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Exhibit 10.77
FIRST AMENDMENT
TO
SECURITIES ACCOUNT PLEDGE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECURITIES ACCOUNT PLEDGE AND SECURITY AGREEMENT
(the "Amendment") is made as of the 22nd day of November, 1998 by and between
MEDICIS PHARMACEUTICAL CORPORATION, a Delaware corporation ("Borrower"), and
NORWEST BANK ARIZONA, NATIONAL ASSOCIATION, a national banking association
(Lender").
W I T N E S S E T H:
WHEREAS, Borrower and Lender are parties to that certain 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 "Security Agreement"), pursuant to which
Borrower pledged and granted to Lender a security interest in and to all of
Borrower's right, title and interest in and to the Securities Account and all
financial assets now or hereafter held in the Securities Account and all
security entitlements in connection therewith, to secure the payment and
performance of Borrower obligations to Lender pursuant to that certain Credit
and Security Agreement dated as of August 3, 1995, as amended (the "Credit
Agreement");
WHEREAS, Borrower and Lender intend to increase the Acquisitions Credit
Facility to $25,000,000 and extend the term of 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 has requested that Lender amend the Security Agreement
to amend Borrower's covenant to maintain a certain minimum amount of Collateral
in the Securities Account;
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 and
Lender hereby agree as follows:
1. Definitions. Except as otherwise defined herein, all capitalized terms
used herein shall have the meanings ascribed thereto in the Credit Agreement.
2. Right to Direct Account Holder. Section 3 of the Agreement is hereby
deleted in its entirety and the following inserted therefor:
3. Right to Direct Account Holder. Provided that no Default or Event
of Default has occurred and is continuing, Borrower may effect Entitlement
Orders, withdrawals, investment requests or directions to the Account
Holder with respect to the
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Securities Collateral from time to time, provided that any such
Entitlement Order, withdrawal, investment request or direction shall be
made in strict accordance with the Investment Agreement and the Medicis
Pharmaceutical Corporation Corporate Investment Policy, a copy of which is
attached as Exhibit "A" to the Acknowledgment of Control of Pledged
Securities Account of even date herewith among Borrower, Lender and
Account Holder (the "Acknowledgment"), and, provided, further, before and
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
and will continue to be .75:1.0 or less. Notwithstanding anything to the
contrary in the Acknowledgment, in the event that Account Holder elects to
resign as investment advisor and custodian under the Investment Agreement,
Borrower may select a successor Account Holder, subject to the reasonable
approval of Lender (and provided that such successor Account Holder enters
into an investment management or custodial agreement and an acknowledgment
of control of pledged securities account agreement in substantially the
form of the Acknowledgment), and Lender will notify Account Holder of such
election and authorize Account Holder to pay over or deliver to such
successor Account Holder any documents, instruments, certificates and
securities with respect to the Securities Account.
3. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Arizona.
4. 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 facsimile copy of this
Amendment from the other party.
5. Successors and Assigns. This Amendment shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns.
6. Amendment. Except as otherwise amended hereby, all of the terms and
provisions of the Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, Borrower and Lender 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
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