**EXHIBIT 10.60**

 

SECOND AMENDED AND RESTATED REVOLVINGPROMISSORY NOTE

 
| $15,000,000 | McLean, Virginia    |
|-------------|---------------------|
|        | March 29, 2005 |

 

FORVALUE RECEIVED, MANUGISTICS GROUP, INC., a corporation organized under the lawsof the State of Delaware (the “Company”), and MANUGISTICS, INC., a corporationorganized under the laws of the State of Delaware (each a “Borrower” andcollectively, the “Borrowers”) jointly and severally promise to pay to theorder of SILICON VALLEY BANK, a California-chartered bank doing business inVirginia as “Silicon Valley East” (“Bank”), at such place as the holder hereofmay designate, in lawful money of the United States of America, the aggregateunpaid principal amount of all advances (“Advances”) made by Bank to anyBorrower in accordance with the terms and conditions of the Loan Agreementamong Borrowers and Bank dated January 14, 2003 (as amended from time totime, the “Loan Agreement”), up to a maximum principal amount of FifteenMillion Dollars ($15,000,000) (“Principal Sum”), or so much thereof as may beadvanced or readvanced and remains unpaid. Borrowers shall also pay interest on the aggregate unpaid principalamount of such Advances, as follows:

 

Commencing as of the date hereof and continuinguntil repayment in full of all sums due hereunder, the unpaid Principal Sumshall bear interest at the variable rate of interest, per annum, equal to thePrime Rate (as defined below) plus one half of one percent (.50%) per annum,provided, however, if Borrowers have net income of $1.00 or more in any fiscalquarter then the rate of interest applicable to this Note shall commencing asof the first day of the following quarter be reduced to the Prime Rate.  The rate of interest charged under this Noteshall change immediately and contemporaneously with any change in the PrimeRate.  All interest payable under theterms of this Note shall be calculated on the basis of a 360-day year and theactual number of days elapsed.  As usedherein, the “Prime Rate” shall mean Bank’s most recently announced “prime rate,”even if it is not Bank’s lowest rate.

 

The unpaid Principal Sum, together with interestthereon at the rate or rates provided above, shall be payable as follows:

 

(a)           Interest only on the unpaid principal amountshall be due and payable monthly in arrears, commencing April 5, 2005, andcontinuing on the fifth (5th) day of each calendar month thereafter tomaturity; and

 

(b)           Unless sooner paid, the unpaid Principal Sum,together with interest accrued and unpaid thereon, shall be due and payable infull on the Revolving Maturity Date.

 

The fact that the balance hereunder may be reducedto zero from time to time pursuant to the Loan Agreement will not affect thecontinuing validity of this Note or the Loan Agreement, and the balance may beincreased to the Principal Sum after any such reduction to zero.

 

Each Borrower hereby represents, agrees andcovenants that the Obligations evidenced hereby are deemed “Designated SeniorIndebtedness” for purposes of that certain Indenture between the Company andState Street Bank and Trust Company dated October 20, 2000, as the samemay be amended, restated or otherwise modified from time to time.

 

This Note is the “Revolving Promissory Note”described in the Loan Agreement, to which reference is hereby made for a morecomplete statement of the terms and conditions under which the Advances andCredit Extensions evidenced hereby are made. The indebtedness evidenced by thisNote amends and restates in its entirety that certain Amended and RestatedRevolving Promissory Note dated as of March     , 2004(the “Prior Note”) in the maximum principal amount of Fifteen Million Dollars($15,000,000) from the Borrower in favor of the Bank, as amended prior to thedate hereof.  It is expressly agreed thatthe indebtedness evidenced by the Prior Note has not been extinguished ordischarged hereby.  The Borrower agreesthat the execution of and delivery of this Note is not intended to and shallnot cause or result in a novation with respect to the Prior Note.  This Note may be secured as

 

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providedin the Loan Agreement.  All capitalizedterms used herein and not otherwise defined shall have the meanings given tosuch terms in the Loan Agreement.

 

Each Borrower irrevocably waives the right to directthe application of any and all payments at any time hereafter received by Bankfrom or on behalf of any Borrower and each Borrower irrevocably agrees thatBank shall have the continuing exclusive right to apply any and all suchpayments against the then due and owing obligations of either Borrower as Bankmay deem advisable.  In the absence of aspecific determination by Bank with respect thereto, all payments shall beapplied in the following order: (a) then due and payable fees andexpenses; (b) then due and payable interest payments and mandatoryprepayments; and (c) then due and payable principal payments and optionalprepayments.

 

Bank is hereby authorized by each Borrower toendorse on Bank’s books and records each Advance made by Bank under this Noteand the amount of each payment or prepayment of principal of each such Advancereceived by Bank; it being understood, however, that failure to make any suchendorsement (or any error in notation) shall not affect the joint and severalobligations of each Borrower with respect to Advances made hereunder, andpayments of principal by any Borrower shall be credited to Borrowersnotwithstanding the failure to make a notation (or any errors in notation)thereof on such books and records.

 

The occurrence of any one or more of the followingevents shall constitute an event of default (individually, an “Event of Default”and collectively, the “Events of Default”) under the terms of this Note:

 

(a)           The failure of either Borrower to pay to Bankwithin three (3) Business Days of when due any and all amounts payable byeither Borrower to Bank under the terms of this Note; or

 

(b)           The occurrence of an Event of Default (asdefined therein) under the terms and conditions of any of the other LoanDocuments.

 

Upon the occurrence of an Event of Default, at theoption of Bank, all amounts payable by either Borrower to Bank under the termsof this Note shall immediately become due and payable by Borrowers to Bankwithout notice to any Borrower or any other Person, and Bank shall have all ofthe rights, powers, and remedies available under the terms of this Note, any ofthe other Loan Documents and all applicable laws.  Each Borrower and all endorsers, guarantors,and other parties who may now or in the future be primarily or secondarilyliable for the payment of the indebtedness evidenced by this Note herebyseverally waive presentment, protest and demand, notice of protest, notice ofdemand and of dishonor and non-payment of this Note and expressly agree thatthis Note or any payment hereunder may be extended from time to time without inany way affecting the joint and several liability of Borrowers, guarantors andendorsers.

 

Until such time as Bank is not committed to extendfurther credit to the Borrowers and all Obligations of the Borrowers to Bankhave been indefeasibly paid in full in cash, and subject to and not inlimitation of the provisions set forth in the next following paragraph below,no Borrower shall have any right of subrogation (whether contractual, arisingunder the bankruptcy code or otherwise), reimbursement or contribution from anyBorrower or any guarantor, nor any right of recourse to its security for any ofthe debts and obligations of any Borrower which are the subject of thisNote.  Except as otherwise expresslypermitted by the Loan Agreement, any and all present and future debts andobligations of any Borrower to any other Borrower are hereby subordinated tothe full payment and performance of all present and future debts andobligations to Bank under this Note and the Loan Agreement and the LoanDocuments, provided, however, notwithstanding anything set forth in this Noteto the contrary, prior to the occurrence of a payment default, the Borrowersshall be permitted to make payments on account of any of such present andfuture debts and obligations from time to time in accordance with the termsthereof.

 

Each Borrower further agrees that, if any paymentmade by any Borrower or any other person is applied to this Note and is at anytime annulled, set aside, rescinded, invalidated, declared to be fraudulent orpreferential or otherwise required to be refunded or repaid, or the proceeds ofany property hereafter securing this Note is required to be returned by Bank toany Borrower, its estate, trustee, receiver or any other party, including,without limitation,

 

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suchBorrower, 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 theretoany such 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).

 

The JOINT AND SEVERAL obligations of each Borrowerunder this Note shall be absolute, irrevocable and unconditional and shallremain in full force and effect until the outstanding principal of and intereston this Note and all other Obligations or amounts due hereunder and under theLoan Agreement and the Loan Documents shall have been indefeasibly paid in fullin cash in accordance with the terms thereof and this Note shall have beencanceled.

 

The Borrowers each shall be jointly and severallyliable on the payment of the Obligations as and when due and payable inaccordance with the provisions of this Note, the Loan Agreement and the otherLoan Documents.  The term “Borrowers”when used in this Note shall include all of the Borrowers, individually andjointly, and Bank may (without notice to or consent of any or all of theBorrowers and with or without consideration) release, compromise, settle with,proceed against any or all of the Borrowers without affecting, impairing,lessening or releasing the obligations of the other Borrower hereunder.

 

Each Borrower promises to pay all costs and expenseof collection of this Note and to pay all reasonable attorneys’ fees incurredin such collection, whether or not there is a suit or action, or in any suit oraction to collect this Note or in any appeal thereof.  Each Borrower waives presentment, demand,protest, notice of protest, notice of dishonor, notice of nonpayment, and anyand all other notices and demands in connection with the delivery, acceptance,performance default or enforcement of this Note, as well as any applicable statutesof limitations.  No delay by Bank inexercising any power or right hereunder shall operate as a waiver of any poweror right.  Time is of the essence as toall obligations hereunder.

 

This Note is issued pursuant to the Loan Agreement,which shall govern the rights and obligations of Borrowers with respect to allobligations hereunder.

 

Each Borrower acknowledges and agrees that this Noteshall be governed by the laws of the Commonwealth of Virginia, excludingconflicts of laws principles, even though for the convenience and at therequest of Borrowers, this Note may be executed elsewhere.

 

EACH BORROWER ACCEPTS FOR ITSELF AND IN CONNECTIONWITH ITS PROPERTIES, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANYSTATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH OFVIRGINIA IN ANY ACTION, SUIT, OR PROCEEDING OF ANY KIND, AGAINST IT WHICHARISES OUT OF OR BY REASON OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OFTHE COURTS OF VIRGINIA, EACH BORROWER ACCEPTS JURISDICTION OF THE COURTS ANDVENUE IN SANTA CLARA COUNTY, CALIFORNIA. BORROWERS AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURYTRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THELOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDINGCONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAWOR STATUTORY CLAIMS.  EACH PARTYRECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIALINDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITHITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIALRIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

 

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[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

 

IN WITNESS WHEREOF, each Borrower has caused thisNote to be executed under seal by its duly authorized officers as of the datefirst written above.

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

 

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