EXHIBIT 10.32
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LIQUIDATION ASSISTANCE AGREEMENT
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Liquidation Assistance Agreement ("Agreement"), dated February 23, 2001 among
__________________ ("Principal"), an individual with an address at
____________________________, Superior Pharmaceutical Company, a Delaware
corporation with an address at 0000 Xxxxxx. Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000
(the "Company") and XxXxxxxx.xxx, Inc., a Delaware corporation with an address
at 00000 Xxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000 ("RxBazaar"; RxBazaar and
the Company are sometimes referred to herein collectively as the "Debtor") and
The CIT Group/Business Credit, Inc., a New York Corporation, with an address at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("CIT").
WITNESSETH
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WHEREAS, CIT, the Company and RxBazaar have entered into or are about to enter
into a Financing and Security Agreement dated on or about the date hereof (the
"Financing Agreement");
WHEREAS, pursuant to the Financing Agreement, the Debtor has granted to CIT a
continuing general lien and security interest in all of its Accounts, Inventory,
General Intangibles, Documents of Title, Other Collateral, Equipment and Real
Estate (as defined in the Financing Agreement, collectively, herein the
"Collateral") to secure the Obligations (as defined in the Financing Agreement);
WHEREAS, upon the occurrence and during the continuance of an Event of Default
(as defined in the Financing Agreement), the Debtor, at the request of CIT,
agrees to assemble and collect the Debtor of the Company and to make it
available to CIT at the premises of the Debtor for the purpose of CIT's taking
possession of, removing or putting the Collateral in saleable form; and
WHEREAS, to further secure the Company's Obligations to CIT, Principal, in his
capacity as an officer of the Debtor agrees to assist the Company in assembling,
collecting and delivering the Collateral to the premises of the Debtor in
accordance with the terms of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of that are acknowledged, Principal, the Debtor and CIT agree as follows:
1. In the event CIT declares an Event of Default under the Financing Agreement
and as a result thereof (a) thereafter commences to liquidate and realize upon
the Collateral or (b) CIT is collecting the Accounts (in either case, a
"Liquidation"), Principal agrees to use his commercially reasonable efforts to
assist the Debtor and CIT in assembling, collecting and disposing of the
Collateral and the Accounts for a period not to exceed the lesser of (i) six (6)
months from the declaration of the Event of Default or (ii) the date upon which
CIT has liquidated the Collateral (as determined by CIT in its reasonable
discretion), so long as (x) Principal is continuing to be paid his standard
compensation and receive his standard benefits from the Debtor (provided that
such compensation and benefits are commercially reasonable and in accordance
with the Debtor's past practices) and (y) the Debtor and/or CIT (and, not the
Principal) pay any and all expenses necessary to accomplish the foregoing.
Principal and the Debtor shall use their commercially reasonable
efforts to obtain sales of the Collateral at commercially reasonable prices and
terms and to collect Accounts at their full face value. CIT shall have the right
to terminate the activities of Principal or the Debtor described above at any
time, for any reason, with or without cause.
2. Upon the commencement of a Liquidation, all monies (other than those
appropriate to operate the Debtor, as mutually determined by the Debtor and CIT)
received by either Principal or the Debtor shall be immediately applied to the
Obligations, except as otherwise required by law; it being understood, however,
that Principal does not control the activities of the Debtor.
3. With respect to the disposition of the Collateral or the collection of
Accounts, all efforts shall be undertaken in the name of Principal and the
Debtor and not in the name of CIT. Principal and the Debtor agree that they
shall not hold themselves out as, or represent that they are, agents of CIT.
Neither Principal nor the Debtor shall have the authority to bind CIT except as
such specific authority as CIT may grant in writing from time to time.
4. The Debtor agrees that it shall be solely responsible for all reasonable
legal and appraisal costs and expenses, including all professional fees, court
costs, and other costs incurred in connection with the disposition of the
Collateral or the collection of the Accounts. From time to time, as reasonably
requested by CIT, Principal and the Debtor shall submit to CIT statements
showing the amount of payments received with respect to the collection and
disposal efforts outlined in this Agreement.
5. The Debtor acknowledges that CIT, in making and extending financial
accommodations to the Company, relied upon the terms of this Agreement. The
Debtor acknowledges that CIT has a contractual right to rely, and is relying,
upon Principal to cooperate with the Debtor in performing his obligations under
this Agreement. The Debtor represents and acknowledges to CIT that in the event
Principal breaches the terms of this Agreement, CIT will be damaged. The Debtor
hereby assigns to CIT all claims, causes of action, and rights to pursue
remedies that the Debtor may have against Principal by reason of Principal's
breach of this Agreement.
6. The Debtor hereby indemnifies and holds harmless CIT from any and all costs,
expenses, damages and liabilities that have been or in the future might be
suffered or incurred as a result of or arising out of any negligent, wrongful or
improper action or omission in connection with the collection of amounts owed
under the Financing Agreement.
7. The Principal hereby indemnifies and holds harmless CIT from any and all
costs, expenses, damages and liabilities that might be suffered or incurred as a
result of or arising out of Principal's breach of his obligations under this
Agreement so long as CIT has provided Principal with written notice of such
breach within ten (10) days of such breach and Principal is given ten (10) days
from his receipt of such notice to cure such breach.
8. Principal and the Debtor agree (a) that, except as to CIT's successors and
assigns, this Agreement is not intended for and shall not be construed for the
benefit of any party not a signatory hereto; (b) that this Agreement constitutes
the entire agreement among the parties with respect to the subject matter hereof
and no modification or waiver shall be effective unless in writing and signed by
the party to be charged; (c) the inapplicability or unenforceability of any
provision of this Agreement shall not limit or
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impair the operation or validity of any provision of the Agreement; and (d) this
Agreement shall be binding upon, and inure to the benefit of the respective
successors and assigns of the parties hereto.
9. In the event of any inconsistency between the terms of this Agreement and the
terms of the Financing Agreement, the terms of the Financing Agreement shall
govern.
10. This Agreement shall be governed by, and interpreted in accordance with, the
laws of the State of New York.
11. This Agreement may be executed in any number of counterparts which together
shall constitute one and the same instrument.
IN WITNESS WHEROF, each of the parties hereto has caused this Agreement to be
executed and delivered by its duly authorized officer as of the date first
written above.
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XXXXXXXX.XXX, INC.
By: /s/ C. Xxxxxx Xxxxxx
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Print Name: C. Xxxxxx Xxxxxx
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Title: Executive Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxx Xxxxx
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Print Name: Xxx Xxxxx
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Title: Vice President
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