Exhibit 10.15
Settlement Agreement Between the Company and Xxxxxx Xxxx 00 Xxxxxx Xxxxxx,
Inc.; Forest City Management, Inc.; And Forest City Enterprises, Inc.
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 14th day
of November, 1997, by and among T Cell Sciences, Inc., and T Cell Diagnostics,
Inc., both of which are Delaware corporations with a principal place of business
at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx (jointly "T Cell"), and Xxxxxx Xxxx
00 Xxxxxx Xxxxxx, Inc.; Forest City Commercial Management, Inc. (successor in
interest to "Forest City Management, Inc."); and Forest City Enterprises, Inc.,
all of which are Ohio corporations with a principal place of business at 0000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxx (jointly "Forest City").
WHEREAS, T Cell Sciences, Inc. formerly leased and occupied certain space
located at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx ("38 Xxxxxx Street"), from
Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc., pursuant to a lease dated August 1, 1987;
WHEREAS, in connection with that lease, T Cell, Forest City, and
Pittsburgh National Bank, now PNC Bank, N.A. ("PNC"), entered into a Tri-Party
Agreement, dated June 30, 1988, pursuant to which T Cell assumed certain
obligations to PNC;
WHEREAS, T Cell and Forest City disagreed as to their respective rights
and obligations, under the lease and otherwise, in light of the alleged indoor
air quality problems at 00 Xxxxxx Xxxxxx and T Cell's decision to vacate the
premises and cease paying rent;
WHEREAS, T Cell brought a civil action against Forest City, styled T Cell
Sciences, Inc., et al. v. Forest City 00 Xxxxxx Xxxxxx, Xxx., et al., Civil
Action No. 94-6770 (Middlesex County Superior Court) (the "Forest City Action"),
in order to resolve the parties' dispute;
WHEREAS, Forest City asserted counterclaims against T Cell in the
Forest City Action;
WHEREAS, T Cell and Forest City each denied any liability to the other
in the Forest City Action;
WHEREAS, the Court in the Forest City Action conducted a bench trial on
certain bifurcated issues and, on August 22, 1997, entered an interlocutory
decision adverse to T Cell's position in that case;
WHEREAS, following T Cell's discontinuation of rent payments to Forest
City, T Cell and PNC disagreed as to their respective rights and obligations
under the Tri-Party Agreement;
WHEREAS, PNC brought a civil action against T Cell, styled PNC Bank, N.A.
v. T Cell Sciences, Inc., Civil Action No. 95-1499 (Norfolk County Superior
Court) (the "PNC Action"), in order to resolve the dispute arising under the
Tri-Party Agreement;
WHEREAS, in the PNC Action, T Cell denied any liability to PNC and
asserted third-party claims against Forest City;
WHEREAS, Forest City asserted third-party counterclaims against T Cell
in the PNC Action;
WHEREAS, T Cell and Forest City each denied any liability to the other
in the PNC Action;
WHEREAS, in order to avoid the expense, uncertainty and risks of further
litigation, and without any admission of liability, T Cell and Forest City
mutually desire
to resolve by settlement all of the claims and counterclaims asserted in the
Forest City Action and the PNC Action;
WHEREAS, Forest City and PNC have entered into a separate agreement which
has enabled Forest City to obtain PNC's cooperation in resolving the PNC Action
as part of this Agreement;
NOW THEREFORE, in consideration of the promises, mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, T Cell and Forest City
do hereby agree and promise as follows:
1. Cash Payments. T Cell shall pay to Forest City a total of $2,3589,755
in cash, in three payments, each to be made by wire transfer to a designated
account in the name of "Forest City Rental Properties" with Huntington Bank in
Columbus, Ohio (or as otherwise mutually agreed in writing), as follows:
(a) the first payment, in the amount of $858,755, is to be made no later
than Monday, November 17, 1997;
(b) the second payment, in the amount of $750,000, is to be made no
later than Monday, November 16, 1998; and
(c) the third and final payment, in the amount of $750,000, is to be
made no later than Monday, November 15, 1999.
2. Security. To secure the payments described in paragraphs 1(b) and 1(c)
above, the parties agree as follows:
(a) by November 17, 1997, T Cell shall sign and deliver to Forest City
two secured promissory notes, the forms of which are attached hereto
as Exhibits "A" and "B";
(b) also by November 17, 1997, T Cell Sciences, Inc. shall secure the
payment due on November 16, 1998 by executing a "Control Agreement"
in the form attached hereto as Exhibit "C," and providing cash
collateral in a form reasonably acceptable to Forest City and
maintained in the account known as the "T Cell Sciences, Inc.
Pledged Collateral Account" with assets having a cash value of
$750,000 as of November 17, 1997; provided, however, that Forest
City promises not to exercise any rights it may have as Assignee
under the Control Agreement to direct any withdrawal or transfer, or
issue any instruction or entitlement order, with respect to any of
the assets maintained in the T Cell Sciences, Inc. Pledged
Collateral Account described in that Control Agreement, prior to
November 16, 1998, except with the prior written consent of T Cell
Sciences, Inc.;
(c) also by November 17, 1997, T Cell shall secure the payment due on
November 15, 1999 by issuing 132,500 unregistered shares of T Cell
Sciences, Inc. common stock to Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc.
and delivering to Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. two restricted
stock certificates, each in the amount of 66,250 shares, to reflect
the same; provided, however, that Xxxxxx Xxxx 00 Xxxxxx
Xxxxxx may not transfer such shares or certificates to any other
party until after May 15, 1998,
but shall instead hold the two stock certificates in escrow, in its
own name, and further dispose of them as follows:
(i) if, on or before December 31, 1997, T Cell provides cash
collateral in a form reasonably acceptable to Forest City in
the amount of $750,000 and designates that money as payable
only to Forest City to satisfy the November 15, 1999 payment
obligation described in paragraph 1(b) above (or, in the
alternative, provides other collateral which Forest City deems
acceptable), then Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. shall
immediately return to T Cell Sciences, Inc. the two stock
certificates reflecting all of the 132,500 shares of stock
described above, free and clear of all liens and encumbrances,
together with an assignment of such stock to T Cell Sciences,
Inc., executed on behalf of Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc.
The payment due to Forest City on November 15, 1999 shall
thereby be deemed fully collateralized, and no further
collateral or security shall be provided by T Cell;
(ii) if, after December 31, 1997 but on or before May 15, 1998,
provides cash collateral in a form reasonably acceptable to
Forest City in the amount of $750,000 and designates that
money as payable only to Forest City to satisfy the November
15, 1999 payment obligation described in paragraph 1(b) above
(or, in the alternative, provides other collateral which
Forest
City deems acceptable), then Xxxxxx Xxxx 00 Xxxxxx Xxxxxx,
Inc. shall immediately return to T Cell Sciences, Inc. one
stock certificate reflecting half, or 66,250, of the shares of
stock described above, free and clear of all liens and
encumbrances, together with an assignment of such stock to T
Cell Sciences, Inc., executed on behalf of Xxxxxx Xxxx 00
Xxxxxx Xxxxxx, Inc., and retain for itself, or otherwise
dispose of in any manner it chooses, subject to applicable law
and any other restrictions contained in this Agreement, the
remaining stock certificate reflecting the balance of 66,250
shares. The payment due to Forest City on November 15, 1999
shall thereby be deemed fully collateralized, and no further
collateral or security shall be provided by T Cell;
(iii) if, by May 15, 1998, T Cell fails to provide cash collateral
in a form reasonably acceptable to Forest City in the amount
of $750,000 and designate that money as payable only to Forest
City to satisfy the November 15, 1999 payment obligation
described in paragraph 1(b) above (or, in the alternative,
provide other collateral which Forest City deems acceptable),
then Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. shall retain for
itself, or otherwise dispose of in any manner it chooses,
subject to applicable law and any other restrictions contained
in this
Agreement, the two stock certificates reflecting all of the
132,500 shares of stock described above; and
(iv) provided further, that in the event that any stock certificate
to be returned to T Cell Sciences, Inc. as set forth in this
paragraph is not immediately returned by Xxxxxx Xxxx 00 Xxxxxx
Xxxxxx, Inc. when due, with the appropriate assignment, then T
Cell Sciences, Inc. shall be entitled to cancel the original
issuance of stock reflected by that certificate and void the
certificate, as of the date when such certificate was due to
be returned, and Forest City will pay to T Cell upon demand
all reasonable legal and other costs and expenses of every
kind, including reasonable attorneys' fees and disbursements,
relating to the enforcement of Xxxxxx Xxxx 00 Xxxxxx Xxxxxx,
Inc.'s obligation to return any stock certificate and deliver
the appropriate assignment to T Cell Sciences, Inc.
3. Release of Escrow Amounts from Letter of Credit and Equipment. By
November 17, 1997, T Cell shall execute and deliver to counsel for Forest City a
"First Authorization for Escrow Agent to Release Certain Funds," in the form
attached hereto as Exhibit "D," and a "Second Authorization to Escrow Agent to
Release Certain Funds," in the form attached hereto as Exhibit "E," in order to
release to Forest City all escrow amounts held by Xxxxxxx, Xxxxxx & Xxxxxx
which, as of November 10, 1997, totaled $141,245, as follows:
(a) principal and interest of $104,180, from the proceeds of a letter of
credit for $93,000; and
(b) principal and interest of $37,065, from the rental of $300,000 worth
of T Cell equipment in use at 00 Xxxxxx Xxxxxx.
4. Transfer of Equipment. T Cell shall transfer the title and ownership of
its equipment located at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, to Xxxxxx
Xxxx 00 Xxxxxx Xxxxxx, Inc., by November 17, 1997, by executing and delivering
to Forest City a xxxx of sale in the form attached hereto as Exhibit "F."
5. Stock Issuance. By November 17, 1997, T Cell shall issue to Xxxxxx Xxxx
00 Xxxxxx Xxxxxx, Inc. 1,367,500 unregistered shares of T Cell Sciences, Inc.
common stock, and deliver to Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. a restricted
stock certificate reflecting the same. T Cell warrants and represents that the
unregistered shares of T Cell Sciences, Inc. common stock to be delivered
pursuant to this paragraph and paragraph 2(c) of this Agreement are duly and
validly issued shares, and that the issuance and delivery of those shares to
Forest City does not constitute an event of default under the articles or
by-laws of T Cell Sciences, Inc., or under any loan or other agreement to which
T Cell Sciences, Inc. is a party. T Cell further warrants and represents that
upon delivery of these shares, Forest City shall have good and marketable title
to those shares, subject only to the matters provided for in this Agreement.
6. Stock Registration. T Cell shall provide to Xxxxxx Xxxx 00 Xxxxxx
Xxxxxx, Inc., or its designee, the right to include up to 1.5 million shares of
T Cell Sciences, Inc. common stock in a registration by T Cell, only as follows:
(a) Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc., or its designee, shall have a
"piggyback" registration right, pursuant to which Forest City shall
be entitled to include up to 1.5 million shares in a registration by
T Cell in connection with any public offering of common stock that T
Cell may make between November 17, 1997 and September 30, 1998.
Provided, however, as follows:
(i) this piggyback registration right is subject to the
discretionary approval of the underwriter of any such public
offering, and the underwriter's discretion shall not be
subject to challenge; and
(ii) if, but only if, a piggyback registration takes place after
May 15, 1998, it may, at the option of Xxxxxx Xxxx 00 Xxxxxx
Xxxxxx, Inc., or its designee, include any or all of the
132,500 shares of common stock issued as security for the
payment due on November 15, 1999 in accordance with paragraph
2(c) above, to the extent those shares are then still held by
Forest City in accordance with paragraph 2(c); and
(b) without regard to the timing of any public offering or the ability
to "piggyback" on any public offering, at the request of Xxxxxx Xxxx
00 Xxxxxx Xxxxxx, Inc., or its designee, T Cell shall register up to
1.5 million shares of T Cell Sciences, Inc. common stock, on a
registration statement on Form S-3, to become effective, subject to
the necessary governmental approvals, as of September 30, 1998. T
Cell
shall register those shares and bear the costs associated with such
registration. Provided, however, that upon such registration:
(i) Forest City 00 Xxxxxx Xxxxxx, Inc., or its designee, shall
sell no more than 375,000 shares of T Cell Sciences, Inc.
stock per month, until it has disposed of a total of 1.5
million shares; and
(ii) Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc., or its designee, agrees,
if requested by T Cell's underwriters or financial advisors in
an offering of T Cell securities pursuant to a registration
statement filed with the Securities and Exchange Commission,
not to effect any public sale or distribution of any shares of
T Cell common stock during the fifteen (15) day period prior
to, and during the ninety (90) day period beginning on, the
date of such public offering, but in no event shall Xxxxxx
Xxxx 00 Xxxxxx Xxxxxx, Inc., or its designee be required to
enter into any such agreement unless all directors, officers
and 5% shareholders of T Cell shall have entered into similar
agreements.
7. Approval by PNC. Forest City represents that it has obtained the assent
of PNC to the terms of this agreement. Forest City further represents that it
can and shall obtain a release and stipulation of dismissal executed by PNC as
set forth in paragraphs 10 and 11 below, and in the forms attached hereto as
Exhibits "G" and "I."
8. Release by T Cell. T Cell hereby irrevocably releases and forever
discharges Forest City, its subsidiaries, affiliates, predecessors and
successors, and its respective past,
present and future officers, directors, stockholders, employees, agents,
attorneys, representatives, successors and assigns, from any and all claims,
actions, causes of action, contracts, demands, debts or obligations of any kind
for damages, costs, expenses, fees, payments or any other kind of liability,
whether known or unknown, which T Cell has ever had or may now have against
Forest City, including but not limited to any claims which arise out of T Cell's
lease of space at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, and/or the
so-called "Tri-Party Agreement," dated June 30, 1988, between and among T Cell,
Forest City, and PNC, and including but not limited to all claims that were or
could have been asserted in the Forest City Action or the PNC Action.
9. Release by Forest City. Forest City hereby irrevocably releases and
forever discharges T Cell, its subsidiaries, affiliates, predecessors and
successors, and its respective past, present and future officers, directors,
stockholders, employees, agents, attorneys, representatives, successors and
assigns, from any and all claims, actions, causes of action, contracts, demands,
debts or obligations of any kind for damages, costs, expenses, fees, payments or
any other kind of liability, whether known or unknown, which Forest City has
ever had or may now have against T Cell, including but not limited to any claims
which arise out of T Cell's lease of space at 00 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx, and/or the so-called "Tri-Party Agreement," dated June 30, 1988,
between and among T Cell, Forest City, and PNC, and including but not limited to
all claims that were or could have been asserted in the Forest City Action or
the PNC Action.
10. Release by PNC. By November 17, 1997, Forest City shall have obtained
from PNC an executed original release in the form attached hereto as Exhibit
"G," and delivered said release to T Cell's counsel, Xxxx X. Xxxxxxxxx, at Xxxx
&
Xxxxxx, A Professional Corporation, One International Place, 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, 00000-0000.
11. Stipulations of Dismissal. By November 17, 1997, T Cell and Forest
City, by their respective counsel, shall execute stipulations of dismissal of
the Forest City Action and the PNC Action in the forms attached hereto as
Exhibits "H" and "I." Also by November 17, 1997, Forest City shall have obtained
the signature of counsel for PNC on the stipulation of dismissal of the PNC
Action, in the form attached hereto as Exhibit "I." Forest City shall promptly
deliver both stipulations, executed on behalf of Forest City and PNC as
required, to counsel for T Cell, Xxxx X. Xxxxxxxxx. T Cell, through its counsel,
shall arrange for Federal Insurance Company, an intervenor in the Forest City
Action, also to execute the stipulation of dismissal of that case. T Cell,
through its counsel, shall arrange to file the fully-executed stipulations of
dismissal of the Forest City Action and the PNC Action with the Superior Court
for Middlesex and Norfolk Counties, respectively.
12. Public Disclosures. The parties understand that appropriate
arrangements must be made with respect to the public disclosure of this
settlement, as required by law, and all parties agree to cooperate with respect
to the substance and timing of those arrangements. As part of such cooperation,
each party shall give each other party a reasonable opportunity to review and
comment on, but not to veto or prohibit, the terms of its public disclosures
about this settlement, before those disclosures are made.
13. No Admission of Liability. None of the parties to this Agreement
admits any liability or responsibility with respect to any of the claims
asserted by or
between any of them, and this Agreement shall not be construed as an admission
of liability on the part of any of the parties hereto.
14. Choice of Law. This Agreement and the legal relations between and
among the parties hereto shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without regard to its conflicts
of law rules.
15. Authorization of Signatories. Each person executing this Settlement
Agreement represents that he or she is duly authorized to do so by the party on
whose behalf he or she has signed.
16. Complete Agreement. This Agreement constitutes the entire agreement
and understanding between and among T Cell and Forest City with respect to the
matters referenced herein. No representation, promise, understanding or
agreement of any kind whatsoever regarding the matters referenced herein that is
not set forth in this Agreement shall be valid, binding or enforceable. All
prior negotiations of T Cell and Forest City or their agents are merged into
this Agreement. This Agreement supersedes all prior agreements, promises,
covenants, arrangements, representations or warranties, whether oral or written,
between T Cell and Forest City, relating to any matter, whether addressed herein
or otherwise, including but not limited to the "Stipulation Concerning Damages,
Agreement to Transfer Ownership Rights and Escrow Agreement" dated October 20,
1995, and the "Escrow Agreement" dated May of 1995, between and among T Cell,
Forest City and others.
17. Advice of Counsel and Payment of Legal Fees. T Cell and Forest City
hereby represent that they have each had the opportunity to obtain advice of
counsel
of their own choosing in the negotiation and preparation of this Agreement; that
their undersigned representatives have read this Agreement and had it fully
explained to them by their counsel; and that they are fully aware of its
contents and legal effect. T Cell and Forest City further represent and agree
that each of them is and shall be responsible for payment of its own legal fees
and costs incurred in the negotiation for and preparation of this Agreement.
18. Modifications in Writing. No supplement, modification, change or
waiver of this Agreement of any provision thereof shall be binding unless
executed in writing by the parties to be bound thereby.
19. Execution in Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in two counterparts. Each such counterpart shall
be deemed to be an original instrument, and both counterparts shall together
constitute the same agreement.
IN WITNESS WHEREOF, T Cell and Forest City have each executed this
Agreement under seal, by their duly authorized representatives.
T CELL SCIENCES, INC.
By: /s/ Una X. Xxxx
----------------------------
Una X. Xxxx, President
Witness: /s/ Xxxxx X. Xxxxxxx
----------------------------
T CELL DIAGNOSTICS, INC.
By: /s/ Una X. Xxxx
---------------------------
Una X. Xxxx, Director
Witness: /s/ Xxxxx X. Xxxxxxx
---------------------------
FOREST CITY 00 XXXXXX XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name
President
---------------------------
Title
Witness: /s/ Xxxxx Xxxxxxxx
---------------------------
FOREST CITY COMMERCIAL MANAGEMENT, INC.
By: /s/ Xxxxx X. XxXxx
--------------------------
Name
Secretary
--------------------------
Title
Witness: /s/ Xxxxx Xxxxxxxx
--------------------------
FOREST CITY ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name
Executive Vice President
--------------------------
Title
Witness: /s/ Xxxxx Xxxxxxxx
--------------------------
LIST OF ATTACHMENTS
Exhibit A Form of Secured Promissory Note Due November 16, 1998.
Exhibit B Form of Secured Promissory Note Due November 15, 1999.
Exhibit C Form of Control Agreement.
Exhibit D First Authorization for Escrow Agent to Release Certain
Funds.
Exhibit E Second Authorization for Escrow Agent to Release
Certain Funds.
Exhibit F Xxxx of Sale for T Cell Equipment.
Exhibit G Release from PNC Bank, N.A.
Exhibit H Stipulation of Dismissal of the Forest City Action.
Exhibit I Stipulation of Dismissal of the PNC Action.
SECURED PROMISSORY NOTE
DUE NOVEMBER 16, 1998
$750,000 November 17, 1997
FOR VALUE RECEIVED, the undersigned, T Cell Sciences, Inc., a Delaware
corporation having a principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx, 00000-0000 ("T Cell Sciences"), and T Cell Diagnostics, Inc., a
Delaware corporation having a principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx, 00000-0000 ("T Cell Diagnostics") (T Cell Sciences and T
Cell Diagnostics being collectively referred to herein as the "Makers"), hereby
jointly and severally promise to pay to the order of Xxxxxx Xxxx 00 Xxxxxx
Xxxxxx, Inc., an Ohio corporation having a principal place of business at 0000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxx, 00000 (together with its assigns, the
"Holder"), the principal amount of Seven Hundred Fifty Thousand Dollars, in
lawful money of the United States of America, on or before November 16, 1998.
Principal shall be payable at maturity. This Note shall not bear interest,
except as hereinafter provided.
All payments due under this Note shall be made to the Holder at the
address shown above or at such other place as the Holder may designate from time
to time in writing at least ten (10) days before any such payment is due.
The principal of this Note may be prepaid in whole or in part at any time
or from time to time at the option of the Makers, without premium or penalty.
Any such prepayment shall be applied to the payment due at maturity, and no such
prepayment will affect the Makers' obligation to make any subsequent required
payment or prepayment until this Note shall have been paid in full.
This Note is secured by and entitled to the benefits of Paragraph 2(b) of
a Settlement Agreement dated November 14, 1997 (the "Settlement Agreement") by
and among the Makers, the Payee, Forest City Management, Inc. and Forest City
Enterprises, Inc., which provides certain security, among other things, for the
indebtedness of the Makers under this Note.
If Makers shall fail to make any payment on this Note when due and
payable, or if the Makers shall fail to comply with or perform any other of the
terms of this Note or Paragraph 2(b) of the Settlement Agreement within fourteen
(14) days of receipt by the Makers of written notice from the Holder of such
failure to comply, or if either of Makers shall become unable to meet their
obligations as they become due, or shall begin or be the subject of any
bankruptcy or other proceedings for the relief of debtors, or any substantial
part of the property of either of the Makers shall be taken on attachment or by
foreclosure, then, in any such case, the Holder may at its option declare this
Note, including the entire unpaid principal amount then outstanding, to become
due and payable immediately. From
and after the date on which the Note becomes due and payable, such unpaid
principal amount shall bear interest at the prime rate as of November 17, 1997,
or __%, per annum.
The parties hereto, including the Makers and all endorsers and guarantors
of this Note, hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance or
enforcement of this Note.
The failure of any party to insist, on any one or more occasions, upon
performance of any of the terms or conditions of this Note, shall not be
construed as a waiver or relinquishment of any rights granted hereunder or the
future performance of any such term, covenant or condition.
The Makers will pay to the Holder upon demand all reasonable legal and
other costs and expenses of every kind, including reasonable attorneys' fees and
disbursements, relating to the collection and/or enforcement of this Note, but
only in the event of any default under this Note by the Makers.
Any notice given hereunder shall be in writing and shall be deemed
effective when actually received in hand or by telecopy or other electronic
transmission or when sent by certified or registered mail, return receipt
requested, addressed to the Makers at the address set forth above, or such other
address of which notice has been provided hereunder.
This Note may not be amended except in writing signed by the party against
whom such amendment is sought to be enforced. This Note shall be interpreted
under and governed by the laws of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned have duly executed this Note as an
instrument under seal as of the day and year first above written.
T CELL SCIENCES, INC.
By:
-----------------------------
Una X. Xxxx
President
T CELL DIAGNOSTICS, INC.
By:
-----------------------------
Una X. Xxxx
Director
SECURED PROMISSORY NOTE
DUE NOVEMBER 15, 1999
$750,000 November 17, 1997
FOR VALUE RECEIVED, the undersigned, T Cell Sciences, Inc., a Delaware
corporation having a principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx, 00000-0000 ("T Cell Sciences"), and T Cell Diagnostics, Inc., a
Delaware corporation having a principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx, 00000-0000 ("T Cell Diagnostics") (T Cell Sciences and T
Cell Diagnostics being collectively referred to herein as the "Makers"), hereby
jointly and severally promise to pay to the order of Xxxxxx Xxxx 00 Xxxxxx
Xxxxxx, Inc., an Ohio corporation having a principal place of business at 0000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxx, 00000 (together with its assigns, the
"Holder"), the principal amount of Seven Hundred Fifty Thousand Dollars, in
lawful money of the United States of America, on or before November 15, 1999.
Principal shall be payable at maturity. This Note shall not bear interest,
except as hereinafter provided.
All payments due under this Note shall be made to the Holder at the
address shown above or at such other place as the Holder may designate from time
to time in writing at least ten (10) days before any such payment is due.
The principal of this Note may be prepaid in whole or in part at any time
or from time to time at the option of the Makers, without premium or penalty.
Any such prepayment shall be applied to the payment due at maturity, and no such
prepayment will affect the Makers' obligation to make any subsequent required
payment or prepayment until this Note shall have been paid in full.
This Note is secured by and entitled to the benefits of Paragraph 2(c) of
a Settlement Agreement dated November 14_, 1997 (the "Settlement Agreement") by
and among the Makers, the Payee, Forest City Management, Inc. and Forest City
Enterprises, Inc., which provides certain security, among other things, for the
indebtedness of the Makers under this Note.
If Makers shall fail to make any payment on this Note when due and
payable, or if the Makers shall fail to comply with or perform any other of the
terms of this Note or Paragraph 2(c) of the Settlement Agreement within fourteen
(14) days of receipt by the Makers of written notice from the Holder of such
failure to comply, or if either of Makers shall become unable to meet their
obligations as they become due, or shall begin or be the subject of any
bankruptcy or other proceedings for the relief of debtors, or any substantial
part of the property of either of the Makers shall be taken on attachment or by
foreclosure, then, in any such case, the Holder may at its option declare this
Note, including the entire unpaid principal amount then outstanding, to become
due and payable immediately. From and after the date on which the Note becomes
due and payable, such unpaid principal amount shall bear interest at the prime
rate as of November 17, 1997, or __%, per annum.
The parties hereto, including the Makers and all endorsers and guarantors
of this Note, hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance or
enforcement of this Note.
The failure of any party to insist, on any one or more occasions, upon
performance of any of the terms or conditions of this Note, shall not be
construed as a waiver or relinquishment of any rights granted hereunder or the
future performance of any such term, covenant or condition.
The Makers will pay to the Holder upon demand all reasonable legal and
other costs and expenses of every kind, including reasonable attorneys' fees and
disbursements, relating to the collection and/or enforcement of this Note, but
only in the event of any default under this Note by the Makers.
Any notice given hereunder shall be in writing and shall be deemed
effective when actually received in hand or by telecopy or other electronic
transmission or when sent by certified or registered mail, return receipt
requested, addressed to the Makers at the address set forth above, or such other
address of which notice has been provided hereunder.
This Note may not be amended except in writing signed by the party against
whom such amendment is sought to be enforced. This Note shall be interpreted
under and governed by the laws of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned have duly executed this Note as an
instrument under seal as of the day and year first above written.
T CELL SCIENCES, INC.
By:
----------------------------
Una X. Xxxx
President
T CELL DIAGNOSTICS, INC.
By:
---------------------------
Una X. Xxxx
Director
CONTROL AGREEMENT
Xxxxxxx Xxxxx Account Number: _____________ Date: NOVEMBER 17, 1997
-----------------
T CELL SCIENCES, INC. (hereinafter "Assignor"), XXXXXX XXXX 00 XXXXXX XXXXXX,
INC. (hereinafter "Assignee") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (hereinafter "Xxxxxxx Xxxxx") hereby agree as follows:
Assignor has granted a security interest in the Collateral Account (hereinafter
defined) to Assignee, and in connection therewith, Assignor instructs Xxxxxxx
Xxxxx to:
1) Establish a cash security account, which is to be known as the "T CELL
SCIENCES, INC. Pledged Collateral Account for FOREST CITY 00 XXXXXX XXXXXX,
XXX." (which account together with all of the securities (as such term is
defined in revised (1994) Uniform Commercial Code - Investment Securities)
and other financial assets and cash evidenced thereby and all Assignor's
security entitlement (as such term is defined under revised (1994) Uniform
Commercial Code - Investment Securities) associated therewith, together with
any replacement thereof is herein called the "Collateral Account"; and
2) place the assets listed in Exhibit A into the Collateral Account.
Assignor, Assignee and Xxxxxxx Xxxxx agree that the following terms and
conditions of this Control Agreement ("Agreement") will govern the Collateral
Account:
1. Control
By the execution and delivery of this Agreement, Xxxxxxx Xxxxx (a) agrees that
it will comply only with instructions and/or entitlement orders (as such term is
defined under revised (1994) Uniform Commercial Code Investment Securities) in
regard to or in connection with the Collateral Account, originated by an
Authorized Officer of Assignees without further notice or consent of Assignor,
and (b) acknowledges Assignee's security interest and lien in and to the
Collateral Account.
The following paragraph must be initiated by both Assignee and Assignor if an
Authorized Officer of Assignor will give trading instructions in the Collateral
Account. (Disregard this paragraph if only Assignee will give trading
instructions.)
______________Notwithstanding the above, Xxxxxxx Xxxxx shall take trading
instructions with respect to the financial assets held in the Collateral Account
at the direction of an Authorized Officer of Assignor.
All parties agree that (a) Xxxxxxx Xxxxx is a "Securities Intermediary" as such
term is defined under revised (1994) Uniform Commercial Code - Investment
Securities and, (b) all property held by
Xxxxxxx Xxxxx in the Collateral Account will be treated as, "financial assets"
as such term is defined under revised (1994) Uniform Commercial Code -
Investment Securities.
All instructions and entitlement orders given to Xxxxxxx Xxxxx in reference to
the Collateral Account shall be in writing.
2. No Withdrawals
Except as provided herein, Xxxxxxx Xxxxx shall neither accept nor comply with
any entitlement orders from Assignor directing it to withdraw any financial
assets from the Collateral Account or to deliver any such financial assets to
Assignor with respect to the Account without the specific prior written consent
of Assignee.
The following paragraph must be initiated by all parties if interest and
dividends generated with respect to the financial assets held in the Collateral
Account are to be distributed out of the Collateral Account to Assignor without
additional instruction. (Disregard this paragraph if interest and dividends are
to remain in the account.)
_________________ Notwithstanding the above, Assignor or Assignor's designee is
entitled to receive all income with respect to the financial assets held in the
Collateral Account, including interest and dividends (but not stock splits,
stock dividends, cash equity distributions, liquidating distributions or other
non cash principal disbursements) (hereinafter "income"), and therefore,
Assignor and Assignee hereby instruct Xxxxxxx Xxxxx to transfer all such income
on a monthly basis to account number 64M07P26 in the name of T CELL SCIENCES,
INC.
3. Priority of Xxxx
Xxxxxxx Xxxxx represents that: (a) the assets held in the Collateral Account
will be held in the name of Xxxxxxx Xxxxx; (b) it will not agree to comply with
any third party orders or instructions concerning the Collateral Account without
the prior written consent of Assignee and Assignor; and (c) it will hold the
Collateral Account and all assets therein as bailee of Assignee.
Assignor warrants and represents that he has not granted a security interest in
the Collateral Account to any party other than Assignee.
Xxxxxxx Xxxxx subordinates its right to offset any security interest in and to
the Collateral Account or any financial asset held in the Collateral Account in
favor of Assignee, except for (i) payment owed to Xxxxxxx Xxxxx for open trade
commitments for purchases of financial assets in and for the Collateral Account,
and (ii) negotiable instruments (i.e., checks and drafts) received by Xxxxxxx
Xxxxx as a holder in due course, the proceeds of which are deposited into the
Collateral Account, but which negotiable instruments are later returned to
Xxxxxxx Xxxxx as uncollectible.
4. Authorized Officers
For purposes of this Agreement, the term "Authorized Officer of Assignor" shall
refer in the singular to either: UNA X. XXXX, PRESIDENT or XXXXXX X. XXXXX,
CHIEF FINANCIAL OFFICER.
For purposes of this Agreement, the term "Authorized Officer of Assignee" shall
refer in the singular to either: XXXXXX X. XXXXX, SECRETARY or XXXXX X. XXXXXX,
PRESIDENT.
In the event that the Assignor or Assignee shall find it advisable to designate
a replacement of their Authorized Officer, written notice of any such
replacement shall be given to Xxxxxxx Xxxxx.
5. Statements
So long as this agreement remains in effect, Assignee shall be entitled to
receive duplicates of any and all notices and statements of account that
Assignor of such Collateral Account is entitled to receive. Such statements
shall be sent to the following address:
FOREST CITY 38 SIGNEY STREET, INC.
ATTENTION: XXXXXX X. XXXXX
0000 XXXXXXXX XXXXX
XXXXXXXXX, XXXX 00000
6. Limited Responsibility of Xxxxxxx Xxxxx
If an Authorized Officer of Assignor is permitted to effect transactions in the
Collateral Account, Xxxxxxx Xxxxx shall have no responsibility or liability to
Assignee for accepting and processing instructions relating to such
transactions. Xxxxxxx Xxxxx shall have no responsibility or liability to
Assignor for complying with entitlement orders concerning the Collateral Account
originated by the Assignee. Xxxxxxx Xxxxx shall have no responsibility or
liability to Assignee with respect to the value of the Collateral account or any
asset held therein. Xxxxxxx Xxxxx shall have no duty to investigate or make any
determination as to whether a default exists under any agreement between
Assignee and Assignor. This Agreement does not create any obligation or duty of
Xxxxxxx Xxxxx other than those expressly set forth herein.
7. Indemnification
Assignor hereby agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its
affiliates, officers and employees from and against any and all claims, causes
of action, liabilities, lawsuits, demands and/or damages, including, without
limitations, any and all court costs and reasonable attorney's fees, in any way
related to or arising out of or in connection with the assignment, this
Agreement, and/or the Collateral Account.
8. Choice of Law
The terms of this Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the respective parties hereto and shall be
construed in accordance with the laws of the State of New York without regard to
its conflict of law principles. However, all issuance in any way concerning
collateral, security interests or perfection arising out of this Agreement shall
be governed by the laws of the COMMONWEALTH OF MASSACHUSETTS.
Assignor and Assignee represent and warrant to Xxxxxxx Xxxxx that this Agreement
and its terms are in compliance with applicable law, including, without
limitation, the federal securities credit laws.
9. Miscellaneous
Assignor acknowledges that this agreement supplements Assignor's existing
agreement(s) with Xxxxxxx Xxxxx and in no way is this Agreement intended to
abridge any rights that Xxxxxxx Xxxxx might otherwise have, except as provided
by this Agreement.
Xxxxxxx Xxxxx may terminate this agreement on thirty (30) days notice to the
Assignor and Assignee.
This Agreements represents the final agreement between the parties and may not
be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. The invalidity, illegality or unenforceability of any
provision of this Agreement shall not affect the validity, legality or
enforceability of any of the other provisions of this Agreement which shall
remain effective.
IN WITNESS WHEREOF, Assignor, Assignee and Xxxxxxx Xxxxx have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
T CELL SCIENCES, INC. XXXXXX XXXX 00 XXXXXX XXXXXX, INC.
By: Una X. Xxxx By: Xxxxx X. Xxxxxx
Title: President Title: President
Signature: /s/ Una X. Xxxx Signature: /s/ Xxxxx X. Xxxxxx
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:________________________________________ Date: ________________
Resident Vice President
By:________________________________________ Date: ________________
Division Administrative Manager
EXHIBIT A
Assignor has placed the following assets into the T CELL SCIENCES, INC. Pledged
Collateral Account for XXXXXX XXXX 00 XXXXXX XXXXXX, INC. Account Number:
_____________ (account number to be assigned when the account is established
with Xxxxxxx Xxxxx).
Quantity Description
-------- -----------
Xxxxxxx Xxxxx Institutional Fund
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
--------------------- ------------------------------------------
If additional pages are necessary please label:
"Exhibit A for account number ________________."
CORPORATION AUTHORIZATION
FOR CASH ACCOUNTS
TO: XXXXXXX XXXXX XXXXXX XXXXXX & XXXXX, INC.
BE IT RESOLVED: That this corporation T CELL SCIENCES, INC. be, and it
hereby is, authorized and empowered to open and maintain an account with XXXXXXX
XXXXX XXXXXX XXXXXX & XXXXX, INC., and its successors, by merger, consolidation
or otherwise, and assigns, hereinafter called the brokers, for the purchase and
sale of stocks, bonds, options, securities, or physical commodities, on
exchanges of which the brokers are members or otherwise, and that any of the
officers hereinafter named be, and he hereby is, authorized to give written or
verbal instructions by telephone or telegraph, or otherwise, to the brokers to
buy or sell stocks, bonds, options, securities, or physical commodities, either
for immediate or future delivery and, if he deems proper to secure payment
therefor with property of this corporation; and he shall at all times have
authority in every way to bind and obligate this corporation for the carrying
out of any contract, arrangement or transaction which shall, for or on behalf of
this corporation, be entered into or made with or through the brokers; and that
the brokers are authorized to receive from this corporation, checks and drafts
drawn upon the funds of this corporation by any officer or employee of this
corporation, and to apply the same to the credit of this corporation or to its
account with said brokers and the said brokers are authorized to receive from
said officer(s) or from any other officer or employee of this corporation,
stocks, bonds, options, securities, or physical commodities for the account of
this corporation with said brokers; said brokers are further authorized to
accept instructions from any officer herein named as to the delivery of stocks,
bonds, options, securities, or physical commodities from the account of this
corporation and at his direction to cause certificates of stocks, bonds,
options, securities or physical commodities held is said account to be transfer
to the name of any officer hereinafter named or of this corporation in the
discretion of said officer; and delivery to any such officer of such stocks,
bonds, options, securities, or physical commodities, issued as directed by him,
shall be deemed delivery to this corporation; and any such officer shall have
the fullest authority at all times with reference to any transaction deemed by
him to be proper to make or enter into for or on behalf of this corporation with
the brokers or others. All confirmations, notices and demands upon this
corporation may be delivered by the brokers verbally or in writing, or by
telegraph, or by telephone to any such officer and he is authorized to empower
any person, or persons, that he deems proper, at any time, or at times, to do
any and all things that he is hereinbefore authorized to do. That this
resolution shall be and remain in full force and effect until written notice of
the revocation hereof shall be delivered to the brokers. The officer(s) herein
referred to are named as follows to-wit:
UNA X. XXXX, PRESIDENT
XXXXXX X. XXXXX, CHIEF FINANCIAL OFFICER
I, XXXXXX X. CABLE, Secretary of T CELL SCIENCES, INC. hereby certify that the
forgoing is a full, true and correct copy of a resolution duly and regularly
passed and adopted by the unanimous vote of the Board of Directors of said
company at a meeting hereof duly called and held at the office of said company
on the 12TH DAY OF NOVEMBER 1997, at which meeting all directors were present
and voting; that said resolution appears in the minutes of said meeting, and
that the same has not been rescinded or modified and is now in full force and
effect.
I further certify that said corporation is duly organized and existing, and has
the power to take the action called for by the foregoing resolution.
/s/ Xxxxxx X. Cable, Secretary
FIRST AUTHORIZATION FOR ESCROW AGENT
TO RELEASE CERTAIN FUNDS
Agreement is hereby made this day of November, 1997, by, between and among
T Cell Sciences, Inc. ("TCS"), T Cell Diagnostics, Inc. ("TCD"), (hereinafter
collectively referred to as "T Cell"), Forest City 38 Xxxxxx Street, Inc.
("FC38S"), Forest City Commercial Management, Inc., as successor-in-interest to
Forest City Management, Inc. ("FCM"), (hereinafter collectively referred to as
"Forest City"), and PNC Bank, National Association (hereinafter referred to as
"PNC").
WHEREAS, T Cell and Forest City (and an affiliate) are in a dispute
described in the pleadings filed in a civil action styled T Cell Sciences, Inc.
and T Cell Diagnostics, Inc. v. Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. and Forest
City Management, Inc., et al., Middlesex Superior Court Civil Action No.94-6670
(hereinafter referred to as "the Middlesex Action"); and
WHEREAS, T Cell, Forest City (and an affiliate) and PNC are in a dispute
described in the pleadings filed in a civil action styled PNC Bank, N.A. v. T
Cell Sciences, Inc. v. Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc.. Forest City
Management, Inc., et al., Norfolk Superior Court Civil Action No.95-01499
(hereinafter referred to as "the Norfolk Action"); and
WHEREAS, in May of 1995, TCS, FCM and PNC entered into an agreement
entitled "Escrow Agreement" (hereinafter referred to as "the Letter of Credit
Escrow Agreement"), to which Xxxxxxx, Xxxxxx & Xxxxxx (hereinafter referred to
as "Escrow Agent") was a signatory as Escrow Agent. (A copy of the Letter of
Credit Escrow Agreement is attached hereto as Exhibit "A".); and
WHEREAS, T Cell, Forest City and PNC have agreed to resolve their
differences with respect to the Middlesex Action and the Norfolk Action.
NOW THEREFORE, the parties agree as follows:
1. Upon the execution of this First Authorization For Escrow Agent To
Release Certain Funds and pursuant to Paragraph No.3 of the Letter of Credit
Escrow Agreement, the Escrow Agent is hereby authorized to release and otherwise
disburse the Funds, as that term is defined and used in the Letter of Credit
Escrow Agreement, and the interest earned thereon, to Forest City or its
designee and the Escrow Agent is further authorized to take all necessary steps
to close the escrow account established by the Letter of Credit Escrow
Agreement.
T CELL SCIENCES, INC.
By: _________________________________
Title: ______________________________
Dated: _______________________________
FOREST CITY COMMERCIAL MANAGEMENT, INC.
(as successor in interest to Forest City Management, Inc.)
By: _________________________________
Title: ______________________________
Dated: _______________________________
PNC BANK, NATIONAL ASSOCIATION
By: _________________________________
Title: ______________________________
Dated: _______________________________
SECOND AUTHORIZATION FOR ESCROW AGENT
TO RELEASE CERTAIN FUNDS
Agreement is hereby made this day __ of November 1997, by, between and
among T Cell Sciences, Inc. and T Cell Diagnostics, Inc. (hereinafter
collectively referred to as "T Cell") and Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. and
Forest City Commercial Management, Inc.. as successor-in-interest to Forest City
Management, Inc. (hereinafter collectively referred to as "Forest City").
WHEREAS, T Cell and Forest City (and an affiliate) are in a dispute
described in the pleadings filed in a civil action styled T Cell Sciences, Inc.
and T Cell Diagnostics, Inc. v. Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. and Forest
City Management, Inc., et al., Middlesex Superior Court Civil Action No.94-6670
(hereinafter referred to as "the Litigation"); and
WHEREAS, on October 20, 1995, T Cell and Forest City entered into an
agreement entitled "Stipulation Concerning Damages, Agreement To Transfer
Ownership Rights and Escrow Agreement" (hereinafter referred to as "the
Equipment Escrow Agreement") to which Xxxxxxx, Xxxxxx & Xxxxxx (hereinafter
referred to as "Escrow Agent") was a signatory as Escrow Agent. (A copy of the
Equipment Escrow Agreement is attached hereto as Exhibit "A"); and
WHEREAS, T Cell and Forest City have agreed to resolve their differences
with respect to the Litigation.
NOW, THEREFORE, the parties agree as follows:
1. Upon the execution of this Second Authorization For Escrow Agent To
Release Certain Funds and pursuant to Paragraph No.9 of the Equipment Escrow
Agreement, the Escrow Agent is hereby authorized to release and otherwise
disburse the Funds. as that term is defined and used in the Equipment Escrow
Agreement, to Forest City or its designee and is further authorized to take all
necessary steps to close the escrow account established by the Equipment Escrow
Agreement.
T CELL SCIENCES, INC. XXXXXX XXXX 00 XXXXXX XXXXXX, INC.
By: _______________________ By: _______________________
Title: _______________ Title: _______________
Dated: _______________ Dated: _______________
T CELL DIAGNOSTICS, INC. FOREST CITY COMMERCIAL MANAGEMENT,
INC. (as successor-in-interest to Forest
City Management, Inc.)
By: _______________________ By: _______________________
Title: _______________ Title: _______________
Dated: _______________ Dated: _______________
XXXX OF SALE
This Xxxx of Sale is entered into this 17th day of November, 1997 by and
among T Cell Sciences, Inc. and T Cell Diagnostics, Inc., both of which are
Delaware corporations having a principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx, (jointly, "T Cell"), and Xxxxxx Xxxx 00 Xxxxxx Xxxxxx,
Inc., an Ohio corporation having a principal place of business at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxx, 00000 ("Forest City").
W I T N E S S E T H:
WHEREAS, T Cell desires to transfer and assign to Xxxxxx Xxxx 00 Xxxxxx
Xxxxxx, Inc. all of the personal property, equipment and appurtenances listed on
Schedule I hereto (the "Assets"), and Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. desires
to accept the sale, transfer, conveyance, assignment and delivery thereof;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and in a Settlement Agreement dated November 14, 1997 by and among X
Xxxx, Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc.; Forest City Commercial Management,
Inc.; and Forest City Enterprises, Inc., and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, T
Cell hereby irrevocably sells, transfers, conveys, assigns and delivers to
Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc., free and clear of all liens, restrictions
and encumbrances, all of T Cell's right, title and interest in, to and under the
Assets, to have and to hold the same unto Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc.,
its successors and assigns, forever.
Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, Inc. hereby accepts the sale, transfer,
conveyance, assignment and delivery of the Assets.
The parties agree that Assets hereby conveyed by T Cell to Xxxxxx Xxxx 00
Xxxxxx Xxxxxx, Inc. hereunder are sold, transferred, conveyed, assigned,
delivered AS IS and WHERE IS, in used condition, and T Cell makes no other
warranties or representations whatsoever, whether express or implied, with
respect to those Assets.
This Xxxx of Sale may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instruments.
This Xxxx of Sale shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts without giving effect to the
conflicts of laws principles thereof, except that if it is necessary in any
other jurisdiction to have the law of such other jurisdiction govern this Xxxx
of Sale in order for this Xxxx of Sale to be effective in any respect, then the
laws of such other jurisdiction shall govern this Xxxx of Sale to such extent.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute this Xxxx of Sale on the day and year first above written.
T CELL SCIENCES, INC.
By:
------------------------------
Una X. Xxxx
President
T CELL DIAGNOSTICS, INC.
By:
-----------------------------
Una X. Xxxx
Director
FOREST CITY 38 XXXXXX STREET, INC.
By:
----------------------------
Name:
Title:
Schedule I
List of Personal Property, Equipment and Appurtenances
All case work, machinery and equipment owned by T Cell Sciences, Inc. and
its affiliates ("T Cell") and currently located on the third, fourth and fifth
floors of the laboratory and office space formerly occupied by T Cell at 00
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, including but not necessarily limited
to any and all of the following items, with all appurtenances thereto.
- laboratory benches;
- fume hoods;
- acid neutralization system;
- kitchen cabinets;
- darkroom sink and door;
- modular furniture;
- laboratory faucets and sinks;
- CO2 and vacuum system;
- compressed air system;
- hot water heater;
- animal facility equipment and cage washer;
- energy control system; - booster pump system;
- (1) 2.5 h.p. Copco air compressor;
- (1) Hood (formerly located in Room 537);
- (1) Autoclave (formerly located in Room 556);
- (1) Laboratory Washer (formerly located in Room 556);
- (1) Large Washer (formerly located in Room 556); and
- (1) D.M.T. Motor Generator Series III.
RELEASE
AND NOW, this _____ day of November, 1997, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to resolve disputed claims by settlement and without the expense,
uncertainty and risks of further litigation, PNC Bank, N.A. hereby irrevocably
releases and forever discharges T Cell Sciences, Inc. and T Cell Diagnostics,
Inc., their subsidiaries, affiliates, predecessors and successors, and their
respective past, present and future officers, directors, stockholders,
employees, agents, attorneys, representatives, successors and assigns
(collectively, "T Cell"), from any and all claims, actions, causes of action,
contracts, demands, debts or obligations of any kind for damages, costs,
expenses, fees, payments or any other kind of liability, whether known or
unknown, which PNC has ever had or may now have against T Cell, including but
not limited to all claims that arise out of T Cell's lease of space at 00 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, and/or the so-called "Tri-Party Agreement,"
dated June 30, 1988, between and among T Cell, Forest City 38 Xxxxxx Street,
Inc., and PNC, and including but not limited to all claims that were or could
have been asserted in the litigation
styled PNC Bank, N.A. v. T Cell Sciences, Inc., Civil Action No. 95-1499
(Norfolk County Superior Court).
IN WITNESS WHEREOF, PNC has executed this Release under seal, by its duly
authorized representative.
PNC BANK, N.A.
By:
-------------------------------
Name
------------------------------
Title
Witness:
------------------------------
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT
CIVIL ACTION NO. 94-6670
--------------------------------------------------------
T CELL SCIENCES, INC. and T CELL )
DIAGNOSTICS, INC., )
)
Plaintiffs, )
)
v. )
)
FOREST CITY ENTERPRISES, INC., )
XXXXXX XXXX 00 XXXXXX XXXXXX, INC. )
and FOREST CITY MANAGEMENT, INC., )
)
Defendants, )
)
and )
)
FEDERAL INSURANCE COMPANY, )
)
Intervenor. )
)
--------------------------------------------------------
STIPULATION OF DISMISSAL
Pursuant to Mass. R. Civ. P. 41(a)(1), all parties to the above-captioned
matter, by their counsel, stipulate to the voluntary dismissal of the
above-captioned action, with prejudice, each party to bear its own costs, and
all rights of appeal waived.
T CELL SCIENCES, INC. and T CELL
DIAGNOSTICS, INC.
By their attorneys,
________________________________________
Xxxxxxxx Xxxxxx Xxxxx (BBO
#097800) Xxxxxxx Xxxxxxxxx
(BBO #544209) XXXXX, XXXXXX
& GRUENTHAL 000 Xxxxxxx
Xxxxxx Xxxxxx, XX 00000
(000) 000-0000
-and-
FOREST CITY ENTERPRISES, INC.,
XXXXXX XXXX 00 XXXXXX XXXXXX, INC. and
FOREST CITY MANAGEMENT, INC.
By their attorneys,
________________________________________
Xxxxx X. Xxxxxxx (BBO #323920)
Xxxxxx X. Xxxxxx (BBO #544421)
XXXXXXX, XXXXXX & XXXXXX
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(617) 523-1125
-and-
FEDERAL INSURANCE COMPANY
By its attorneys,
________________________________________
Xxxxxx X. Xxxxxx, Xx. (BBO #403560)
Xxxxxx X. Xxxxxx (BBO #544691)
XXXXXX & XXXXXX
Xxx Xxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
DATED: November , 0000
XXXXXXXXXXXX XX XXXXXXXXXXXXX
XXXXXXX, SS SUPERIOR COURT
CIVIL ACTION NO. 95-01499
--------------------------------------------------------
PNC BANK, N.A., )
)
Plaintiff, )
)
v. )
)
T CELL SCIENCES, INC., )
)
Defendant, )
)
v. )
)
FOREST CITY ENTERPRISES, INC., )
XXXXXX XXXX 00 XXXXXX XXXXXX, INC. )
and FOREST CITY MANAGEMENT, INC., )
)
Third-Party Defendants. )
)
--------------------------------------------------------
STIPULATION OF DISMISSAL
Pursuant to Mass. R. Civ. P. 41(a)(1), all parties to the above-captioned
matter, by their counsel, stipulate to the voluntary dismissal of the
above-captioned action, with prejudice, each party to bear its own costs, and
all rights of appeal waived.
PNC BANK, N.A.,
By its attorneys,
Xxxxxx X. Xxx, III (BBO #182160)
Xxxxx X. Xxxxx (BBO #561020)
ROPES & XXXX
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
(000) 000-0000
-and-
T CELL SCIENCES, INC.
By its attorneys,
_______________________________________________
Xxxxxxxx Xxxxxx Xxxxx (BBO
#097800) Xxxxxxx Xxxxxxxxx
(BBO #544209) XXXXX, XXXXXX
& GRUENTHAL 000 Xxxxxxx
Xxxxxx Xxxxxx, XX 00000
(000) 000-0000
-and-
FOREST CITY ENTERPRISES, INC.,
XXXXXX XXXX 00 XXXXXX XXXXXX, INC. and
FOREST CITY MANAGEMENT, INC.
By their attorneys,
_______________________________________________
Xxxxx X. Xxxxxxx (BBO
#323920) Xxxxxx X. Xxxxxx
(BBO #544421) XXXXXXX,
XXXXXX & XXXXXX 000 Xxxxxxxx
Xxxxxx Xxxxxx, XX 00000
DATED: November __ 0000 (000) 000-0000
