.00, executed by Borrower, as maker, in favor of Original Lender (“Note A-3”; and Note A-1, Note A-2 and Note A-3 are herein referred to
collectively as the “Note”);
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(iv) |
Loan Agreement, dated as of July 18, 2017, executed by Borrower and Original Lender (the “Loan Agreement”);
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(v) |
Deed of Trust and Security Agreement dated as of July 18, 2017, executed by Borrower in favor of Original Lender, filed for record in the Office of the Register of Deeds, Recorder of Deeds or County Clerk, as applicable, in and for
the County of San Diego, California (the “Recording Office”) as Document #2017-0323134, aforesaid records, as assigned to Lender pursuant to that certain Assignment of Deed of Trust and Security Agreement, recorded in the
Recording Office as Document #2017-0512265 (the “Original Security Instrument”);
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(vi) |
Assignment of Leases and Rents, dated as of July 18, 2017, executed by Borrower for the benefit of Original Lender, filed for record in the Recording Office as Document #2017-0323135, as assigned to Lender pursuant to that certain
Assignment of Assignment of Leases and Rents, recorded in the Recording Office as Document #2017-0512266 (the “Assignment of Leases”);
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(vii) |
Environmental Indemnity Agreement, dated as of July 18, 2017, executed by Borrower and Principal in favor of Original Lender (the “Environmental Indemnity”);
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(viii) |
Guaranty, dated as of July 18, 2017, executed by Principal in favor of Original Lender (the “Guaranty”);
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(ix) |
Cash Management Agreement, dated as of July 18, 2017, executed by Borrower, Original Lender and Wells Fargo Bank, N.A. (“Wells”);
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(x) |
Deposit Account Control Agreement, dated as of July 18, 2017, executed by Borrower, Wells and Original Lender; and
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(b) |
Lender’s receipt of fully executed copies of the following documents (collectively, the “Transaction Documents”): (i) the Ground Lease in form and substance satisfactory to Lender, (ii) a subordination, non-disturbance and
attornment agreement for the Ground Lease in form and substance satisfactory to Lender, (iii) the “Construction Contracts” and other “Construction and Development Documents” (as such terms are defined hereinbelow) entered into by
Principal or obtained by Principal as of the date hereof.
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(c) |
Lender’s receipt of evidence satisfactory to it that all insurance over the Property required by the Loan Documents (the “Required Insurance”) is in full force and effect as of the Closing, with all required premiums paid,
and contains a mortgagee’s clause (the “Mortgagee’s Clause”) satisfactory to Lender in favor of Lender, and its successors and/or assigns, c/o Midland Loan Services, Master Servicer, 10851 Mastin Boulevard, Suite 300, Overland
Park, Kansas 66210; re: Loan Numbers 030298801; 030298824; and 030298825.
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(j) |
Lender’s receipt of evidence satisfactory to Lender of (i) the consummation of the Conveyance, which evidence shall include, without limitation, fully-executed copies of the quitclaim deed, closing statement and other documents
evidencing the Conveyance and (ii) the payment of all charges in connection with the Conveyance, including any transfer taxes.
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(k) |
Execution by Borrower and delivery to Lender of an Amended and Restated Deed of Trust and Security Agreement (the “Restated Security Instrument”) and an amendment to the Assignment of Leases (collectively, the “Recorded
Documents Amendment”) in form and substance satisfactory to Lender and the recordation thereof in the Recording Office.
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(a) |
Borrower is the owner of the Property, and Borrower has the power to, and is duly authorized to, execute, deliver and perform (i) this Agreement and the other New Loan Documents to which it is a party and (ii) the Transaction
Documents to which it is a party and to consummate the Transactions and the other transactions contemplated hereby and thereby.
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(b) |
Any court or third-party consents and/or approvals necessary for Borrower to enter into this (i) Agreement and the other New Loan Documents to which it is a party and (ii) the Transaction Documents to which it is a party and to
consummate the Transactions and the other transactions contemplated hereby and thereby have been obtained and remain in full force and effect.
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(c) |
The entities and/or persons, as applicable, executing and delivering (i) this Agreement and the other New Loan Documents to which Borrower is a party and (ii) the Transaction Documents to which it is a party, on behalf of Borrower,
are duly authorized to so execute and deliver this Agreement and such other New Loan Documents and Transaction Documents.
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(d) |
This Agreement, the other New Loan Documents to which it is a party and the other Loan Documents and Transaction Documents to which Borrower is a party are in full force and effect and the agreements and obligations of Borrower
contained herein and therein constitute and, following consummation of the Transactions shall continue to constitute, the valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms
and have not been modified either orally or in writing, except as expressly set forth herein.
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(h) |
Borrower is not subject to any judgment, order, writ, injunction or consent decree. There are no actions, suits or proceedings pending or, to its knowledge, threatened in writing, (i) against or involving Borrower or the Property or
(ii) which relate to or may affect the Transactions or any of the other transactions contemplated by this Agreement, the other New Loan Documents or the other Loan Documents.
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(i) |
Borrower has no intention to do any of the following prior to the Closing or within the 180 days following the Closing: (i) seek entry of any order for relief as debtor and a proceeding under the Code (hereinafter defined), (ii)
seek consent to or not contest the appointment of a receiver or trustee for itself or for all or any part of its property, (iii) file a petition seeking relief under any bankruptcy, arrangement, reorganization or other debtor relief
laws, or (iv) make a general assignment for the benefit of its creditors.
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(k) |
Borrower has no defenses, setoffs, claims, counterclaims or causes of action of any kind or nature whatsoever against Original Lender, Lender or any servicer of the Loan (including, without limitation, Servicer) with respect to or
arising out of (i) the Loan or the Loan Documents, including, without limitation, the administration or funding of the Loan, (ii) this Agreement or any of the other New Loan Documents or the transactions contemplated hereby or thereby,
or (iii) any acts or omissions of Original Lender, Lender or any servicer of the Loan (including, without limitation, Servicer) or any past or present
officers, agents or employees of Original Lender, Lender or any servicer of the Loan (including, without limitation, Servicer) and Borrower does hereby expressly waive, release and relinquish any and all such defenses, setoffs, claims,
counterclaims and causes of action, if any.
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(o) |
Neither the consummation of the Transactions nor Borrower’s execution and delivery of, and performance of its obligations under, this Agreement or the other New Loan Documents or the Transaction Documents to which it is a party will
violate, conflict with or result in a default under (i) any of its organizational documents, (ii) any law, rule, regulation, order, decree or judgment applicable to or binding upon Borrower or the Property, or (iii) any agreement or
other instrument to which Borrower is a party or by which Borrower or the Property is or may be bound or affected.
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(p) |
All information provided to Lender or Servicer by Borrower or any of its employees, officers, directors, partners, members, managers or representatives (and, to the best of Borrower’s knowledge, all information contained in any third
party report obtained by Borrower with respect to the Property), in connection with or relating to (i) this Agreement or the Transactions contemplated hereby or (ii) the Property contains no untrue statement of material fact and does
not omit a material fact necessary in order to make such information not misleading, and the provision of any such information by Lender or Servicer to any rating agency is expressly consented to by Borrower.
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(q) |
Borrower is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in the State of California, and there has not been any amendment,
modification or supplement to the certificate of formation, operating agreement or other organizational documents of Borrower since the date of the closing of the Loan.
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(s) |
All representations and warranties of Borrower herein and in the Loan Documents to which it is a party and the certifications made by Borrower in that certain Officer’s Certificate delivered to Richards, Layton & Finger, P.A.
with respect to the non-consolidation opinion are and shall be true and correct as of the date of this Agreement and the Closing and shall survive the Closing.
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(a) |
Borrower is the owner of the Property. Principal has an unencumbered leasehold interest in the Improvements located on the Original Property pursuant to the Ionis Lease (as defined in the Original Loan Agreement) and an unencumbered
leasehold interest in the Additional Parcel pursuant to the Ground Lease. Upon the termination of the Ground Lease, all right, title and interest in and to all improvements located on the Additional Parcel (including, without
limitation, the Improvements) shall automatically vest in, and become the property of, the owner of the fee title to the Additional Parcel. Principal has the power to, and is duly authorized to, execute, deliver and perform (i) this
Agreement and the other New Loan Documents to which it is a party and (ii) the Transaction Documents to which it is a party and to consummate the Transactions and the other transactions contemplated hereby and thereby.
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(b) |
Any court or third-party consents and/or approvals necessary for Principal to enter into this Agreement, the other New Loan Documents to which it is a party and the Transaction Documents to which it is a party and to consummate the
Transactions and the other transactions contemplated hereby and thereby have been obtained and remain in full force and effect.
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(c) |
The entities and/or persons, as applicable, executing and delivering (i) this Agreement and the other New Loan Documents to which Principal is a party and (ii) the Transaction Documents to which it is a party, on behalf of Principal,
are duly authorized to so execute and deliver this Agreement and such other New Loan Documents and Transaction Documents.
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(d) |
This Agreement, the Guaranty, the Environmental Indemnity, the other New Loan Documents to which Principal is a party and the Transaction Documents to which Principal is a party are in full force and effect and the agreements and
obligations of Principal contained herein and therein constitute and, following the consummation of the Transactions, shall continue to constitute, the valid and binding obligations of Principal, enforceable against Principal in
accordance with their respective terms and have not been modified either orally or in writing, except for the modification to the Guaranty and Environmental Indemnity effectuated by this Agreement.
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(h) |
Principal is not subject to any judgment, order, writ, injunction or consent decree. There are no actions, suits or proceedings pending or, to its knowledge, threatened in writing, (i) against or involving Principal that might
adversely affect Principal’s ability to perform under the Loan Documents to which it is a party, (ii) against, involving or relating to the Property or the construction of the Improvements, or (iii) which relate to or affect the
Transactions or any of the other transactions contemplated by this Agreement, the other New Loan Documents, the other Loan Documents or the Transaction Documents.
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(i) |
Principal has no intention to do any of the following prior to the Closing or within the 180 days following the Closing: (i) seek entry of any order for relief as debtor and a proceeding under the Code (hereinafter defined), (ii)
seek consent to or not contest the appointment of a receiver or trustee for itself or for all or any part of its property, (iii) file a petition seeking relief under any bankruptcy, arrangement, reorganization or other debtor relief
laws, or (iv) make a general assignment for the benefit of its creditors.
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(k) |
Principal has no defenses, setoffs, claims, counterclaims or causes of action of any kind or nature whatsoever against Original Lender, Lender or any servicer of the Loan (including, without limitation, Servicer) with respect to or
arising out of (i) the Loan or the Loan Documents, including, without limitation, the administration or funding of the Loan, (ii) this Agreement or any of the other New Loan Documents or the transactions contemplated hereby or thereby,
or (iii) any acts or omissions of Original Lender, Lender or any servicer of the Loan (including, without limitation, Servicer) or any past or present officers, agents or employees of Original Lender, Lender or any servicer of the Loan
(including, without limitation, Servicer) with respect to the Loan and Principal does hereby expressly waive, release and relinquish any and all such defenses, setoffs, claims, counterclaims and causes of action, if any.
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(o) |
Neither the consummation of the Transactions nor Principal’s execution and delivery of, and performance of its obligations under, this Agreement or the other New Loan Documents and the Transaction Documents to which it is a party
will violate, conflict with or result in a default under (i) any law, rule, regulation, order, decree or judgment applicable to or binding upon Principal or the Property, or (ii) any agreement or other instrument to which Principal is a
party or by which Principal or the Property is or may be bound or affected.
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(p) |
All information provided to Lender or Servicer by Principal or any of its representatives (and, to the best of Principal’s knowledge, all information contained in any third party report obtained by Principal with respect to the
Property), in connection with or relating to (i) this Agreement or the Transactions contemplated hereby or (ii) the Property contains no untrue statement of material fact and does not omit a material fact necessary in order to make such
information not misleading, and the provision of any such information by Lender or Servicer to any rating agency is expressly consented to by Principal.
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(s) |
All representations and warranties of Principal herein and in the Loan Documents to which it is a party and the certifications made by Principal in that certain Officer’s Certificate delivered to Richards, Layton & Finger, P.A.
with respect to the non-consolidation opinion are and shall be true and correct as of the date of this Agreement and the Closing Date and shall survive the Closing.
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(i) |
Construction. Principal is and shall be solely responsible for the design, construction and completion of the Improvements and the payment of all costs and expenses in connection therewith and Borrower shall have no
obligations or liability under any Construction and Development Document or any other agreement relating to the design or construction of the Improvements.
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(iii) |
Compliance With Construction and Development Documents and Other Agreements. Principal agrees to, and Borrower agrees to cause Principal to, comply with the Construction and Development Documents to which Principal is a
party. Principal agrees to, and Borrower agrees to cause Principal to, deliver to Lender copies of any notices of default sent by or to Principal under or with respect to the Construction Contracts, the Architect’s Agreement, any
Governmental Approvals and any other agreement relating to the design, construction or development of the Improvements requiring payments of $500,000.00 or more, or under any REA in connection with or related to the design or
construction of the Improvements.
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(iv) |
Construction and Completion of Improvements. Principal has commenced construction of the Improvements but has ceased construction activity. Principal agrees to, and Borrower agrees to cause Principal to, recommence
construction of the Improvements on or before August 31, 2019 and thereafter Principal agrees to, and Borrower agrees to cause Principal to, diligently and continuously (subject to commercially reasonable reasons for delay (such as
force majeure events and unknown geological conditions)) prosecute the completion of construction of the Improvements in accordance with the Plans in a good and workmanlike matter, free of all defects (other than immaterial “punchlist”
items) and liens (other than those being contested in accordance with the terms hereof), and in compliance with the Construction and Development Documents, the Improvements Budget (as the same may be increased as permitted hereunder)
and all Legal Requirements including, without limitation, the REAs. The Improvements shall be completed in accordance with the terms of this Agreement prior to August 6, 2022. The Improvements shall comply with all Governmental
Approvals, all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Additional Parcel and all applicable insurance requirements (including, without limitation, applicable building codes, special use
permits, environmental regulations, and requirements of insurance underwriters) and any other restrictions encumbering the Additional Parcel, including, without limitation, the REAs.
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(v) |
Changes in Construction and Development Documents. Lender’s approval shall not be required for changes in the Plans, the Improvements Budget, the Construction Timeline or the other Construction and Development Documents,
provided that Principal has obtained, and delivers to Lender with the quarterly reporting required hereunder copies of, all Governmental Approvals and other approvals required by or under any Legal Requirements (including the REA) in
connection with any changes in the Plans, the Improvements Budget, the Construction Timeline or other Construction and Development Documents and, with respect to amendments to the Construction Timeline, the completion date does not
extend beyond August 6, 2022. Principal shall (and Borrower agrees to cause Principal to) deliver to the Lender documentation as reasonably required by Lender pertaining to any change referred to in this Section.
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(viii) |
Quarterly Deliverables. Within ten (10) days after the end of each calendar quarter, Principal shall furnish to Lender and directly to Servicer at mlsassetmanagement@midlandls.com with a copy to
Chuck Hendricks, of Servicer, at chendric@midlandls.com, the following documents:
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(a) |
a report prepared by Construction Manager or the senior officer of Principal responsible for the oversight of the construction of the Improvements detailing the status of construction of the Improvements, including whether
construction is on, ahead of or behind the Construction Timeline and whether the construction of the Improvements is on budget and the cost to complete the Improvements in accordance with the Plans, all Legal Requirements and all
Governmental Approvals. Additionally, if any significant dispute arises between or among Principal, Contractor, Architect, or any subcontractor, supplier or any other party to a contract requiring payments, individually or in the
aggregate, equal to or greater than $500,000.00, said report will contain a written summary of the nature of such dispute;
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(d) |
payment receipts and lien releases/waivers from the Contractor and all subcontractors under contracts having an aggregate payment obligation of $500,000.00 or more covering all payments in the prior calendar quarter;
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(e) |
copies of any (i) contracts relating to the design or construction of the Improvements for amounts equal to or greater than $500,000.00 entered into in the prior calendar quarter and (ii) changes to the Plans, Construction
Contracts, Architect’s Agreement or any construction or supply agreements having payments (individually or in the aggregate) equal to or greater than $500,000.00 (including change orders) made in the prior calendar quarter; and
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(ix) |
Liens. Notwithstanding anything to the contrary contained in any Loan Document, any lien claimed or filed against any part of the Property for labor done or materials or services furnished in connection with the
construction of the Improvements shall be discharged, by bond or otherwise, within thirty (30) days after the date of Borrower’s or Principal’s receipt of actual notice of the filing thereof. Notwithstanding the foregoing, after
prior notice to Lender provided with said 30 day period, Principal, at its own expense, may contest by appropriate legal proceeding, conducted in good faith and with due diligence, the amount or validity of any claims (including
claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a lien upon the Property (collectively, “Contestable Liens”); provided that (i) no Event of Default has
occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with all applicable statutes, laws and ordinances, and the terms, conditions and provisions of any applicable document
encumbering the Property; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Principal shall promptly upon final determination thereof
pay the amount of any such Contestable Liens, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such Contestable Liens from the
Property; and (vi) Principal shall deposit with Lender cash, or other security as may be reasonably approved by Lender, in an amount equal to 110% of the contested amount (or such higher amount as may be required by applicable law),
to insure the payment of any such Contestable Liens, together with all interest and penalties thereon. Lender may pay over any such cash or other security held by Lender to the claimant entitled thereto at any time when, in the
reasonable judgment of Lender, the entitlement of such claimant is established. If Principal shall fail promptly to either (i) discharge any such lien, or (ii) post a bond which fully removes such lien within said thirty (30) day
period after the date of the filing thereof or (iii) contest such lien in accordance with the terms of this subsection, Lender may, at its election (but shall not be required to), procure the release and discharge of any such claim
and any judgment or decree thereon and, further, may in its sole discretion effect any settlement or compromise of the same, or may furnish such security or indemnity to the title insurer, and any amounts so expended by Lender,
including premiums paid or security furnished in connection with the issuance of bonds, shall be added to the Debt, shall be immediately due and payable, and shall bear interest at the Default Rate from the date of disbursement
until paid in full. In settling, compromising or discharging any claims for lien, Lender shall not be required to inquire into the validity or amount of any such claim.
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(x) |
Notices. Within ten (10) days after Borrower or Principal acquires knowledge of or receives notice of a defect in the Improvements or any departure from the Plans, or any other requirement of this Agreement, Borrower or
Principal, as applicable, will notify Lender and Principal shall proceed with diligence to correct all such defects and departures in accordance with the requirements contained herein.
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(xi) |
Cessation in Construction. Once commenced, construction of the Improvements shall not be abandoned for a period of thirty (30) consecutive days or more, absent a commercially reasonable reason for doing so. Principal
shall promptly notify Lender if construction has stopped for a period of thirty (30) or more consecutive days and the reason therefor.
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(xii) |
No Security Interest. No materials, equipment, fixtures or articles of personal property placed in or on the Additional Parcel in connection with the construction of the Improvements shall be purchased by or installed
under any security agreement, financing lease or other agreement whereby the seller reserves or purports to reserve title, a lien, a security interest, the right of removal or repossession or the right to consider such items
personal property after their incorporation into the Improvements, unless previously authorized by Lender in writing.
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(xiii) |
Governmental and Other Approvals. Principal is and shall be solely responsible for obtaining all necessary approvals in connection with all site work and construction of the Improvements, including, without limitation,
any approvals required under any REA and all Governmental Approvals, including, without limitation, certificates of completion and occupancy, required by any Governmental Authority or otherwise necessary for the construction, use,
occupancy and operation of the Improvements.
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(xiv) |
Construction and Development Documents. Other than the New Loan Documents to which it is a party, Borrower has not entered into, and will not enter into, any contract or agreement (whether written or oral) in connection
with the development, construction or provision of labor, materials or design or supervisory services with respect to the Improvements.
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(xv) |
Obligation upon Completion. Upon completion of the Improvements, (i) Principal shall deliver to Lender a certificate from the Architect that the Improvements have been completed in accordance with the Plans (in all
material respects), all applicable Governmental Approvals and all Legal Requirements, (ii) Principal shall provide to Lender written evidence reasonably acceptable to Lender in all respects that the Property continues to comply with
all applicable insurance requirements (including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters) and any other restrictions encumbering the
Property, including, without limitation, the REAs; (iii) Borrower or Principal shall deliver to Lender a copy of the certificate of occupancy with respect to the Improvements and any other evidence obtained by Borrower or Principal
that the Improvements comply with all applicable Legal Requirements; (iv) Borrower shall cause to be issued and delivered to Lender an endorsement to the Title Insurance Policy insuring the continued priority of the Lien of the
Restated Security Instrument and evidence of payment of any premium payable in connection with such endorsement; (v) Principal shall deliver to Lender notice of such completion of the Improvements, together with an Officer’s
Certificate certifying that all of the requirements of this Section 10(b) have been satisfied; and (vi) within forty-five (45) days of the completion of the Improvements, Borrower or Principal shall deliver to Lender a Survey of the
Additional Parcel and the improvements thereon (including the Improvements) reasonably acceptable to Lender in all respects.
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(xvi) |
Net Worth and Liquidity. Principal agrees that until the Improvements have been completed in accordance with this Agreement, Principal shall maintain (x) a Net Worth of not less than $51,350,000.00 plus the estimated cost
of the Improvements (excluding Principal’s interest in the Original Property, Additional Parcel and Improvements) and (y) Liquid Assets of not less than $5,135,000.00 plus the estimated cost of the Improvements.
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(i) |
Governmental and Other Approvals. All Governmental Approvals necessary to construct the Improvements in accordance with the Plans have been or will be obtained by Principal and are or will be valid and in full force and
effect, and in each case will remain as such. Principal has delivered true, correct and complete copies of all Governmental Approvals obtained by Principal to Lender as of the date hereof. The Improvements comply with all
applicable requirements set forth in the REAs, and all approvals required pursuant to the terms of any REA have been obtained by Borrower or Principal, as applicable, and copies of any such approvals have been provided to Lender.
To Borrower’s and Principal’s knowledge, the Improvements, if completed in accordance with the Plans, will comply with all applicable Governmental Approvals, all applicable Legal Requirements of all Governmental Authorities having
jurisdiction over the Additional Parcel and all applicable insurance requirements (including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters)
and any other restrictions encumbering the Additional Parcel, including, without limitation, the REAs. Neither the construction nor use of the Improvements as a conference center with office
and uses ancillary thereto constitutes or will constitute or cause a violation, breach or default by Borrower or Principal under any Governmental Approval, Legal Requirement or document or agreement to which Borrower or Principal is
a party or the Original Property or Additional Parcel is bound. The Plans submitted to the City of Carlsbad, California (the “City”) and approved by the City are the same Plans heretofore delivered to Lender.
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(ii) |
Plans. As of the date hereof, the Plans (y) are satisfactory to Borrower and Principal and (z) have been approved by each Governmental Authority having jurisdiction over the Property and any others whose approval of the
Plans, in whole or in part, is required by any applicable Legal Requirement (including the REA).
|
(iii) |
Construction and Development Documents. Lender has been furnished true, correct and complete copies of all Construction and Development Documents entered into or obtained, as applicable, by Principal as of the date
hereof. As of the date hereof, the Architect’s Agreement and the Construction Contracts constitute all agreements executed by or for the benefit of Principal in connection with the design or construction of the Improvements. As of
the date hereof, the Architect’s Agreement and the Construction Contracts cover all work and services necessary or desirable for the design and construction of the Improvements, including all work and services necessary for the
Improvements to be completed in accordance with all Governmental Approvals and any and all requirements of all applicable Legal Requirements.
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(iv) |
Improvement Budget. As of the date hereof, to the best of Principal’s knowledge after consultation with the Architect and Contractor, the Improvements Budget attached hereto as Exhibit C (x) is true, correct and
complete in all material respects, (y) shows all sources and uses of funds and (z) provides for all costs and expenses to be incurred in connection with the construction and equipping of the Improvements, and all other items of cost
and expense to be incurred in connection with the design and construction of the Improvements, including, without limitation, all costs and expenses to be incurred pursuant to the Construction and Development Documents. As of the
date hereof, neither Borrower nor Principal is aware of any other costs, expenses or fees which are material to the completion of the Improvements and are not covered by the Improvements Budget. The amount required to complete the
Improvements as set forth on the Improvements Budget ($54,718,029.00) is available and has been allocated by Principal in advance of the commencement of the construction of the Improvements and such amount shall be used solely to
complete the Improvements.
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(v) |
Utilities. No utility or other municipal services necessary for the use and occupancy of the Original Property and improvements located thereon will be adversely affected by the construction of the Improvements. All
utility and municipal services necessary for the use and occupancy of the Improvements are currently available to the Adjacent Parcel.
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(vi) |
Construction Timeline. As of the date hereof, to the best of Principal’s knowledge after consultation with the Architect and Contractor, the Construction Timeline attached hereto as
Exhibit D (y) is true, correct and complete in all material respects, and (z) is a fair and reasonable timeline for completing the Improvements in accordance with the terms of this Agreement.
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(d) |
Right to Complete/Raze Improvements. In addition to, and without limiting, any of Lender’s other rights and remedies under the Loan Documents, at law or in equity, Lender shall have the further right upon an Event of
Default under the Loan Agreement or any of the other Loan Documents, to enter the Property and take any and all actions necessary, in its judgment, to secure, protect and preserve the Improvements and any materials or supplies
located on the Property, to complete in part or in full the construction of the Improvements, including, but not limited to, making changes in the Plans (but not to the scope of the Improvements or the quality of the Improvements),
and entering into, and, subject to the terms thereof, modifying or terminating the Construction and Development Documents and other contractual arrangements. Alternatively, upon the occurrence of an Event of Default, Lender may
elect to demolish and remove any partially completed Improvements in accordance with all Legal Requirements. If Lender elects to continue with the construction of the Improvements or to demolish such Improvements, Lender will not
assume any liability to Borrower, Principal or any other Person for completing the Improvements or for the manner or quality of construction of the Improvements or for demolishing and removal of the Improvements and Borrower and
Principal each expressly waive any such liability, except to the extent that such liability shall be caused directly by the gross negligence or willful misconduct of Lender. Borrower and Principal each irrevocably appoint Lender
as its attorney-in-fact, with full power of substitution, to complete, upon exercise of the Lender's rights following an Event of Default, the Improvements in Borrower’s or Principal's name or the Lender may elect to complete
construction of the Improvements or demolish and remove the Improvements in the name of Lender or a subsidiary of Lender. In any event, all sums actually expended by Lender, or its subsidiary, in completing construction of the
Improvements, demolishing and removing the Improvements or otherwise exercising its rights hereunder or under the other Loan Documents will be part of the Debt, be secured by the Security Instrument and all other Loan Documents and
shall bear interest at the Default Rate.
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(e) |
Visitation and Inspection. Borrower and Principal agree that the officers or authorized employees and agents (including any construction consultant engaged by Lender) of Lender or Servicer will have the right, upon not
less than forty-eight hours prior notice and at any reasonable time, to enter upon the Additional Parcel and inspect the construction work and all materials, plans, specifications and other matters relating to construction of the
Improvements. Borrower and Principal further agree that (i) neither Lender nor Servicer has any duty to examine, supervise or inspect the Plans, the Construction and Development Documents or the construction of the Improvements,
(ii) any inspection or examination by Lender, Servicer or their employees or agents is for the sole purpose of protecting the security interests granted in favor of the Lender and preserving its rights under this Agreement and the
other Loan Documents, (iii) no default or breach of Principal or Borrower will be waived by any inspection by Lender, Servicer or their employees or agents, nor will any such inspection constitute a representation that there has
been or will be compliance with the Plans or any other Construction and Development Documents or any Legal Requirement, or that the construction of the Improvements is free from defective materials or workmanship, (iv) no inspection
of the construction of the Improvements or any other inspection constitutes a warranty or representation by Lender or Servicer (or any of their employees or agents) as to the adequacy or safety of construction or any physical
condition or feature of the Additional Parcel or the Improvements and (v) neither Borrower nor Principal shall assert any position contrary to any of the foregoing
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(iv) |
By inserting at the end of the definition of the “Property” the following: “Notwithstanding anything to the contrary contained herein or in any other Loan Document, “Property” shall include the “Additional Parcel” (as defined in
the Consent to Additional Collateral) and all right, title and interest of Borrower in the improvements now or hereafter erected, situated or installed thereon and the personal property located therein.”
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(d) |
Section 11.22 of the Loan Agreement is amended by (i) inserting the following at the end of clause (xii) thereof: “including specifically, but without limitation, the “Improvements” (as defined in the Consent to Additional
Collateral), (ii) by deleting clause (xviii) in its entirety and inserting the following new clause (xviii) in lieu thereof: “(xviii) any indemnification and/or other obligations to the City of Carlsbad or any other Governmental
Authority or Person under any indemnification agreement, hold harmless agreement, maintenance agreement, notice of restrictions or other agreement of any kind or nature whatsoever executed by Guarantor and/or Borrower in connection
with or pursuant to any Governmental Approval or other consents and approvals issued in connection with the construction of the Improvements (as defined in the Consent to Additional Collateral) or the conveyance of the Additional
Parcel (as defined in the Consent to Additional Collateral)” (and (iii) by (x) deleting “or” at the end of clause (9) of the penultimate paragraph of Section 11.22, (y) deleting the period at the end of clause (10) of said paragraph
and inserting “; or” in lieu thereof and (z) inserting the following new clause (11): “(11) the “Improvements” (as defined in the Consent to Additional Collateral) have not been completed in accordance with the terms of the Consent
to Collateral Addition as of the date that is the earlier to occur of (A) August 6, 2025 or (B) the date Lender notifies Borrower in writing of the occurrence of an Event of Default under Sections 10.1(a)(i), (ii), (iii) or (iv) of
this Agreement”.
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(a) |
All references in the Environmental Indemnity to “Environmental Report” shall be deemed to include references to that certain Phase I Environmental Site Assessment Report dated May 1, 2019, prepared by AEI Consultants in respect
of Lot 25.
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(ii) |
“Anti-Terrorism Laws” shall mean any Laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order, or directive promulgated, issued or
enforced pursuant to such Laws, all as amended, supplemented or replaced from time to time.
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(iv) |
“Covered Entity” shall mean (a) Borrower, each of Borrower’s subsidiaries, all guarantors under the Loan and all pledgors of Collateral and (b) each Person that, directly or indirectly, is in control of a Person described
in clause (a) above. For purposes of this definition, control of a Person shall mean the direct or indirect (x) ownership of, or power to vote, twenty-five percent (25%) or more of the issued and outstanding equity interests having
ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by
ownership of equity interests, contract or otherwise.
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(v) |
“Governmental Body” shall mean any nation or government, any state or other political subdivision thereof or any entity, authority, agency, division or department exercising the executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to a government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial
accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or
similar authority to any of the foregoing).
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(vi) |
“Law(s)” shall mean any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order, injunction, writ, decree, bond,
judgment, authorization or approval, lien or award of or any settlement arrangement, by agreement, consent or otherwise, with any Governmental Body, foreign or domestic.
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(vii) |
“Person” shall mean any individual, corporation, partnership (whether general or limited), joint venture, limited liability company, limited liability partnership, estate, trust, joint stock company, unincorporated
association, any federal, state, county or municipal government or political subdivision or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing or any other entity.
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(viii) |
“Reportable Compliance Event” shall mean that any Covered Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection
with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual or probable violation
of any Anti-Terrorism Law.
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(x) |
“Sanctioned Person” shall mean any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or
subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.
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(b) |
Borrower and Principal hereby warrant and represent to Lender that no Covered Entity is a Sanctioned Person, and that no Covered Entity, either in its own right or through any third party, (i) has any of its assets in a
Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (ii) does business in or with, or derives any of its income from investments in or transactions with, any
Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (iii) engages in any dealings or transactions prohibited by any Anti-Terrorism Law.
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(c) |
Borrower and Principal hereby covenant and agree with Lender that no Covered Entity will become a Sanctioned Person, and that no Covered Entity, either in its own right or through any third party, will (i) have any of its assets
in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (ii) do business in or with, or derive any of its income from investments in or transactions with, any
Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; (iii) engage in any dealings or transactions prohibited by any Anti-Terrorism Law; or (iv) use the Advances to fund any operations in, finance any
investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law. Borrower and Principal hereby further covenant and agree with Lender that the funds used to
repay the Debt will not be derived from any unlawful activity, and that each Covered Entity shall comply with all Anti-Terrorism Laws. Borrower covenants and agrees with Lender that Borrower shall promptly notify Lender in writing
upon the occurrence of a Reportable Compliance Event.
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(d) |
It shall be an Event of Default under the Loan Documents if (i) any representation or warranty contained in Section 32(b) above is or becomes false or misleading at any time, or (ii) any covenant or agreement of Borrower or
Principal contained in Section 32(c) above is breached by Borrower or Principal, and, notwithstanding any provision to the contrary contained in any of the other Loan Documents, none of the Borrower or Principal shall be entitled to
(x) any notice of any such false or misleading warranty or representation or of any breach of any such covenant or agreement, nor to (y) any grace period or any cure right with respect to any such false or misleading warranty or
representation or any breach of any such covenant or agreement.
|
(b) |
Borrower and Principal agree that during the term of the Loan, Borrower and Principal shall, and shall cause the holders of direct and/or indirect, legal and/or beneficial, interests in Borrower (other than public shareholders of
Principal for so long as Principal is a publicly traded company on a recognized stock exchange in the United States of America) to, (a) within five (5) days of receipt of the same, notify Lender, and provide Lender with a copy of,
any inquiry received from CFIUS (as defined herein) or any other Governmental Authority related to each of the Borrower’s acquisition of the Additional Parcel and/or the Ground Lease, (b) make
any filing requested by CFIUS related to the Borrower’s acquisition of the Property and/or the Ground Lease, (c) cooperate with, and fully respond to any CFIUS Review related to the Borrower’s acquisition of the Property and/or the
Ground Lease, in each case within the time permitted by CFIUS or such Governmental Authority, as applicable, and (d) subject to the terms and conditions of the Loan Documents, take any mitigation measures requested by CFIUS and/or
any Governmental Authority in connection with the CFIUS Review.
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BORROWER:
|
||
IONIS GAZELLE, LLC, a Delaware limited liability company
|
||
By:
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Ionis Pharmaceuticals, Inc., a Delaware corporation, its sole member
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By:
|
||
Name:
|
||
Title:
|
Senior Vice President, Finance and Chief
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|
Financial Officer
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PRINCIPAL:
|
||
IONIS PHARMACEUTICALS, INC., a Delaware corporation
|
||
By:
|
||
Name:
|
||
Title:
|
Senior Vice President, Finance and Chief
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|
Financial Officer
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LENDER:
|
|||
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE BENEFIT OF THE REGISTERED HOLDERS OF UBS COMMERCIAL MORTGAGE TRUST 2017-C3, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2017-C3
|
|||
By:
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Midland Loan Services, a Division of PNC Bank, National Association, its Attorney-in-Fact
|
||
By:
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/s/ Alan H. Torgler
|
||
Name:
|
|||
Title:
|
Vice President, Servicing Officer
|
This ‘10-Q’ Filing | Date | Other Filings | ||
---|---|---|---|---|
8/6/27 | ||||
8/6/25 | ||||
9/6/22 | ||||
8/6/22 | ||||
Filed on: | 11/6/19 | 8-K | ||
For Period end: | 9/30/19 | 8-K | ||
8/31/19 | ||||
8/1/19 | ||||
7/6/19 | ||||
5/1/19 | 4 | |||
12/13/18 | ||||
11/28/18 | ||||
8/28/18 | ||||
3/2/18 | ||||
1/30/18 | 4/A | |||
8/1/17 | ||||
7/18/17 | 4, 8-K | |||
10/13/16 | ||||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/21/24 Ionis Pharmaceuticals Inc. 10-K 12/31/23 103:18M 2/22/23 Ionis Pharmaceuticals Inc. 10-K 12/31/22 110:25M 2/25/22 Ionis Pharmaceuticals Inc. 10-K 12/31/21 106:22M 2/24/21 Ionis Pharmaceuticals Inc. 10-K 12/31/20 111:23M |