Exhibit 10.9
ASSIGNMENT OF CONTRACT
THIS ASSIGNMENT OF CONTRACTS (this "Assignment"), dated as of March 20,
1997, made by NEOSE TECHNOLOGIES, INC., a Delaware corporation having an office
at 102 Witmer Road, Horsham, Pennsylvania ("Assignor"), to JEFFERSON BANK,
having an office at 1607 Walnut Street, Philadelphia, Pennsylvania ("Assignee").
WITNESSETH:
WHEREAS, pursuant to two Reimbursement Agreements of even date herewith
between Assignor and Assignee (as the same may be amended, modified or
supplemented from time to time, the "Reimbursement Agreements"), Assignee has
enabled Assignor to receive funds (the "Loan") to defray the cost of
constructing certain improvements for the Project (capitalized terms used herein
and not otherwise defined herein having the meanings assigned to them in the
Reimbursement Agreements); and
WHEREAS, Assignor has entered into a Construction Contract, dated
August 30, 1996 (as the same may be amended, modified or supplemented from time
to time in compliance with the provisions of the Reimbursement Agreement, the
"General Construction Contract") between Assignor and Irwin & Leighton, Inc.
(the "General Contractor"), for the design, planning and construction of the
improvements; and
WHEREAS, the General Contractor has caused an architect to prepare
certain plans and specifications for the construction of the improvements (said
plans and specifications, including all working drawings, models and samples
related thereto, as amended, modified or supplemented from time to time in
compliance with the provisions of the Reimbursement Agreement, being hereinafter
called the "Plans"); and
WHEREAS, the execution and delivery of this Assignment by Assignor is a
condition to Assignees's obligation to make the Loan.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, Assignor
hereby assigns and transfers to Assignee, and hereby creates in favor of
Assignee a security interest under the Uniform Commercial Code in and to, all
right, title and interest of Assignor in, to and under the General Contract and
all proceeds thereof,
AND, Assignor hereby agrees with Assignee as follows:
1. Representations and Warranties. Assignor hereby represents and
warrants to Assignee that (a) Assignor has not assigned, transferred, mortgaged,
pledged or otherwise encumbered any of its right, title and interest in, to and
under the General Contract and the Plans,
except in favor of Assignee, (b) the General Contract has not been amended,
modified or supplemented and (c) Assignor has paid all sums required to be paid
by it prior to the date hereof under the terms of the general Contract.
2. Negative Covenants. Assignor hereby covenants with Assignee that
Assignor shall not assign, transfer, mortgage, pledge or otherwise encumber, or
permit to accrue or suffer to exist any lien or other encumbrance on or in, any
of the right, title and interest of Assignor in, to and under the General
Contract and the Plans, except in favor of Assignee, or as otherwise expressly
permitted in the Reimbursement Agreement.
3. Assignee Not Liable. Anything contained herein to the contrary
notwithstanding, unless and until Assignee expressly assumes the obligations
under the General Contract (a) Assignor shall at all times remain solely liable
under the General Contract to perform the obligations of Assignor thereunder to
the same extent as if this Assignment had not been executed, (b) Assignee shall
not have any obligation or liability under the General Contract by reason of or
arising out of this Assignment, nor shall Assignee be required or obligated in
any manner to make any payment or perform any other obligation of Assignor under
or pursuant to the General Contract.
4. Further Assurances. From time to time upon the request of Assignee,
Assignor shall promptly and duly execute, acknowledge and deliver any and all
such further instruments and documents as Assignee reasonably determines to be
necessary to carry out the purpose and intent of this Assignment.
5. Amendments, Waivers, Etc. This Assignment cannot be amended,
modified, waived, changed, discharged or terminated except by an instrument in
writing signed by the party against whom enforcement of such amendment,
modification, waiver, change, discharge or termination is sought.
6. Termination; Survival. Upon payment and performance in full of the
indebtedness and obligations secured hereby and termination of the Reimbursement
Agreement, this Assignment shall terminate.
7. Severability. If any term or provision of this Assignment or the
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Assignment, or the application of such
term or provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Assignment shall be valid and enforceable to the fullest
extent permitted by law.
8. Governing Law. This Assignment shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Pennsylvania.
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9. Successors and Assigns. This Assignment shall bind Assignor and its
successors and assigns, and shall inure to the benefit of Assignee and its
successors and assigns.
IN WITNESS WHEREOF, Assignor has duly executed and delivered this
Assignment as of the date first above written.
(SEAL) NEOSE TECHNOLOGIES, INC.
Witness: By: /s/ P. Sherrill Neff
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President
/s/ A. Brian Davis
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Secretary
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