FILED: NEW YORK COUNTY CLERK 01/21/ :57 PM INDEX NO /2015 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/21/2016

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1 FILED: NEW YORK COUNTY CLERK 01/21/ :57 PM INDEX NO /2015 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/21/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SAMUEL J. WOHLST ADTER; NADINE H. WOHLSTADTER; DUCK FARM, INC.; HEBRON VALLEY FARMS, INC. ; HVF, INC.; HYPERION CATALYSIS EU LIMITED; HYPERION CATALYSIS INTERNATIONAL, INC.; NHW, LLC; WELLSTAT A VT INVESTMENT, LLC; WELLST AT BIOCA TAL YSIS, LLC; WELLSTAT BIOLOGICS CORPORATION; WELLSTAT DIAGNOSTICS, LLC; WELLSTAT IMMUNOTHERAPEUTICS, LLC; WELLSTAT MANAGEMENT COMPANY, LLC; WELLSTAT OPHTHALMICS CORPORATION; WELLSTAT THERAPEUTICS CORPORATION; WELLSTAT THERAPEUTICS EU LIMITED; WELLST AT VACCINES, LLC; and SJW PROPERTIES, INC. ; Index No.: /2015 Mot. Seq. No. 001 Part 3 (Bransten, J.) AFFIDAVIT OF JENNIFER OLISA IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Plaintiffs, -against- PDL BIOPHARMA, INC.; Defendant. STATE OF MARYLAND ) ) s.s.: COUNTY OF MONTGOMERY) I, JENNIFER OLISA, being duly sworn, depose and say as follows : 1. I make this Affidavit in support of Plaintiffs' Motion For Smmnary Judgment. 2. I am the controller for Wellstat Therapeutics Corporation ("Therapeutics") and have had that responsibility since I am also the controller for other Wellstat companies.

2 Page 2 of6 3. I have personal knowledge of the September 9 Letter, including consideling its language on or before September 9, A true and conect copy of the September 9 Letter is attached as Exhibit A. I also have personal knowledge of the deposit accounts established for and used by Therapeutics as well as other Wellstat companies in This personal knowledge is based on my responsibilities as controller and the regular use of and monitoling of those deposit accounts. I have personal knowledge of and was directly involved with the flow of funds from Astra Zeneca on September 10, 2014 and the disposition of those funds from Therapeutics, including communications with representatives of White Oak Global Advisors, LLC ("White Oak") related to the funds received from Astra Zeneca on September 10, The September 9 Letter provided that it "shall become effective upon" the occunence of certain conditions. September 9 Letter J(c) (Ex. A). "Those conditions had to occur by 5:00 p.m., California time, on September 10, 2014." I d. 5. One of the conditions that had to occur by 5:00p.m. California time on September 10, 2014 was that Therapeutics pay $2,000, to White Oak. See September 9 Letter B(a)(1) (Ex. A). 6. Another condition was that Therapeutics deposit "the balance of the Initial Payment" from AstraZeneca into "into a Collateral Account (as that term is defined in the White Oak Credit Agreement), subject to a Control Agreement (as that term is defined in the White Oak Credit Agreement) and a control agreement (which may be contained within the Control Agreement referenced previously) for the benefit of PDL BioPhanna, Inc. ("PDL") Agent which shall be subordinate to the lights of White Oak Agent (such account, the "Cash Collateral Account")." September 9 Letter B(a)(2) (Ex. A). Paragraph 1.01 of the White Oak Credit Agreement defines "Control Agreement" as "any agreement entered into among a depository I /

3 Page 3 of6 institution at which a Loan Party that is a party hereto maintains a Collateral Account, such Loan Party and Administrative Agent, pursuant to which Administrative Agent obtains control (within the meaning of the Unifonn Commercial Code) over such Collateral Account." A true and correct copy of the August 1, 2013 White Oak Credit Agreement is attached as Exhibit B. 7. On September 10, 2014, I anticipated receiving $10 million from AstraZeneca. White Oak approved the deposit of the AstraZeneca funds in Therapeutics' deposit account at Wells Fargo. The account number for that Wells Fargo deposit account ends in A $10 million wire from AstraZeneca was received in that account on September 10, A true and correct copy of the September 10, 2014 transactions in the Wells Fargo account ending in is attached as Exhibit C. 8. In my role as controller, I have personal knowledge of restrictions that may exist on the deposit accounts of Therapeutics and other Wellstat companies, including whether a Wellstat company enters into and has an account or accounts that may be subject to a deposit account control agreement among a financial institution, a Wellstat company and a lender. White Oak did not have a deposit account control agreement governing the Therapeutics deposit account at Wells Fargo with account number ending in on September 10, 2014 or at any other time. PDL did not have a deposit account control agreement governing the Therapeutics deposit account at Wells Fargo with account number ending in on September 10, 2014 or at any other time. 9. White Oak did not prepare or provide Therapeutics or any other Wellstat company with a deposit account control agreement that governed the Therapeutics Wells Fargo deposit account with account number ending in I /

4 Page 4 of6 10. PDL did not prepare or provide Therapeutics or any other Wellstat company with a deposit account control agreement that governed the Therapeutics Wells Fargo deposit account with account number ending in Per the instruction of Tom Otte, Managing Director at White Oak, and pursuant to wiring instructions that I received from Tom Fi1megan at White Oak, on September 10, 2014, I caused $9,408,852 to be wired from the Therapeutics deposit account at Wells Fargo to an account for credit to Escrow Number JH at Old Republic Title Company. On September 10, 2014, at 4:26p.m. Eastern time, I confinned to Tom Otte, White Oak's Managing Director that "$9,408,852 ha[ d] been wired into the Old Republic Title Company account for credit to Escrow Number JH as requested." A true and correct copy of my September 10, exchange with Tom Otte regarding the direction and amount to wire to Old Republic Title Company is attached as Exhibit D. A true and correct copy of the wiring instructions for the Old Republic Title Company account that I received from Tom Finnegan is attached as Exhibit E. 12. I am not aware of a deposit account control agreement in favor ofpdl and White Oak that governs the Old Republic Title Company escrow account. The Old Republic Title Company escrow account was not a "Collateral Account" identified in the September 9 Letter. A "Collateral Account" was defined as "all commodity accounts, deposit accounts and securities accounts... of any Loan Party," and the "Loan Parties" were defined as "Borrowers and all Guarantors," which includes the Wohlstadters, ce1iain Wellstat Companies, and "the entities party thereto." White Oak Credit Agreement 1.01 at 6, 16 (Ex. B). The Old Republic Title Company is not a Loan Party, a Bon ower or a Guarantor /

5 Page 5 of6 13. White Oak was not paid $2,000,000 by 5:00 p.m. California time on September 10, A true and cottect copy of the escrow instructions to Old Republic Title Company, dated June 14, 2014, is attached as Ex. F. 14. For White Oak to be paid $2,000,000, White Oak and Wellstat executed a separate letter governing the $2,000,000 payment to White Oak. A true and cottect copy of the White Oak Payoff Letter, dated September 15, 2014, is attached as Ex. G. The September 15, 2014 White Oak Payoff Letter confinns White Oak received no $2,000,000 payment until September 15, 2014: "[y]ou have infonned Administrative Agent that you intend to partially prepay the Outstanding Amount of the Obligations on September 15, 2014." The letter desclibed September 15, 2014 as the "Prepayment Date." White Oak Payoff Letter at 1 (Ex. G). 15. The White Oak Payoff Letter allowed White Oak to wire $2,000, to the Trust and Securities Services account at Deutsche Bank and further allowed White Oak to wire $208, to the Chapman and Cutler Operating Account at Bank of the West. White Oak Payoff Letter at 2 (Ex. G). The $2,208,000 was referenced in the White Oak Payoff Letter as the "Prepayment Amount." 16. The $2,000,000 was not sent to the Deutsche Bank Trust and Securities Services Account on or before 5:00p.m. Pacific time on September 10, The payments were made from the Old Republic Escrow account pursuant to the White Oak Payoff Letter on September 16, Attached as Exhibit H is a true and cottect copy of the "BoiTower's Closing Statement" of the Old Republic Title Company Escrow Number JH. It reflects transfers of $2,000,000 to "Trust and Securities Services" and $208,000 to "Chapman and Cutler, LLP Operations Account." (Ex. H). The ledger of the Old Republic Title Company Escrow Number JH reflects that the $2,000,000 transfer to the "Trust and Securities I /

6 Page 6 of6 Services" account and the $208,000 to the "Chapman and Cutler, LLP Operations Account" ttivjo occmted on September 16, 201 ~. A true and con ect copy ofthe ledger of the Old Republic Title Company Escrow Number JH is attached as Exhibit I. WHEREFORE, THE UNDERSIGNED RESPECTFULLY REQUESTS THAT PLAINTIFFS ' MOTION FOR SUMMARY JUDGMENT BE GRANTED. - - STAYCE L. BYNUM Notary Public r Baltimore City ~ ~ Maryland _ My.C om~ssion Expires Sep 12, ~ /