exv10w2



 




Exhibit 10.2





AMENDED AND RESTATED SECURED PROMISSORY NOTE




			
	$4,000,000.00
	 	Phoenix, Arizona

September 27, 2005






     1. FOR VALUE RECEIVED, MATRIXX INITIATIVES, INC., a Delaware corporation (“Matrixx”), and
ZICAM, LLC, an Arizona limited liability company (“Zicam”, together with Matrixx, the “Makers”),
jointly and severally promise to pay to the order of COMERICA BANK, a Michigan banking corporation
(“Payee”), on or before the Revolving Loans Maturity Date, the principal sum of FOUR MILLION AND
NO/100 DOLLARS ($4,000,000.00), or such lesser sum as shall equal the aggregate outstanding
principal amount of the Revolving Loans made by Payee to Makers pursuant to the Agreement (as
defined below).



     2. Makers have previously entered that certain Revolving Promissory Note, dated as of May 29,
2002 (the “Prior Note”), and Makers and Payee have previously entered into that certain Credit
Agreement, dated as of May 29, 2002 (as amended to date, the “Prior Agreement”). Makers and Payee
desire to amend and restate the Prior Note in its entirety in accordance with the terms and
conditions of this Amended and Restated Secured Promissory Note (this “Note”).



     3. Makers promise to make principal reduction payments on the outstanding principal balance
hereof in the amounts and on the dates specified in the Agreement. Makers further promise to pay
interest from the date of this Note, in like money, on the aggregate outstanding principal amount
hereof at the rates and on the dates provided in the Agreement. All computations of interest shall
be in accordance with the provisions of the Agreement.



     4. Makers hereby authorize Payee to record in its books and records the date and amount of
each Loan, and of each payment of principal made by Makers, and Makers agree that all such
notations shall, in the absence of manifest error, be conclusive as to the matters so noted;
provided, however, any failure by Payee to make such notation with respect to any Loan or payment
thereof shall not limit or otherwise affect Makers’ obligations under the Agreement or this Note.



     5. Upon the occurrence and during the continuance of an Event of Default, in addition to and
not in substitution of any of Payee’s other rights and remedies with respect to such Event of
Default, the entire unpaid principal balance of the Loans shall bear interest at the Base Lending
Rate plus three hundred (300) basis points. In addition, interest, Expenses, the Fees, and other
amounts due hereunder not paid when due shall bear interest at the Base Lending Rate plus three
hundred (300) basis points until such overdue payment is paid in full.



     6. If any payment due hereunder, whether for principal, interest, or otherwise, is not paid on
or before the tenth (10th) day after the date such payment is due, in addition to and
not in substitution of any of Payee’s other rights and remedies with respect to such nonpayment,
Makers shall pay to Payee, a late payment fee (“Late Payment Fee”) equal to five percent (5%)
of the amount of such overdue payment. The Late Payment Fee shall be due and payable on the
eleventh (11th) day after the due date of the overdue payment with respect thereto.



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     7. Makers shall make all payments hereunder in lawful money of the United States of America
and in immediately available funds to Payee at Payee’s office located at Phelps Dodge Tower, 1
North Central Avenue, Suite 1000, Phoenix, Arizona 85004-4469, Attention: William J. Kirschner; or
to such other address as Payee may from time to time specify by notice to Makers in accordance with
the terms of the Agreement.



     8. In no event shall the interest rate and other charges hereunder exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a final determination,
deem applicable hereto. In the event that such a court determines that Payee has received interest
and other charges hereunder in excess of the highest rate applicable hereto, such excess shall be
deemed received on account of, and shall automatically be applied to reduce, the principal balance
hereof, and the provisions hereof shall be deemed amended to provide for the highest permissible
rate. If there is no principal balance outstanding, Payee shall refund to Makers such excess.



     9. This Note is the “Note” issued pursuant to that certain Amended and Restated Credit
Agreement, dated as of September 27, 2005 (as may be at any time hereafter amended, supplemented,
or otherwise modified or restated, the “Agreement”), by and among Makers, as Borrowers, and Payee,
and is governed by the terms thereof. Initially capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Agreement. The Agreement, among other
things, contains provisions for acceleration of the maturity of this Note upon the happening of
certain stated events and also for prepayments on account of principal of this Note prior to the
maturity hereof upon the terms and conditions specified in the Agreement. This Note and the Loans
evidenced hereby may be assigned or otherwise transferred in whole or in part by Payee pursuant to
the terms of the Agreement.



     10. This Note is secured by the Liens granted to Payee under the Loan Documents.



     11. Makers hereby waive presentment for payment, notice of dishonor, protest and notice of
protest.



     12. (a) THE VALIDITY OF THIS NOTE, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF,
AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED
HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF ARIZONA, WITHOUT REGARD FOR PRINCIPLES OF CONFLICTS OF LAWS.



          (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS NOTE
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF
MARICOPA, STATE OF ARIZONA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT PAYEE’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. MAKERS AND PAYEE WAIVE, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE




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DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT
TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12.




          (c) MAKERS AND PAYEE HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. MAKERS AND PAYEE REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE
EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.




     13. No Novation. Makers and Bank hereby agree that, effective upon the satisfaction or waiver
in writing by Bank of all conditions precedent set forth in Section 4.1 of the Agreement, this Note
shall amend, restate and supersede in its entirety the Prior Note. Nothing herein contained shall
be construed as a substitution or novation of the obligations of Makers outstanding under the Prior
Note, which obligations shall remain in full force and effect, except to the extent that the terms
thereof are modified hereby or by instruments executed concurrently herewith. Nothing expressed or
implied in this Note shall be construed as a release or other discharge of any Maker or any
guarantor from any of its obligations or liabilities under the Prior Note or any of the other
original Loan Documents except to the extent that the terms thereof are modified hereby or by
instruments executed concurrently herewith.



[signatures on next page]




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IN WITNESS WHEREOF, each Maker has duly executed this Note as of the date first above written.



	 	 	 	 	 	 
	 	 	MATRIXX INITIATIVES, INC., a Delaware corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ William Hemelt	 
	 

	 	 	 	 	 
	 

	 	Name:
	 	William Hemelt	 
	 

	 	Title:
	 	Executive Vice president, CFO, Treasurer
	 
	 	 	 	 	 
	 	 	ZICAM, LLC, an Arizona limited liability company
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ William Hemelt	 
	 

	 	 	 	 	 
	 

	 	Name:
	 	William Hemelt	 
	 

	 	Title:
	 	Manage	 









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Amended and Restated Security Agreement