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EXHIBIT 10(d)
BANK HAPOALIM B.M.
CASH COLLATERAL PLEDGE AGREEMENT
(U.S. & NON-U.S. CURRENCY)
Dated as of: March 16, 2005
SPECIFIC TERMS
Pledgor(s):
PERRIGO INTERNATIONAL, INC.
Address and Contact Information of
Pledgor(s) (include only one address):
515 Eastern Avenue
Allegan, Michigan 49010
Attn: James R. Ondersma, Treasurer
E-mail: jondersm@perrigo.com
Fax No.: 269-673-1234
Description of Deposit Account and
Depository:
Deposit Account No.: 01068717
Branch (check one and complete if
necessary):
[X] Bank Hapoalim B.M. New York
Branch, 1177 Avenue of the Americas, New York,
NY 10036 (an
uninsured branch)
[ ] Other (specify):
Type of deposit(s) in Deposit Account
(check all that apply as of the date of
this Agreement):
[X] Time Deposit Account
[ ] Money Market Deposit Account
[ ] Demand Deposit Account
Debtor(s), other than or in addition to
Pledgor(s), whose obligations are
secured by this Agreement (include full
name(s) and address(es)):
PERRIGO ISRAEL HOLDINGS LTD. A/K/A PERRIGO
ISRAEL HOLDING LTD.
515 Eastern Avenue
Allegan, Michigan 49010
Attn: James R. Ondersma, Treasurer
Definitions of certain capitalized terms
are included in Section 22.
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1. Pledge and
Assignment; Security for Liabilities: For value received,
Pledgor(s) hereby assigns, transfers and
pledges to Bank Hapoalim B.M. (an
Israeli banking corporation acting through
its uninsured New York branch), its
offices and subsidiaries (hereinafter,
referred to collectively as the "Bank")
and grants to the Bank, as security for any
and all Liabilities of Pledgor(s)
and of any Debtor(s) identified in Specific
Terms, a security interest in all of
the right, title and interest of Pledgor(s)
in, to and under, and control over,
the Collateral described below.
As used herein,
"Collateral" shall mean (i) the Deposit Account (including,
without limitation, the $400,000,000.00
deposited therein), (ii) any cash or
other property at any time and from time to
time receivable or otherwise
distributable in respect of, in exchange
for, or in substitution for, the
Deposit Account or any portion thereof,
including interest accruing thereon,
(iii) intentionally omitted, (iv) all
replacements, substitutions, extensions,
renewals and proceeds of any and all of the
foregoing (including, without
limitation, Accrued Interest that may be
deposited in the Accrued Interest
Deposit Account pursuant to Section 33 of
this Agreement), and (v) all rights
and privileges of Pledgor(s) with respect
to any and all of the foregoing.
2. Guarantee by
Pledgor(s) of Liabilities of Named Debtors other than
Pledgor(s): (a) With respect to the Debtors
other than or in addition to the
Pledgor(s) identified in the Special Terms,
subject to Section 2(b) hereof, each
Pledgor(s) irrevocably and unconditionally
guarantees to the Bank payment when
due, whether by demand, acceleration or
otherwise, without defense, waiver,
setoff or counterclaim, of each and every
Liability of any and all such Debtors
(hereinafter, "Pledgor's Guarantee
Undertaking").
(b) With respect
to Liabilities incurred by Debtors other than the
Pledgor(s): (i) in the event of any
inconsistency with respect to the Pledgor's
Guarantee Undertaking between this
Agreement and any other guarantee agreement
executed by Pledgor(s) in favor of the Bank
(hereinafter, a "Guarantee"), the
terms of such Guarantee shall apply to the
extent the Guarantee gives the Bank
greater rights (and to the extent this
Agreement gives the Bank greater rights,
this Agreement, at the Bank's option, shall
apply), (ii) the obligation of
Pledgor(s) with respect to the Liabilities
of the Debtor(s) shall not exceed the
value from time to time of the Collateral,
and (iii) the Bank shall be limited
to enforcing its remedies against
Pledgor(s) in connection with this Agreement
with respect to the Liabilities of the
Debtor(s) solely against the Collateral.
3. The Deposit
Account: (a) On or before the date of this Agreement,
Pledgor(s) has placed a sum or sums in
immediately available funds on deposit
with the Bank in an account as further
identified above under Specific Terms
(individually and collectively the "Deposit
Account"). The Deposit Account and
any interest or other income thereon or
proceeds thereof shall be kept on
deposit at the branch, office, or
subsidiary of the Bank identified above (such
branch, office, or subsidiary sometimes
referred to hereinafter as the
"Depository"). The Deposit Account shall be
kept under the sole dominion and
control of the Depository, subject however
to the instructions of the Bank and
of each branch, office or subsidiary
thereof at which any Liabilities are
carried on the books and records. Other
than pursuant to, and in accordance
with, Section 33 of this Agreement,
Pledgor(s) shall have no right to withdraw
any amounts from the Deposit Account,
including any interest paid thereon,
unless and until the Liabilities shall have
been paid in full.
(b) If any
Deposit Account or portion thereof is evidenced by a
certificate
or instrument, the Pledgor(s) shall deliver
and, if necessary, endorse in any
manner necessary to transfer, to the Bank
any such certificates or instruments
constituting, representing or evidencing
any such Deposit Account or portion
thereof.
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(c) Any Deposit
Account or portion thereof may be issued by the Depository
in book entry form and, in the discretion
of the Depository, a confirmation of
such Deposit Account or such portion, as
distinguished from a physical
certificate, may serve to evidence such
Deposit Account or portion thereof.
(d) So long as
no Event of Default shall have occurred and shall be
continuing hereunder, the Bank shall not
Transfer this Agreement, the Guaranty
and/or the Collateral to a Person that is
not located in the United States of
America. After the occurrence and during
the continuance of an Event of Default
hereunder, the Bank can Transfer this
Agreement, the Guaranty and/or the
Collateral to any Person without
restriction whatsoever.
4. Rights of
Bank with Respect to Deposit Account: The Bank may from time
to time: (a) apply any funds in the Deposit
Account to satisfy the Liabilities
(or any part thereof) as the same shall
become due or payable in accordance with
the terms thereof and as otherwise provided
by applicable law, in each case
regardless of the stated maturity of the
Deposit Account or any portion thereof,
(b) in connection with any such application
of funds, convert that portion of
any Deposit Account which is denominated in
an alternative currency into the
currency in which the Liabilities (or any
part thereof) are denominated, (c)
exercise all rights of Pledgor(s) in the
Deposit Account, and (d) retain (except
for the release of Accrued Interest to the
Pledgor pursuant to, and in
accordance with, Section 33 of this
Agreement) all income, interest, or proceeds
of the Deposit Account as additional
Collateral.
5. If at any
time the Value of the Collateral then existing does not equal
or exceed 100% of the aggregate amount of
the Liabilities or such lesser amount
as may be permitted pursuant to the
documentation for the Liabilities
(hereinafter the "Base Collateral Value"),
the Pledgor(s) shall, upon demand by
the Bank, deposit to the Deposit Account
with the Depository an amount in U.S.
dollars such that after giving effect
thereto the Value of the Collateral shall
not be less than the Base Collateral Value.
Each such additional deposit to the
Deposit Account shall be placed in a time
deposit complying with the terms
hereof.
6.
Representations, Warranties and Covenants: Pledgor(s) hereby
represents
and warrants to, and covenants with, the
Bank that (a) the Collateral existing
on the date hereof is and will continue to
be, and, as to Collateral arising
after the date hereof, will be, free from
all security interests or other
encumbrances except the Bank's rights under
this Agreement and the Guaranty, (b)
Pledgor(s) has full right, power and
authority to enter into this Agreement,
grant the security interests in the
Collateral hereunder and perform Pledgor's
obligations hereunder, (c) the execution,
delivery and performance of this
Agreement, the pledge of the Collateral
hereunder and the exercise of the Bank's
rights hereunder and/or under applicable
law do not and will not violate or
contravene the terms of Pledgor's charter
documents or any agreement (including,
without limitation, the Syndicated Credit
Agreement (as such term is defined in
the Guarantee)), instrument, law, rule,
regulation, or judgment binding on
Pledgor(s) or its properties, (d) no
registration with, or consent or approval
of, or other action by or with, any court
or governmental body or authority or
any other Person (except for the consent of
JP Morgan Chase Bank, N.A. and the
other lenders under the Syndicated Credit
Agreement) is required in connection
with the execution, delivery and
performance of this Agreement or the exercise
of the Bank's rights hereunder, (e) this
Agreement constitutes the legal, valid
and binding obligation of Pledgor(s)
enforceable in accordance with its terms,
(f) the security interests granted
hereunder to the Bank are and will continue
to be (or will be, in the case of
Collateral hereafter arising) a valid first
lien on, and security interest in the
Collateral, superior and prior to the
rights of all third Persons, and no filing
or other act is required to create
and perfect such lien and security interest
(excluding the Bank's own actions
with respect to the Collateral, with
respect to which no representation,
warranty or covenant is given), (g) the
Pledgor(s) is not currently insolvent
and the transfer and pledge of the
Collateral to the Bank does not result in the
insolvency of the Pledgor(s), (h) Pledgor
is the sole shareholder of Debtor, (i)
there is no litigation,
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arbitration, investigation or proceeding of
or before any court, arbitrator or
administrative or governmental authority is
currently pending or, to the
knowledge of Pledgor, threatened, (A)
materially adversely affecting Pledgor, or
any of Pledgor's assets, or (B) that could
materially adversely affect the
business operations, assets, liabilities or
condition, financial or otherwise,
of Pledgor or such Pledgor's ability to
enter into, execute or deliver this
Pledge or prejudice in a material manner
such Pledgor's ability to fulfill such
Pledgor's obligations pursuant to this
Agreement, (j) Pledgor has not incurred
any indebtedness, or any contingent
liability, and will not incur any
indebtedness or contingent liability, that
materially adversely affects, or will
materially adversely affect, Pledgor's
ability to perform under this Agreement,
other than the indebtedness and contingent
liabilities under the Syndicated
Credit Agreement, (k) (i) Pledgor's chief
executive office is, and always has
been, located in Allegan, Michigan and,
(ii) Pledgor has no assets, and never
had any assets, in any other jurisdiction
other than Allegan, Michigan, except
for the funds in the Deposit Account, (l)
Pledgor does not employ construction
workers, miners or any other workers
engaged in any type of labor listed in, or
covered by, Michigan Comp. Laws Section
570.194, (m) Pledgor has received the
consent of JP Morgan Chase Bank, N.A. and
the other lenders referred to in
subsection (d) above, (n) no demand has
been made for any tax assessed by the
Internal Revenue Service that Perrigo
Company or Pledgor has failed or refused
to pay, and (o) neither Perrigo Company nor
the Pledgor has been notified of any
deficiency in its tax returns.
7. Further
Assurances; Bank Appointed Attorney-in-Fact: Pledgor(s) agrees
at Pledgor's own expense to take such
actions and to execute such writings as
the Bank may request from time to time and
irrevocably authorizes the Bank to
take such actions and to execute such
writings as Pledgor's agent and
attorney-in-fact, which authorization is
irrevocable and coupled with an
interest to perfect, confirm and assure the
Bank's security interest in the
Collateral, to assist the Bank's
realization thereon and to otherwise accomplish
the purposes hereof.
8. Rights and Remedies Upon
Default: Upon the occurrence of any Event of
Default, the Bank shall have, in addition
to other rights provided in this
Agreement and the rights of a secured party
under the Uniform Commercial Code as
in effect in the State of New York and
under any other applicable law as in
effect from time to time, the right,
without prior notice (except as may be
required by law and may not be waived) to,
or consent from, the Pledgor(s), and
without releasing or affecting this
Agreement or the Pledgor's obligation
hereunder, to (i) demand and receive
payments on or from the Deposit Account and
give releases, receipts and acquittances
therefor, (ii) exercise any right of
setoff the Bank may have with respect to
the Deposit Account (regardless of the
stated maturity of any portion thereof),
(iii) effect one or more withdrawals
from the Deposit Account (regardless of the
stated maturity of any portion
thereof) as may be required to pay wholly
or partially any Liability of the
Pledgor(s) or any Debtor(s) referred to in,
or any obligation of the Pledgor(s)
created by, this Agreement at any time
outstanding, and (iv) apply any amounts
so withdrawn, set off, or received on
account of, any Liability referred to in,
or any obligation of the Pledgor(s) created
by, this Agreement. In addition to,
and not in limitation of, the above rights,
upon the occurrence of any Event of
Default, the Bank shall have the right to
commence judicial proceedings against
Pledgor to recover any amounts for which
Pledgor is liable under Section 13 of
this Agreement and/or Section 7 of the
Guaranty.
In the course of
exercising the remedies provided for hereunder and/or
under applicable law, the Bank shall have
the right, but not the obligation, to
apply any amount held, realized or received
by it first, toward the payment of
any of its costs and expenses in enforcing
this Agreement, in realizing upon or
protecting any Collateral and in enforcing
or collecting, or preserving its
rights with respect to, the Liabilities
(including, without limitation,
attorneys' fees and expenses), second, to
the payment of all other Liabilities
in such order as the Bank may elect, and
third, as otherwise provided by
applicable law. Any instruments or
certificates evidencing any Collateral
remaining after the Liabilities have been
paid
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in full shall be delivered to Pledgor(s) or
Pledgor's successors or assigns or
as otherwise required under applicable
law.
9. Security
Interest Absolute: The obligations of Pledgor(s) hereunder
shall remain in full force and effect
without regard to, and shall not be
impaired by: (a) any bankruptcy,
insolvency, reorganization, arrangement,
readjustment, composition, liquidation or
the like of any Debtor (whether in the
United States, in Israel or elsewhere) or
any guarantor, endorser or other
Person providing security or otherwise
liable for any of the Liabilities; (b)
any exercise or nonexercise, or any waiver,
by the Bank of any right, remedy,
power or privilege under or in respect to
the Liabilities or any other
agreement, instrument or document executed
in connection with or relating to or
evidencing any of the Liabilities or any
security for or any guarantee of any of
the Liabilities (other than this
Agreement); (c) any extension, renewal,
continuation of or amendment to or
modification of any of the Liabilities, any
agreement, instrument or document executed
in connection with or relating to or
evidencing any of the Liabilities or any
security for or any guarantee of any of
the Liabilities (other than this
Agreement); or (d) the invalidity, irregularity
or unenforceability of all or any part of
the Liabilities or any security for or
any guarantee of any of the Liabilities,
whether or not Pledgor(s) shall have
notice or knowledge of any of the
foregoing.
10.
Reinstatement of Liability: If claim is ever made upon the Bank
for
repayment or recovery of any amount or
amounts received by the Bank in payment
or on account of any of the Liabilities of
any Debtor and the Bank repays all or
part of said amount by reason of (a) any
judgment, decree or order of any court
or administrative body having jurisdiction
over the Bank or any of its property,
or (b) any settlement or compromise of any
such claim effected by the Bank with
any such claimant (including such Debtor),
then any such judgment, decree,
order, settlement or compromise shall be
binding upon Pledgor(s),
notwithstanding any revocation hereof or
the cancellation of any note or other
instrument evidencing any liability of such
Debtor, and Pledgor(s) shall be and
remain liable to the Bank hereunder for the
amount so repaid or recovered to the
same extent as if such amount had never
originally been received by the Bank.
11. Waiver of
Subrogation and Creditor Status: Pledgor(s) irrevocably
waives and gives up any and all legal and
equitable rights and claims arising
from the existence or performance of this
Agreement that Pledgor(s) may now or
hereafter have and that would result in the
Pledgor(s) being deemed a "creditor"
(under the U.S. federal Bankruptcy Code or
any other law) of any Debtor or of
any other person or entity directly or
contingently liable for any of the
Liabilities of such Debtor (a "Third
Party"), including without limitation all
rights of subrogation, indemnity,
reimbursement, exoneration and/or
contribution, and including without
limitation any such right or claim against
or with respect to any property (including
without limitation any collateral
security) of such Debtor or of any Third
Party. In furtherance, and not in
limitation, of the preceding waiver,
Pledgor(s) agrees that any exercise by the
Bank of its security interest in any of the
Collateral securing any of the
Liabilities of any Debtor shall be deemed a
contribution to the capital of such
Debtor, and any such payment shall not
constitute Pledgor(s) as a "creditor" of
any such Debtor or of any Third Party.
12. Limitation
on Bank Liability: Beyond the exercise of reasonable care to
assure the safe custody of the Collateral
in its possession, the Bank shall have
no duty or liability to preserve rights
pertaining thereto. Furthermore, the
Bank is under no duty to the Pledgor(s) to
protect, secure, insure or obtain or
perfect any security interest in any
property pledged by any other Person in
connection with any Liability of the
Pledgor(s) or of any Debtor. In any event,
the Bank and its directors, officers and
employees or agents shall not be liable
for any special, consequential or punitive
damages.
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13.
Indemnification: Pledgor(s) agrees to indemnify and hold the
Bank
and/or any directors, officers, employees
or agents of the Bank harmless from
and against, and pay on demand to the Bank
or such directors, officers,
employees or agents, any and all loss,
liability, cost and expense (limited,
however, to Reserve Costs, Capital Adequacy
Costs, Change in Law Costs, and any
and all taxes, withholdings and related
costs and expenses of the Bank with
respect to the Loan or the Deposit Account,
and reasonable attorneys' fees and
expenses in advising, representing or
litigating on behalf of the Bank) in
connection with the Collateral, the
Guaranty and/or this Agreement, unless such
loss, liability, cost or expense shall be
due to willful misconduct or gross
negligence on the part of the Bank or such
directors, officers, employees or
agents. Any such loss, liability, cost or
expense shall, from the date incurred,
be part of the Liabilities secured by this
Agreement and shall accrue interest
at the Applicable Interest Rate.
14. Waiver of
Protest, etc.: Pledgor(s) waives notice of acceptance of this
Agreement and notice of any Liability to
which it may apply, and waives
presentment, notice of payment, protest,
notice of dishonor or nonpayment of any
Liabilities of any Debtor, or of any suit
or the taking of other action by the
Bank against, and any other notice to, any
Person liable thereon.
15. Parties:
Pledgor(s), if more than one, shall be jointly and severally
liable under this Agreement. Anyone signing
this Agreement shall be bound
hereby, whether or not anyone else signs
this Agreement at any time. Any
reference herein to the Pledgor(s) or to
any other Debtor shall include (a) any
successor or successors to which all or
substantially all of the business or
assets of Pledgor(s) or of such Debtor
shall have been transferred directly or
indirectly and (b) any other corporation,
firm or entity into or with which
Pledgor(s) or any other Debtor shall have
merged, consolidated or reorganized.
The term "Bank" includes any agent of the
Bank acting for it.
16. Amendments,
etc.: None of the terms or conditions of this Agreement may
be changed, waived, modified or varied in
any manner whatever unless in a
writing duly signed on behalf of the Bank;
and each such waiver, if any, shall
be a waiver only with respect to the
specific instance involved and shall in no
way impair the rights of the Bank or the
obligations of the Pledgor(s) to the
Bank in any other respect at any other
time.
17. Provisions
of Other Agreements: Neither the provisions of this
Agreement nor the Bank's acceptance of a
pledge of and/or security interest in
the Collateral shall in any way limit,
diminish or waive any of the Bank's
rights under any other agreement with
Pledgor(s) or any other Person, by law or
otherwise.
18. No
Representation of Nonenforcement: Pledgor(s) acknowledges that
no
representative or agent of the Bank has
represented or indicated th
