**EXHIBIT 10.61**

 

EQUIPMENT TERM NOTE

 

$5,000,000                                          Vienna, Virginia

April 8, 2005

 

FORVALUE RECEIVED, the undersigned, MANUGISTICS GROUP, INC., a corporationorganized under the laws of the State of Delaware (the “Company”), andMANUGISTICS, INC., a corporation organized under the laws of the State ofDelaware (each a “Borrower” and collectively, the “Borrowers”) jointly andseverally promise to pay to the order of SILICON VALLEY BANK, aCalifornia-chartered bank, doing business in Virginia as “Silicon Valley East, Inc.”(“Bank”), at such place as the holder hereof may designate, in lawful money ofthe United States of America, the aggregate unpaid principal amount of allequipment advances (“Supplemental Equipment Advances”) made by Bank to anyBorrower in accordance with the terms and conditions of the Fifth Amendment toLoan Agreement by and among Borrowers and Bank of even date herewith, whichamends that certain Loan Agreement dated January 14, 2003 by and among theBorrowers and Bank (the Loan Agreement as amended from time to time the “LoanAgreement”), up to a maximum principal amount of Five Million Dollars($5,000,000) (“Principal Sum”), or so much thereof as may be advanced andremains unpaid.  Borrowers may requestSupplemental Equipment Advances under this Note from and until SupplementalEquipment Availability End Date.  Theunpaid Principal Sum, together with interest thereon at the rate or ratesprovided in the Loan Agreement, shall be payable as set forth in the LoanAgreement.

 

EachBorrower hereby represents, agrees and covenants that the Obligations evidencedhereby are deemed “Designated Senior Indebtedness” for purposes of that certainIndenture between the Company and State Street Bank and Trust Company dated October 20,2000, as the same may be amended, restated or otherwise modified from time totime.

 

ThisNote is the “Supplemental Equipment Term Note” described in the Loan Agreement,to which reference is hereby made for a more complete statement of the termsand conditions under which the loans and advances evidenced hereby are made.This Note is secured as provided in the Loan Agreement.  All capitalized terms used herein and nototherwise defined shall have the meanings given to such terms in the LoanAgreement.

 

EachBorrower irrevocably waives the right to direct the application of any and allpayments at any time hereafter received by Bank from or on behalf of anyBorrower and each Borrower irrevocably agrees that Bank shall have thecontinuing exclusive right to apply any and all such payments against the thendue and owing obligations of Borrowers as Bank may deem advisable.  In the absence of a specific determination byBank with respect thereto, all payments shall be applied in the following order:(a) then due and payable fees and expenses; (b) then due and payableinterest payments and mandatory prepayments; and (c) then due and payableprincipal payments and optional prepayments.

 

Bankis hereby authorized by Borrowers to endorse on Bank’s books and records eachSupplemental Equipment Advance made by Bank under this Note and the amount ofeach payment or prepayment of principal of each such Supplemental EquipmentAdvance received by Bank; it being understood, however, that failure to makeany such endorsement (or any error in notation) shall not affect the joint andseveral obligations of Borrowers with respect to Supplemental EquipmentAdvances made hereunder, and payments of principal by Borrowers shall becredited to Borrowers notwithstanding the failure to make a notation (or anyerrors in notation) thereof on such books and records.

 

Theoccurrence of any one or more of the following events shall constitute an eventof default (individually, an “Event of Default” and collectively, the “Eventsof Default”) under the terms of this Note:

 

(a)                                  The failure of Borrowers to pay to Bank whendue any and all amounts payable by Borrowers to Bank under the terms of thisNote and such failure shall continue for three (3) Business Days; or

 

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(b)                                 The occurrence of an Event of Default (as definedtherein) under the terms and conditions of any of the other Loan Documents.

 

Uponthe occurrence of an Event of Default, at the option of Bank, all amountspayable by Borrowers to Bank under the terms of this Note shall immediatelybecome due and payable by Borrowers to Bank without notice to Borrowers or anyother person, and Bank shall have all of the rights, powers, and remediesavailable under the terms of this Note, any of the other Loan Documents and allapplicable laws.  Borrowers and allendorsers, guarantors, and other Persons who may now or in the future beprimarily or secondarily liable for the payment of the indebtedness evidencedby this Note hereby severally waive presentment, protest and demand, notice ofprotest, notice of demand and of dishonor and non-payment of this Note andexpressly agree that this Note or any payment hereunder may be extended fromtime to time without in any way affecting the joint and several liability ofBorrowers, guarantors and endorsers.

 

Untilsuch time as Bank is not committed to extend further credit to the Borrowersand all Obligations of the Borrowers to Bank have been indefeasibly paid infull in cash, and subject to and not in limitation of the provisions set forthin the next following paragraph below, no Borrower shall have any right ofsubrogation (whether contractual, arising under the bankruptcy code orotherwise), reimbursement or contribution from any Borrower or any guarantor,nor any right of recourse to its security for any of the debts and obligationsof any Borrower which are the subject of this Note.  Except as otherwise expressly permitted bythe Loan Agreement, any and all present and future debts and obligations of anyBorrower to any other Borrower are hereby subordinated to the full payment andperformance of all present and future debts and obligations to Bank under thisNote and the Loan Agreement and the Loan Documents, provided, however,notwithstanding anything set forth in this Note to the contrary, prior to theoccurrence of a payment default, the Borrowers shall be permitted to makepayments on account of any of such present and future debts and obligationsfrom time to time in accordance with the terms thereof.

 

EachBorrower further agrees that, if any payment made by any Borrower or any otherperson is applied to this Note and is at any time annulled, set aside,rescinded, invalidated, declared to be fraudulent or preferential or otherwiserequired to be refunded or repaid, or the proceeds of any property hereaftersecuring this Note is required to be returned by Bank to any Borrower, itsestate, trustee, receiver or any other party, including, without limitation,such Borrower, under any bankruptcy law, state or federal law, common law orequitable cause, then, to the extent of such payment or repayment, suchBorrower’s liability hereunder (and any lien, security interest or othercollateral securing such liability) shall be and remain in full force andeffect, as fully as if such payment had never been made, or, if prior thereto anysuch lien, security interest or other collateral hereafter securing suchBorrower’s liability hereunder shall have been released or terminated by virtueof such cancellation or surrender, this Note (and such lien, security interestor other collateral) shall be reinstated in full force and effect, and suchprior cancellation or surrender shall not diminish, release, discharge, impairor otherwise affect the obligations of such Borrower in respect of the amountof such payment (or any lien, security interest or other collateral securingsuch obligation).

 

TheJOINT AND SEVERAL obligations of each Borrower under this Note shall beabsolute, irrevocable and unconditional and shall remain in full force andeffect until the outstanding principal of and interest on this Note and allother Obligations or amounts due hereunder and under the Loan Agreement and theLoan Documents shall have been indefeasibly paid in full in cash in accordancewith the terms thereof and this Note shall have been canceled.

 

TheBorrowers each shall be jointly and severally liable on the payment of theObligations as and when due and payable in accordance with the provisions ofthis Note, the Loan Agreement and the other Loan Documents.  The term “Borrowers” when used in this Noteshall include all of the Borrowers, individually and jointly, and Bank may(without notice to or consent of any or all of the Borrowers and with orwithout consideration) release, compromise, settle with, proceed against any orall of the Borrowers without affecting, impairing, lessening or releasing theobligations of the other Borrower hereunder.

 

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EachBorrower promises to pay all costs and expense of collection of this Note andto pay all reasonable attorneys’ fees incurred in such collection, whether or notthere is a suit or action, or in any suit or action to collect this Note or inany appeal thereof. No delay by Bank in exercising  any power or right hereunder shall operate asa waiver of any power or right.  Time isof the essence as to all obligations hereunder.

 

ThisNote is issued pursuant to the Loan Agreement, which shall govern the rightsand obligations of Borrowers with respect to all obligations hereunder.

 

EachBorrower acknowledges and agrees that this Note shall be governed by the lawsof the Commonwealth of Virginia, excluding conflicts of laws principles, eventhough for the convenience and at the request of Borrowers, this Note may beexecuted elsewhere.

 

EACHBORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, UNCONDITIONALLY,THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENTJURISDICTION IN THE COMMONWEALTH OF VIRGINIA IN ANY ACTION, SUIT, OR PROCEEDINGOF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS AGREEMENT;  PROVIDED, HOWEVER, THAT IF FOR ANY REASONBANK CANNOT AVAIL ITSELF OF THE COURTS OF VIRGINIA, EACH BORROWER ACCEPTSJURISDICTION OF THE COURTS AND VENUE IN SANTA CLARA COUNTY, CALIFORNIA.  BORROWERS AND BANK EACH HEREBY WAIVE THEIRRESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON ORARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONSCONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTYCLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.  EACH PARTY RECOGNIZES AND AGREES THAT THEFOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THISAGREEMENT.  EACH PARTY REPRESENTS ANDWARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLYAND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGALCOUNSEL.

 

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INWITNESS WHEREOF, Borrowers have caused this Note to be executed under seal bytheir duly authorized officers as of the date first written above.

 
| WITNESS/ATTEST: |   | MANUGISTICS GROUP, INC. |
|-----------------|--------|-------------------------|
|            |   |                    |
|            |   |                    |
|            |   |                    |   | By: |   | (SEAL) |
|            | Name:  |                    |
|            | Title: |                    |
|            |   |                    |
| WITNESS/ATTEST: |   | MANUGISTICS, INC.       |
|            |   |                    |
|            |   |                    |
|            |   |                    |   | By: |   | (SEAL) |
|            | Name:  |                    |
|            | Title: |                    |
|                 |        |                         |  |  |  |  |  |

 

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