Exhibit 10.24
SECOND AMENDMENT TO TRIPLE NET
SPACE LEASE
This Second Amendment to Triple Net
Space Lease (this “ Amendment ”), dated for
reference purposes only as of December 18, 2008, is made by
and among SRI Eight Pacific Shores LLC, a Delaware limited
liability company (“ Lessor ”), PDL
BioPharma, Inc., a Delaware corporation (“ PDL
”), and Facet Biotech Corporation, a Delaware corporation
(“ Facet ”).
RECITALS
A.
Pacific Shores Investors, LLC, a
Delaware limited liability company (Lessor’s
predecessor-in-interest) and PDL entered into that certain Triple
Net Space Lease dated as of July 6, 2006 (the “
Original Lease ”) for the lease of approximately
283,015 square feet of space consisting of the entirety of the
building located at 1400 Seaport Boulevard in Redwood City,
California, commonly known as Building 9 (the “
Premises ”).
B.
Lessor and PDL entered into that
certain First Amendment to Triple Net Space Lease dated as of
March 31, 2008 (the “ First Amendment
”). The Original Lease and the First Amendment are
collectively referred to as the “ Lease ”.
The term of the Lease is scheduled to expire on December 31,
2021 (the “ Current Expiration Date ”). The
capitalized terms used and not otherwise defined herein shall have
the same meanings and definitions as set forth in the
Lease.
C.
The Board of Directors of PDL has
determined that it is appropriate, desirable and in the best
interests of PDL and its stockholders to transfer and assign
certain of its assets and liabilities to Facet (the “
Separation ”), pursuant to a Separation and
Distribution Agreement to be entered into by and between PDL and
Facet as of the Effective Date (as defined in Paragraph 1 below),
the form of which Facet has attached as Exhibit 2.1 to its
Registration Statement on Form 10 filed with the Securities
and Exchange Commission (the “ Separation
Agreement ”).
D.
To effect the Separation, the Board
of Directors of PDL has determined that all of the issued and
outstanding shares of common stock of Facet should be distributed
to the common stockholders of PDL, on a pro rata basis (the “
Distribution ”). Facet will be and remain an
independent, publicly traded company that is not legally affiliated
with PDL following the Separation and Distribution.
E.
Following the Separation and
Distribution, PDL will permanently relocate its entire business
operations to Incline Village, Nevada, and Facet will operate its
business in Redwood City, California. Accordingly, PDL
desires to add Facet as a co-tenant under the Lease, on the terms
and conditions set forth in this Amendment.
F.
Lessor is willing to consent to
having Facet added as a co-tenant under the Lease, on the terms and
conditions set forth in this Amendment.
1
NOW, THEREFORE
, in consideration of the foregoing,
the mutual promises set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which the parties
hereby acknowledge, the parties agree as follows:
1.
Effective Date
. The “ Effective
Date ” of this Amendment shall be the date on which the
Distribution is effective; provided, however, if the Distribution
does not occur by December 31, 2008, then this Amendment shall
terminate and be of no further force or effect.
2.
Addition of Facet as a
Co-Tenant . As of
the Effective Date, Facet shall be a co-tenant with PDL under the
Lease, and PDL grants to Facet an undivided interest in the
Lessee’s leasehold estate created by the Lease. As of
the Effective Date, all right, title and interest of the Lessee in,
to and under the Lease and the Premises demised thereunder shall be
deemed to be vested in Facet and PDL as co-tenants, so that the
leasehold estate of each shall be concurrent as to right and
priority, and all references in the Lease to the
“Lessee” shall be deemed references to PDL and Facet,
jointly and severally. Facet agrees to be bound by all of the
terms and conditions of the Lease and to faithfully perform all
obligations and duties of “Lessee” under the Lease as
if Facet were an original signatory thereto as lessee
thereunder.
3.
PDL and Facet Jointly and
Severally Liable; All Lessee’s Rights to be Exercisable
Solely By Facet .
The addition of Facet as a co-tenant shall not relieve or release
PDL from any obligations under the Lease, and Facet and PDL shall
be and remain jointly and severally liable for all obligations of
“Lessee” under the Lease arising from and after the
Effective Date. Notwithstanding Paragraph 2 above, Lessor,
PDL and Facet acknowledge and agree that any and all rights granted
to Lessee under the Lease, including, but not limited to, the right
to terminate the Lease pursuant thereto by reason of a casualty or
condemnation, and any and all actions on the part of the Lessee
undertaken under or with respect to the Lease, shall be exercisable
solely by Facet (or any successor in interest thereto), acting
alone, without notice by Lessor or Facet (or any successor in
interest thereto) to, or consent or approval by, PDL. Without
limitation of the foregoing, PDL and Facet acknowledge and agree
that any notice by PDL to Lessor purporting to exercise any rights
of Lessee under the Lease shall be ineffective, and Lessor’s
failure to respond thereto shall not bind or estop Lessor in any
manner. In furtherance of the preceding provisions, PDL consents
to, waives notice of, and shall not be discharged, released or
exonerated from i
