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Exhibit 10.78
FIRST AMENDMENT
TO
ACKNOWLEDGMENT OF CONTROL OF PLEDGED SECURITIES ACCOUNT
THIS FIRST AMENDMENT TO ACKNOWLEDGMENT OF CONTROL OF PLEDGED SECURITIES
ACCOUNT (the "Amendment") is made as of the 22nd day of November, 1998 by and
among MEDICIS PHARMACEUTICAL CORPORATION, a Delaware corporation ("Borrower"),
and NORWEST BANK ARIZONA, NATIONAL ASSOCIATION, a national banking association
(Lender"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking
association ("Account Holder").
W I T N E S S E T H:
WHEREAS, Borrower, Lender and Account Holder are parties to that certain
Acknowledgment of Control of Securities Account Pledge and Security Agreement
dated as of November 22, 1996 (as amended hereby and as hereafter amended,
modified, supplemented, restated, extended or replaced from time to time, the
"Agreement"), which governs the relationship among Borrower, Lender and Account
Holder with respect to the Securities Account;
WHEREAS, Borrower and Lender intend to increase the Acquisitions Credit
Facility to $25,000,000 and extend the term of the Credit and Security Agreement
dated as of August 3, 1995, as amended (the "Credit Agreement") and the
Acquisitions Credit Facility for an additional two (2) years and make certain
modifications and amendments to the terms of the Credit Agreement and other Loan
Documents; and
WHEREAS, Borrower and Lender intend to make certain modifications to the
Securities Account Pledge and Security Agreement dated November 22, 1996, as
amended (the "Pledge Agreement"), and such amendments must be reflected in the
terms, provisions and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Borrower, Lender
and Account Holder hereby agree as follows:
1. Definitions. Except as otherwise defined herein, all capitalized terms
used herein shall have the meanings ascribed thereto in the Agreement.
2. Recital. The second Recital of the Agreement is hereby deleted in its
entirety and the following inserted therefor:
WHEREAS, Borrower and Account Holder are parties to that certain
Investment Advisory Agreement dated as of October 17, 1996 (as it may be
amended, modified, supplemented, replaced, restated or extended from time
to time with the consent of Lender, the "Investment Agreement"), pursuant
to which
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Account Holder has opened and maintains that certain Reserve Asset
Management Account No. 00000000 (such account and any other "securities
accounts" (as defined in the Uniform Commercial Code, as adopted in the
States of Arizona and Minnesota), maintained by Borrower or any Affiliate
of Borrower with Account Holder pursuant to the Investment Agreement that
constitute Collateral securing the obligations of the Borrower in which
Lender holds a valid, enforceable first priority lien and security
interest, free and clear of any other liens, claims or encumbrances, are
collectively referred to as the "Securities Account") and holds in the
Securities Account all cash and securities initially deposited plus any
additional cash and securities that may be received from time to time for
the Securities Account, subject to Borrower's right to effect Entitlement
Orders, withdrawals, investment requests or directions to the Account
Holder with respect to the Securities Collateral from time to time;
3. Account Holder's Responsibility. Section 2(d) of the Agreement is
hereby deleted in its entirety and the following inserted therefor:
(d) Notwithstanding anything to the contrary contained herein,
Account Holder shall refuse any Entitlement Order or any other withdrawal,
investment request or direction of Borrower with respect to the Securities
Account and the financial assets therein, if, before or after affecting
the Entitlement Order, withdrawal, investment request or direction of
Borrower, the ratio of the outstanding and unpaid Advances to the Market
Value of the Securities Accounts (the "Loan-to-Value Ratio") is or will be
more than .75:1.0. For purposes hereof, the "Market Value of the
Securities Account" means the value of all of the financial assets in any
Securities Account that constitutes Collateral securing the obligations of
the Borrower in which Lender holds a valid, enforceable first priority
lien and security interest, free and clear of any other liens, claims or
encumbrances, and, with respect to all such non-cash financial assets, the
value of such financial assets marked-to-market as of the close of
business on the last Banking Day of the immediately preceding month. Upon
the written request of Borrower or Account Holder, Lender shall forthwith
notify Account Holder of the then outstanding and unpaid Advances.
4. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Arizona.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
combined shall constitute one and the same instrument. This Amendment shall be
deemed effective upon each party's receipt of a signed
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facsimile copy of this Amendment from the other party.
6. Successors and Assigns. This Amendment shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns.
7. Amendment. Except as otherwise amended hereby, all of the terms and
provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Borrower, Lender and Account Holder have caused this
Amendment to be executed as of the day and year first above written.
BORROWER:
MEDICIS PHARMACEUTICAL CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Name: Xxxx X. Xxxxxxxx, Xx.
Title: Chief Financial Officer
LENDER:
NORWEST BANK ARIZONA, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Vice President
ACCOUNT HOLDER:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
a national banking association
By:
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Name:
Title:
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