SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported)
February 22, 2008
Evolving
Systems, Inc.
(Exact name of
registrant as specified in its charter)
Delaware
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0-24081
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84-1010843
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9777 Pyramid Court, Suite 100
Englewood, Colorado 80112
(Address of principal executive offices)
Registrants telephone number, including area code (303) 802-1000
N/A
Former Name or Former Address, if Changed Since Last Report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
a. Debt Restructure.
On February 22, 2008, Evolving Systems, Inc. (Evolving Systems or Company) and certain of its subsidiaries, as borrowers and/or guarantors, entered into a series of agreements with Bridge Bank N.A. (Bridge Bank) for the extension of a U.S. term loan facility in the amount of $4.0 million (the U.S. Term Loan), a U.S. revolving credit facility in the amount of $1.0 million (the U.S. Revolving Facility), and a United Kingdom revolving credit facility in the amount of $5.0 million (the U.K. Revolving Facility).
In connection with the U.S. Term Loan and the U.S. Revolving Facility, Evolving Systems entered into a Loan and Security Agreement and an Intellectual Property Security Agreement with Bridge Bank, whereby the U.S. Term Loan and the U.S. Revolving Facility are secured by substantially all of the assets of Evolving Systems, including a pledge, subject to certain limitations with respect to stock of foreign subsidiaries, of the stock of the existing and future direct subsidiaries of Evolving Systems.
In connection with the U.K. Revolving Facility: (a) Evolving Systems Ltd. entered into a Loan Agreement and a Debenture with Bridge Bank whereby the U.K. Revolving Facility is secured by substantially all of the assets of Evolving Systems Ltd.; (b) Evolving Systems Holdings Ltd. entered into an Unconditional Guaranty in favor of Bridge Bank to guarantee the obligations of Evolving Systems Ltd. under the U.K. Revolving Facility, which Unconditional Guaranty is secured by the entire issued share capital of Evolving Systems Ltd. pursuant to a Charge over Shares between Evolving Systems Holding Ltd. and Bridge Bank; and (c) Evolving Systems entered into an Unconditional Guaranty in favor of Bridge Bank to guarantee the obligations of Evolving Systems Ltd. under the U.K. Revolving Facility, which Unconditional Guaranty is secured by substantially all of the assets of Evolving Systems, including a pledge, subject to certain limitations with respect to stock of foreign subsidiaries, of the stock of the existing and future direct subsidiaries of Evolving Systems.
A further description of the above agreements is contained in Item 2.03 of this Current Report on Form 8-K and incorporated herein by reference.
In connection with the U.S. Term Loan and the U.S. and U.K. Revolving Facilities, Evolving Systems entered into a new subordination agreement (the Subordination Agreement) with Bridge Bank and the current holders of the notes issued by Evolving Systems in connection with its November 2, 2004 acquisition of Tertio Telecoms Ltd. (the Subordinated Note Holders). Evolving Systems also entered into a master amendment to subordinated notes (the Subordinated Notes Amendment) with such Subordinated Note Holders to, among other things, give effect to the new subordination arrangement with Bridge Bank.
On February 22, 2008, Evolving Systems paid $272,000 to retire $279,000 of subordinated debt and related accrued interest held by two of its Subordinated Note Holders. The retirements included principal of $217,000 and accrued interest of $62,000. The $7,000 gain on extinguishment of this debt will be reflected within the Companys other income (expense) on the 2008 consolidated statement of operations. On February 22, 2008, Evolving Systems also paid $728,000 in accrued interest to the remaining Subordinated Note Holders.
b. Standstill Agreement.
On February 25, 2008, Evolving Systems entered into a Standstill Agreement (the Standstill Agreement) with Karen Singer, Trustee of the Singer Childrens Management Trust (the Stockholder). The following is a brief description of the Standstill Agreement. This description is not intended to be complete and is qualified in its entirety by the Standstill Agreement which is included as Exhibit 10.2 to this Form 8-K.
Pursuant to the Standstill Agreement, Evolving Systems and the Stockholder agreed that during a period commencing upon appointment of the Singer Nominees (as described below) and ending 18 months
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thereafter (the Standstill Period) no member of the Singer Group, as defined in the Standstill Agreement, shall, without the prior written consent of Evolving Systems, directly or indirectly, solicit, request, advise, assist or encourage others (other than exercising their rights to vote their respective Shares at an annual or special meeting of the stockholders of Evolving Systems, in each instance in compliance with the terms of the Standstill Agreement), to
(a) effect, seek or offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way solicit or assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,
(i) any acquisition of any assets of the Company or any of its subsidiaries;
(ii) any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries;
(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries; or
(iv) any solicitation of proxies (as such terms are used in the proxy rules promulgated by the SEC) or consent to vote any voting securities of the Company;
(b) form, join, encourage, influence, advise or in any way participate in a group (as defined under the Exchange Act);
(c) except as otherwise expressly provided in the Standstill Agreement, otherwise act, alone or in concert with others, to seek to control or influence the management, the Board or policies of the Company;
(d) except as provided in the Standstill Agreement, nominate any person as a director of the Company or propose any matter to be voted on by stockholders of the Company; or
(e) take any action which would reasonably be expected to force the Company to make a public announcement regarding any types of matters set forth in (a) above; or
(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.
Notwithstanding the foregoing provisions, if any third party or third parties (collectively, a Third Party) other than as a result of the direct or indirect solicitation, request, advice, assistance or encouragement of any member of the Singer Group, effects, seeks or offers or proposes to effect, seek or offers or participates in, or in any way assists any other person, to effect, seek, offer, propose or participate in, any of the acts or activities described in (i) through (iv) above (the Activities), then, so long as any member of the Singer Group provides at least 15 calendar days advance notice to the Chief Executive Officer of the Company of such members intention to communicate with the Third Party or the Board of the Company, such member of the Singer Group shall be free to communicate directly with the Board of Evolving Systems and/or such Third Party on a confidential, non-public basis in all respects about the Activities, including, without limitation, either in support of or in opposition to the Activities.
Share Acquisition. Immediately following execution of the Standstill Agreement, the Stockholder purchased 500,000 shares of common stock resulting from the conversion of Series B Redeemable Convertible Preferred Stock of Evolving Systems (the Share Acquisition).
Waiver of Section 203 of the Delaware General Corporation Law. Evolving Systems represented that its Board had taken all actions necessary to render inapplicable the provisions of Section 203 of the General Corporation Law of the State of Delaware (Section 203), as it related to the Share Acquisition, provided that the Singer Group would beneficially own less than 20% of the outstanding shares of Evolving Systems. The waiver of Section 203 will no longer be applicable if, subsequent to becoming an interested stockholder (as defined in Section 203), the Singer Group no longer has beneficial ownership of 15% or more of the voting capital stock of Evolving Systems as a result of any sale or disposition of beneficial ownership of such stock.
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Voting Agreement. The Singer Group agreed that during the Standstill Agreement the Singer Group would vote its shares in favor of the Companys nominees for directors.
Expansion of Board; Appointment of Singer Nominees. The Board of Directors of Evolving Systems agreed to expand the size of the Board from 7 to 9 members and to appoint two individuals nominated by the Singer Group (the Singer Nominees) to serve on the Board. Subject to each Singer Nominee meeting the Boards qualification requirements and meeting the NASDAQ requirements for independence, one of the Singer Nominees will be appointed to serve in the Class of Directors whose term expires at the 2008 Annual Meeting of Stockholders; the Board of Directors agreed to nominate this individual for re-election at the 2008 Annual Meeting of Stockholders. The second Singer Nominee will be appointed to serve until the 2010 Annual Meeting of Stockholders.
Item 1.02 Termination of a Material Definitive Agreement.
On February 22, 2008, Evolving Systems terminated the $8.5 million senior term loan (the CapitalSource Senior Term Loan) and $4.5 million senior revolving credit facility (the CapitalSource Senior Revolving Credit Facility) with CapitalSource LLC, as Agent (CapitalSource). Neither Evolving Systems nor any of its subsidiaries incurred any early termination penalties.
The $8.5 million CapitalSource Senior Term Loan bore interest at LIBOR plus an applicable margin. The LIBOR rate varied, but could be no less than 3.75% and the applicable margin was 5.25% at February 22, 2008. The CapitalSource Senior Term Loan was secured by substantially all of the assets of Evolving Systems and its U.S. subsidiaries, including a pledge, subject to certain limitations, of stock of the foreign subsidiaries of Evolving Systems. The CapitalSource Senior Term Loan required quarterly principal and monthly interest payments through October 2010. If the Company was in compliance with all financial covenants, no events of default had occurred, and certain minimum liquidity conditions were met, early payment was allowed. The principal balance due and paid on February 22, 2008 was approximately $3,794,000; interest accrued through February 22, 2008 was approximately $20,000.
The $4.5 million CapitalSource Senior Revolving Facility bore interest at LIBOR plus 4.0%. The LIBOR rate varied, but could be no less than 3.75%. The CapitalSource Senior Revolving Facility was secured by substantially all of the assets of Evolving Systems Holdings Ltd. and Evolving Systems Limited. Borrowings under the CapitalSource Senior Revolving Facility were limited to a multiple of the Companys EBITDA, as defined, less the balance of the CapitalSource Senior Term Loan, described above. The multiple ranged from 2.50 in the first year to 1.75 in the fourth year. The agreement mandated an initial borrowing of $2.0 million. The CapitalSource Senior Revolving Facility required monthly payments of interest and fees, with the unpaid balance due in October 2010. Evolving Systems and its U.S. subsidiaries executed a secured Guaranty of the CapitalSource Senior Revolving Facility. On February 22, 2008, the principal and accrued interest balances due and paid to CapitalSource under the CapitalSource Senior Revolving Facility were approximately $2,000,000 and $9,000, respectively.
The CapitalSource Senior Term Loan and Senior Revolving Facility included negative covenants that placed restrictions on the Companys ability to: incur additional indebtedness; create liens or other encumbrances on assets; make loans, enter into letters of credit, guarantees, investments and acquisitions; sell or otherwise dispose of assets; declare dividends; cause or permit a change of control; merge or consolidate with another entity; change its method of accounting and record keeping; make negative pledges; make capital expenditures; and change the nature of its business materially. The CapitalSource Senior Term Loan and Senior Revolving Facility also included financial covenants that required the Company to maintain a specified ratio of debt to EBITDA, as defined; minimum EBITDA for the trailing twelve months; and ratio of fixed charges, as defined, to EBITDA.
Outstanding amounts under the CapitalSource Senior Term Loan and Senior Revolving Facility could have been accelerated by notice from CapitalSource upon the occurrence and continuance of certain events of default, including: payment defaults, breach of covenants beyond applicable grace periods, and breach of representations and warranties.
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The foregoing descriptions are qualified in their entirety by reference to our Current Reports on Form 8-K dated November 14, 2005, and July 7, 2006 and incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation.
On February 22, 2008, Evolving Systems entered into a $4.0 million U.S. Term Loan bearing interest at a fixed rate of 8.25% per annum and a $1.0 million U.S. Revolving Facility bearing interest at Prime Rate plus 0.5% with Bridge Bank. Evolving Systems paid a one-time facility fee of $25,000 upon the closing of the U.S. Term Loan and U.S. Revolving Facility. The U.S. Term Loan and U.S. Revolving Facility are secured by substantially all of the assets of Evolving Systems, including a pledge, subject to certain limitations with respect to stock of foreign subsidiaries, of the stock of existing and future direct subsidiaries of Evolving Systems. The U.S. Term Loan is payable in 24 equal monthly installments of principal, plus all accrued interest, beginning in March 2008, and continuing through the term loan maturity date of February 22, 2010. The Company may prepay the U.S. Term Loan at any time subject to a prepayment premium equal to (i) 1.5% of the prepaid principal amount if the prepayment occurs on or prior to February 22, 2009, and (ii) 1% of the prepaid principal amount if the prepayment takes place during the period beginning on February 23, 2009 through August 22, 2009. Borrowings under the U.S. Revolving Facility are limited to 80% of eligible accounts receivable of Evolving Systems and 100% of unrestricted cash and cash equivalents of Evolving Systems and its U.S. subsidiaries (if any). There is no mandated borrowing required against the U.S. Revolving Facility. The U.S. Revolving Facility requires monthly payments of interest, with the unpaid balance due on February 22, 2011. The U.S. Revolving Facility has a $500,000 combined sublimit for letters of credit and certain foreign exchange transactions, including foreign exchange services.
On February 22, 2008, Evolving Systems Ltd. entered into a $5.0 million U.K. Revolving Facility with Bridge Bank, bearing interest at the Prime Rate plus 0.5%. Evolving Systems Ltd. paid a one-time facility fee of $25,000 upon the closing of the U.K. Revolving Facility. The U.K. Revolving Facility is secured by substantially all of the assets of Evolving Systems Ltd. Borrowings under the U.K. Revolving Facility are limited to 80% of eligible accounts receivable of Evolving Systems and Evolving Systems Ltd. and 100% of unrestricted cash and cash equivalents of Evolving Systems and its U.S. Subsidiaries (if any), Evolving Systems Ltd. and any other subsidiaries of Evolving Systems that are incorporated, organized or formed in England & Wales. There are no mandated borrowings under the U.K. Revolving Facility. The U.K. Revolving Facility requires monthly payments of interest, with the unpaid balance due on February 22, 2011. The U.S. Revolving Facility has a $500,000 sublimit for letters of credit and a $500,000 sublimit for certain foreign exchange transactions, including foreign exchange services. Evolving Systems Holdings Ltd. executed an Unconditional Guaranty of the U.K. Revolving Facility which is secured by the entire issued share capital of Evolving Systems Ltd. pursuant to a Charge over Shares between Evolving Systems Holdings Ltd. and Bridge Bank. Evolving Systems executed an Unconditional Guaranty of the U.K. Revolving Facility which is secured by substantially all of the assets of Evolving Systems, including a pledge, subject to certain limitations with respect to stock of foreign subsidiaries, of the stock of existing and future direct subsidiaries of Evolving Systems.
Evolving Systems Holdings, Inc. is not providing any credit support for the U.S. Term Loan or the U.S. or U.K. Revolving Facilities and will be merged with and into Evolving Systems pursuant to a post-closing covenant contained in the Loan and Security Agreement for the U.S. Term Loan.
The U.S. Term Loan and U.S. and U.K. Revolving Facilities include negative covenants that place restrictions on the Companys ability to, among other things: incur additional indebtedness; create liens or other encumbrances on assets; make loans, enter into letters of credit, guarantees, investments and acquisitions; sell or otherwise dispose of assets; declare dividends; cause or permit a change of control; merge or consolidate with another entity; make negative pledges; enter into affiliate transactions; and change the nature of its business materially. The U.S. Term Loan and U.S. and U.K. Revolving Facilities also include financial covenants that require the Company to maintain a specified ratio of debt to EBITDA,
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as defined; minimum EBITDA for the trailing twelve months; minimum liquidity; and ratio of fixed charges, as defined, to EBITDA.
Outstanding amounts under the U.S. Term Loan and U.S. and U.K. Revolving Facilities may be accelerated by notice from Bridge Bank upon the occurrence and continuance of certain events of default, including without limitation: payment defaults, breach of covenants beyond applicable grace periods, breach of representations and warranties, bankruptcy and insolvency defaults, and the occurrence of a material adverse effect (as defined). Acceleration is automatic upon the occurrence of certain bankruptcy and insolvency defaults.
Text of Agreements . The full text of the U.S. Term Loan, and the U.S. and U.K. Revolving Facilities, as well as ancillary agreements are attached as Exhibits 10.1(a) through 10.1(g) to this Current Report on Form 8-K. The foregoing descriptions are qualified in their entirety by reference to such exhibits.
Evolving Systems applied the $4.0 million in proceeds from the U.S. Term Loan to the outstanding CapitalSource Senior Term Loan balance of approximately $3.8 million and to payment of certain transaction costs. Additionally, Evolving Systems used approximately $3.0 million in existing cash to retire the outstanding balance of $2.0 million on the CapitalSource Senior Revolving Facility and to pay down $1.0 million on its Subordinated Notes. The Subordinated Notes are subordinated to the U.S. Term Loan and U.S. and U.K. Revolving Facilities in accordance with the terms of the Subordination Agreement and the Subordinated Notes, as amended by the Subordinated Notes Amendment. Principal and interest on the Subordinated Notes are due in May 2011.
The Subordinated Notes include negative covenants that place restrictions on Evolving Systems ability to: incur additional indebtedness; create liens or other encumbrances on assets; make loans, enter into letters of credit, guarantees, investments and acquisitions; sell or otherwise dispose of assets; declare dividends; cause or permit a change of control; merge or consolidate with another entity; change its method of accounting and record keeping; make negative pledges; make capital expenditures; and change the nature of its business materially. The Subordinated Notes also include a financial covenant requiring Evolving Systems to maintain a specified ratio of debt to EBITDA, as defined.
Outstanding amounts under the Subordinated Notes may be accelerated by notice from the Subordinated Note Holders upon the occurrence and continuance of certain events of default, including: payment defaults, breach of covenants beyond applicable grace periods, and breach of representations and warranties. Certain clauses, however, are not in effect until the U.S. Term Loan and U.S. and U.K. Revolving Facilities are paid.
Text of Agreements . The full text of the Subordination Agreement and Subordinated Notes Amendment are attached as Exhibits 10.1(h) and 10.1(i), respectively, to this Current Report on Form 8-K. The full text of the form of Subordinated Note was attached as Exhibit 10.1(k) to our Form 8-K dated November 14, 2005 . The foregoing descriptions are qualified in their entirety by reference to such exhibits.
Item 8.01 Other Events.
On February 25, 2008, holders of 461,758 shares of Series B Preferred Stock with a carrying value of $5.4 million, or approximately 96% of the outstanding preferred stock, converted their shares of preferred stock into 1,385,274 shares of our common stock in accordance with the conversion provisions of the Series B Preferred Stock.
Item 9.01 Financial Statements and Exhibits
Exhibit
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Description |
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10.1(a) |
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Loan and Security Agreement between Evolving Systems, Inc. and Bridge Bank, N.A. |
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10.1(b) |
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Intellectual Property Security Agreement between Evolving Systems, Inc. and Bridge Bank, N.A. |
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10.1(c) |
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Loan Agreement between Evolving Systems Ltd. and Bridge Bank, N.A. |
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10.1(d) |
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Debenture between Evolving Systems Ltd. and Bridge Bank, N.A. |
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10.1(e) |
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Unconditional Guaranty by Evolving Systems Holdings Ltd. in favor of Bridge Bank, N.A. |
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10.1(f) |
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Charge Over Shares between Evolving Systems Holdings Ltd. and Bridge Bank, N.A. |
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10.1(g) |
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Unconditional Guaranty by Evolving Systems, Inc. in favor of Bridge Bank, N.A. |
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10.1(h) |
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Subordination Agreement among Evolving Systems, Inc. the Junior Creditors (as listed in the agreement) and Bridge Bank, N.A. |
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10.1(i) |
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Master Amendment to Subordination Notes among Evolving Systems, Inc. and the holders of Subordinated Notes party thereto. |
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10.2 |
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Standstill Agreement between Evolving Systems, Inc. and Karen Singer, Trustee of the Singer Childrens Management Trust |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: February 27, 2008
EVOLVING SYSTEMS, INC. |
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By: |
/s/ ANITA T. MOSELEY |
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Anita T. Moseley |
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Sr. Vice President & General Counsel |
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Exhibit 10.1 (a)
EVOLVING SYSTEMS, INC.
BRIDGE BANK, N.A.
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT is entered into as of February 22, 2008, by and between BRIDGE BANK, N.A. (Bank) and EVOLVING SYSTEMS, INC. (Borrower).
RECITALS
Borrower wishes to obtain credit from time to time from Bank, and Bank desires to extend credit to Borrower. This Agreement sets forth the terms on which Bank will advance credit to Borrower, and Borrower will repay the amounts owing to Bank.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION .
1.1 Definitions . As used in this Agreement, the following terms shall have the following definitions:
Accounts means, with respect to any Person, all presently existing and hereafter arising accounts, contract rights, payment intangibles, and all other forms of obligations owing to such Person arising out of the sale or lease of goods (including, without limitation, the licensing of software and other technology) or the rendering of services by such Person, whether or not earned by performance.
Advance or Advances mean a cash advance or cash advances under the Revolving Facility.
Affiliate means, with respect to any Person, any other Person that controls directly or indirectly such Person, any other Person that controls or is controlled by or is under common control with such Person, and each of such Persons senior executive officers and directors. For purposes of this definition, the term control (and the correlative terms, controlled by and under common control with) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and/or policies of a Person, whether through ownership of securities or other interests, by contract or otherwise
Bank Expenses means all: reasonable costs or expenses (including reasonable attorneys fees and expenses) incurred in connection with the preparation, negotiation, administration, and enforcement of the Loan Documents; reasonable Collateral audit fees; and Banks reasonable attorneys fees and expenses incurred in amending, enforcing or defending the Loan Documents (including fees and expenses of appeal), incurred before, during and after an Insolvency Proceeding, whether or not suit is brought.
Borrowers Books means all of Borrowers books and records including: ledgers; records concerning Borrowers assets or liabilities, the Collateral, business operations or financial condition; and all computer programs, or tape files, and the equipment, containing such information.
Borrowing Base means, as of any date of determination, an amount equal to eighty percent (80%) of Eligible Accounts plus one hundred percent (100%) of Eligible Cash, as determined by Bank with reference to the most recent Borrowing Base Certificate delivered by Borrower.
Borrowing Base Certificate means such certificate executed by Borrower (as to its respective Eligible Accounts and Eligible Cash) in the form attached hereto as Exhibit C .
Business Day means any day that is not a Saturday, Sunday, or other day on which banks in the State of California are authorized or required to close.
Capital Expenditures means for any period, the sum (without duplication) of all expenditures (whether paid in cash or accrued as liabilities) made by the Credit Parties and their consolidated Subsidiaries during such period that are required to be treated as capital expenditures under GAAP.
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Capital Stock means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, and (ii) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.
Cash means unrestricted cash and cash equivalents.
Change in Control means (i) a transaction in which any person or group (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of more than 50 percent (50%) of the total voting power of Borrower or (ii) the date a majority of members of the Board of Directors of Borrower is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board of Directors of Borrower before the date of the appointment or election or (iii) the date any person or group (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by the person or group) ownership of stock of Borrower possessing 30 percent (30%) or more of the total voting power of the stock of Borrower.
Closing Date means the date of this Agreement.
Code means the California Uniform Commercial Code as in effect from time to time.
Collateral means the property described on Exhibit A attached hereto.
Contingent Obligation means, as applied to any Person, any agreement, undertaking or arrangement by which such Person assures, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, any Indebtedness, leases, dividends or other obligations (primary obligations) of any other Person (the primary obligor) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, including, without limitation, any so-called keepwell or makewell agreement, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (iv) otherwise to assure or to hold harmless the owner of such primary obligation against loss in respect thereof, (v) with respect to any letter of credit of such Person or as to which that Person is otherwise liable for reimbursement of drawings, or (vi) with respect to any agreement or arrangement designed to protect such Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term Contingent Obligation shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement.
Copyrights means any and all copyright rights, applications to register and registrations of the same, and like protections in works of authorship and derivative work thereof.
Credit Extension means each Advance, Term Advance, or any other extension of credit by Bank for the benefit of Borrower hereunder.
Credit Parties shall mean Borrower and each U.S. Subsidiary of Borrower that becomes a Credit Party pursuant to Section 6.14.
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Cross License Agreement shall mean, collectively, (i) the Intercompany License Agreement, dated as of October 17, 2005, between Borrower, as licensor, and Revolving Borrower, as licensee, and (ii) the Intercompany License Agreement, dated as of October 17, 2005 between Revolving Borrower, as licensor, and Borrower, as licensee.
Daily Balance means the outstanding principal amount of the Obligations owed at the end of a given day.
EBITDA means with respect to Credit Parties and their consolidated Subsidiaries on a consolidated basis and without duplication for any period the sum of the following for such period, all determined in accordance with GAAP:
(a) Net Income;
(b) plus the sum of the following, to the extent deducted in determining such Net Income and without duplication:
(i) Interest Expense;
(ii) franchise and income taxes;
(iii) depreciation, amortization and impairment expense;
(iv) all other non-cash and/or non-recurring charges and expenses approved by Bank in its reasonable discretion (but including, without requiring approval of Bank, non-cash charges related to accounting for employee stock option plans as required by FAS 123R) excluding (A) accruals for cash expenses made in the ordinary course of business and (B) write-offs of accounts receivable;
(v) loss from any sale of assets, other than sales in the ordinary course of business;
(vi) extraordinary losses from the sale of securities or the extinguishment of debt; and
(c) minus the sum of the following, to the extent included in determining such Net Income and without duplication:
(i) gain from any sale of assets, other than sales in the ordinary course of business;
(ii) extraordinary gains from the sale of securities or the extinguishment of debt;
(iii) all other non-cash and/or non-recurring income that is in each case not operating income;
(iv) proceeds of insurance (other than business interruption insurance); and
(v) the amounts that would be accrued in connection with TSE Contingent Obligations if the Credit Parties accrued for such amounts.
For purposes of computing EBITDA, the EBITDA of any Person accrued prior to the date it becomes a Credit Party or is merged into or consolidated with a Credit Party or a Subsidiary thereof that Persons assets and acquired by a Credit Party or a Subsidiary thereof shall be excluded.
Eligible Accounts means, at any time, those Accounts of Borrower that arise in the ordinary course of Borrowers business that comply in all material respects with all of Borrowers representations and warranties to Bank set forth in the Loan Documents to the extent such provisions are applicable to the Borrowers Accounts and shall include both (i) Accounts that create offsetable deferred revenue and (ii) Accounts with respect to the account debtors listed on Appendix 1 attached hereto (or any successor of any such account debtor); provided, that standards of eligibility may be fixed and revised from time to time by Bank in Banks reasonable judgment based upon the
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results of an audit performed by Bank in accordance with Section 4.4 and upon notification thereof to Borrower in accordance with the provisions hereof . Unless otherwise agreed to by Bank, Eligible Accounts shall not include the following:
(a) Accounts that the account debtor has failed to pay within ninety (90) days of invoice date, other than Qwest, Vodafone Egypt and Cable & Wireless Panama (or any of their respective successors), which Accounts shall be included as Eligible Accounts provided that such Accounts are within one hundred-twenty (120) days of invoice date;
(b) Accounts with respect to an account debtor, thirty-five percent (35%) of whose Accounts the account debtor has failed to pay within ninety (90) days of invoice date (or, in the case of Qwest, Vodafone Egypt and Cable & Wireless Panama, or any of their respective successors, within one-hundred twenty (120) days of invoice date);
(c) Accounts with respect to which the account debtor is an officer, employee, or agent of Borrower;
(d) Accounts with respect to which goods are placed on consignment, guaranteed sale, sale or return, sale on approval, bill and hold, or other terms by reason of which the payment by the account debtor may be conditional, in each case solely to the extent thereof;
(e) Accounts with respect to which the account debtor is an Affiliate of Borrower;
(f) Accounts with respect to which the account debtor does not have its principal place of business in the United States, except Eligible Foreign Accounts;
(g) Accounts with respect to which the account debtor is the United States or any department, agency, or instrumentality of the United States;
(h) Accounts with respect to which Borrower is liable to the account debtor for goods sold or services rendered by the account debtor to Borrower or for deposits or other property of the account debtor held by Borrower, but only to the extent of any amounts owing to the account debtor against amounts owed to Borrower, as the case may be;
(i) Accounts with respect to an account debtor, including Subsidiaries and Affiliates of such account debtor, whose total obligations to Borrower exceed thirty percent (30%) of all Accounts of Borrower (other than for AT&T and T-Mobile (and any successor thereof) which percentage shall be sixty-percent (60%)), to the extent such obligations exceed the aforementioned percentage, except as approved in writing by Bank;
(j) Accounts with respect to which the account debtor disputes liability or makes any claim with respect thereto as to which Bank believes, in its reasonable discretion, that there may be a basis for dispute (but only to the extent of the amount subject to such dispute or claim), or is subject to any Insolvency Proceeding, or becomes insolvent, or goes out of business; provided that so long as adequate post-petition financing is being provided to such account debtor, post-petition Accounts of such account debtor may be deemed Eligible Accounts by and to the extent of Bank in its reasonable discretion;
(k) Retentions and hold-backs;
(l) Bonded Accounts; and
(m) Accounts with respect to Accenture, American Telecommunication, Inc., Bulgaria Telecom, MTN Nigeria, Vodafone Egypt, Vodafone Japan, and Wireless Trade (or any of their respective successors), solely to the extent of the percentage of foreign tax withholding set forth in the chart in Appendix 1 for the applicable account debtor.
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Eligible Cash means Cash of Borrower and its U.S. Subsidiaries.
Eligible Foreign Accounts means Accounts of Borrower with respect to which the account debtor does not have its principal place of business in the United States and that (i) are supported by one or more letters of credit in an amount and of a tenor, and issued by a financial institution, acceptable to Bank, (ii) are owing from an account debtor identified in Appendix 1 (or any successor of any such account debtor), or (iii) are billed and collected in the United Kingdom and that are properly secured and perfected or (iv) Bank approves on a case-by-case basis.
Equipment means all present and future machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments in which Borrower has any interest.
ERISA means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder.
Event of Default has the meaning assigned in Article 8.
Fixed Charge Coverage Ratio means for the Credit Parties and their consolidated Subsidiaries on a consolidated basis and without duplication, on any date of determination, the ratio of (a) EBITDA minus Unfinanced Capital Expenditures minus income and franchise taxes paid in cash, to (b) Fixed Charges, in each case for the twelve months then ending.
Fixed Charges means, for any period, the sum of the following for the Credit Parties and their consolidated Subsidiaries, on a consolidated basis and without duplication: (a) Total Debt Service and (b) dividends, repurchases or redemptions of equity and/or distributions paid in cash.
Foreign Subsidiary shall mean any Subsidiary of a Person that is not a U.S. Subsidiary.
GAAP means generally accepted accounting principles in the United States of America as in effect from time to time.
Guarantor shall mean any Credit Party other than Borrower, and Guarantors shall mean all such other Credit Parties.
Hedging Agreements means any swap agreements (as defined in Section 101 of the U.S. Bankruptcy Code) and any other agreements or arrangements designed to provide protection against fluctuations in interest or currency exchange rates and entered into for bona fide hedging purposes and not for speculation.
Indebtedness of any Person means, without duplication, (a) all indebtedness for borrowed money, (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred and payable in the ordinary course of business of such Person), (c) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder and all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments issued by such Person, (d) all obligations evidenced by notes, bonds, debentures or similar instruments, (e) all capital lease obligations and (f) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (e) above.
Insolvency Proceeding means, with respect to any Person, any proceeding commenced by or against such Person under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extension generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.
Intellectual Property Collateral means all of Borrowers right, title, and interest in and to the following: (1) Copyrights, Trademarks, Patents, and trade secrets; (2) claims for damages by way of past, present and future infringement of any of the rights included above; (3) all licenses or other rights to use any of the Copyrights, Patents or Trademarks included above, and all license fees and royalties arising from such use to the extent permitted by
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such license or rights; (4) all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents included above; and (5) all proceeds and products of the foregoing, including, without limitation, all payments under insurance or any indemnity or warranty payable in respect of any of the foregoing included above.
Interest Expense means total interest expense generated during the period in question (including attributable to conditional sales contracts, capital leases and other title retention agreements in accordance with GAAP and all unused line and commitment fees and administrative and similar fees) of the Credit Parties and their consolidated Subsidiaries on a consolidated basis and without duplication with respect to all outstanding Indebtedness, including accrued interest and interest paid in kind and capitalized interest, but excluding commissions, discounts and other fees owed with respect to letters of credit and bankers acceptance financing, net costs under Hedging Agreements and fees payable to Bank on the Closing Date under Section 2.5.
Intermediate Holdco means Evolving Systems Holdings, Inc., a Delaware corporation.
Inventory means all inventory (as defined in the Code) in which any Borrower has or acquires any interest, including work in process and finished products intended for sale or lease or to be furnished under a contract of service, of every kind and description now or at any time hereafter owned by or in the custody or possession, actual or constructive, of any Borrower, including such inventory as is temporarily out of its custody or possession or in transit.
Investment means any beneficial ownership of (including stock, partnership interest or other securities) any Person, or any loan, advance or capital contribution to any Person.
IRC means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
Letter of Credit Exposure means, at the time in question, the sum, without duplication, of (i) the aggregate undrawn amount of all outstanding Letters of Credit, plus (ii) the aggregate unreimbursed amount of all drawn Letters of Credit, in each case at such time.
Lien means any mortgage, lien, deed of trust, charge, pledge, security interest or other encumbrance.
Loan Documents means, collectively, this Agreement, any promissory note executed by Borrower evidencing the Advances or Term Advance, and any other agreement entered into in connection with this Agreement, all as amended or extended from time to time.
Material Adverse Effect means a material adverse effect on (i) the business operations or condition (financial or otherwise) of Borrower and its Subsidiaries taken as a whole or (ii) the ability of Borrower to repay the Obligations or otherwise perform its obligations under the Loan Documents or (iii) the enforceability or priority of Banks security interests in the Collateral.
Negotiable Collateral means all of Borrowers letters of credit of which Borrower is a beneficiary, notes, drafts, instruments, securities, documents of title, and chattel paper.
Net Income means, for any period, the net income (or loss) of the Credit Parties and their consolidated Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; provided, that there shall be excluded (a) the income (or loss) of any Person in which any other Person (other than a Credit Party or a Credit Party under and as defined in the Revolving Loan Agreement) has a joint ownership interest, except to the extent of the amount of dividends or other distributions actually paid to any Credit Party by such Person during such period, (b) the income (or loss) of any Person accrued prior to the date it becomes or is merged into or consolidated with a Credit Party or a Credit Party under and as defined in the Revolving Loan Agreement or that Persons assets are acquired by a Credit Party or a Credit Party under and as defined in the Revolving Loan Agreement, (c) the income of any Subsidiary of such Person to the extent that the declaration or payment of dividends or similar distributions of that income by that Subsidiary is not at the time permitted by operation of the terms of the charter or any agreement, instrument, judgment, decree, order, statute, rule or
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governmental regulation applicable to that Subsidiary and (d) the income (loss) associated with any Hedging Agreements.
Obligations means all debt, principal, interest, Bank Expenses and other amounts owed to Bank by Borrower pursuant to this Agreement or any Loan Document, whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the commencement of an Insolvency Proceeding involving Borrower.
Organizational Documents shall mean (a) for any corporation, the memorandum and/or certificate or articles of incorporation, the bylaws, any certificate of designation, or other instrument relating to the rights of preferred shareholders or stockholders of such corporation and any shareholder rights agreement, (b) for any partnership, the partnership agreement and, if applicable, the certificate of limited partnership, and (c) for any limited liability company, the operating agreement and articles or certificate of formation or organization.
Patents means all patents and patent applications, including without limitation divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.
Permitted Indebtedness means:
(a) Indebtedness in favor of Bank arising under this Agreement, any other Loan Document, the Revolving Loan Agreement or any other Revolving Loan Document;
(b) Indebtedness existing on the Closing Date and disclosed in the Schedule including extensions and replacements thereof provided that the principal amount of such Indebtedness as of the date of such extension or replacement is not increased and the maturity and weighted average life thereof are not shortened;
(c) Indebtedness not to exceed an amount equal to $250,000 in the aggregate at any time outstanding constituting capital lease obligations;
(d) Indebtedness incurred after the Closing Date secured by Liens permitted under clause (c)(i) of the definition of Permitted Liens provided (i) the principal amount of such Indebtedness secured thereby does not exceed 100% of the cost of the subject property and (ii) the aggregate amount thereof outstanding at any given time does not exceed an amount equal to $200,000;
(e) Subordinated Debt;
(f) inter-company unsecured Indebtedness arising from loans made by Borrower to its Wholly-Owned Subsidiaries that are Credit Parties to fund working capital requirements of such Subsidiaries in the ordinary course of business; provided, that, upon the request of Bank, such Indebtedness shall be evidenced by promissory notes having terms (including subordination terms) satisfactory to Bank, the sole originally executed counterparts of which shall be pledged and delivered to Bank as security for the Obligations;
(g) inter-company unsecured Indebtedness not listed in the Schedule on the Closing Date arising from loans made by Borrower to Evolving Systems Networks India PVT Ltd, an India corporation, and Evolving Systems GmbH, a German corporation, so long as such Persons are Wholly-Owned Subsidiaries of Borrower, to fund working capital requirements of such Subsidiaries in the ordinary course of business; provided, that, that upon the request of Bank, such Indebtedness shall be evidenced by promissory notes having terms (including subordination terms) satisfactory to Bank, the sole originally executed counterparts of which shall be pledged and delivered to Bank as security for the Obligations; provided, however, that the aggregate amount of Investments permitted pursuant to subsection (i) of the definition of Permitted Investments and outstanding Indebtedness permitted pursuant to this subsection (g) does not exceed $100,000 at any time;
(h) the incurrence by Borrower or any Subsidiary thereof of Indebtedness up to an amount equal to $50,000 arising from the honoring by a bank or other financial institution of a check, draft or
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similar instrument drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(i) unsecured Indebtedness of Borrower or its Subsidiaries incurred in connection with the financing of insurance premiums in the ordinary course of business with respect to insurance required or permitted under Section 6.5 up to an amount equal to $500,000 in aggregate annual premiums;
(j) Borrower or any of its U.S. Subsidiaries may enter into guarantees of Indebtedness of Borrower or any such U.S. Subsidiary that are Credit Parties otherwise permitted under the other subsections of this definition of Permitted Indebtedness;
(k) Borrower and the Revolving Borrower may enter into unsecured Hedging Agreements in the ordinary course of business for bona fide hedging purposes and not for speculation in an aggregate notional or contract amount not to exceed $250,000 outstanding at any time;
(l) the TSE Contingent Obligations;
(m) a guaranty of the obligations of the Revolving Borrower under the Revolving Loan Documents;
(n) Contingent Obligations in respect of Borrowers guarantee of the expenses incurred by certain employees in connection with the use of credit cards sponsored by Borrower in an aggregate amount not to exceed $150,000 at any time outstanding;
(o) Contingent Obligations incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations; and
(p) other unsecured Indebtedness of Borrower and its Subsidiaries not to exceed an amount equal to $50,000 in the aggregate outstanding at any time.
Permitted Investment means:
(a) Investments existing on the Closing Date disclosed in the Schedule;
(b) (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any State thereof maturing within one (1) year from the date of acquisition thereof, (ii) commercial paper maturing no more than one (1) year from the date of creation thereof and currently having rating of at least A-2 or P-2 from either Standard & Poors Corporation or Moodys Investors Service, (iii) certificates of deposit maturing no more than one (1) year from the date of investment therein issued by Bank and (iv) Banks money market accounts or other money market funds substantially all of whose assets are comprised of securities of the type described in clauses (i) through (iii) above;
(c) Investments created by the Loan Documents or Revolving Loan Documents;
(d) trade credit extended by Borrower and its Subsidiaries in the ordinary course of business and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Investments constituting inter-company Permitted Indebtedness;
(f) loans to employees and advances for business travel and similar temporary advances made in the ordinary course of business to officers, directors and employees, not to exceed an amount equal to $25,000 in the aggregate at any time outstanding;
(g) the endorsement of negotiable instruments for deposit or collection or similar
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transactions in the ordinary course of business;
(h) Investments constituting transactions otherwise permitted under this Agreement;
(i) Investments in the Capital Stock of Evolving Systems Networks India PVT Ltd and Evolving Systems GmbH not listed in the Schedule on the Closing Date; provided that the aggregate amount of such Investments permitted under this subsection (i) and the outstanding Indebtedness permitted under subsection (g) of the definition of Permitted Indebtedness shall not exceed $100,000 at any time;
(j) Investments in any domestic Wholly-Owned Subsidiary of Borrower that is or concurrent with such Investment becomes a Credit Party;
(k) Investments received in compromise or resolution of litigation or arbitration proceedings with Persons who are not Affiliates of Borrower up to an amount equal to $50,000 in the aggregate;
(l) Investments represented by prepaid expenses made in the ordinary course of business;
(m) the TSE Contingent Obligations; and
(n) Without duplication of any quantitative limits, the Revolving Borrower and its Subsidiaries may make Investments permitted under the Revolving Loan Agreement.
For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
Permitted Liens means the following:
(a) Any Liens existing on the Closing Date and disclosed in the Schedule or arising under this Agreement, the other Loan Documents or any of the Revolving Loan Documents;
(b) Liens for taxes, fees, assessments or other governmental charges or levies, either (i) not delinquent or (ii) being contested in good faith by appropriate proceedings and, with respect to this clause (ii), all such items do not exceed $250,000 against Persons organized in the United States in the aggregate at any time or such items do not exceed $1,500,000 against Persons organized outside the United States in the aggregate at any time;
(c) (i) Purchase money Liens securing Indebtedness permitted under clause (d) of the definition of Permitted Indebtedness; provided, that (x) any such Lien attaches to the subject property concurrently with or within twenty (20) days after the acquisition thereof, (y) such Lien attaches only to the subject property; and (ii) Liens arising under capital leases permitted under clause (c) of the definition of Permitted Indebtedness to the extent such Liens attach only to the property that is the subject of such capital leases;
(d) Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (a) through (c) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness being extended, renewed or refinanced does not increase;
(e) Statutory liens of landlords, carriers, warehousemen, mechanics and/or materialmen and other similar Liens imposed by law or that arise by operation of law in the ordinary course of business that, in any such case, are only for amounts not yet delinquent or which are being contested in good faith by appropriate proceedings (which have the effect of preventing or staying the forfeiture or sale of the property subject thereto) and with respect to which adequate reserves or other appropriate provisions are being maintained by such Person in accordance with GAAP;
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(f) Liens (other than any Lien imposed by ERISA) incurred or deposits or pledges made in the ordinary course of business (including, without limitation, surety bonds and appeal bonds) in connection with workers compensation, unemployment insurance and other types of social security benefits or to secure the performance of tenders, bids, leases, trade contracts, statutory obligations and other similar obligations (other than for the repayment of Indebtedness);
(g) Any attachment or judgment Lien provided that the enforcement of such Liens is effectively stayed, satisfied, vacated, dismissed or discharged within 30 days of issuance or execution and such Liens secure claims not otherwise constituting an Event of Default;
(h) Easements, rights of way, restrictions, zoning ordinances, reservations, covenants and other similar charges, title exceptions or encumbrances relating to real property of Borrower and any Subsidiaries incurred in the ordinary course of business that, either individually or in the aggregate, are not substantial in amount, do not interfere in any material respect with the use of the property affected or the ordinary conduct of the business of Borrower and do not result in material diminution in value of the property subject thereto;
(i) Liens arising by virtue of any statutory or common law provision relating to bankers liens, rights of set-off, recoupment, combination of accounts or similar rights as to deposit accounts or other funds maintained with a creditor depository institution;
(j) Liens that arise under customary non-assignment provisions in contracts, leases, subleases, licenses and sublicenses entered into with unaffiliated third parties in the ordinary course of business; and
(k) Liens of licensors and sublicensors on licenses and sublicenses of Intellectual Property Collateral or other intellectual property (if any) of Borrower or any Subsidiary thereof entered into in the ordinary course of business.
Person means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or governmental agency.
Prime Rate means the variable rate of interest, per annum, that appears in The Wall Street Journal on the date of measurement, whether or not such announced rate is the lowest rate available from Bank.
Responsible Officer shall mean, (a) with respect to any Credit Party, the chief executive officer or the president of such Credit Party, or any other officer having substantially the same authority and responsibility; or (b) with respect to compliance with financial covenants or delivery of financial information under this Agreement, the chief financial officer or the treasurer of Borrower, or any other officer having substantially the same authority and responsibility.
Revolving Borrower shall mean Evolving Systems Limited, a company incorporated under the laws of England and Wales, as the Borrower under the Revolving Loan Agreement.
Revolving Facility means the facility under which Borrower may request Bank to issue Advances, as specified in Section 2.1(a) hereof or Letters of Credit, as specified in Section 2.1(b).
Revolving Line Limit means One Million Dollars ($1,000,000).
Revolving Maturity Date means February 22, 2011.
Revolving Loan Agreement shall mean the Revolving Loan Agreement dated the date hereof by and among Revolving Borrower and Bank, as the same be amended, modified, supplemented or restated from time to time.
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Revolving Loan Documents shall mean the Revolving Loan Agreement and all other agreements, documents, instruments and certificates heretofore or hereafter executed in connection with the Revolving Loan Agreement.
Schedule means the schedule of exceptions attached hereto and approved by Bank, if any.
Securities Act shall mean the Securities Act of 1933, as amended.
Senior Debt shall mean, on any date of determination, the Obligations hereunder and all Indebtedness under the Revolving Loan Agreement (provided that, for purposes of determining the Indebtedness outstanding under the Revolving Facility and the Revolving Loan Agreement as of the end of each fiscal quarter, Senior Debt shall mean the average daily amount of outstanding principal and accrued interest on the Revolving Facility and the Revolving Facility under (and as defined in) the Revolving Loan Agreement for such fiscal quarter), on a consolidated basis and without duplication. For all purposes of this Agreement, the term Senior Debt shall be calculated to include (i.e., not net of) discounts, deductions or allocations relating or applicable to or arising from any equity or equity participation or fees, whether under GAAP or otherwise.
Shares means (i) (a) securities representing 65% of the aggregate voting power of the issued and outstanding Capital Stock and ownership interests of Evolving Systems Networks India PVT Ltd., an India corporation, and (b) upon consummation of the merger of Intermediate Holdco with and into Borrower following the Closing Date, securities representing 65% of the aggregate voting power of the issued and outstanding Capital Stock and ownership interests of Evolving Systems Holdings Ltd., a company incorporated under the laws of England and Wales, in each case under the foregoing (a) or (b) owned or held of record or beneficially by Borrower on the Closing Date (in the case of Evolving Systems Networks India PVT Ltd.) or on the effective date of such merger (in the case of Evolving Systems Holdings Ltd.), as listed on Annex A hereto (and the certificates, copies of which are attached hereto, representing such shares, securities and/or interests, if any); (ii) all other Capital Stock, equity securities, limited liability company interests, membership interests and ownership interests of any future direct U.S. Subsidiary of Borrower, in each case owned or held of record or beneficially by Borrower at any time (and the certificates representing such shares, securities and/or interests, if any); and (iii) to the extent not duplicative of clause (i), securities representing 65% of the aggregate voting power of the Capital Stock, equity securities, limited liability company interests, membership interests and ownership interests of Evolving Systems Networks India PVT Ltd. and Evolving Systems Holdings Ltd. or any future direct Foreign Subsidiary, in each case owned or held of record or beneficially by Borrower at any time (and the certificates representing such shares, securities and/or interests, if any). Notwithstanding the foregoing, the term Shares shall not include securities representing at any time more than 65% of the aggregate voting power of the Capital Stock of a controlled foreign corporation, as defined in Section 957 of the Code.
Solvent shall mean, as to any Person at any time, that such Person (a) is not insolvent as that term is defined in Section 101(32) of the United States Bankruptcy Code, title 11 U.S.C. (Bankruptcy Code), Section 2 of the Uniform Fraudulent Transfer Act (UFTA) or Section 2 of the Uniform Fraudulent Conveyance Act (UFCA), (b) does not have unreasonably small capital, as that term is used in Section 548(a)(1)(B)(ii)(II) of the Bankruptcy Code or Section 5 of the UFCA, (c) is not engaged or about to engage in a business or a transaction for which its remaining property is unreasonably small in relation to such business or transaction as that term is used in Section 4 of the UFTA, and (d) is not unable to pay its debts as they mature or become due, within the meaning of Section 548(a)(1)(B)(ii)(III) of the Bankruptcy Code, Section 4 of the UFTA and Section 6 of the UFCA. As used herein, all references to the Bankruptcy Code, UFTA and UFCA, and specific provisions thereof, shall include all definitions used therein and the interpretive case law applicable to such statutes and definitions.
Subordinated Debt means any debt incurred by Borrower or any of its Subsidiaries that is subordinated to the debt owing by Borrower to Bank on terms acceptable to Bank (and identified as being such by Borrower and Bank), including, without limitation, the unsecured Indebtedness of Borrower evidenced by the Subordinated Loan Documents.
Subordinated Loan Documents shall mean, collectively, the Subordinated Notes and all other agreements, documents and instruments executed and delivered in connection therewith.
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Subordinated Notes shall mean the Subordinated Notes of Evolving Systems dated November 14, 2005 in the original aggregate principal amount of $4,869,700.47.
Subsidiary shall mean, as to any initial Person, any other Person in which more than fifty percent (50%) of all equity, membership, partnership or other ownership interests is owned directly or indirectly by such initial Person or one or more of its Subsidiaries. For purposes of the Loan Documents, any reference to Subsidiary shall be deemed to refer to a Subsidiary of Borrower unless the context provides otherwise.
Term Advance means a cash advance under Section 2.1.
Term Line means a credit extension of up to Four Million Dollars ($4,000,000).
Term Maturity Date means February 22, 2010.
Total Debt means, on any date of determination, the total Indebtedness of the Credit Parties and their consolidated Subsidiaries on a consolidated basis and without duplication, including, without limitation, all Indebtedness under the Loan Documents, Revolving Loan Documents and all accrued interest on the foregoing (including, without limitation, all interest paid in kind) and all capital lease obligations and including, without duplication, Contingent Obligations consisting of guarantees of Indebtedness that otherwise would constitute Total Debt of other Persons (provided that, for purposes of determining the Indebtedness outstanding under any revolving credit facility (including this Agreement and the Revolving Loan Agreement) as of the end of each fiscal quarter, Total Debt shall mean the average daily amount of outstanding principal and accrued interest on such revolving credit facility for such fiscal quarter). For all purposes of this Agreement, the term Total Debt shall be calculated to include (i.e., not net of) discounts, deductions or allocations relating or applicable to or arising from any equity or equity participation or fees, whether under GAAP or otherwise.
Total Debt Service means, for any period, the sum for Credit Parties and their consolidated Subsidiaries on a consolidated basis of (a) scheduled payments of principal on any an all Total Debt during such period, (b) other required payments of principal on Total Debt other than the Obligations, (c) any other cash amounts due or payable with respect to, in connection with or on Total Debt during such period, and (d) Interest Expense paid in cash or required to be paid in cash during such period.
Trademarks means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same, and the entire goodwill of the business of Borrower connected with and symbolized by such trademarks.
Transfer Pricing Agreements shall mean (i) the Master Services Agreement entered into between Borrower and Evolving Systems Networks India Pvt Ltd, dated as of the 31 st day of August, 2004, as amended December 8, 2004, June 1, 2005 and April 1, 2006, and the Master Services Agreement entered into between Revolving Borrower and Evolving Systems Networks India Pvt Ltd, dated as of the 1 st day of June 2005, amended April 1, 2006, and (ii) agreements on transfer pricing in form and substance reasonably satisfactory to Bank.
TSE Contingent Obligations means the deferred payment obligations to the Sellers (as defined in Section 1.4 of the TSE Purchase Agreement).
TSE Purchase Agreement means the Acquisition Agreement of Telecom Software Enterprises, LLC, dated as of October 15, 2004 among Evolving Systems, Inc., as Buyer, and Lisa Marie Maxson and Peter McGuire, as Sellers.
Unfinanced Capital Expenditures means, for any period, all Capital Expenditures made during such period other than any Capital Expenditures financed within 30 days of such expenditure with the proceeds of Permitted Indebtedness (Permitted Indebtedness, for this purpose, does not include advances under a revolving line of credit), including, without limitation, advances under the Revolving Facility and the revolving loan facility established pursuant to the Revolving Loan Documents.
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U.S. Subsidiary shall mean any Subsidiary of a Person incorporated or otherwise organized under the laws of the United States of America or a state of the United States of America or the District of Columbia.
Wholly-Owned Subsidiary shall mean any Subsidiary in which (other than directors qualifying shares required by law) one hundred percent (100%) of the equity, at the time as of which any determination is being made, is owned, beneficially and of record, by Borrower or by one or more of the other Wholly-Owned Subsidiaries of Borrower, or both.
All capitalized terms used which are not specifically defined herein shall have the respective meanings assigned to them in Article 9 of the Code to the extent the same are used or defined therein. Unless otherwise specified in any Loan Document, this Agreement, any other Loan Document and any agreement or contract referred to herein shall mean such agreement or contract, as modified, amended, supplemented or restated and in effect from time to time, subject to any applicable restrictions set forth in the Loan Documents.
1.2 Accounting Terms . All accounting terms not specifically defined herein shall be construed in accordance with GAAP and all calculations made hereunder shall be made in accordance with GAAP. When used herein, the terms financial statements shall include the notes and schedules thereto.
2. LOAN AND TERMS OF PAYMENT .
2.1 Credit Extensions .
Borrower promises to pay to the order of Bank, in lawful money of the United States of America, the aggregate unpaid principal amount of all Credit Extensions made by Bank to Borrower hereunder in accordance with the terms hereof. Borrower shall also pay interest on the unpaid principal amount of Advances at rates in accordance with the terms hereof.
(a) Revolving Advances.
(i) Subject to and upon the terms and conditions of this Agreement, Borrower may request, and Bank shall make available, Advances from time to time in an aggregate outstanding amount not to exceed the lesser of (i) the Revolving Line Limit or (ii) the Borrowing Base minus , in each case, the Letter of Credit Exposure, and the FX Amount. Subject to the terms and conditions of this Agreement, amounts borrowed pursuant to this Section 2.1(a) may be repaid and reborrowed at any time prior to the Revolving Maturity Date, at which time all Advances under this Section 2.1(a) shall be immediately due and payable. Borrower may prepay any Advances in whole or in part without penalty or premium.
(ii) Whenever Borrower desires an Advance, Borrower will notify Bank by facsimile transmission or telephone no later than 3:00 p.m. Pacific time, on the Business Day that the Advance is to be made. Each such notification shall be promptly confirmed by a Payment/Advance Form in substantially the form of Exhibit B hereto. Bank is authorized to make Advances under this Agreement, based upon instructions received from a Responsible Officer of Borrower or a designee of a Responsible Officer of Borrower, or without instructions if in Banks discretion such Advances are necessary to meet Obligations which have become due and remain unpaid after expiration of any applicable grace or cure period and the giving of any required notice of such non-payment. Bank shall be entitled to rely on any telephonic notice given by a person who Bank reasonably believes to be a Responsible Officer or a designee thereof. Bank will credit the amount of Advances made under this Section 2.1(a) to such deposit account or Obligation as Borrower specifies.
(b) Letters of Credit . Subject to the terms and conditions of this Agreement, at any time prior to the Revolving Maturity Date, Bank agrees to issue letters of credit for the account of Borrower and the other Credit Parties (each, a Letter of Credit and collectively, the Letters of Credit) in an aggregate outstanding face amount not to exceed the lesser of the Revolving Line Limit or the Borrowing Base minus , in each case, the aggregate amount of the outstanding Advances, and the FX Amount at any time, provided that the aggregate face amount of all outstanding Letters of Credit shall not in any case exceed $500,000, minus the FX Amount at any time. All Letters of Credit shall be, in form and substance, acceptable to Bank in its reasonable discretion and shall
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be subject to (i) the terms and conditions of Banks form of standard application and letter of credit agreement with such changes thereto as Borrower and Bank may agree (the Application) and (ii) payment by Borrower of Banks standard fees. In the event of any conflict between the terms of this Agreement and the terms of any Application, the terms of this Agreement shall control. If Bank is obligated to advance funds under a Letter of Credit, Borrower immediately shall reimburse the amount of the funds so advanced not later than 10:00 a.m. (Pacific time) on the date that such payment is made by Bank under the Letter of Credit, if Borrower shall have received written or telephonic notice of such payment prior to 9:00 a.m. (Pacific time) on such date, or, if such notice has not been received by Borrower prior to such time on such date, then not later than 10:00 a.m. (Pacific time), on the first Business Day that Borrower has such notice prior to prior to 9:00 a.m. (Pacific time), and, in the absence of such reimbursement, the unreimbursed amount automatically shall be deemed to be an Advance under Section 2.1(a). To the extent an unreimbursed amount under a Letter of Credit is deemed to be an Advance hereunder, Borrowers obligation to reimburse such amount shall be discharged and replaced by the resulting Advance. If any portion of the Letter of Credit Exposure, whether or not then due and payable, remains unpaid or outstanding on the Revolving Maturity Date or such earlier date as this Agreement may be terminated, Borrower shall: (A) provide cash collateral therefor on terms reasonably acceptable to Bank; or (B) cause all such Letters of Credit and guaranties thereof, if any, to be cancelled and returned; or (C) deliver a stand-by letter (or letters) of credit in guarantee of such portion of the Letter of Credit Exposure, which stand-by letter (or letters) of credit shall be of like tenor and duration (plus thirty (30) additional days) as, and in an amount equal to at least 105% of the aggregate maximum amount then available to be drawn under, such Letters of Credit to which such outstanding Letter of Credit Exposure relate and shall be issued by a Person, and shall be subject to such terms and conditions, as are reasonably satisfactory to Bank. The obligation of Borrower to reimburse Bank for drawings made under Letters of Credit shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, the Application, and such Letters of Credit, under all circumstances whatsoever; provided, however, that after paying in full its reimbursement obligation hereunder, nothing herein shall adversely affect the right of Borrower to commence any proceeding against Bank for any wrongful disbursement made by Bank under a Letter of Credit as a result or solely to the extent of acts or omissions constituting gross negligence or willful misconduct on the part of Bank. Borrower shall indemnify, defend, protect, and hold Bank harmless from any loss, cost, expense or liability, including, without limitation, reasonable attorneys fees, arising out of or in connection with any Letters of Credit, except for expenses caused by Banks gross negligence or willful misconduct.
(c) Foreign Exchange Sublimit . Subject to and upon the terms and conditions of this Agreement and any other agreement that Borrower may enter into with the Bank in connection with foreign exchange transactions, including foreign exchange services (FX Contracts) and subject to the availability under the Revolving Line Limit and the Borrowing Base minus , in each case, the aggregate amount of the outstanding Advances and the Letter of Credit Exposure at any time, Borrower may request Bank to enter into FX Contracts with Borrower due not later than the Revolving Maturity Date. Borrower shall pay any standard issuance and other fees that Bank notifies Borrower in advance will be charged for issuing and processing FX Contracts for Borrower. The FX Amount shall not in any case exceed $500,000, minus the Letter of Credit Exposure at any time.. The FX Amount shall equal the amount determined by multiplying (i) the aggregate amount, in United States Dollars, of FX Contracts between Borrower and Bank remaining outstanding as of any date of determination by (ii) the applicable Foreign Exchange Reserve Percentage as of such date. The Foreign Exchange Reserve Percentage shall be a percentage as determined by Bank, in its reasonable discretion from time to time. If at any time the Revolving Facility is terminated or otherwise ceases to exist, Borrower shall promptly secure in cash all obligations under the Foreign Exchange Sublimit on terms reasonably acceptable to Bank.
(d) Term Advance .
(i) Borrower promises to pay to the order of Bank, in lawful money of the United States of America, the aggregate unpaid principal amount of the Term Advance made by Bank to Borrower hereunder in accordance with the terms hereof. Borrower shall also pay interest on the unpaid principal amount of the Term Advance at rates in accordance with the terms hereof.
(ii) Subject to and upon the terms and conditions of this Agreement, Bank agrees to make one Term Advance on the Closing Date to Borrower in an aggregate amount not to exceed the Term Line.
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(iii) Interest shall accrue from the date of the Term Advance at the rate specified in Section 2.2, and shall be payable monthly on the tenth day of each month so long as any portion of the Term Advance is outstanding. The Term Advance shall be payable in twenty-four (24) equal monthly installments of principal, plus all accrued interest, beginning on March 10, 2008, and continuing on the same day of each month thereafter through the Term Maturity Date, at which time all amounts owing under this Section 2.1 and any other amounts owing under this Agreement shall be immediately due and payable. The Term Advance, once repaid, may not be reborrowed. Borrower may prepay all or any portion of the Term Advance in accordance with Section 2.2(d).
2.2 Interest Rates, Payments, and Calculations .
(a) Interest Rates.
(i) Advances . Except as set forth in Section 2.2(b), the Advances shall bear interest, on the outstanding Daily Balance thereof at a rate per annum equal to one half of one percent (0.50%) above the Prime Rate.
(ii) Term Advance . Except as set forth in Section 2.2(b), the Term Advance shall bear interest, on the outstanding Daily Balance thereof, at a fixed rate per annum equal to eight and one quarter percent (8.25%).
(b) Late Fee; Default Rate . If any payment is not made within ten (10) days after the date such payment is due, Borrower shall pay Bank a late fee equal to the lesser of (i) five percent (5%) of the amount of such unpaid amount or (ii) the maximum amount permitted to be charged under applicable law. All Obligations shall bear interest, from and after the occurrence and during the continuance of an Event of Default, at a rate equal to four (4) percentage points above the interest rate applicable immediately prior to the occurrence of the Event of Default.
(c) Payments . Interest hereunder shall be due and payable on the tenth calendar day of each month during the term hereof. Bank shall, at its option, charge such interest and all Bank Expenses against Borrowers main operating deposit account, in which case those amounts shall thereafter accrue interest at the rate then applicable hereunder. To the extent permitted by applicable law, any interest not paid when due shall be compounded by becoming a part of the Obligations, and such interest shall thereafter accrue interest at the rate then applicable hereunder. Subject to Section 12.3, all payments shall be free and clear of any taxes, withholdings, duties, impositions or other charges, to the end that Bank will receive the entire amount of any Obligations payable hereunder, regardless of source of payment. Payments will be made via auto debit from Borrowers main operating account at the Bank.
(d) Prepayment. Borrower may prepay all or any portion of the Term Advance only upon written notice to Bank, which shall be irrevocable, at least three Business Days before the proposed prepayment date (the Prepayment Date), such notice shall specify the Prepayment Date and the amount to be prepaid. On any Prepayment Date prior to August 22, 2009, Borrower shall pay Bank, in addition to the principal amount to be prepaid and the interest accrued thereon through the Prepayment Date, a premium equal to (i) one and one half percent (1.5%) of the prepaid principal amount of the Term Advance if the prepayment occurs prior to the first anniversary of the Closing Date, and (ii) one percent (1%) of the prepaid principal amount of the Term Advance if the prepayment takes place during the period beginning on the day after the first anniversary of the Closing Date through August 22, 2009. This Section 2.2(d) shall be applicable to all prepayments of Term Advances including prepayments following a Default.
(e) Computation . In the event the Prime Rate is changed from time to time hereafter, the applicable rate of interest hereunder shall be increased or decreased, effective as of the day the Prime Rate is changed, by an amount equal to such change in the Prime Rate. All interest chargeable under the Loan Documents shall be computed on the basis of a three hundred sixty (360) day year for the actual number of days elapsed.
2.3 Crediting Payments . If an Event of Default does not exist, Bank shall credit a wire
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transfer of funds, check or other item of payment to such deposit account or Obligation as Borrower specifies. If an Event of Default exists, the receipt by Bank of any wire transfer of funds, check, or other item of payment shall be immediately applied to conditionally reduce Obligations, but shall not be considered a payment on account unless such payment is of immediately available federal funds or unless and until such check or other item of payment is honored when presented for payment. Notwithstanding anything to the contrary contained herein, any wire transfer or payment received by Bank after 12:00 noon Pacific time shall be deemed to have been received by Bank as of the opening of business on the immediately following Business Day. Whenever any payment to Bank under the Loan Documents would otherwise be due (except by reason of acceleration) on a date that is not a Business Day, such payment shall instead be due on the next Business Day, and additional fees or interest, as the case may be, shall accrue and be payable for the period of such extension.
2.4 Fees . Borrower shall pay to Bank the following:
(a) Facility Fee . On the Closing Date, a Facility Fee equal to $25,000 which shall be nonrefundable; and
(b) Bank Expenses . On the Closing Date, all Bank Expenses incurred through the Closing Date, including reasonable attorneys fees and expenses and, after the Closing Date, all Bank Expenses, including reasonable attorneys fees and expenses not later than ten Business Days after written demand therefor. Bank shall endeavor to provide reasonable supporting documentation for the amount of any Bank Expenses payable by Borrower to Bank under this Section 2.4(b).
2.5 Overadvances . If the aggregate amount of the outstanding Advances plus the aggregate face amount of all outstanding Letters of Credit, and the FX Amount exceeds the lesser of the Revolving Line or the Borrowing Base at any time, Borrower shall immediately pay to Bank, in cash, the amount of such excess.
2.6 Term . This Agreement shall become effective on the Closing Date and, subject to Section 12.9, shall continue in full force and effect for so long as any Obligations remain outstanding (other than contingent indemnity obligations for which no claim has been made) or Bank has any obligation to make credit extensions under this Agreement. Notwithstanding the foregoing, Bank shall have the right to terminate its obligation (if any) to make credit extensions under this Agreement immediately and without notice upon the occurrence and during the continuance of an Event of Default. Notwithstanding termination, Banks Lien on the Collateral shall remain in effect for so long as any Obligations are outstanding (other than contingent indemnity obligations for which no claim has been made).
3. CONDITIONS OF LOANS .
3.1 Conditions Precedent to Initial Credit Extension . The obligation of Bank to make the initial Credit Extension is subject to the condition precedent that Bank shall have received, in form and substance satisfactory to Bank, the following:
(a) this Agreement, executed by Borrower;
(b) a certificate of the Secretary of Borrower with respect to incumbency and resolutions authorizing the execution and delivery of this Agreement;
(c) UCC National Form Financing Statement (Borrower);
(d) an intellectual property security agreement (Borrower);
(e) payoff letter from CapitalSource Finance LLC and any documents required to terminate its security interest in Borrowers assets;
(f) certificates representing the Shares and stock powers for the Shares which are part of the Collateral, executed in blank by Borrower for each of Borrowers Subsidiaries;
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(g) payment of the fees and Bank Expenses then due specified in Section 2.4 hereof;
(h) current financial statements of Borrower;
(i) an audit of the Collateral, the results of which shall be satisfactory to Bank; and
(j) such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate.
3.2 Conditions Precedent to all Credit Extensions. The obligation of Bank to make each Credit Extension, including the initial Credit Extension, is further subject to the following conditions:
(a) in the case of an Advance, the timely receipt by Bank of the Payment/Advance Form as provided in Section 2.1; and
(b) the representations and warranties contained in Section 5 shall be true and correct in all material respects on and as of the date of such Payment/Advance Form, in the case of an Advance, and on the effective date of such Credit Extension as though made at and as of each such date (except, in each case, to the extent where such representations and warranties expressly relate to an earlier date, in which case they shall have been true and correct in all respects as of such earlier date), and no Event of Default shall have occurred and be continuing as of the date of such Credit Extension, or would exist after giving effect to such Credit Extension. The making of each Credit Extension shall be deemed to be a representation and warranty by Borrower on the date of such Credit Extension as to the accuracy of the facts referred to in this Section 3.2.
4. CREATION OF SECURITY INTEREST .
4.1 Grant of Security Interest . Borrower grants and pledges to Bank a continuing security interest in all of Borrowers right, title and interest in, to and under all presently existing and hereafter acquired or arising Collateral in order to secure prompt repayment of any and all Obligations and in order to secure prompt performance by Borrower of each of its covenants and duties under the Loan Documents. Such security interest is effective to create a valid and continuing security interest in and, upon the filing of appropriate financing statements in Borrowers jurisdiction of organization, a perfected security interest in favor of Bank in the Collateral with respect to which a security interest may be perfected by filing pursuant to the Code.
4.2 Delivery of Additional Documentation Required; Authorization to File Financing Statements . Borrower shall from time to time execute and deliver to Bank, at the reasonable request of Bank, all Negotiable Collateral and other documents that Bank may reasonably request, in form reasonably satisfactory to Bank, to perfect and continue the perfection of Banks security interests in the Collateral and in order to fully consummate all of the transactions contemplated under the Loan Documents. Borrower hereby irrevocably authorizes Bank at any time and from time to time to file in any filing office in any Code jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (A) as all assets of Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the Code or such jurisdiction, or (B) as being of an equal or lesser scope or with greater detail, and (ii) contain any other information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance of any financing statement or amendment. Borrower from time to time may deposit with Bank specific time deposit accounts to secure specific Obligations. Borrower authorizes Bank to hold such balances in pledge and to decline to honor any drafts thereon or any request by Borrower or any other Person to pay or otherwise transfer any part of such balances for so long as the Obligations are outstanding (other than contingent indemnity obligations for which no claim has been made).
4.3 Pledge of Shares . Borrower hereby pledges, assigns and grants to Bank a security interest in all of Borrowers right, title and interest in the Shares, together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing (collectively, the Shares Collateral; provided however, that notwithstanding the foregoing, the term Shares Collateral shall not include
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securities representing at any time more than 65% of the aggregate voting power of the Capital Stock of a controlled foreign corporation, as defined in Section 957 of the IRC), as security for the performance of the Obligations. The certificate or certificates for the Shares, if any, will be delivered to Bank, accompanied by an instrument of assignment duly executed in blank by Borrower, and Borrower shall cause the books of each entity whose shares are part of the Shares and any transfer agent to reflect the pledge of the Shares. Upon the occurrence and during the continuance of an Event of Default, Bank may effect the transfer of the Shares into the name of Bank and cause new certificates representing such securities to be issued in the name of Bank or its transferee. Borrower will execute and deliver such documents, and take or cause to be taken such actions, as Bank may reasonably request to perfect or continue the perfection of Banks security interest in the Shares. Unless an Event of Default shall have occurred and be continuing, Borrower shall be entitled (a) to exercise any rights with respect to the Shares and to give consents, waivers and ratifications in respect thereof, provided that no vote shall be cast or consent, waiver or ratification given or action taken if the result thereof would materially and adversely affect the rights inuring to a holder of the Collateral or the rights and remedies of Bank under this Agreement or any other Loan Document or the ability of the Bank to exercise the same and (b) to receive and retain and to utilize in accordance with this Agreement cash dividends payable on the Collateral to the extent, and only to the extent, that such cash dividends are permitted by, and otherwise paid in accordance with, the terms and conditions of this Agreement, the other Loan Documents and applicable law. Upon the occurrence and continuation of an Event of Default, all rights of Borrower to exercise voting and/or consensual rights and powers and/or to receive dividends that Borrower is entitled to exercise and/or receive pursuant to this Section 4.3 shall cease immediately upon notice by or on behalf of Bank to Borrower, and all such rights thereupon shall become vested solely and exclusively in Bank, automatically without any further action by any Person. The Shares are not held in a brokerage or similar securities account. Bank acknowledges that notwithstanding Borrowers delivery of a stock certificate representing 72.99% of the outstanding Capital Stock of Evolving Systems Networks India PVT, Ltd., and notwithstanding anything to the contrary contained in this Agreement or any Loan Document, Banks security interest and Lien extends only to securities representing 65% of the aggregate voting power of the outstanding Capital Stock of Evolving Systems Networks India PVT, Ltd., and Bank has no security interest in or Lien on the remaining securities representing 35% of the aggregate voting power of the shares of Capital Stock of Evolving Systems Networks India PVT, Ltd. (a portion of which unencumbered shares are evidenced by the certificate delivered to Bank). Bank agrees to return to Borrower the stock certificate(s) representing the ownership interests in Evolving Systems Networks India PVT, Ltd. as reasonably requested by Borrower so long as Borrower has delivered the new stock certificate(s) of Evolving Systems Networks India PVT, Ltd. representing 65% of Borrowers aggregate voting power of the ownership interests in therein. Borrower shall merge Intermediate Holdco with and into Borrower within fifteen (15) days following the Closing Date. Upon the effectiveness of such merger, the shares of Evolving Systems Holdings Ltd that constitute Shares under and as defined in this Agreement shall automatically and without any further action by Bank or any other Person become subject to Banks security interest in the Shares under this Agreement, and Borrower shall deliver to Bank the certificate(s) representing 65% of the aggregate voting power of the outstanding Capital Stock of Evolving Systems Holdings Ltd., accompanied by an instrument of assignment duly executed in blank by Borrower.
4.4 Right to Inspect . Bank (through any of its officers, employees, or agents) shall have the right, upon reasonable prior notice, from time to time during Borrowers usual business hours but no more than once a year (unless an Event of Default has occurred and is continuing), to inspect Borrowers Books and to make copies thereof and to check, test, and appraise the Collateral and to audit Borrowers Accounts in order to verify Borrowers financial condition or the amount, condition of, or any other matter relating to, the Collateral. Bank and any such officers, employees and agents shall maintain the confidentiality of all non-public information (whether written or verbal and whether specifically identified as confidential) obtained during such visits, inspections, examinations, audits or meetings in accordance with Section 12.10. Until the Revolving Loan Agreement is terminated and so long as no Event of Default has occurred and is continuing, Bank agrees to coordinate exercise of its rights under this Section 4.4 with any exercise of Banks rights under Section 4.1 of the Revolving Loan Agreement.
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5. REPRESENTATIONS AND WARRANTIES .
Borrower represents and warrants as follows:
5.1 Due Organization and Qualification . Borrower and each Subsidiary of Borrower is a corporation, partnership or limited liability company, or other form of entity, as the case may be, validly existing under the laws of its jurisdiction of incorporation, organization or formation and is qualified and licensed to do business in each jurisdiction where the failure so to qualify or be licensed or qualified would reasonably be expected to result in a Material Adverse Effect.
5.2 Due Authorization; No Conflict . The execution, delivery, and performance by Borrower of the Loan Documents to which it is a party (a) are within Borrowers powers, (b) have been duly authorized by all requisite corporate action, (c) are not in conflict with nor constitute a breach of any provision contained in Borrowers Organizational Documents, and (d) will not constitute an event of default under any agreement to which Borrower is a party or by which Borrower is bound, the effect of which would reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect. Borrower is not in default under any agreement to which it is a party or by which it is bound, the effect of which would reasonably be expected to result in a Material Adverse Effect.
5.3 No Prior Encumbrances . Borrower has good and marketable title to, or a valid leasehold interest in, license of, or right to use, all of its material property necessary or used in its ordinary course of business, free and clear of Liens, except for Permitted Liens.
5.4 Intellectual Property Collateral . Borrower is the owner of, or has sufficient rights by license or otherwise in, the Intellectual Property Collateral necessary for the conduct of Borrowers business, except for rights and licenses granted by Borrower in the ordinary course of business and rights and licenses as set forth in the Schedule. As of the Closing Date, each of the Patents of Borrower is valid and enforceable, and to Borrowers knowledge no part of the Copyrights, Patents or Trademarks of Borrower has been judged invalid or unenforceable, in whole or in part, and to Borrowers knowledge no claim has been made that any part of the Copyrights, Patents or Trademarks of Borrower infringes the Copyrights, Patents or Trademarks of any third party. After the Closing Date, except as would not reasonably be expected to result in a Material Adverse Effect: (i) each of the Patents of Borrower is valid and enforceable; (ii) to Borrowers knowledge no part of the Copyrights, Patents or Trademarks of Borrower has been judged invalid or unenforceable, in whole or in part; and (iii) to Borrowers knowledge no claim has been made that any part of the Copyrights, Patents or Trademarks of Borrower infringes the Copyrights, Patents or Trademarks of any third party. Except as set forth in the Schedule as of the Closing Date, Borrowers rights as a licensee of intellectual property do not give rise to more than five percent (5%) of its gross revenue in any given month, including without limitation revenue derived from the sale, licensing, rendering or disposition of any product or service (the Materiality Threshold). Borrower agrees to provide notice to Bank, with delivery of its monthly Compliance Certificate, of any licenses that meet the foregoing Materiality Threshold. Except as set forth in the Schedule or as disclosed in writing to Bank after the Closing Date, Borrower is not a party to, or bound by, any license that meets the Materiality Threshold that restricts the grant by Borrower of a security interest in Borrowers rights under such license.
5.5 Name; Location of Chief Executive Office . Except as disclosed in the Schedule, as of the Closing Date Borrower has not done business under any name other than that specified on the signature page hereof. As of the Closing Date, the chief executive office of Borrower is located at the address indicated in Section 10 hereof. As of the Closing Date, all Borrowers Inventory and Equipment is located only at the location set forth in Appendix 2 attached hereto.
5.6 Litigation . Except as set forth in the Schedule, there are no actions or proceedings pending by or against any Credit Party before any court or administrative agency which would reasonably be expected to have a Material Adverse Effect, or a material adverse effect on Borrowers interest or Banks security interest in the Collateral.
5.7 No Material Adverse Change in Financial Statements . All consolidated and consolidating financial statements related to Borrower and any consolidated Subsidiary that Bank has received from
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Borrower fairly present in all material respects the consolidated financial position and results of operations of Borrower (or such Subsidiary) and its consolidated Subsidiaries as of the dates and for the relevant periods indicated (subject in the case of unaudited financial statements, to year end adjustments and matters that would be disclosed in financial statement notes). Since the date of the most recent financial statements submitted to Bank, there has not occurred any Material Adverse Effect or, to Borrowers knowledge, any event or condition that would reasonably be expected to result in a Material Adverse Effect.
5.8 Merchantable Inventory . All material Inventory is in all material respects of good and marketable quality, free from all material defects, except for Inventory for which adequate reserves have been made.
5.9 Bona Fide Eligible Accounts . The Eligible Accounts identified in the Borrowing Base Certificate most recently delivered to Bank are bona fide existing obligations. The Borrowing Base Certificate most recently delivered to Bank pursuant to this Agreement correctly identifies in all material respects those Accounts of Borrower that are Eligible Accounts as of the date of such Borrowing Base Certificate.
5.10 Solvency, Payment of Debts . Borrower is and, after giving effect to the transactions and Indebtedness contemplated by the Loan Documents, will be Solvent.
5.11 Regulatory Compliance . The Credit Parties have met the minimum funding requirements of ERISA with respect to any employee benefit plans subject to the minimum funding requirements of ERISA, and no event has occurred resulting from Borrowers failure to comply with ERISA that would reasonably be expected to result in a Material Adverse Effect. Borrower is not an investment company or a company controlled by an investment company within the meaning of the Investment Company Act of 1940. Borrower is not engaged principally, or as one of the important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T and U of the Board of Governors of the Federal Reserve System). Borrower is in compliance in all material respects with all the provisions of the Federal Fair Labor Standards Act. Borrower is in compliance with all statutes, laws, ordinances or rules applicable to it, except where any such non-compliance would not reasonably be expected to result in a Material Adverse Effect.
5.12 Environmental Condition . Except as disclosed in the Schedule, no Credit Partys properties or assets has ever been used by any Credit Party or, to the best of Borrowers knowledge, by previous owners or operators, in the disposal of, or to produce, store, handle, treat, release, or transport, any hazardous waste or hazardous substance other than in accordance with applicable law; to the best of Borrowers knowledge, none of Borrowers properties or assets has ever been designated or identified in any manner pursuant to any environmental protection statute as a hazardous waste or hazardous substance disposal site, or a candidate for closure pursuant to any environmental protection statute; no lien arising under any environmental protection statute has attached to any revenues or to any real or personal property owned by any Credit Party; and no Credit Party has received a written summons, citation, notice, or directive from the Environmental Protection Agency or any other federal, state or other governmental agency concerning any action or omission by any Credit Party resulting in the releasing, or otherwise disposing of, hazardous waste or hazardous substances into the environment.
5.13 Taxes . As of the Closing Date except as disclosed in the Schedule, each Credit Party has filed or caused to be filed all federal (if applicable) and all other tax returns required to be filed by such Person, and have paid, or have made adequate provision for the payment of, all taxes reflected therein (other than taxes that are not at the time delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves shall have been set aside on the books of the applicable Credit Party in accordance with GAAP). After the Closing Date, each Credit Party has filed or caused to be filed all federal (if applicable) and all other material tax returns required to be filed by such Person, and have paid, or have made adequate provision for the payment of, all taxes reflected therein (other than taxes that are not at the time delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves shall have been set aside on the books of the applicable Credit Party in accordance with GAAP).
5.14 Shares . Borrower has full power and authority to grant a security interest in the Shares and no disability or contractual obligation (other than the contractual obligations of Borrower to CapitalSource Finance LLC and related security, which will be released and terminated effective as of the Closing Date) exists that
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would prohibit Borrower from pledging the Shares pursuant to this Agreement. There are no subscriptions, warrants, rights of first refusal or other restrictions on, or options exercisable with respect to the Shares, other than restrictions on transfer under applicable state and federal securities laws. The Shares have been and will be duly authorized and validly issued, and are or will be fully paid and non-assessable. As of the Closing Date, the Shares are not the subject of any present or threatened suit, action, arbitration, administrative or other proceeding, and Borrower knows of no reasonable grounds for the institution of any such proceedings.
5.15 Subsidiaries . As of the Closing Date, Borrower does not own any stock, partnership interest or other equity securities of any Person, except for Permitted Investments.
5.16 Government Consents . Each Credit Party has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all governmental authorities that are necessary for the continued operation of Borrowers business as currently conducted in the jurisdictions where such business is currently conducted, except, where failure to do so would not reasonably, in each such case, be expected to result in a Material Adverse Effect.
5.17 Accounts . Except as disclosed in the Schedule, as of the Closing Date, none of Borrowers nor any Subsidiarys bank accounts are maintained with a Person other than Bank.
5.18 Full Disclosure . No representation, warranty or other statement made by Borrower in any certificate or written statement furnished to Bank in connection with the transactions contemplated by or pursuant to the Loan Documents contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the factual statements contained in such certificates or statements taken as a whole materially misleading as of the time made or delivered in light of the circumstances under which it was made or delivered, provided that notwithstanding anything else contained in this Agreement or any Loan Document, Borrower does not make any representation, warranty or guaranty as to any projections furnished to Bank (except that such projections have been prepared by the Borrower on the basis of assumptions which were believed to be reasonable as of the date of such projections in light of current and reasonably foreseeable business conditions).
6. AFFIRMATIVE COVENANTS .
So long as any Obligation shall remain unpaid (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) and Bank shall have any commitment to make Credit Extensions hereunder, Borrower shall do all of the following:
6.1 Good Standing . Borrower shall (a) except as permitted under Section 7.3, maintain its and each of its Subsidiaries valid existence and good standing (to the extent such concept applies) in its jurisdiction of incorporation, organization or formation and (b) maintain qualification in each jurisdiction in which it is required under applicable law except where failure to maintain such qualification would not reasonably be expected to result in a Material Adverse Effect. Borrower shall maintain, and shall cause each of its Subsidiaries to maintain, in force all licenses, approvals and agreements, the loss of which would reasonably be expected to have a Material Adverse Effect.
6.2 Government Compliance . Borrower shall meet, and shall cause each Credit Party to meet, the minimum funding requirements of ERISA with respect to any employee benefit plans subject to the minimum funding requirements of ERISA. Borrower shall comply, and shall cause each Subsidiary to comply, with all statutes, laws, ordinances and government rules and regulations to which it is subject, noncompliance with which would reasonably be expected to have a Material Adverse Effect.
6.3 Financial Statements, Reports, Certificates . Borrower shall deliver the following to Bank: (a) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, income, and cash flow statement covering Borrowers consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrowers fiscal year, audited consolidated financial statements of
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Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank; (c) copies (which may be in electronic form) of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and, if applicable, all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission; (d) promptly after any officer of any Credit Party obtains knowledge thereof, a report of any legal actions pending or threatened in writing against Borrower or any Subsidiary that would reasonably be expected to result in damages or costs to Borrower or any Subsidiary to the extent the amount in controversy exceeds $100,000 individually or $150,000 in the aggregate; (e) as soon as available, but in any event within thirty (30) days after the end of Borrowers fiscal year, an operating budget in a form reasonably acceptable to Bank and approved by Borrowers board of directors; (f) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time; and (g) within ten (10) Business Days after the reasonable request of Bank, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any active or pending material United States Patent, Copyright or Trademark applications or registrations, as well as any material change in Borrowers Intellectual Property Collateral (other than Foreign applications and registrations), including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to Bank by Borrower in connection with this Agreement.
Within ten (10) days after the last day of each month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer of Borrower in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable of Borrower.
Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer of Borrower in substantially the form of Exhibit D hereto.
6.4 Inventory; Returns . Borrower shall keep all material Inventory in good and marketable condition, free from all material defects except for Inventory for which adequate reserves have been made. Returns and allowances, if any, as between Borrower and its account debtors shall be on the same basis and in accordance with the usual customary practices of Borrower, as they exist at the time of the execution and delivery of this Agreement. Borrower shall promptly notify Bank of all returns and recoveries and of all disputes and claims, where the return, recovery, dispute or claim involves more than Fifty Thousand Dollars ($50,000).
6.5 Taxes . Borrower shall make, and shall cause each Subsidiary to make, due and timely payment or deposit of all material federal, state, and local taxes, assessments, or contributions required of it by law, and will execute and deliver to Bank, following Banks reasonable request, appropriate certificates attesting to the payment or deposit thereof; and Borrower will make, and will cause each Subsidiary to make, timely payment or deposit of all material tax payments and withholding taxes required of it by applicable laws, including, but not limited to, those laws concerning F.I.C.A., F.U.T.A., state disability, and local, state, and federal income taxes, and will, upon Banks reasonable request, furnish Bank with proof satisfactory to Bank indicating that Borrower or a Subsidiary has made such payments or deposits; provided that Borrower or a Subsidiary need not make any payment referred to in this Section 6.4 if the amount or validity of such payment is contested in good faith by appropriate proceedings and is reserved against (to the extent required by GAAP) by Borrower or the applicable Subsidiary.
6.6 Insurance .
(a) Borrower, at its expense, shall keep the Collateral insured against loss or damage by fire, theft, explosion, sprinklers, and all other hazards and risks, and in such amounts, as ordinarily insured against by other owners in similar businesses conducted in the locations where Borrowers business is conducted on the date hereof. Borrower shall also maintain insurance relating to Borrowers business, ownership and use of the Collateral in amounts and of a type that are customary to businesses similar to Borrowers.
(b) All such policies of insurance shall be in such form, with such companies, and in such amounts as are reasonably satisfactory to Bank. All such policies of property insurance shall contain a lenders loss payable endorsement, in a form reasonably satisfactory to Bank, showing Bank as an additional loss payee thereof, and all liability insurance policies, other than errors and omissions and D&O policies, shall show the Bank
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as an additional insured and shall specify that the insurer must give at least twenty (20) days notice to Bank before canceling its policy for any reason. Upon Banks request, Borrower shall deliver to Bank certified copies of such policies of insurance and evidence of the payments of all premiums therefor. Upon the occurrence and during the continuance of any Event of Default, all proceeds payable under any such policy shall, at the option of Bank, be payable to Bank to be applied on account of the Obligations.
6.7 Accounts . Within 30 days of the Closing Date, Borrower shall maintain and shall cause each of its U.S. Subsidiaries to maintain its primary U.S. depository, operating, and investment accounts with Bank.
6.8 EBITDA . Borrower shall have, measured at the end of each fiscal quarter beginning with the fiscal quarter ending March 31, 2008, EBITDA for the twelve month period ending on such date of not less than (a) $4,700,000 for the periods ending March 31, 2008 and June 30, 2008 or (b) $4,250,000 for any period thereafter.
6.9 Fixed Charge Coverage . Borrower shall have, measured at the end of each fiscal quarter beginning with the fiscal quarter ending March 31, 2008, a Fixed Charge Coverage Ratio for the twelve month period ending on such date of at least (a) 1.30:1.00 for the period ending March 31, 2008 or (b) 1.15:1.00 for any period thereafter.
6.10 Senior Leverage Ratio . Borrower shall have, measured at the end of each fiscal quarter beginning with the fiscal quarter ending March 31, 2008, a ratio of (a) Senior Debt calculated on such date to (b) EBITDA for the twelve month period ending on such date of at least (i) 2.00:1.00 on any date of measurement to and including September 30, 2008 or (b) 1.75:1.00 on any date of measurement thereafter.
6.11 Minimum Liquidity . Borrower shall have, measured at the end of each month, a balance of Cash on a consolidated basis plus Net Accounts of not less than $4,500,000. Net Accounts means, without duplication, Accounts of the Credit Parties and the Credit Parties under and as defined in the Revolving Loan Agreement aged less than 90 days (or, in the case of Qwest, Vodafone Egypt and Cable & Wireless Panama, 120 days) from invoice date.
6.12 Intellectual Property Rights .
(a) Borrower shall promptly give Bank written notice of any applications or registrations of Patents or Trademarks filed with the United States Patent and Trademark Office, or the UK Intellectual Property Office (with respect to patent or trademark filings), including the date of such filing and the registration or application numbers, if any. Borrower shall (i) give Bank not less than 30 days prior written notice of the filing of any applications or registrations with the United States Copyright Office or the UK Intellectual Property Office (with respect to copyright filings), including the title of such intellectual property rights to be registered, as such title will appear on such applications or registrations, and the date such applications or registrations will be filed, and (ii) prior to the filing of any such applications or registrations, shall execute such documents as Bank may reasonably request for Bank to maintain its perfection in such intellectual property rights to be registered by Borrower, and upon the request of Bank, shall file such documents against any such applications or registrations. Upon filing any such applications or registrations with the United States Copyright Office, Borrower shall promptly provide Bank with (i) a copy of such applications or registrations, without the exhibits, if any, thereto, (ii) evidence of the filing of any documents requested by Bank to be filed for Bank to maintain the perfection and priority of its security interest in such intellectual property rights, and (iii) the date of such filing.
(b) Bank may audit Borrowers Intellectual Property Collateral to confirm compliance with this Section, provided such audit will occur at a time and place agreed to by both parties, will be designed not to disrupt the business operations of Borrower and may not occur more often than once per year, unless an Event of Default has occurred and is continuing. Bank shall have the right, but not the obligation, to take, at Borrowers sole expense, any actions that Borrower is required under this Section to take but which Borrower fails to take, after 15 days prior written notice to Borrower. Borrower shall reimburse and indemnify Bank for all reasonable out-of-pocket costs and reasonable out-of-pocket expenses incurred in the reasonable exercise of its rights under this Section.
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6.13 Consent of Inbound Licensors. Other than licenses in the ordinary course, prior to or within a reasonable period of time after entering into or becoming bound by any license or agreement, Borrower shall: (i) provide written notice to Bank of the material terms of such license or agreement with a description of its likely impact on Borrowers business or financial condition; and (ii) in good faith use commercially reasonable efforts to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for Borrowers interest in such licenses or contract rights to be deemed Collateral and for Bank to have a security interest in it that might otherwise be restricted by the terms of the applicable license or agreement, whether now existing or entered into in the future, provided, however, that the failure to obtain any such consent or waiver shall not constitute a default under this Agreement.
6.14 Future Stock Pledges and Guaranties . Borrower shall notify Bank at the time that any Person becomes a Subsidiary of Borrower, and promptly thereafter (and in any event within ten Business Days after the appropriate documents are provided to Borrower by Bank) (a) cause such Subsidiary to execute and deliver to Bank a joinder to the Guaranty to become a Guarantor, and (b) pledge the Capital Stock in such Subsidiary to Bank to secure the Obligations; provided that, the foregoing provisions of this Section 6.14 to the contrary notwithstanding: (i) nothing in this Section 6.14 shall require a Credit Party to grant any Lien in favor of Bank in relation to the Capital Stock of Evolving Systems GmbH, Evolving Systems GmbH, (ii) Evolving Systems Networks India PVT Ltd. and Evolving Systems Holdings Ltd. shall not be required to execute a joinder to the guaranty or to grant a security interest in any of their respective Property to secure any such guaranty or the Obligations, provided, however, Evolving Systems Holdings Ltd. shall be required to execute a guaranty in connection with the Revolving Loan Agreement; (iii) no Foreign Subsidiary of Borrower that is a controlled foreign corporation, as defined in Section 957 of the IRC, shall be required to deliver any guaranty or grant a security interest in any of its Property to secure any such guaranty or the Obligations, and neither Borrower nor any of its other U.S. Subsidiaries shall be required to pledge securities representing in the aggregate more than sixty five percent (65%) of the voting power of the outstanding voting equity securities of any such Foreign Subsidiary of Borrower; and (iv) no Foreign Subsidiary of Borrower incorporated in the United Kingdom shall be required to deliver any guaranty or grant a security interest in any of its Property to secure such guaranty or the Obligations if such guaranty or granting of a security interest would be in breach of Section 151 of the Companies Act 1985.
6.15 Further Assurances . At any time and from time to time Borrower shall execute and deliver such further instruments and take such further action as may reasonably be requested by Bank to effect the purposes of this Agreement.
7. NEGATIVE COVENANTS .
So long as any Obligation shall remain unpaid (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) and Bank shall have any commitment to make Credit Extensions hereunder, Borrower will not do any of the following:
7.1 Dispositions . Convey, sell, lease, transfer or otherwise dispose of (collectively, a Transfer), or permit any of its Subsidiaries to Transfer, all or any part of its business or property, other than:
(a) Transfers of Inventory, use of cash, or liquidation or sale of cash equivalents, in each case in the ordinary course of business;
(b) Transfers of non-exclusive licenses and similar arrangements for the use of the property of Borrower or its Subsidiaries in the ordinary course of business (such license may include a restriction on assignability of the license and its continuation after a Change in Control);
(c) Transfers (whether in a single transaction or a series of transactions) of obsolete, worn out, replaced, damaged or excess property that is no longer needed in the ordinary course of business and has a book value not exceeding $200,000 in the aggregate in any fiscal year;
(d) Transfers not specifically permitted otherwise in this Section 7.1 (other than Capital Stock of a Credit Party to the extent owned by another Credit Party) to the extent (i) such sale is for fair
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market value and the aggregate fair market value of all assets so sold does not exceed an amount equal to $250,000 in any fiscal year, (ii) no Default or Event of Default exists or otherwise would result therefrom, (iii) after giving effect to such transaction, Borrower is in compliance on a pro forma basis with the financial covenants referenced in Sections 6.8 to 6.11 (recomputed for the most recent period for which financial statements have been delivered in accordance with the terms hereof after giving effect thereto as of the first day of such period), and (iv) the sole consideration therefor received by Borrower or such Subsidiary is cash;
(e) Transfers in connection with transactions otherwise permitted under the other subsections of this Section 7 to the extent permitted thereunder;
(f) Transfers of property to any other Credit Party ; and
(g) Transfers permitted under the Revolving Loan Documents.
7.2 Change in Business; Change in Control or Executive Office . Engage in any business, or permit any of its Subsidiaries to engage in any business, other than the development, distribution and implementation of software primarily for the communications industry and the provision of related services, and other activities that are reasonably incidental or ancillary thereto; or suffer or permit a Change in Control; or without twenty (20) days prior written notification to Bank, relocate its chief executive office or state of incorporation or formation or change its legal name; or without Banks prior written consent, change the date on which its fiscal year ends.
7.3 Mergers or Acquisitions . Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the Capital Stock or property of another Person, other than:
(a) Permitted Investments; and
(b) upon not less than ten (10) Business Days prior written notice to Bank, any Subsidiary of Borrower may (A) merge with, or dissolve or liquidate into, or transfer its property to, Borrower or a Wholly-Owned Subsidiary of Borrower that is a Credit Party, provided that, with respect to any such merger, Borrower or such Wholly-Owned Subsidiary shall be the continuing or surviving entity and (B) merge with, or dissolve or liquidate into, or transfer its property to a Wholly-Owned Subsidiary of Borrower as permitted by the Revolving Loan Documents.
7.4 Indebtedness . Create, incur, assume or be or remain liable with respect to any Indebtedness, or permit any Subsidiary so to do, other than Permitted Indebtedness.
7.5 Encumbrances; Negative Pledges . (a) Create, incur, assume or suffer to exist any Lien with respect to any of its property, or assign or otherwise convey any right to receive income, including the sale of any Accounts, or permit any of its Subsidiaries so to do, except for Permitted Liens, or (b) agree with any Person other than Bank not to grant a security interest in, or otherwise encumber, any of its property, or permit any Subsidiary to do so except (i) in connection with any document or instrument governing Liens related to purchase money Indebtedness and capital leases which, in each case, otherwise constitute Permitted Liens, (ii) leased equipment, intellectual property and general intangibles of Borrower to the extent excluded from the Collateral, (iii) any Hedging Agreements, so long as such prohibition is limited to the assets securing Borrowers or such Subsidiarys obligations under the applicable Hedging Agreement and (iv) as a result of the Loan Documents and the Revolving Loan Documents.
7.6 Distributions . Pay any dividends or make any other distribution or payment on account of or in redemption, retirement or purchase of any Capital Stock, or permit any of its Subsidiaries to do so, except that:
(a) Borrower may repurchase the equity securities or warrants or options to acquire any equity securities of Borrower owned or held by former officers or employees pursuant to stock repurchase
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agreements as long as an Event of Default does not exist prior to such repurchase or would not exist after giving effect to such repurchase;
(b) the Credit Parties and their Subsidiaries may make payments pursuant to and in accordance with the Cross License Agreement and Transfer Pricing Agreements; and
(c) any Wholly-Owned Subsidiary of Borrower may declare and pay dividends and other distributions to Borrower or to any other Wholly-Owned Subsidiary of Borrower that is a Credit Party and the Wholly-Owned Subsidiaries of Borrower party to the Revolving Loan Agreement or any of the other Revolving Loan Documents may declare and pay dividends permitted under the Revolving Loan Agreement.
7.7 Investments . Directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries so to do, other than Permitted Investments; or suffer or permit any Subsidiary to be a party to, or be bound by, an agreement that restricts such Subsidiary from paying dividends or otherwise distributing property to Borrower except (i) as a result of the Loan Documents and the Revolving Loan Documents and (ii) as permitted under the Transfer Pricing Agreements.
7.8 Transactions with Affiliates . Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower except for:
(a) transactions expressly permitted by, and subject to the terms of, this Agreement, the other Loan Documents and the Revolving Loan Documents;
(b) compensation and employment arrangements with employees, officers and directors in the ordinary course of business;
(c) (i) transactions between or among any of the Credit Parties and/or their Wholly-Owned Subsidiaries that are, or concurrent with such transaction becomes, a Credit Party and (ii) transactions between or among the Revolving Borrower and its Subsidiaries that are permitted by the Revolving Loan Agreement;
(d) the Cross License Agreement and the Transfer Pricing Agreements;
(e) the agreements identified in the Schedule; and
(f) other transactions that are in the ordinary course of Borrowers business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arms length transaction with a non-affiliated Person.
7.9 Subordinated Debt . Make any payment in respect of any Subordinated Debt, or permit any of its Subsidiaries to make any such payment, except in compliance with the terms of such Subordinated Debt, or amend any provision contained in any documentation relating to the Subordinated Debt without Banks prior written consent except as permitted under the applicable subordination agreement.
7.10 Inventory and Equipment . Store any Inventory or Equipment with a fair market value in excess of $250,000 with a bailee, warehouseman, or other third party unless the third party has been notified of Banks security interest and Bank (a) has received an acknowledgment from the third party that it is holding or will hold the Inventory or Equipment for Banks benefit or (b) is in pledge possession of the warehouse receipt, where negotiable, covering such Inventory or Equipment. Store or maintain any Equipment or Inventory at a location other than (i) one or more of the locations set forth in Appendix 2 attached hereto or (ii) any other location or locations disclosed to Bank in writing.
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7.11 Compliance . Become an investment company or be controlled by an investment company, within the meaning of the Investment Company Act of 1940, or become principally engaged in, or undertake as one of its important activities, the business of extending credit for the purpose of purchasing or carrying margin stock, or use the proceeds of the Term Advance for such purpose.
8. EVENTS OF DEFAULT .
Any one or more of the following events shall constitute an Event of Default by Borrower under this Agreement:
8.1 Payment Default . If Borrower fails to pay (a) when due, any principal or prepayment premium on the Term Advance or (b) within two (2) Business Days after the same shall become due and payable, any interest, Bank Expenses or other Obligations (other than principal or prepayment premiums) provided for or required under this Agreement or the other Loan Documents;
8.2 Covenant Default .
(a) If Borrower fails to perform any obligation under Section 6.3 (Financial Statements, Reports, Certificates), 6.5 (Taxes), 6.6 (Insurance), 6.8 (EBITDA), 6.9 (Fixed Charge Coverage Ratio), 6.10 (Senior Leverage Ratio), 6.11 (Minimum Liquidity) or 6.14 (Future Stock Pledges and Guaranties) or violates any of the covenants contained in Article 7 of this Agreement; or
(b) If Borrower fails or neglects to perform or observe any other material term, provision, condition, covenant contained in this Agreement or in any of the other Loan Documents and as to any default under such other term, provision, condition or covenant that can be cured, has failed to cure such default within 30 days after Borrower receives written notice thereof or any officer of Borrower becomes aware thereof, and within such time period the failure to have cured such default shall not be deemed an Event of Default.
8.3 Material Adverse Effect . A Material Adverse Effect occurs;
8.4 Attachment . (a) If any material portion of Borrowers assets, which has an aggregate fair market value in excess of $175,000 individually or $350,000 in the aggregate, is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within thirty (30) days of being issued or executed, (b) if Borrower is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs for more than fifteen (15) calendar days which is reasonably likely to be, have or result in a Material Adverse Effect, (c) if a judgment or other claim becomes a lien or encumbrance upon any material portion of Borrowers assets, which has an aggregate fair market value in excess of $175,000 individually or $350,000 in the aggregate and such lien or encumbrance has not been released or removed within thirty (30) days of attaching, or (d) if a notice of lien, levy, or assessment is filed of record with respect to any material portion of Borrowers assets which has an aggregate fair market value in excess of $175,000 individually or $350,000 in the aggregate by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within thirty (30) days after Borrower receives notice thereof, provided that none of the foregoing as described in clauses (a) through (d) shall constitute an Event of Default where such action or event is stayed or an adequate bond has been posted pending a good faith contest by Borrower;
8.5 Insolvency . If Borrower is no longer Solvent, if an Insolvency Proceeding is commenced by Borrower, or if an Insolvency Proceeding is commenced against Borrower and is not dismissed or stayed within sixty (60) days after the date of commencement;
8.6 Other Agreements . If there is (a) an Event of Default as defined in the Revolving Loan Agreement, (b) a default in the payment of any principal of or interest when due on any Indebtedness of Borrower (other than the Obligations and Borrowers guarantee of the Obligations as defined in the Revolving Loan Agreement) in the outstanding principal amount in excess of $250,000 in the aggregate, which default is not
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cured or waived within any applicable grace or cure period, or (c) a default or other failure to perform in any agreement to which Borrower is a party or by which it is bound relating to any Indebtedness (other than the Obligations and Borrowers guarantee of the Obligations as defined in the Revolving Loan Agreement) in the outstanding principal amount in excess of $750,000 in the aggregate, which default or breach is not cured or waived within any applicable grace or cure period, which results in a right by a third party or parties, whether or not exercised, to accelerate the maturity of such Indebtedness;
8.7 Judgments . If a judgment or judgments for the payment of money in an amount of at least $175,000 individually or $350,000 in the aggregate (excluding judgments and decrees to the extent covered by third party insurance of Borrower where such coverage has been acknowledged by the insurer) shall be rendered against Borrower and shall remain unsatisfied and unstayed for a period of thirty (30) days of being rendered; or
8.8 Misrepresentations . If any warranty or representation set forth herein or in any certificate delivered to Bank by Borrower pursuant to this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made.
8.9 Guaranty. If any guaranty of all or a portion of the Obligations (a Guaranty) ceases for any reason to be in full force and effect, or any Guarantor fails to perform any obligation under any Guaranty or a security agreement securing any Guaranty (collectively, the Guaranty Documents) which failure to perform is not cured or waived within any applicable grace or cure period, or any event of default occurs under any Guaranty Document or any Guarantor revokes or purports to revoke a Guaranty, or any warranty or representation of a Guarantor set forth in any Guaranty Document to which such Guarantor is a party or in any certificate delivered to Bank by a Guarantor in connection with any Guaranty Document shall prove to have been incorrect in any material respect when made or deemed made, or if any of the circumstances described in Sections 8.4 through 8.7 occur with respect to any Guarantor.
9. BANKS RIGHTS AND REMEDIES .
9.1 Rights and Remedies . Upon the occurrence and during the continuance of an Event of Default, Bank may, at its election, without notice of its election and without demand, do any one or more of the following, all of which are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents, or otherwise, immediately due and payable (provided that upon the occurrence of an Event of Default described in Section 8.5, all Obligations shall become immediately due and payable without any action by Bank);
(b) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement or under any other Loan Document;
(c) Settle or adjust disputes and claims directly with account debtors for amounts, upon terms and in whatever order that Bank reasonably considers advisable;
(d) Make such payments and do such acts as Bank considers necessary or reasonable to protect its security interest in the Collateral. Borrower agrees to assemble the Collateral if Bank so requires, and to make the Collateral available to Bank at a place or places designated by Bank which are reasonably convenient to Bank and Borrower. Borrower authorizes Bank to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any encumbrance, charge, or lien which in Banks determination appears to be prior or superior to its security interest and to pay all expenses incurred in connection therewith. With respect to any of Borrowers owned premises, Borrower hereby grants Bank a license to enter into possession of such premises and to occupy the same, without charge, in order to exercise any of Banks rights or remedies provided herein, at law, in equity, or otherwise;
(e) Set off and apply to the Obligations any and all (i) balances and deposits of Borrower held by Bank, or (ii) indebtedness at any time owing to or for the credit or the account of Borrower held
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by Bank (Bank agrees to notify Borrower promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application).;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral. Except to the extent that such use, assignment, license or sublicense is expressly prohibited under a license agreement and would result in a breach under such agreement for which such agreement would reasonably be expected to be terminated by such licensor, upon the occurrence of such an Event of Default and the exercise of its rights under this Section 9.1(f), Bank is granted a license or other right, solely pursuant to the provisions of this Section 9.1, to use, without charge, Borrowers labels, patents, copyrights, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any property of a similar nature, as it pertains to the Collateral, solely as necessary in completing production of, advertising for sale, and selling any Collateral and, and solely in connection with Banks exercise of its rights under this Section 9.1, Borrowers rights under all licenses and all franchise agreements shall inure to Banks benefit;
(g) Dispose of the Collateral by way of one or more contracts or transactions, for cash or on terms, in such manner and at such places (including Borrowers premises) as Bank determines is commercially reasonable, and apply any proceeds to the Obligations in whatever manner or order Bank deems appropriate;
(h) Bank may credit bid and purchase at any public sale; and
(i) Any deficiency that exists after disposition of the Collateral as provided above will be paid promptly by Borrower.
9.2 Power of Attorney. Effective only upon the occurrence and during the continuance of an Event of Default, Borrower hereby irrevocably appoints Bank (and any of Banks designated officers, or employees) as Borrowers true and lawful attorney to: (a) send requests for verification of Accounts or notify account debtors of Banks security interest in the Accounts; (b) endorse Borrowers name on any checks or other forms of payment or security that may come into Banks possession; (c) sign Borrowers name on any invoice or bill of lading relating to any Account, drafts against account debtors, schedules and assignments of Accounts, verifications of Accounts, and notices to account debtors; (d) dispose of any Collateral; (e) make, settle, and adjust all claims under and decisions with respect to Borrowers policies of insurance; (f) settle and adjust disputes and claims respecting the accounts directly with account debtors, for amounts and upon terms which Bank determines to be reasonable; and (g) to file, in its sole discretion, one or more financing or continuation statements and amendments thereto, relative to any of the Collateral. The appointment of Bank as Borrowers attorney in fact, and each and every one of Banks rights and powers, being coupled with an interest, is irrevocable until all of the Obligations have been fully repaid and performed (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) and Banks obligation to provide Credit Extensions hereunder is terminated.
9.3 Accounts Collection . At any time after the occurrence and during the continuance of an Event of Default, Bank may notify any Person owing funds to Borrower of Banks security interest in such funds and verify the amount of such Account. After the occurrence and during the continuance of an Event of Default, Borrower shall collect all amounts owing to Borrower for Bank, receive in trust all payments as Banks trustee, and promptly deliver such payments to Bank in their original form as received from the account debtor, with proper endorsements for deposit.
9.4 Bank Expenses . If Borrower fails to pay any amounts or furnish any required proof of payment due to third persons or entities, as required under the terms of this Agreement, then Bank may do any or all of the following after reasonable written notice to Borrower: (a) make payment of the same or any part thereof; or (b) obtain and maintain insurance policies of the type discussed in Section 6.6 of this Agreement, and take any action with respect to such policies as Bank reasonably deems prudent. Any amounts so paid or deposited by Bank shall constitute Bank Expenses, shall be due and payable within 10 Business Days following demand, and, to the extent not paid when due, shall bear interest at the then applicable rate hereinabove provided, and shall be secured by the Collateral. Any payments made by Bank shall not constitute an agreement by Bank to make similar
29
payments in the future or a waiver by Bank of any Event of Default under this Agreement.
9.5 Banks Liability for Collateral . So long as Bank complies with reasonable banking practices (including, without limitation, reasonable care of any Collateral in its possession and the accounting for moneys actually received by it hereunder), Bank shall not in any way or manner be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage thereto occurring or arising in any manner or fashion from any cause; (c) any diminution in the value thereof; or (d) any act or default of any carrier, warehouseman, bailee, forwarding agency, or other person whomsoever. All risk of loss, damage or destruction of the Collateral shall be borne by Borrower.
9.6 Shares . Borrower recognizes that Bank may be unable to effect a public sale of any or all the Shares in connection with the exercise of Banks rights and remedies under this Agreement during the continuance of an Event of Default by reason of certain prohibitions contained in federal securities laws and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Borrower acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. Bank shall be under no obligation to delay a sale of any of the Shares for the period of time necessary to permit the issuer thereof to register such securities for public sale under federal securities laws or under applicable state securities laws, even if such issuer would agree to do so.
9.7 Remedies Cumulative . Banks rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative. Bank shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise by Bank of one right or remedy shall be deemed an election, and no waiver by Bank of any Event of Default on Borrowers part shall be deemed a continuing waiver. No delay by Bank shall constitute a waiver, election, or acquiescence by it. No waiver by Bank shall be effective unless made in a written document signed on behalf of Bank and then shall be effective only in the specific instance and for the specific purpose for which it was given.
9.8 Demand; Protest . Except as expressly provided for herein or in any other Loan Document, Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, notice of any default or any other notice (to the maximum extent permitted by applicable law) of any kind in connection with the Loan Documents or the Collateral.
10. NOTICES .
Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any Loan Document shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, or by telefacsimile to Borrower or to Bank, as the case may be, at its addresses set forth below:
If to Borrower: |
EVOLVING SYSTEMS, INC. 9777 Pyramid Court, Suite 100 Englewood, CO 80112 Attn: Anita T. Moseley, General Counsel FAX: (303) 802-1138 |
|
|
with a copy to: |
Attn: Brian R. Ervine Executive Vice President, Chief Financial and Administrative Officer FAX: (303) 802-1420 |
|
|
If to Bank: |
Bridge Bank, N.A. 55 Almaden Blvd. San Jose, CA 95113 Attn: Dan Pistone FAX: (408) 423-8520 |
30
The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other.
Notices sent by personal delivery or recognized overnight delivery service, or mailed by first-class, certified or registered mail, shall be deemed to have been given when received; notices sent by telefacsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day). Notices delivered through electronic communications to the extent provided in the next paragraph shall be effective as provided in such paragraph.
Notices and other communications to Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Bank. Bank may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless each of the Persons sending and receiving particular notices or communications otherwise agree, (i) notices and other communications sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement from the intended recipient by return e-mail (but excluding automated return e-mail, such as e-mail sent by the return receipt requested function) or other written acknowledgement, provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER .
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California, without regard to principles of conflicts of law. Each of Borrower and Bank hereby submits to the non-exclusive jurisdiction of the state and Federal courts located in the County of Santa Clara, State of California. BORROWER AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
If the jury waiver set forth in Section is not enforceable, then any dispute, controversy or claim arising out of or relating to this Agreement, the Loan Documents or any of the transactions contemplated therein shall be settled by judicial reference pursuant to Code of Civil Procedure Section 638 et seq. before a referee sitting without a jury, such referee to be mutually acceptable to the parties or, if no agreement is reached, by a referee appointed by the Presiding Judge of the California Superior Court for Santa Clara County. This Section shall not restrict a party from exercising remedies under the Code or from exercising pre-judgment remedies under applicable law.
12. GENERAL PROVISIONS .
12.1 Successors and Assigns . This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties; provided, however, that neither this Agreement nor any rights hereunder may be assigned by Borrower without Banks prior written consent, which consent may be
31
granted or withheld in Banks sole discretion. Subject to compliance with Section 12.3 by both Bank and the Transferee (as defined in Section 12.3), Bank shall have the right without the consent of or notice to Borrowers to sell, transfer, negotiate, or grant participation in all or any part of, or any interest in, Banks obligations, rights and benefits hereunder.
12.2 Indemnification . Borrower shall defend, indemnify and hold harmless Bank and its officers, employees, and agents against: (a) all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with the transactions contemplated by this Agreement and the other Loan Documents; and (b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank as a result of or in any way arising out of, following, or consequential to transactions between Bank and Borrower under this Agreement and the other Loan Documents (including without limitation reasonable attorneys fees and expenses), except for losses caused by the gross negligence or willful misconduct of the Person seeking indemnification.
12.3 Tax Related Matters Upon Transfer or Other Similar Transactions By Bank . Notwithstanding any other provision of this Agreement or any other Loan Document, if Bank sells, transfers, assigns, negotiates, or grants participations in all or any part of, or any interest in, Banks obligations, rights or benefits under any of the Loan Documents (a Transferred Interest) to any Person (a Transferee), then:
(a) if Borrower is required by applicable law to deduct or withhold any amounts for or in respect of tax with respect to any Transferred Interest (a Tax Deduction) that Borrower would not have otherwise been required to deduct or withhold if Bank had not sold, transferred, assigned, negotiated or granted participation in such Transferred Interest,
(i) Borrower shall be permitted under the Loan Documents to deduct or withhold any such amounts, and
(ii) Borrower shall not be required to pay, and neither Bank nor any Transferee shall be entitled to receive, any amount under the Loan Documents with respect to such Transferred Interest that is greater than (A) the amount that Borrower would have been required to pay to Bank with respect to such Transferred Interest if Bank had not sold, transferred, assigned, negotiated or granted a participation in such Transferred Interest, less (B) any Tax Deduction with respect to such Transferred Interest, less (C) any penalties, interest and reasonable expenses arising from such Tax Deduction or with respect thereto;
(b) each Transferee shall timely deliver documentation prescribed by applicable law or reasonably requested by Borrower as will enable Borrower to determine whether or not withholding, backup withholding or information reporting requirements would apply in respect of payments required under the Loan Documents with respect to the relevant Transferred Interest;
(c) each Transferee and, if applicable, Bank, shall complete all required procedural formalities and shall deliver to Borrower (in such number of copies as is required under applicable law or as shall be reasonably requested by Borrower) on or prior to the date on which such Transferee acquires a Transferred Interest (and promptly from time to time thereafter upon the reasonable request of Borrower or upon the obsolescence, expiration or invalidity of any form or document previously delivered by such Transferee or, if applicable, Bank) all duly completed forms and other documentation, if any, required to enable Borrower to make all payments required under the Loan Documents with respect to such Transferred Interest without deduction or withholding for or in respect of taxes, or, in the case of a Transferred Interest in respect of which payments under the Loan Documents are not eligible for a complete exemption, at a reduced rate of deduction or withholding in respect of taxes;
(d) with respect to any Transferred Interest, Bank and the relevant Transferee shall indemnify Borrower, within 20 days after written demand therefor, for all amounts for or in respect of taxes paid or incurred by Borrower with respect to such Transferred Interest and the full amount of any penalties, interest and reasonable expenses arising therefrom or with respect thereto, excluding any amounts to the extent such amounts previously reduced, under Section 12.3(a)(ii)(B) or (C), the amount paid by Borrower under the Loan Documents with respect to such Transferred Interest; and
32
(e) any failure by Borrower to comply with any obligation under Section 6.5 (Taxes) with respect to any Transferred Interest as a result of this Section 12.3 shall not constitute an Event of Default by Borrower under this Agreement.
12.4 United States Person Status . Bank represents and warrants that it is a United States person within the meaning of Section 7701(a)(30) of the IRC and that it is lending under this Agreement through a lending office located in the United States.
12.5 Time of Essence . Time is of the essence for the performance of all obligations set forth in this Agreement.
12.6 Severability of Provisions . Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
12.7 Amendments in Writing, Integration . Neither this Agreement nor the Loan Documents can be amended or terminated orally. All prior agreements, understandings, representations, warranties, and negotiations between the parties hereto with respect to the subject matter of this Agreement and the Loan Documents, if any, are merged into this Agreement and the Loan Documents.
12.8 Counterparts . This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic copy shall be effective as delivery of a manually executed counterpart of this Agreement.
12.9 Survival . All covenants, representations and warranties made in this Agreement shall survive the execution and delivery of the Loan Documents and the making and funding of the Term Advance so long as any Obligations remain outstanding (other than contingent indemnity obligations for which no claim has been made). The obligations of Borrower to indemnify Bank with respect to the expenses, damages, losses, costs and liabilities described in Section 12.2 and the confidentiality provisions of Section 12.10 shall survive until all applicable statute of limitations periods with respect to actions that may be brought have run.
12.10 Confidentiality . In handling any confidential information Bank and all employees and agents of Bank, including but not limited to accountants, shall exercise the same degree of care that it exercises with respect to its own proprietary information of the same types to maintain the confidentiality of any non-public information thereby received or received pursuant to this Agreement or the other Loan Documents except that disclosure of such information may be made (i) to the subsidiaries or affiliates of Bank in connection with their present or prospective business relations with Borrower (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential in accordance with this Section 12.10), (ii) to prospective transferees or purchasers of any interest in the Loans, provided that they have (x) entered into a comparable confidentiality agreement in favor of Borrower to which Borrower is a party or pursuant to which Borrower and its Subsidiaries are third party beneficiaries and (y) delivered a copy of such confidentiality agreement to Borrower, (iii) as required by law, regulations, rule or order, subpoena, judicial order or similar order, (iv) as may be required in connection with the examination, audit or similar investigation of Bank by a regulatory authority or examiner regulating or having jurisdiction over Bank and requiring or requesting such disclosure and (v) as Bank may determine in connection with the enforcement of any remedies hereunder at any time during the existence of an Event of Default. Confidential information hereunder shall not include information that either: (a) is in the public domain or in the knowledge or possession of Bank when disclosed to Bank with no confidentiality obligations to a third party, or becomes part of the public domain after disclosure to Bank through no fault of Bank; or (b) is disclosed to Bank by a third party on a non-confidential basis other than as a result of this Section 12.10, provided Bank does not have actual knowledge that such third party is prohibited from disclosing such information. Should Bank be required to disclose any such information by virtue of a subpoena or similar process by any court, tribunal, or agency pursuant to items (iii), (iv) or (v) above, then Bank shall use commercially reasonable efforts to promptly notify Borrower thereof so as to allow Borrower, at its sole cost and expense, to seek a protective order or to take any other
33
appropriate action to protect its rights.
12.11 Patriot Act . To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. WHAT THIS MEANS FOR YOU: when you open an account, we will ask your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your drivers license or other identifying documents.
12.12 No Consequential Damages . No party to this Agreement or any other Loan Document, nor any agent or attorney of such party or Bank, shall be liable to any other party to this Agreement or any other Person on any theory of liability for any special, indirect, consequential or punitive damages.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
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EVOLVING SYSTEMS, INC. |
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By: |
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Brian R. Ervine |
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Title: Executive Vice President, Chief Financial and Administrative Officer |
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BRIDGE BANK, N.A. |
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By: |
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Title: |
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35
APPENDIX 1
NAME OF ACCOUNT DEBTOR |
|
% WH TAXES |
Accenture |
|
10% |
Alaska Communications |
|
|
Alcatel |
|
|
Alltel |
|
|
AT&T Bellsouth |
|
|
AT&T Cingular |
|
|
Comcast |
|
|
Cox |
|
|
Cable & Wireless Panama |
|
|
Leap/Crickett |
|
|
Lucent |
|
|
Qwest |
|
|
AT&T (Formerly SBC) |
|
|
Shaw |
|
|
SNET |
|
|
Sprint/Nextel |
|
|
Embarq |
|
|
Telenor Pakistan |
|
|
Telcordia |
|
|
Tw Telecom |
|
|
TNS |
|
|
Vartec |
|
|
Verisign |
|
|
Verizon |
|
|
Accenture |
|
|
American Telecommunication, Inc. |
|
Brazil 25% & 20%; Mexico 10% |
Bulgaria Telecom |
|
15% |
British Telecom |
|
|
Cable & Wireless |
|
|
Cybercity |
|
|
Danet |
|
|
Lebanon MIC 1 S.A.L. |
|
|
Hutchison UK |
|
|
Hutchison Whampoa |
|
|
Inmarsat |
|
|
Monet |
|
|
MTN SA |
|
|
MTN Nigeria |
|
5% |
NEC Japan |
|
|
NTL (Acquired By Virgin Media) |
|
|
Siemens AG/VIPNet |
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|
Siemans CAC |
|
|
Nokia/Siemans |
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|
SiMobile |
|
|
Swisscom |
|
|
T-Mobile |
|
|
Tele2 |
|
|
Virgin Media |
|
|
VipNet |
|
|
Vodafone Egypt |
|
15% |
Vodafone Greece |
|
|
IBM Greece |
|
|
Vodafone Japan |
|
10% |
Vodafone UK |
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Wireless Trade |
|
5% |
1
Appendix 2
Locations of Inventory and Equipment
Office Locations |
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Evolving Systems, Inc. 9777 Pyramid Court, Suite 100 Englewood, CO 80112 USA |
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Evolving Systems Limited One Angel Square Torrens Street London EC1V 1PL UK |
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Evolving Systems Limited Riverside Buildings 108 Walcot Street Bath BA1 5BG UK |
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Tertio Deutschland GmbH Erich-Zeitler-Strasse 12 85737 Ismaning Munich Germany |
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Evolving Systems Networks India Private Ltd. 3 rd Floor, HM Geneva House 14, Cunningham Road Bangalore 560 052 India |
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Evolving Systems Networks India Private Ltd. Shah Sultan Complex Door No. 17, Ali Asker Road Bangalore 560 052 India |
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Evolving Systems Limited |
P-3-15, Plaza Damas |
60, Jalan Sri Hartamas 1, |
Sri Hartamas |
50480 Kuala Lumpur |
Malaysia |
2
DEBTOR: |
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EVOLVING SYSTEMS, INC. |
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SECURED PARTY: |
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BRIDGE BANK, N.A. |
EXHIBIT A
COLLATERAL DESCRIPTION ATTACHMENT
TO LOAN AND SECURITY AGREEMENT
All personal property of Borrower (herein referred to as Borrower or Debtor) whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to:
(a) all accounts (including health-care-insurance receivables), chattel paper (including tangible and electronic chattel paper), deposit accounts, documents (including negotiable documents), equipment (including all accessions and additions thereto), general intangibles (including payment intangibles and software), goods (including fixtures), instruments (including promissory notes), inventory (including all goods held for sale or lease or to be furnished under a contract of service, and including returns and repossessions), investment property (including securities and securities entitlements), letter of credit rights, money, and all of Debtors books and records with respect to any of the foregoing, and the computers and equipment containing said books and records;
(b) any and all cash proceeds and/or noncash proceeds of any of the foregoing, including, without limitation, insurance proceeds, and all supporting obligations and the security therefor or for any right to payment. All terms above have the meanings given to them in the California Uniform Commercial Code, as amended or supplemented from time to time (the Code).
Notwithstanding the foregoing, the Collateral does not include any property that constitutes the capital stock of a controlled foreign corporation (as defined in the Internal Revenue Code of 1986, as amended, and the regulations thereunder) in excess of 65% of the voting power of all classes of capital stock of such controlled foreign corporations entitled to vote.
Notwithstanding the foregoing, the Collateral does not include any lease under which Debtor is a lessee, license under which Debtor is a licensee, other contract right, property right or agreement to which Debtor is a party, any securities or other investment property owned by Debtor that is subject to contractual prohibitions against or limitations on the transfer or pledging of such securities or property, or any equipment owned by Debtor that is subject to a purchase money Lien or capitalized lease obligation if the contract or other agreement in which such Lien is granted (or in the documentation for such capitalized lease obligation) validly prohibits the creation of any other Lien on such equipment, or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of Debtor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights, agreement or documentation (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity); provided, however, in each such case, consent has not been obtained despite Debtors commercially reasonable efforts to obtain it; and provided further, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability, other restriction or assignment shall be remedied and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property right or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such lease, license, contract, property rights, agreement, securities, other investment property, or equipment.
3
EXHIBIT B
ADVANCE REQUEST FORM
1
EXHIBIT C
BORROWING BASE CERTIFICATE
Borrower: EVOLVING SYSTEMS, INC. |
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Lender: Bridge Bank, N.A. |
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Commitment Amount: $1,000,000 |
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* Or 120 days in the case of Accounts of Qwest, Vodafone Egypt and Cable & Wireless Panama (or any of their respective successors)
The undersigned represents and warrants that the foregoing is true, complete and correct in all material respects, and that the information reflected in this Borrowing Base Certificate complies in all material respects with the representations and warranties set forth in the Loan and Security Agreement between the undersigned and Bridge Bank, N.A..
EVOLVING SYSTEMS, INC. |
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By: |
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Authorized Signer |
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1
EXHIBIT D
COMPLIANCE CERTIFICATE
TO: |
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BRIDGE BANK, N.A. |
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FROM: |
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EVOLVING SYSTEMS, INC. |
The undersigned authorized officer of EVOLVING SYSTEMS, INC. (Borrower) hereby certifies, solely in his or her capacity as an authorized officer of Borrower, that in accordance with the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the Agreement), (i) Borrower is in compliance for the period ending with all covenants except as noted below, (ii) no Default or Event of Default exists as of the date hereof[, except as set forth in Schedule [ ] attached hereto], and (iii) all representations and warranties of Borrower stated in the Agreement are true and correct in all material respects as of the date hereof except [(x) as set forth in Schedule [ ] attached hereto and (y)] to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date. Attached herewith are the [audited/unaudited] financial statements required pursuant to Section 6.3[(a)][(b)] of the Agreement. Such financial statements fairly present in all material respects the consolidated financial position and results of operations of Borrower (or such Subsidiary) and its consolidated Subsidiaries as of the dates and for the relevant periods indicated (subject in the case of unaudited financial statements, to year end adjustments and matters that would be disclosed in financial statement notes). Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.
Please indicate compliance status by circling Yes/No under Complies column.
Reporting Covenant |
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Required |
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Complies |
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Monthly financial statements |
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Monthly within 30 days |
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Yes |
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No |
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N/A |
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Annual (CPA Audited) |
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FYE within 120 days |
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Yes |
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No |
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N/A |
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10K and 10Q |
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(as applicable) |
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Yes |
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No |
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N/A |
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A/R Audit |
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Initial and Annual |
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Yes |
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No |
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N/A |
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Operating Budget |
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within 30 days of FYE |
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Yes |
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No |
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N/A |
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IP Report |
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Upon Banks request within 10 days |
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Yes |
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No |
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N/A |
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Deposit balances with Bank |
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$ |
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Deposit balances outside Bank |
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$ |
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5% Licenses Report |
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Monthly |
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Yes |
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No |
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N/A |
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Financial Covenant |
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Required |
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Actual |
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Complies |
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EBITDA measured on a trailing 12 month basis* |
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$4,700,000 through 6/30/08 and $4,250,000 thereafter |
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$ |
|
Yes |
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No |
|
N/A |
Fixed Charge Coverage Ratio* |
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1.30:1.00 through 3/31/2008; 1.15:1.00 thereafter |
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:1.00 |
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Yes |
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No |
|
N/A |
Senior Leverage Ratio* |
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2.25:1.00 through 9/30/2008; 1.75:1.00 thereafter |
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:1.00 |
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Yes |
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No |
|
N/A |
Minimum Liquidity |
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$4,500,000 |
|
$ |
|
Yes |
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No |
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N/A |
*beginning March 31, 2008 and at the end of each fiscal quarter thereafter.
Comments Regarding Exceptions: See Attached. |
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BANK USE ONLY |
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Received by: |
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1
ANNEX A
SHARES
Name of Entity |
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Class or Series
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Number of
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Percentage of
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Certificate
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Evolving Systems
|
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Ordinary |
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100 shares |
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100% (only 65%
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4 (1 share)*
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Evolving Systems
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Equity Shares |
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370,184 shares |
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100%
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001 (9,998
shares),
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65% of the outstanding shares of Evolving Systems Holding Ltd. will automatically become subject to Banks security interest in the Shares upon the effectiveness of the merger of Intermediate Holdco with and into Borrower within fifteen (15) days following the Closing Date.
* Certificate Numbers 4 and 6 will be retained by Borrower and certificate number 5 will be delivered to Bank.
** Certificate numbers 002 and 003 are held by N. Madhusudan Reddy, a director of Evolving Systems Networks India PVT Ltd, as the nominee of Evolving Systems, Inc.
*** Only 65% of the outstanding shares of Evolving Systems Networks India PVT, Ltd. are pledged to Bank pursuant to this Agreement. Notwithstanding the fact that certificate no. 006 represents more than 65% of the outstanding shares of Evolving Systems Networks India PVT, Ltd., Banks security interest and Lien shall extend only to 65% of such outstanding shares.
1
Exhibit 10.1(b)
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement is entered into as of February 22, 2008 by and between BRIDGE BANK, N.A. ( Bank ) and EVOLVING SYSTEMS, INC., a Delaware corporation ( Grantor ).
RECITALS
A. Bank has agreed to make certain advances of money and to extend certain financial accommodations (the Credit Extensions) to Grantor in the amounts and manner set forth in that certain Loan and Security Agreement by and between Bank and Grantor dated of even date herewith (as the same may be amended, modified or supplemented from time to time, the Loan Agreement; capitalized terms used herein are used as defined in the Loan Agreement). Bank is willing to make the Credit Extensions to Grantor, but only upon the condition, among others, that Grantor shall grant to Bank a security interest in certain Copyrights, Trademarks and Patents of Grantor to secure the obligations of Grantor under the Loan Agreement.
B. Pursuant to the terms of the Loan Agreement, Grantor has granted to Bank a security interest in all of Grantors right, title and interest, whether presently existing or hereafter acquired, in, to and under all of the Collateral.
NOW, THEREFORE, Grantor agrees as follows:
AGREEMENT
To secure Borrowers obligations under the Loan Agreement and under any other agreement now existing or hereafter arising between Borrower and Bank, Grantor grants and pledges to Bank a security interest in all of Grantors right, title and interest in, to and under its Intellectual Property Collateral (including without limitation those Copyrights, Patents and Trademarks for which a registration or application for registration has been filed as listed on Exhibits A, B and C hereto), and including without limitation all proceeds thereof (such as, by way of example but not by way of limitation, license royalties and proceeds of infringement suits), the right to sue for past, present and future infringements, all rights corresponding thereto throughout the world and all re-issues, divisions continuations, renewals, extensions and continuations-in-part thereof.
This security interest is granted in conjunction with the security interest granted to Bank under the Loan Agreement. Each right, power and remedy of Bank provided for herein or in the Loan Agreement or any of the Loan Documents, or now or hereafter existing at law or in equity shall be cumulative and concurrent and shall be in addition to every right, power or remedy provided for herein and the exercise by Bank of any one or more of the rights, powers or remedies provided for in this Intellectual Property Security Agreement, the Loan Agreement or any of the other Loan Documents, or now or hereafter existing at law or in equity, shall not preclude the simultaneous or later exercise by any person, including Bank, of any or all other rights, powers or remedies.
Grantor represents and warrants that Exhibits A, B, and C attached hereto set forth any and all intellectual property rights of Grantor for which Grantor has obtained a registration, or in connection to which Grantor has filed and maintains a pending application to obtain a registration, with either the United States Patent and Trademark Office or the United States Copyright Office, as applicable.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Intellectual Property Security Agreement to be duly executed by its officers thereunto duly authorized as of the first date written above.
2
EXHIBIT A
Copyright Registrations and Applications
Description |
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Registration
|
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Registration Date |
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None. |
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1
EXHIBIT B
Patents Registrations and Applications
Description |
|
Patent/ Application
|
|
Issue/ Application Date |
|
Apparatus and method for extracting presence, location and availability data from a communication device deployed in a network |
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6,662,015 |
|
12/09/03 |
|
|
|
|
|
|
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Systems and methods for providing order and service mediation for telecommunications systems |
|
6,169,793 |
|
01/02/01 |
|
|
|
|
|
|
|
Systems and method for providing network element management functionality for managing and provisioning network elements associated with number portability |
|
6,122,362 |
|
09/19/00 |
|
|
|
|
|
|
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Test harness for enterprise application integration environment |
|
7,337,361 |
|
02/26/08 |
|
|
|
|
|
|
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Wireless Device Activation |
|
60/992,193 |
|
12/06/07 |
|
2
EXHIBIT C
Trademarks Registrations and Applications
Description |
|
Registration/ Application
|
|
Registration/ Application Date |
|
|
|
|
|
|
|
NumeriTrack |
|
2,673,290 |
|
01/07/03 |
|
|
|
|
|
|
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ServiceXpress |
|
2,930,141 |
|
03/08/05 |
|
|
|
|
|
|
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Evolving Systems (servicemark) |
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2,197,486 |
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10/20/98 |
|
|
|
|
|
|
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Evolving Systems (and design) |
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2,357,983 |
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06/13/00 |
|
|
|
|
|
|
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OrderPath |
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2,196,447 |
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10/13/98 |
|
|
|
|
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NumberManager |
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2,510,765 |
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11/20/01 |
|
|
|
|
|
|
|
Evolving Systems (trademark) |
|
2,355,550 |
|
06/06/00 |
|
|
|
|
|
|
|
Evolving Systems (supplemental register) |
|
1,836,474 |
|
05/10/94 |
|
3
Exhibit 10.1(c)
EVOLVING SYSTEMS LIMITED
BRIDGE BANK, N.A.
LOAN AGREEMENT
This LOAN AGREEMENT is entered into as of February 22, 2008, by and between BRIDGE BANK, N.A. (Bank) and EVOLVING SYSTEMS LIMITED (Borrower).
RECITALS
Borrower wishes to obtain credit from time to time from Bank, and Bank desires to extend credit to Borrower. This Agreement sets forth the terms on which Bank will advance credit to Borrower, and Borrower will repay the amounts owing to Bank.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION .
1.1 Definitions . As used in this Agreement, the following terms shall have the following definitions:
Accounts means, with respect to any Person, all presently existing and hereafter arising accounts, contract rights, payment intangibles, and all other forms of obligations owing to such Person arising out of the sale or lease of goods (including, without limitation, the licensing of software and other technology) or the rendering of services by such Person, whether or not earned by performance.
Advance or Advances means a cash advance or cash advances under the Revolving Facility.
Affiliate means, with respect to any Person, any other Person that controls directly or indirectly such Person, any other Person that controls or is controlled by or is under common control with such Person, and each of such Persons senior executive officers and directors. For purposes of this definition, the term control (and the correlative terms, controlled by and under common control with) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and/or policies of a Person, whether through ownership of securities or other interests, by contract or otherwise
Bank Expenses means all: reasonable costs or expenses (including reasonable attorneys fees and expenses) incurred in connection with the preparation, negotiation, administration, and enforcement of the Loan Documents; reasonable Collateral audit fees; and Banks reasonable attorneys fees and expenses incurred in amending, enforcing or defending the Loan Documents (including fees and expenses of appeal), incurred before, during and after an Insolvency Proceeding, whether or not suit is brought.
Borrowers Books means all of Borrowers books and records including: ledgers; records concerning Borrowers assets or liabilities, the Collateral, business operations or financial condition; and all computer programs, or tape files, and the equipment, containing such information.
Borrowing Base means, as of any date of determination, an amount equal to eighty percent (80%) of Eligible Accounts plus one hundred percent (100%) of Eligible Cash, as determined by Bank with reference to the most recent Borrowing Base Certificate delivered by Borrower.
Borrowing Base Certificate means such certificate executed by Borrower and Parent (as to their respective Eligible Accounts and Eligible Cash) in the form attached hereto as Exhibit C.
Business Day means any day that is not a Saturday, Sunday, or other day on which banks in the State of California or London, United Kingdom are authorized or required to close.
Capital Expenditures means for any period, the sum (without duplication) of all expenditures (whether paid in cash or accrued as liabilities) made by the Credit Parties and their consolidated Subsidiaries during such period that are required to be treated as capital expenditures under GAAP.
1
Capital Stock means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, and (ii) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.
Cash means unrestricted cash and cash equivalents.
Change in Control means (i) a transaction in which any person or group (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of more than 50 percent (50%) of the total voting power of Parent or (ii) the date a majority of members of the Board of Directors of Parent is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board of Directors of Parent before the date of the appointment or election or (iii) the date any person or group (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by the person or group) ownership of stock of Parent possessing 30 percent (30%) or more of the total voting power of the stock of Parent.
Closing Date means the date of this Agreement.
Collateral means collectively, all property, interests in property, collateral and/or security granted and/or securities pledged to Bank by Borrower and any other Person to secure the Obligations, or any part thereof, pursuant to the Loan Documents, including, without limitation, all property in which a Lien is granted pursuant to the Security Documents to secure the Obligations, or any part thereof.
Contingent Obligation means, as applied to any Person, any agreement, undertaking or arrangement by which such Person assures, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, any Indebtedness, leases, dividends or other obligations (primary obligations) of any other Person (the primary obligor) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, including, without limitation, any so-called keepwell or makewell agreement, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (iv) otherwise to assure or to hold harmless the owner of such primary obligation against loss in respect thereof, (v) with respect to any letter of credit of such Person or as to which that Person is otherwise liable for reimbursement of drawings, or (vi) with respect to any agreement or arrangement designed to protect such Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term Contingent Obligation shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement.
Copyrights means any and all copyright rights, applications to register and registrations of the same, and like protections in works of authorship and derivative work thereof.
Credit Extension means each Advance or any other extension of credit by Bank for the benefit of Borrower hereunder.
Credit Parties means each of Borrower, the UK Guarantor, the U.S. Guarantor and any other Subsidiary of Parent that becomes a Credit Party pursuant to Section 6.13 hereof. For the avoidance of doubt, Evolving Systems GmbH is not a Credit Party.
2
Cross License Agreement means, collectively, (i) the Intercompany License Agreement, dated as of October 17, 2005, between Parent as licensor, and Borrower, as licensee, and (ii) the Intercompany License Agreement, dated as of October 17, 2005 between Borrower, as licensor, and Parent, as licensee.
Daily Balance means the outstanding principal amount of the Obligations owed at the end of a given day.
Debenture means the debenture dated on or about the date hereof between Borrower and Bank.
EBITDA means with respect to Credit Parties and their consolidated Subsidiaries on a consolidated basis and without duplication for any period the sum of the following for such period, all determined in accordance with GAAP:
(a) Net Income;
(b) plus the sum of the following, to the extent deducted in determining such Net Income and without duplication:
(i) Interest Expense;
(ii) franchise and income taxes;
(iii) depreciation, amortization and impairment expense;
(iv) all other non-cash and/or non-recurring charges and expenses approved by Bank in its reasonable discretion (but including, without requiring approval of Bank, non-cash charges related to accounting for employee stock option plans as required by FAS 123R) excluding (A) accruals for cash expenses made in the ordinary course of business and (B) write-offs of accounts receivable;
(v) loss from any sale of assets, other than sales in the ordinary course of business;
(vi) extraordinary losses from the sale of securities or the extinguishment of debt; and
(c) minus the sum of the following, to the extent included in determining such Net Income and without duplication:
(i) gain from any sale of assets, other than sales in the ordinary course of business;
(ii) extraordinary gains from the sale of securities or the extinguishment of debt;
(iii) all other non-cash and/or non-recurring income that is in each case not operating income;
(iv) proceeds of insurance (other than business interruption insurance); and
(v) the amounts that would be accrued in connection with TSE Contingent Obligations if the Credit Parties accrued for such amounts.
For purposes of computing EBITDA, the EBITDA of any Person accrued prior to the date it becomes a Credit Party or is merged into or consolidated with a Credit Party or a Subsidiary thereof that Persons assets and acquired by a Credit Party or a Subsidiary thereof shall be excluded.
Eligible Accounts means, at any time, those Accounts of Borrower and Parent that arise in the ordinary course of Borrowers or Parents business that comply in all material respects with all of Borrowers and Parents representations and warranties to Bank set forth in the Loan Documents to the extent such provisions are applicable to the Borrowers or Parents Accounts and shall include both (i) Accounts that create offsetable deferred revenue and (ii) Accounts with respect to the account debtors listed on Appendix 1 attached hereto (or any successor of any
3
such account debtor); provided, that standards of eligibility may be fixed and revised from time to time by Bank in Banks reasonable judgment based upon the results of an audit performed by Bank in accordance with Section 4.1 and upon notification thereof to Borrower in accordance with the provisions hereof . Unless otherwise agreed to by Bank, Eligible Accounts shall not include the following:
(a) Accounts that the account debtor has failed to pay within ninety (90) days of invoice date, other than Qwest, Vodafone Egypt and Cable & Wireless Panama (or any of their respective successors), which Accounts shall be included as Eligible Accounts provided that such Accounts are within one hundred-twenty (120) days of invoice date;
(b) Accounts with respect to an account debtor, thirty-five percent (35%) of whose Accounts the account debtor has failed to pay within ninety (90) days of invoice date (or, in the case of Qwest, Vodafone Egypt and Cable & Wireless Panama, or any of their respective successors, within one-hundred twenty (120) days of invoice date);
(c) Accounts with respect to which the account debtor is an officer, employee, or agent of Borrower;
(d) Accounts with respect to which goods are placed on consignment, guaranteed sale, sale or return, sale on approval, bill and hold, or other terms by reason of which the payment by the account debtor may be conditional, in each case solely to the extent thereof;
(e) Accounts with respect to which the account debtor is an Affiliate of Borrower;
(f) Accounts with respect to which the account debtor does not have its principal place of business in the United States, except Eligible Foreign Accounts;
(g) Accounts with respect to which the account debtor is the United States or any department, agency, or instrumentality of the United States;
(h) Accounts with respect to which Borrower or Parent is liable to the account debtor for goods sold or services rendered by the account debtor to Borrower or Parent or for deposits or other property of the account debtor held by Borrower or Parent, but only to the extent of any amounts owing to the account debtor against amounts owed to Borrower or Parent, as the case may be;
(i) Accounts with respect to an account debtor, including Subsidiaries and Affiliates of such account debtor, whose total obligations to Borrower or Parent exceed thirty percent (30%) of all Accounts of Borrower and Parent (other than for AT&T and T-Mobile (and any successor thereof) which percentage shall be sixty-percent (60%)), to the extent such obligations exceed the aforementioned percentage, except as approved in writing by Bank;
(j) Accounts with respect to which the account debtor disputes liability or makes any claim with respect thereto as to which Bank believes, in its reasonable discretion, that there may be a basis for dispute (but only to the extent of the amount subject to such dispute or claim), or is subject to any Insolvency Proceeding, or becomes insolvent, or goes out of business; provided that so long as adequate post-petition financing is being provided to such account debtor, post-petition Accounts of such account debtor may be deemed Eligible Accounts by and to the extent of Bank in its reasonable discretion;
(k) Retentions and hold-backs;
(l) Bonded Accounts; and
(m) Accounts with respect to Accenture, American Telecommunication, Inc., Bulgaria Telecom, MTN Nigeria, Vodafone Egypt, Vodafone Japan, and Wireless Trade (or any of their respective successors), solely to the extent of the percentage of foreign tax withholding set forth in the chart in Appendix 1 for
4
the applicable account debtor.
Eligible Cash means (i) Cash of Parent and its U.S. Subsidiaries and (ii) Cash of Borrower and the other Subsidiaries of Parent that are incorporated, organized or formed in the United Kingdom.
Eligible Foreign Accounts means Accounts of Borrower and Parent with respect to which the account debtor does not have its principal place of business in the United States and that (i) are supported by one or more letters of credit in an amount and of a tenor, and issued by a financial institution, acceptable to Bank, (ii) are owing from an account debtor identified in Appendix 1 (or any successor of any such account debtor), (iii) are billed and collected in the United Kingdom and that are the subject of a Lien in accordance with the Security Documents or (iv) Bank approves on a case-by-case basis.
Equipment means all present and future machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments in which Borrower has any interest.
Event of Default has the meaning assigned in Article 8.
Fixed Charge Coverage Ratio means for the Credit Parties and their consolidated Subsidiaries on a consolidated basis and without duplication, on any date of determination, the ratio of (a) EBITDA minus Unfinanced Capital Expenditures minus income and franchise taxes paid in cash, to (b) Fixed Charges, in each case for the twelve months then ending.
Fixed Charges means, for any period, the sum of the following for the Credit Parties and their consolidated Subsidiaries, on a consolidated basis and without duplication: (a) Total Debt Service and (b) dividends, repurchases or redemptions of equity and/or distributions paid in cash.
Foreign Subsidiary means any Subsidiary of a Person that is not a U.S. Subsidiary.
GAAP means generally accepted accounting principles in the United States of America as in effect from time to time.
Governmental Authority means any federal, state, foreign, municipal, national, provincial, local or other governmental department, court, commission, board, bureau, agency or instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative or judicial, regulatory or administrative functions of or pertaining to any government or any court.
Guarantees means any guaranty executed by a Guarantor to secure any of the Obligations including without limitation, the guarantees entered into pursuant to Section 6.13.
Guarantor means any Credit Party other than Borrower, and Guarantors shall mean all such other Credit Parties.
Hedging Agreements means any swap agreements (as defined in Section 101 of the U.S. Bankruptcy Code) and any other agreements or arrangements designed to provide protection against fluctuations in interest or currency exchange rates and entered into for bona fide hedging purposes and not for speculation.
Indebtedness of any Person means, without duplication, (a) all indebtedness for borrowed money, (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred and payable in the ordinary course of business of such Person), (c) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder and all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments issued by such Person, (d) all obligations evidenced by notes, bonds, debentures or similar instruments, (e) all capital lease obligations and (f) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (e) above.
5
Insolvency Proceeding means (a) with respect to a Person incorporated, organized or formed in a jurisdiction in the United States, any proceeding commenced by or against such Person under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extension generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief and (b) with respect to a Person incorporated, organized or formed in the United Kingdom, any proceeding commenced by or against such Person under the Insolvency Act 1986.
Intellectual Property Collateral means all of Borrowers right, title, and interest in and to the following: (1) Copyrights, Trademarks, Patents, and trade secrets; (2) claims for damages by way of past, present and future infringement of any of the rights included above; (3) all licenses or other rights to use any of the Copyrights, Patents or Trademarks included above, and all license fees and royalties arising from such use to the extent permitted by such license or rights; (4) all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents included above; and (5) all proceeds and products of the foregoing, including, without limitation, all payments under insurance or any indemnity or warranty payable in respect of any of the foregoing included above.
Interest Expense means total interest expense generated during the period in question (including attributable to conditional sales contracts, capital leases and other title retention agreements in accordance with GAAP and all unused line and commitment fees and administrative and similar fees) of the Credit Parties and their consolidated Subsidiaries on a consolidated basis and without duplication with respect to all outstanding Indebtedness, including accrued interest and interest paid in kind and capitalized interest, but excluding commissions, discounts and other fees owed with respect to letters of credit and bankers acceptance financing, net costs under Hedging Agreements and fees payable to Bank on the Closing Date under Section 2.5.
Inventory means all inventory (as defined in the Code) in which Borrower has or acquires any interest, including work in process and finished products intended for sale or lease or to be furnished under a contract of service, of every kind and description now or at any time hereafter owned by or in the custody or possession, actual or constructive, of Borrower, including such inventory as is temporarily out of its custody or possession or in transit.
Investment means any beneficial ownership of (including stock, partnership interest or other securities) any Person, or any loan, advance or capital contribution to any Person.
Lending Office means, with respect to Bank (including any Transferee), the office or offices of Bank specified as its Lending Office opposite its name on the applicable signature page hereto, or such other office or offices of Bank as it may from time to time notify Borrower.
Letter of Credit Exposure means, at the time in question, the sum, without duplication, of (i) the aggregate undrawn amount of all outstanding Letters of Credit, plus (ii) the aggregate unreimbursed amount of all drawn Letters of Credit, in each case at such time.
Lien means any mortgage, lien, deed of trust, charge, pledge, security interest or other encumbrance.
Loan Documents means, collectively, this Agreement, any promissory note executed by Borrower evidencing the Advances, and any other agreement entered into in connection with this Agreement, all as amended or extended from time to time.
Material Adverse Effect means a material adverse effect on (i) the business operations or condition (financial or otherwise) of Borrower and its Subsidiaries taken as a whole or (ii) the ability of Borrower to repay the Obligations or otherwise perform its obligations under the Loan Documents or (iii) the enforceability or priority of Banks security interests in the Collateral.
Net Income means, for any period, the net income (or loss) of the Credit Parties and their consolidated Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; provided, that there shall be excluded (a) the income (or loss) of any Person in which any other Person (other than a Credit Party or a Credit Party under and as defined in the US Loan Agreement) has a joint ownership
6
interest, except to the extent of the amount of dividends or other distributions actually paid to any Credit Party by such Person during such period, (b) the income (or loss) of any Person accrued prior to the date it becomes or is merged into or consolidated with a Credit Party or a Credit Party under and as defined in the US Loan Agreement or that Persons assets are acquired by a Credit Party or a Credit Party under and as defined in the US Loan Agreement, (c) the income of any Subsidiary of such Person to the extent that the declaration or payment of dividends or similar distributions of that income by that Subsidiary is not at the time permitted by operation of the terms of the charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary and (d) the income (loss) associated with any Hedging Agreements.
Obligations means all debt, principal, interest, Bank Expenses and other amounts owed to Bank by Borrower pursuant to this Agreement or any Loan Document, whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the commencement of an Insolvency Proceeding involving Borrower.
Organizational Documents means (a) for any corporation, the memorandum and/or certificate or articles of incorporation, the bylaws, any certificate of designation, or other instrument relating to the rights of preferred shareholders or stockholders of such corporation and any shareholder rights agreement, (b) for any partnership, the partnership agreement and, if applicable, the certificate of limited partnership, and (c) for any limited liability company, the operating agreement and articles or certificate of formation or organization.
Parent means Evolving Systems, Inc., a Delaware corporation.
Patents means all patents and patent applications, including without limitation divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.
Permitted Indebtedness means:
(a) Indebtedness in favor of Bank arising under this Agreement or any other Loan Document;
(b) Indebtedness existing on the Closing Date and disclosed in the Schedule including extensions and replacements thereof provided that the principal amount of such Indebtedness as of the date of such extension or replacement is not increased and the maturity and weighted average life thereof are not shortened;
(c) Indebtedness not to exceed an amount equal to $250,000 in the aggregate at any time outstanding constituting capital lease obligations;
(d) Indebtedness incurred after the Closing Date secured by Liens permitted under clause (c)(i) of the definition of Permitted Liens provided (i) the principal amount of such Indebtedness secured thereby does not exceed 100% of the cost of the subject property and (ii) the aggregate amount thereof outstanding at any given time does not exceed an amount equal to $200,000;
(e) Subordinated Debt;
(f) inter-company unsecured Indebtedness arising from loans made by Borrower to its Wholly-Owned Subsidiaries that are Credit Parties to fund working capital requirements of such Subsidiaries in the ordinary course of business; provided, that, upon the request of Bank, such Indebtedness shall be evidenced by promissory notes having terms (including subordination terms) satisfactory to Bank, the sole originally executed counterparts of which shall be pledged and delivered to Bank as security for the Obligations;
(g) inter-company unsecured Indebtedness not listed in the Schedule on the Closing Date arising from loans made by Borrower to Evolving Systems GmbH, a German corporation, so long as Evolving Systems GmbH is a Wholly-Owned Subsidiary of Borrower, to fund working capital requirements of such Subsidiary in the ordinary course of business; provided, that, that upon the request of Bank, such Indebtedness shall
7
be evidenced by promissory note(s) having terms (including subordination terms) satisfactory to Bank, the sole originally executed counterpart(s) of which shall be pledged and delivered to Bank as security for the Obligations; provided, however, that the aggregate amount of Investments permitted pursuant to subsection (i) of the definition of Permitted Investments and outstanding Indebtedness permitted pursuant to this subsection (g) does not exceed $100,000 at any time;
(h) the incurrence by Borrower or any Subsidiary thereof of Indebtedness up to an amount equal to $50,000 arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(i) unsecured Indebtedness of Borrower or its Subsidiaries incurred in connection with the financing of insurance premiums in the ordinary course of business with respect to insurance required or permitted under Section 6.5 up to an amount equal to $500,000 in aggregate annual premiums;
(j) Borrower or any of its Subsidiaries that are Credit Parties may enter into guarantees of Indebtedness of Borrower or any such Subsidiary that is a Credit Party otherwise permitted under the other subsections of this definition of Permitted Indebtedness;
(k) Borrower may enter into unsecured Hedging Agreements in the ordinary course of business for bona fide hedging purposes and not for speculation in an aggregate notional or contract amount not to exceed $250,000 outstanding at any time;
(l) Contingent Obligations in respect of Borrowers guarantee of the expenses incurred by certain employees in connection with the use of credit cards sponsored by Borrower in an aggregate amount not to exceed $150,000 at any time outstanding;
(m) Contingent Obligations incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations; and
(n) other unsecured Indebtedness of Borrower and its Subsidiaries not to exceed an amount equal to $50,000 in the aggregate outstanding at any time.
Permitted Investment means:
(a) Investments existing on the Closing Date disclosed in the Schedule;
(b) (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any State thereof maturing within one (1) year from the date of acquisition thereof, (ii) commercial paper maturing no more than one (1) year from the date of creation thereof and currently having rating of at least A-2 or P-2 from either Standard & Poors Corporation or Moodys Investors Service, (iii) certificates of deposit maturing no more than one (1) year from the date of investment therein issued by Bank and (iv) Banks money market accounts or other money market funds substantially all of whose assets are comprised of securities of the type described in clauses (i) through (iii) above;
(c) Investments created by the Loan Documents;
(d) trade credit extended by Borrower and its Subsidiaries in the ordinary course of business and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Investments constituting inter-company Permitted Indebtedness;
(f) loans to employees and advances for business travel and similar temporary advances made in the ordinary course of business to officers, directors and employees, not to exceed an amount
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equal to $25,000 in the aggregate at any time outstanding;
(g) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(h) Investments constituting transactions otherwise permitted under this Agreement;
(i) Investments in the Capital Stock of Evolving Systems GmbH not listed in the Schedule on the Closing Date; provided that the aggregate amount of such Investments permitted under this subsection (i) and the outstanding Indebtedness permitted under subsection (g) of the definition of Permitted Indebtedness shall not exceed $100,000 at any time;
(j) Investments by Borrower or any of its Subsidiaries in any Subsidiary of Borrower that is or concurrent with such Investment becomes a Credit Party;
(k) Investments received in compromise or resolution of litigation or arbitration proceedings with Persons who are not Affiliates of Borrower up to an amount equal to $50,000 in the aggregate; and
(l) Investments represented by prepaid expenses made in the ordinary course of business.
For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
Permitted Liens means the following:
(a) Any Liens existing on the Closing Date and disclosed in the Schedule or arising under this Agreement, the other Loan Documents or any of the US Loan Documents;
(b) Liens for taxes, fees, assessments or other governmental charges or levies, either (i) not delinquent or (ii) being contested in good faith by appropriate proceedings and, with respect to this clause (ii), all such items do not exceed $250,000 against Persons organized in the United States in the aggregate at any time or such items do not exceed $1,500,000 against Persons organized outside the United States in the aggregate at any time;
(c) (i) Purchase money Liens securing Indebtedness permitted under clause (d) of the definition of Permitted Indebtedness; provided, that (x) any such Lien attaches to the subject property concurrently with or within twenty (20) days after the acquisition thereof, (y) such Lien attaches only to the subject property; and (ii) Liens arising under capital leases permitted under clause (c) of the definition of Permitted Indebtedness to the extent such Liens attach only to the property that is the subject of such capital leases;
(d) Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (a) through (c) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness being extended, renewed or refinanced does not increase;
(e) Statutory Liens of landlords, carriers, warehousemen, mechanics and/or materialmen and other similar Liens imposed by law or that arise by operation of law in the ordinary course of business that, in any such case, are only for amounts not yet delinquent or which are being contested in good faith by appropriate proceedings (which have the effect of preventing or staying the forfeiture or sale of the property subject thereto) and with respect to which adequate reserves or other appropriate provisions are being maintained by such Person in accordance with GAAP;
(f) Liens incurred or deposits or pledges made in the ordinary course of business (including, without limitation, surety bonds and appeal bonds) in connection with workers compensation,
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unemployment insurance and other types of social security benefits or to secure the performance of tenders, bids, leases, trade contracts, statutory obligations and other similar obligations (other than for the repayment of Indebtedness);
(g) Any attachment or judgment Lien provided that the enforcement of such Liens is effectively stayed, satisfied, vacated, dismissed or discharged within 30 days of issuance or execution and such Liens secure claims not otherwise constituting an Event of Default;
(h) Easements, rights of way, restrictions, zoning ordinances, reservations, covenants and other similar charges, title exceptions or encumbrances relating to real property of Borrower and any Subsidiaries incurred in the ordinary course of business that, either individually or in the aggregate, are not substantial in amount, do not interfere in any material respect with the use of the property affected or the ordinary conduct of the business of Borrower and do not result in material diminution in value of the property subject thereto;
(i) Liens arising by virtue of any statutory or common law provision relating to bankers liens, rights of set-off, recoupment, combination of accounts or similar rights as to deposit accounts or other funds maintained with a creditor depository institution;
(j) Liens that arise under customary non-assignment provisions in contracts, leases, subleases, licenses and sublicenses entered into with unaffiliated third parties in the ordinary course of business; and
(k) Liens of licensors and sublicensors on licenses and sublicenses of Intellectual Property Collateral or other intellectual property (if any) of Borrower or any Subsidiary thereof entered into in the ordinary course of business.
Person means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or governmental agency.
Prime Rate means the variable rate of interest, per annum, that appears in The Wall Street Journal on the date of measurement, whether or not such announced rate is the lowest rate available from Bank.
Responsible Officer means, (a) with respect to any Credit Party, the chief executive officer or the president of such Credit Party, or any other officer having substantially the same authority and responsibility; or (b) with respect to compliance with financial covenants or delivery of financial information under this Agreement, the chief financial officer or the treasurer of Borrower or Parent, as the case may be, or any other officer having substantially the same authority and responsibility.
Revolving Facility means the facility under which Borrower may request Bank to issue Advances, as specified in Section 2.1(a) hereof or Letters of Credit, as specified in Section 2.1(b).
Revolving Line Limit means Five Million Dollars ($5,000,000).
Revolving Maturity Date means February 22, 2011.
Schedule means the schedule of exceptions attached hereto and approved by Bank, if any.
Security Documents means, collectively, the Debenture, the Guarantees, the Share Charge, and all other agreements, documents and instruments that create or perfect the Liens in the Collateral, as the same may be modified, amended or supplemented from time to time.
Senior Debt means, on any date of determination, the Obligations hereunder and all Indebtedness under the US Loan Agreement (provided that, for purposes of determining the Indebtedness outstanding under this Agreement and under the Revolving Loan Facility under (and as defined in) the US Loan Agreement as of the end of each fiscal quarter, Senior Debt shall mean the average daily amount of outstanding principal and accrued
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interest on the Revolving Facility and the Revolving Facility under (and as defined in) the US Loan Agreement for such fiscal quarter), on a consolidated basis and without duplication. For all purposes of this Agreement, the term Senior Debt shall be calculated to include (i.e., not net of) discounts, deductions or allocations relating or applicable to or arising from any equity or equity participation or fees, whether under GAAP or otherwise.
Share Charge means the charge by the UK Guarantor of the entire issued share capital of Borrower in favor of Bank dated on or about the date hereof.
Shares means (i) the Capital Stock owned or held of record or beneficially by Borrower on the Closing Date as listed on Annex A hereto (and the certificates, copies of which are attached hereto, representing such shares, securities and/or interests, if any) and (ii) all other Capital Stock, equity securities and ownership interests of any future direct Subsidiary of Borrower; provided, however, that Shares shall not include any shareholding in Evolving Systems GmbH.
Subordinated Debt means any debt incurred by Borrower or any of its Subsidiaries that is subordinated to the debt owing by Borrower to Bank on terms acceptable to Bank (and identified as being such by Borrower and Bank).
Subsidiary means, as to any initial Person, any other Person in which more than fifty percent (50%) of all equity, membership, partnership or other ownership interests is owned directly or indirectly by such initial Person or one or more of its Subsidiaries. For purposes of the Loan Documents, any reference to Subsidiary shall be deemed to refer to a Subsidiary of Borrower unless the context provides otherwise.
Total Debt means, on any date of determination, the total Indebtedness of the Credit Parties and their consolidated Subsidiaries on a consolidated basis and without duplication, including, without limitation, all Indebtedness under the Loan Documents, US Loan Documents and all accrued interest on the foregoing (including, without limitation, all interest paid in kind) and all capital lease obligations and including, without duplication, Contingent Obligations consisting of guarantees of Indebtedness that otherwise would constitute Total Debt of other Persons (provided that, for purposes of determining the Indebtedness outstanding under any revolving credit facility (including this Agreement and the US Loan Agreement) as of the end of each fiscal quarter, Total Debt shall mean the average daily amount of outstanding principal and accrued interest on such revolving credit facility for such fiscal quarter). For all purposes of this Agreement, the term Total Debt shall be calculated to include (i.e., not net of) discounts, deductions or allocations relating or applicable to or arising from any equity or equity participation or fees, whether under GAAP or otherwise.
Total Debt Service means, for any period, the sum for Credit Parties and their consolidated Subsidiaries on a consolidated basis of (a) scheduled payments of principal on any an all Total Debt during such period, (b) other required payments of principal on Total Debt other than the Obligations, (c) any other cash amounts due or payable with respect to, in connection with or on Total Debt during such period , and (d) Interest Expense paid in cash or required to be paid in cash during such period.
Trademarks means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same, and the entire goodwill of the business of Borrower connected with and symbolized by such trademarks.
Transfer Pricing Agreements means (i) the Master Services Agreement entered into between Parent and Evolving Systems Networks India Pvt Ltd, dated as of the 31 st day of August, 2004, as amended December 8, 2004, June 1, 2005 and April 1, 2006, and the Master Services Agreement entered into between Borrower and Evolving Systems Networks India Pvt Ltd, dated as of the 1 st day of June 2005, amended April 1, 2006, and (ii) agreements on transfer pricing in form and substance reasonably satisfactory to Bank.
Treaty Lender means a person which is beneficially entitled to interest under the Revolving Facility and (i) is treated as a resident of a Treaty State for the purposes of a Treaty, (ii) does not carry on a trade or business in the United Kingdom through a permanent establishment with which such persons participation in this Agreement as a lender is effectively connected or to which payments under this Agreement are attributable; and (iii) is, pursuant to
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the terms of the relevant Treaty, entitled to full exemption from or repayment of United Kingdom tax in respect of interest payable by Borrower under the Revolving Facility.
Treaty State means a jurisdiction having a double taxation agreement (a Treaty) with the United Kingdom that makes provision for exemption from tax imposed by the United Kingdom on interest.
TSE Contingent Obligations means the deferred payment obligations to the Sellers (as defined in Section 1.4 of the TSE Purchase Agreement).
TSE Purchase Agreement means the Acquisition Agreement of Telecom Software Enterprises, LLC, dated as of October 15, 2004 among Evolving Systems, Inc., as Buyer, and Lisa Marie Maxson and Peter McGuire, as Sellers.
UK Guarantor means Evolving Systems Holdings Ltd and each Subsidiary of such company (other than Borrower) incorporated under the laws of England and Wales that subsequently becomes a Credit Party under this Agreement.
Unfinanced Capital Expenditures means, for any period, all Capital Expenditures made during such period other than any Capital Expenditures financed within 30 days of such expenditure with the proceeds of Permitted Indebtedness (Permitted Indebtedness, for this purpose, does not include advances under a revolving line of credit), including, without limitation, advances under the Revolving Facility and the revolving loan facility established pursuant to the US Loan Documents.
U.S. Guarantor means each of Parent and any other U.S. Subsidiary of Parent that subsequently becomes a Credit Party under this Agreement.
U.S. Subsidiary shall mean any Subsidiary of a Person incorporated or otherwise organized under the laws of the United States of America or a state of the United States of America or the District of Columbia.
US Loan Agreement means the Loan and Security Agreement dated the date hereof by and between Parent and Bank, as the same be amended, modified, supplemented or restated from time to time.
US Loan Documents means the US Loan Agreement and all other agreements, documents, instruments and certificates heretofore or hereafter executed in connection with the US Loan Agreement.
Wholly-Owned Subsidiary shall mean, with respect to any Person, any Subsidiary of such Person in which (other than directors qualifying shares required by law) one hundred percent (100%) of the equity, at the time as of which any determination is being made, is owned, beneficially and of record, by such Person or by one or more of the other Wholly-Owned Subsidiaries of such Person, or both.
Unless otherwise specified in any Loan Document, this Agreement, any other Loan Document and any agreement or contract referred to herein shall mean such agreement or contract, as modified, amended, supplemented or restated and in effect from time to time, subject to any applicable restrictions set forth in the Loan Documents.
1.2 Accounting Terms . All accounting terms not specifically defined herein shall be construed in accordance with GAAP and all calculations made hereunder shall be made in accordance with GAAP. When used herein, the terms financial statements shall include the notes and schedules thereto.
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2. LOAN AND TERMS OF PAYMENT .
2.1 Credit Extensions .
Borrower promises to pay to the order of Bank, in lawful money of the United States of America, the aggregate unpaid principal amount of all Credit Extensions made by Bank to Borrower hereunder in accordance with the terms hereof. Borrower shall also pay interest on the unpaid principal amount of Advances at rates in accordance with the terms hereof.
(a) Revolving Advances.
(i) Subject to and upon the terms and conditions of this Agreement, Borrower may request, and Bank shall make available, Advances from time to time in an aggregate outstanding amount not to exceed the lesser of (i) the Revolving Line Limit or (ii) the Borrowing Base minus , in each case, the Letter of Credit Exposure and the FX Amount. Subject to the terms and conditions of this Agreement, amounts borrowed pursuant to this Section 2.1(a) may be repaid and reborrowed at any time prior to the Revolving Maturity Date, at which time all Advances under this Section 2.1(a) shall be immediately due and payable. Borrower may prepay any Advances in whole or in part without penalty or premium.
(ii) Whenever Borrower desires an Advance, Borrower will notify Bank by facsimile transmission or telephone no later than 3:00 p.m. Pacific time, on the Business Day that the Advance is to be made. Each such notification shall be promptly confirmed by a Payment/Advance Form in substantially the form of Exhibit B hereto. Bank is authorized to make Advances under this Agreement, based upon instructions received from a Responsible Officer of Borrower or a designee of a Responsible Officer of Borrower, or without instructions if in Banks discretion such Advances are necessary to meet Obligations which have become due and remain unpaid after expiration of any applicable grace or cure period and the giving of any required notice of such non-payment. Bank shall be entitled to rely on any telephonic notice given by a person who Bank reasonably believes to be a Responsible Officer or a designee thereof. Bank will credit the amount of Advances made under this Section 2.1(a) to such deposit account or Obligation as Borrower specifies.
(b) Letters of Credit . Subject to the terms and conditions of this Agreement, at any time prior to the Revolving Maturity Date, Bank agrees to issue letters of credit for the account of Borrower and the other Credit Parties (each, a Letter of Credit and collectively, the Letters of Credit) in an aggregate outstanding face amount not to exceed the lesser of the Revolving Line Limit or the Borrowing Base minus , in each case, the aggregate amount of the outstanding Advances and the FX Amount at any time, provided that the aggregate face amount of all outstanding Letters of Credit shall not exceed $500,000, and provided further that no Letter of Credit is used directly or indirectly to benefit the holders of the Subordinated Notes (as defined in the US Loan Agreement) or otherwise will violate Sections 151 to 158 of the Companies Act 1985. All Letters of Credit shall be, in form and substance, acceptable to Bank in its reasonable discretion and shall be subject to (i) the terms and conditions of Banks form of standard application and letter of credit agreement with such changes thereto as Borrower and Bank may agree (the Application) and (ii) payment by Borrower of Banks standard fees. In the event of any conflict between the terms of the Agreement and the terms of any Application, the terms of this Agreement shall control. If Bank is obligated to advance funds under a Letter of Credit, Borrower immediately shall reimburse the amount of the funds so advanced not later than 10:00 a.m. (Pacific time) on the date that such payment is made by Bank under the Letter of Credit, if Borrower shall have received written or telephonic notice of such payment prior to 9:00 a.m. (Pacific time) on such date, or, if such notice has not been received by Borrower prior to such time on such date, then not later than 10:00 a.m. (Pacific time), on the first Business Day that Borrower has such notice prior to prior to 9:00 a.m. (Pacific time), and, in the absence of such reimbursement, the unreimbursed amount automatically shall be deemed to be an Advance under Section 2.1(a). To the extent an unreimbursed amount under a Letter of Credit is deemed to be an Advance hereunder, Borrowers obligation to reimburse such amount shall be discharged and replaced by the resulting Advance. If any portion of the Letter of Credit Exposure, whether or not then due and payable, remains unpaid or outstanding on the Revolving Maturity Date or such earlier date as this Agreement may be terminated, Borrower shall: (A) provide cash collateral therefor on terms reasonably acceptable to Bank; or (B) cause all such Letters of Credit and guaranties thereof, if any, to be cancelled and returned; or (C) deliver a stand-by letter (or letters) of credit in guarantee of such portion of the Letter of Credit Exposure, which stand-by letter (or letters) of credit shall be of like tenor and duration (plus thirty (30) additional days) as, and in an amount equal to at
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least 105% of the aggregate maximum amount then available to be drawn under, such Letters of Credit to which such outstanding Letter of Credit Exposure relate and shall be issued by a Person, and shall be subject to such terms and conditions, as are reasonably satisfactory to Bank. The obligation of Borrower to reimburse Bank for drawings made under Letters of Credit shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, the Application, and such Letters of Credit, under all circumstances whatsoever; provided, however, that after paying in full its reimbursement obligation hereunder, nothing herein shall adversely affect the right of Borrower to commence any proceeding against Bank for any wrongful disbursement made by Bank under a Letter of Credit as a result or solely to the extent of acts or omissions constituting gross negligence or willful misconduct on the part of Bank. Borrower shall indemnify, defend, protect, and hold Bank harmless from any loss, cost, expense or liability, including, without limitation, reasonable attorneys fees, arising out of or in connection with any Letters of Credit, except for expenses caused by Banks gross negligence or willful misconduct.
(c) Foreign Exchange Sublimit . Subject to and upon the terms and conditions of this Agreement and any other agreement that Borrower may enter into with the Bank in connection with foreign exchange transactions, including foreign exchange services (FX Contracts) and subject to the availability under the Revolving Line Limit and the Borrowing Base minus , in each case, the aggregate amount of the outstanding Advances and the Letter of Credit Exposure any time, Borrower may request Bank to enter into FX Contracts with Borrower due not later than the Revolving Maturity Date. Borrower shall pay any standard issuance and other fees that Bank notifies Borrower in advance will be charged for issuing and processing FX Contracts for Borrower. The FX Amount shall at all times be equal to or less than $500,000. The FX Amount shall equal the amount determined by multiplying (i) the aggregate amount, in United States Dollars, of FX Contracts between Borrower and Bank remaining outstanding as of any date of determination by (ii) the applicable Foreign Exchange Reserve Percentage as of such date. The Foreign Exchange Reserve Percentage shall be a percentage as determined by Bank, in its reasonable discretion from time to time. If at any time the Revolving Facility is terminated or otherwise ceases to exist, Borrower shall promptly secure in cash all obligations under the Foreign Exchange Sublimit on terms reasonably acceptable to Bank.
2.2 Overadvances . If the aggregate amount of the outstanding Advances plus the aggregate amounts outstanding under the Letters of Credit, and the FX Amount, exceeds the lesser of the Revolving Line Limit or the Borrowing Base at any time, Borrower shall promptly pay to Bank, in cash, and/or cash collateralize the obligations under outstanding Letters of Credit, in an aggregate amount equal to such excess.
2.3 Interest Rates, Payments, and Calculations .
(a) Interest Rates.
(i) Advances . Except as set forth in Section 2.3(b), the Advances shall bear interest, on the outstanding Daily Balance thereof, at a rate per annum equal to one half of one percent (0.50%) above the Prime Rate.
(b) Late Fee; Default Rate . If any payment is not made within ten (10) days after the date such payment is due, Borrower shall pay Bank a late fee equal to the lesser of (i) five percent (5%) of the amount of such unpaid amount or (ii) the maximum amount permitted to be charged under applicable law. All Obligations shall bear interest, from and after the occurrence and during the continuance of an Event of Default, at a rate equal to four (4) percentage points above the interest rate applicable immediately prior to the occurrence of the Event of Default.
(c) Payments . Subject to Section 12.4(f), interest hereunder shall be due and payable on the tenth calendar day of each month during the term hereof. To the extent permitted by applicable law, any interest not paid when due shall be compounded by becoming a part of the Obligations, and such interest shall thereafter accrue interest at the rate then applicable hereunder. Subject to Section 12.4 (Taxes), all payments shall be free and clear of any taxes, withholdings, duties, impositions or other charges, to the end that Bank will receive the entire amount of any Obligations payable hereunder, regardless of source of payment. Payments will be made via wire transfer to Bank.
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(d) Computation . In the event the Prime Rate is changed from time to time hereafter, the applicable rate of interest hereunder shall be increased or decreased, effective as of the day the Prime Rate is changed, by an amount equal to such change in the Prime Rate. All interest chargeable under the Loan Documents shall be computed on the basis of a three hundred sixty (360) day year for the actual number of days elapsed.
2.4 Crediting Payments . If an Event of Default does not exist, Bank shall credit a wire transfer of funds, check or other item of payment to such deposit account or Obligation as Borrower specifies. If an Event of Default exists, the receipt by Bank of any wire transfer of funds, check, or other item of payment shall be immediately applied to conditionally reduce Obligations, but shall not be considered a payment on account unless such payment is of immediately available federal funds or unless and until such check or other item of payment is honored when presented for payment. Notwithstanding anything to the contrary contained herein, any wire transfer or payment received by Bank after 12:00 noon Pacific time shall be deemed to have been received by Bank as of the opening of business on the immediately following Business Day. Whenever any payment to Bank under the Loan Documents would otherwise be due (except by reason of acceleration) on a date that is not a Business Day, such payment shall instead be due on the next Business Day, and additional fees or interest, as the case may be, shall accrue and be payable for the period of such extension.
2.5 Fees . Borrower shall pay to Bank the following:
(a) Facility Fee . On the Closing Date, a Facility Fee equal to $25,000, which shall be nonrefundable; and
(b) Bank Expenses . On the Closing Date, all Bank Expenses incurred through the Closing Date, including reasonable attorneys fees and expenses and, after the Closing Date, all Bank Expenses, including reasonable attorneys fees and expenses, not later than ten Business Days after written demand therefor. Bank shall endeavor to provide reasonable supporting documentation for the amount of any Bank Expenses payable by Borrower to Bank under this Section 2.5(b).
2.6 Term . This Agreement shall become effective on the Closing Date and, subject to Section 12.8, shall continue in full force and effect for so long as any Obligations remain outstanding (other than contingent indemnity obligations for which no claim has been made) or Bank has any obligation to make Credit Extensions under this Agreement. Notwithstanding the foregoing, Bank shall have the right to terminate its obligation to make Credit Extensions under this Agreement immediately and without notice upon the occurrence and during the continuance of an Event of Default. Notwithstanding termination, Banks Lien on the Collateral shall remain in effect for so long as any Obligations are outstanding (other than contingent indemnity obligations for which no claim has been made).
3. CONDITIONS OF LOANS .
3.1 Conditions Precedent to Initial Credit Extension . The obligation of Bank to make the initial Credit Extension is subject to the condition precedent that Bank shall have received, in form and substance satisfactory to Bank, the following:
(a) this Agreement, executed by Borrower;
(b) a certificate of the Secretary of Borrower with respect to incumbency and resolutions authorizing the execution and delivery of this Agreement;
(c) a Guaranty from the UK Guarantor;
(d) a Share Charge executed by the UK Guarantor together with the certificates for the shares charged thereby and transfers of these executed but undated and with the transferee left blank and together also with a Members Resolution of the Borrower amending its Articles of Association;
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(e) a Guaranty from the U.S. Guarantor;
(f) a certificate of the Secretary of each Guarantor with respect to incumbency and resolutions authorizing the execution and delivery of its respective Guaranty;
(g) legal opinion from Borrowers counsel, in a form acceptable to Bank;
(h) payoff letter from CapitalSource Finance LLC and any documents required to terminate its security interest in Borrowers assets;
(i) the Debenture executed by Borrower;
(j) payment of the fees and Bank Expenses then due specified in Section 2.5 hereof;
(k) most recent consolidated financial statements of Parent;
(l) an audit of the Collateral, the results of which shall be satisfactory to Bank; and
(m) such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate.
3.2 Conditions Precedent to all Credit Extensions. The obligation of Bank to make each Credit Extension, including the initial Credit Extension, is further subject to the following conditions:
(a) in the case of an Advance, the timely receipt by Bank of the Payment/Advance Form as provided in Section 2.1; and
(b) the representations and warranties contained in Section 5 shall be true and correct in all material respects on and as of the date of such Payment/Advance Form, in the case of an Advance, and on the effective date of such Credit Extension as though made at and as of each such date (except, in each case, to the extent where such representations and warranties expressly relate to an earlier date, in which case they shall have been true and correct in all respects as of such earlier date), and no Event of Default shall have occurred and be continuing as of the date of such Credit Extension, or would exist after giving effect to such Credit Extension. The making of each Credit Extension shall be deemed to be a representation and warranty by Borrower on the date of such Credit Extension as to the accuracy of the facts referred to in this Section 3.2.
4. INSPECTION RIGHTS .
4.1 Bank (through any of its officers, employees, or agents) shall have the right, upon reasonable prior notice, from time to time during Borrowers usual business hours but no more than once a year (unless an Event of Default has occurred and is continuing), to inspect Borrowers Books and to make copies thereof and to check, test, and appraise the Collateral and to audit Borrowers Accounts in order to verify Borrowers financial condition or the amount, condition of, or any other matter relating to, the Collateral. Bank and any such officers, employees and agents shall maintain the confidentiality of all non-public information (whether written or verbal and whether specifically identified as confidential) obtained during such visits, inspections, examinations, audits or meetings in accordance with Section 12.9. Until the US Loan Agreement is terminated and so long as no Event of Default has occurred and is continuing, Bank agrees to coordinate exercise of its rights under this Section 4.1 with any exercise of Banks rights under Section 4.4 of the US Loan Agreement.
5. REPRESENTATIONS AND WARRANTIES .
Borrower represents and warrants as follows:
5.1 Due Organization and Qualification . Borrower and each Subsidiary of Borrower is a corporation, partnership, or other form of entity, as the case may be, validly existing under the laws of its
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jurisdiction of incorporation, organization or formation and qualified and licensed to do business in each jurisdiction where the failure so to qualify or be licensed or qualified would reasonably be expected to result in a Material Adverse Effect.
5.2 Due Authorization; No Conflict . The execution, delivery, and performance by Borrower of the Loan Documents to which it is a party (a) are within Borrowers powers, (b) have been duly authorized by all requisite company action, (c) are not in conflict with nor constitute a breach of any provision contained in Borrowers Organizational Documents, and (d) will not constitute an event of default under any agreement to which Borrower is a party or by which Borrower is bound, the effect of which would reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect. Borrower is not in default under any agreement to which it is a party or by which it is bound, the effect of which would reasonably be expected to result in a Material Adverse Effect.
5.3 No Prior Encumbrances . Borrower has good and marketable title to, or a valid leasehold interest in, license of, or right to use, all of its material property necessary or used in its ordinary course of business, free and clear of Liens, except for Permitted Liens.
5.4 Bona Fide Eligible Accounts . The Eligible Accounts identified in the Borrowing Base Certificate most recently delivered to Bank are bona fide existing obligations. The Borrowing Base Certificate most recently delivered to Bank pursuant to this Agreement correctly identifies in all material respects those Accounts of Borrower and Parent that are Eligible Accounts as of the date of such Borrowing Base Certificate.
5.5 Intellectual Property Collateral . Borrower is the owner of, or has sufficient rights by license or otherwise in, the Intellectual Property Collateral necessary for the conduct of Borrowers business, except for rights and licenses granted by Borrower in the ordinary course of business and rights and licenses as set forth in the Schedule. As of the Closing Date, each of the Patents of Borrower is valid and enforceable, and to Borrowers knowledge no part of the Copyrights, Patents or Trademarks of Borrower has been judged invalid or unenforceable, in whole or in part, and to Borrowers knowledge no claim has been made that any part of the Copyrights, Patents or Trademarks of Borrower infringes the Copyrights, Patents or Trademarks of any third party. After the Closing Date, except as would not reasonably be expected to result in a Material Adverse Effect: (i) each of the Patents of Borrower is valid and enforceable; (ii) to Borrowers knowledge no part of the Copyrights, Patents or Trademarks of Borrower has been judged invalid or unenforceable, in whole or in part; and (iii) to Borrowers knowledge no claim has been made that any part of the Copyrights, Patents or Trademarks of Borrower infringes the Copyrights, Patents or Trademarks of any third party. Except as set forth in the Schedule as of the Closing Date, Borrowers rights as a licensee of intellectual property do not give rise to more than five percent (5%) of its gross revenue in any given month, including without limitation revenue derived from the sale, licensing, rendering or disposition of any product or service (the Materiality Threshold). Borrower agrees to provide notice to Bank, with delivery of its monthly Compliance Certificate, of any licenses that meet the foregoing Materiality Threshold. Except as set forth in the Schedule or as disclosed in writing to Bank after the Closing Date, Borrower is not a party to, or bound by, any license that meets the Materiality Threshold that restricts the grant by Borrower of a security interest in Borrowers rights under such license.
5.6 Name; Location of Principal Place of Business . Except as disclosed in the Schedule, as of the Closing Date Borrower has not done business under any name other than that specified on the signature page hereof. As of the Closing Date, the principal place of business of Borrower is located at the address indicated in Section 10 hereof. As of the Closing Date, all Borrowers Inventory and Equipment is located only at the location set forth in Appendix 2 attached hereto.
5.7 Merchantable Inventory . All material Inventory is in all material respects of good and marketable quality free from all material defects, except for Inventory for which adequate reserves have been made.
5.8 Litigation . Except as set forth in the Schedule, there are no actions or proceedings pending by or against Borrower or any Subsidiary that is a Credit Party before any court or administrative agency which would reasonably be expected to have a Material Adverse Effect, or a material adverse effect on Borrowers interest or Banks security interest in the Collateral.
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5.9 No Material Adverse Change in Financial Statements . All consolidated and consolidating financial statements related to Borrower and any consolidated Subsidiary that Bank has received from Borrower fairly present in all material respects the consolidated financial position and results of operations of Borrower (or such Subsidiary) and its consolidated Subsidiaries as of the dates and for the relevant periods indicated (subject in the case of unaudited financial statements, to year end adjustments and matters that would be disclosed in financial statement notes). Since the date of the most recent financial statements submitted to Bank, there has not occurred any Material Adverse Effect or, to Borrowers knowledge, any event or condition that would reasonably be expected to result in a Material Adverse Effect.
5.10 Solvency, Payment of Debts . Borrower is and, after giving effect to the transactions and Indebtedness contemplated by the Loan Documents, will be able to pay its debts within the meaning of the Insolvency Act of 1986.
5.11 Regulatory Compliance . Neither Borrower nor any of its Subsidiaries that is a Credit Party has at any time operated or had maintained for the benefit of it and/or any of its employees a defined benefit occupation pension scheme other than as listed in the Schedule. Borrower is not an investment company or a company controlled by an investment company within the meaning of the Investment Company Act of 1940. Borrower is not engaged principally, or as one of the important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T and U of the Board of Governors of the Federal Reserve System). Borrower is in compliance with all statutes, laws, ordinances or rules applicable to it, except where any such non-compliance would not reasonably be expected to result in a Material Adverse Effect.
5.12 Environmental Condition . Except as disclosed in the Schedule, the properties or assets of Borrower and its Subsidiaries that are Credit Parties have not been used by any such Person or, to the best of Borrowers knowledge, by previous owners or operators, in the disposal of, or to produce, store, handle, treat, release, or transport, any hazardous waste or hazardous substance other than in accordance with applicable law; to the best of Borrowers knowledge, none of the properties or assets of Borrower and its Subsidiaries that are Credit Parties has ever been designated or identified in any manner pursuant to any environmental protection statute as a hazardous waste or hazardous substance disposal site, or a candidate for closure pursuant to any environmental protection statute; no lien arising under any environmental protection statute has attached to any revenues or to any real or personal property owned by any such Person; and none of the Borrower or any of its Subsidiaries that is a Credit Party has received a written summons, citation, notice, or directive from any governmental agency concerning any action or omission by any such Person resulting in the releasing, or otherwise disposing of, hazardous waste or hazardous substances into the environment.
5.13 Taxes . As of the Closing Date, Borrower and each Subsidiary of Borrower that is a Credit Party has filed or caused to be filed all federal (if applicable) and all other tax returns required to be filed by such Person, and have paid, or have made adequate provision for the payment of, all taxes reflected therein (other than taxes that are not at the time delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves shall have been set aside on the books of the applicable Person in accordance with GAAP). After the Closing Date, Borrower and each Subsidiary of Borrower that is a Credit Party has filed or caused to be filed all federal (if applicable) and all other material tax returns required to be filed by such Person, and have paid, or have made adequate provision for the payment of, all taxes reflected therein (other than taxes that are not at the time delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves shall have been set aside on the books of the applicable Person in accordance with GAAP).
5.14 Shares . Borrower has full power and authority to grant a security interest in the Shares and no disability or contractual obligation (other than the contractual obligations of Borrower to CapitalSource Finance LLC and related security, which will be released and terminated effective as of the Closing Date) exists that would prohibit Borrower from pledging the Shares pursuant to this Agreement. There are no subscriptions, warrants, rights of first refusal or other restrictions on, or options exercisable with respect to the Shares, other than restrictions on transfer under applicable state and federal securities laws. The Shares have been and will be duly authorized and validly issued, and are or will be fully paid and non-assessable. As of the Closing Date, the Shares
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are not the subject of any present or threatened suit, action, arbitration, administrative or other proceeding, and Borrower knows of no reasonable grounds for the institution of any such proceedings.
5.15 Subsidiaries . As of the Closing Date, Borrower does not own any stock, partnership interest or other equity securities of any Person, except for Permitted Investments.
5.16 Government Consents . Borrower and each Subsidiary of Borrower that is a Credit Party have obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all governmental authorities that are necessary for the continued operation of such Persons business as currently conducted in the jurisdictions where such business is currently conducted, except, where failure to do so would not reasonably, in each such case, be expected to result in a Material Adverse Effect.
5.17 Accounts . Except as disclosed in the Schedule, as of the Closing Date, none of Borrowers nor any Subsidiarys bank accounts are maintained with a Person other than Bank.
5.18 Full Disclosure . No representation, warranty or other statement made by Borrower in any certificate or written statement furnished to Bank in connection with the transactions contemplated by or pursuant to the Loan Documents contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the factual statements contained in such certificates or statements taken as a whole materially misleading as of the time made or delivered in light of the circumstances under which it was made or delivered, provided that notwithstanding anything else contained in this Agreement or any Loan Document, Borrower does not make any representation, warranty or guaranty as to any projections furnished to Bank (except that such projections have been prepared by the Borrower on the basis of assumptions which were believed to be reasonable as of the date of such projections in light of current and reasonably foreseeable business conditions).
6. AFFIRMATIVE COVENANTS .
So long as any Obligation shall remain unpaid (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) and Bank shall have any commitment to make Credit Extensions, Borrower shall do all of the following:
6.1 Good Standing . Borrower shall (a) except as permitted under Section 7.3, maintain its and each of its Subsidiaries valid existence and good standing (to the extent such concept applies) in its jurisdiction of incorporation, organization or formation and (b) maintain qualification in each jurisdiction in which it is required under applicable law except where failure to maintain such qualification would not reasonably be expected to result in a Material Adverse Effect. Borrower shall maintain, and shall cause each of its Subsidiaries to maintain, in force all licenses, approvals and agreements, the loss of which would reasonably be expected to have a Material Adverse Effect.
6.2 Government Compliance . Borrower shall comply, and shall cause each Subsidiary to comply, with all statutes, laws, ordinances and government rules and regulations to which it is subject, noncompliance with which would reasonably be expected to have a Material Adverse Effect.
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6.3 Financial Statements, Reports, Certificates . Borrower shall deliver the following to Bank: (a) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, income, and cash flow statement covering Parents consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Parents fiscal year, audited consolidated financial statements of Parent prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank; (c) copies (which may be in electronic form) of all statements, reports and notices sent or made available generally by Parent or Borrower to its security holders or to any holders of Subordinated Debt and, if applicable, all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission; (d) promptly after any officer of any Credit Party obtains knowledge thereof, a report of any legal actions pending or threatened in writing against Borrower or any Subsidiary that would reasonably be expected to result in damages or costs to Borrower or any Subsidiary to the extent the amount in controversy exceeds $100,000 individually or $150,000 in the aggregate; (e) as soon as available, but in any event within thirty (30) days after the end of Parents fiscal year, an operating budget in a form reasonably acceptable to Bank and approved by Parents board of directors; (f) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time; and (g) within ten (10) Business Days after the reasonable request of Bank, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any active or pending material United States Patent, Copyright or Trademark applications or registrations, as well as any material change in Borrowers Intellectual Property Collateral (other than Foreign applications and registrations), including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to Bank by Borrower in connection with this Agreement.
Within ten (10) days after the last day of each month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer of Borrower and Parent in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable of Borrower and Parent.
Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer of Parent in substantially the form of Exhibit D hereto.
6.4 Inventory; Returns . Borrower shall keep all material Inventory in good and marketable condition, free from all material defects except for Inventory for which adequate reserves have been made. Returns and allowances, if any, as between Borrower and its account debtors shall be on the same basis and in accordance with the usual customary practices of Borrower, as they exist at the time of the execution and delivery of this Agreement. Borrower shall promptly notify Bank of all returns and recoveries and of all disputes and claims, where the return, recovery, dispute or claim involves more than Fifty Thousand Dollars ($50,000).
6.5 Taxes . Borrower shall make, and shall cause each Subsidiary to make, due and timely payment or deposit of all material taxes, assessments, or contributions required of it by law, and will execute and deliver to Bank, following Banks reasonable request, appropriate certificates attesting to the payment or deposit thereof; and Borrower will make, and will cause each Subsidiary to make, timely payment or deposit of all material tax payments and withholding taxes required of it by applicable laws, and will, upon Banks reasonable request, furnish Bank with proof satisfactory to Bank indicating that Borrower or a Subsidiary has made such payments or deposits; provided that Borrower or a Subsidiary need not make any payment referred to in this Section 6.5 if the amount or validity of such payment is contested in good faith by appropriate proceedings and is reserved against (to the extent required by GAAP) by Borrower or the applicable Subsidiary.
6.6 Insurance .
(a) Borrower, at its expense, shall keep the Collateral insured against loss or damage by fire, theft, explosion, sprinklers, and all other hazards and risks, and in such amounts, as ordinarily insured against by other owners in similar businesses conducted in the locations where Borrowers business is conducted on the date hereof. Borrower shall also maintain insurance relating to Borrowers business, ownership and use of the Collateral in amounts and of a type that are customary to businesses similar to Borrowers.
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(b) All such policies of insurance shall be in such form, with such companies, and in such amounts as are reasonably satisfactory to Bank. All such policies of property insurance shall contain a lenders loss payable endorsement, in a form reasonably satisfactory to Bank, showing Bank as an additional loss payee thereof, and all liability insurance policies, other than errors and omissions and D&O policies, shall show the Bank as an additional insured and shall specify that the insurer must give at least twenty (20) days notice to Bank before canceling its policy for any reason. Upon Banks request, Borrower shall deliver to Bank certified copies of such policies of insurance and evidence of the payments of all premiums therefor. Upon the occurrence and during the continuance of any Event of Default, all proceeds payable under any such policy shall, at the option of Bank, be payable to Bank to be applied on account of the Obligations.
6.7 Accounts . Borrower shall maintain and shall cause each of its Subsidiaries to maintain its primary depository, operating, and investment accounts with Bank or shall cause its accounts to be listed in the Debenture and be subject to the requirements and obligations set forth in the Debenture.
6.8 EBITDA . Parent shall have, measured at the end of each fiscal quarter beginning with the fiscal quarter ending March 31, 2008, EBITDA for the twelve month period ending on such date of not less than (a) $4,700,000 for the periods ending March 31, 2008 and June 30, 2008 or (b) $4,250,000 for any period thereafter.
6.9 Fixed Charge Coverage . Parent shall have, measured at the end of each fiscal quarter beginning with the fiscal quarter ending March 31, 2008, a Fixed Charge Coverage Ratio for the twelve month period ending on such date of at least (a) 1.30:1.00 for the period ending March 31, 2008 or (b) 1.15:1.00 for any period thereafter.
6.10 Senior Leverage Ratio . Parent shall have, measured at the end of each fiscal quarter beginning with the fiscal quarter ending March 31, 2008, a ratio of (a) Senior Debt calculated on such date to (b) EBITDA for the twelve month period ending on such date of at least (i) 2.00:1.00 on any date of measurement to and including September 30, 2008 or (b) 1.75:1.00 on any date of measurement thereafter.
6.11 Minimum Liquidity . Parent shall have, measured at the end of each month, a balance of Cash on a consolidated basis plus Net Accounts of not less than $4,500,000. Net Accounts means, without duplication, Accounts of the Credit Parties and the Credit Parties under and as defined in the US Loan Agreement aged less than 90 days (or, in the case of Qwest, Vodafone Egypt and Cable & Wireless Panama, 120 days) from invoice date.
6.12 Intellectual Property Rights .
(a) Borrower shall promptly give Bank written notice of any applications or registrations of Patents or Trademarks filed with the United States Patent and Trademark Office, or the UK Intellectual Property Office (with respect to patent or trademark filings), including the date of such filing and the registration or application numbers, if any. Borrower shall (i) give Bank not less than 30 days prior written notice of the filing of any applications or registrations with the United States Copyright Office or the UK Intellectual Property Office (with respect to copyright filings), including the title of such intellectual property rights to be registered, as such title will appear on such applications or registrations, and the date such applications or registrations will be filed, and (ii) prior to the filing of any such applications or registrations, shall execute such documents as Bank may reasonably request for Bank to maintain its perfection in such intellectual property rights to be registered by Borrower, and upon the request of Bank, shall file such documents against any such applications or registrations. Upon filing any such applications or registrations with the United States Copyright Office, Borrower shall promptly provide Bank with (i) a copy of such applications or registrations, without the exhibits, if any, thereto, (ii) evidence of the filing of any documents requested by Bank to be filed for Bank to maintain the perfection and priority of its security interest in such intellectual property rights, and (iii) the date of such filing.
(b) Bank may audit Borrowers Intellectual Property Collateral to confirm compliance with this Section, provided such audit will occur at a time and place agreed to by both parties, will be designed not to disrupt the business operations of Borrower and may not occur more often than once per year, unless an Event of Default has occurred and is continuing. Bank shall have the right, but not the obligation, to take, at Borrowers sole expense, any actions that Borrower is required under this Section to take but which Borrower fails
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to take, after 15 days prior written notice to Borrower. Borrower shall reimburse and indemnify Bank for all reasonable out-of-pocket costs and reasonable out-of-pocket expenses incurred in the reasonable exercise of its rights under this Section.
6.13 Future Stock Pledges and Guaranties . Borrower shall notify Bank at the time that any Person becomes a Subsidiary of Borrower or a U.S. Subsidiary of Parent, and promptly thereafter (and in any event within ten Business Days after the appropriate documents are provided to Borrower by Bank) (a) cause such Subsidiary to execute and deliver to Bank a joinder to the applicable Guaranty to become a Guarantor, and (b) pledge the Capital Stock in such Subsidiary to Bank to secure the Obligations; provided that, the foregoing provisions of this Section 6.13 to the contrary notwithstanding, nothing in this Section 6.13 shall require a Credit Party to grant any Lien in favor of Bank in relation to the Capital Stock of Evolving Systems GmbH, nor shall Evolving Systems GmbH be required to execute a joinder to the Guaranty.
6.14 Consent of Inbound Licensors. Other than licenses in the ordinary course, prior to or within a reasonable period of time after entering into or becoming bound by any license or agreement, Borrower shall: (i) provide written notice to Bank of the material terms of such license or agreement with a description of its likely impact on Borrowers business or financial condition; and (ii) in good faith use commercially reasonable efforts to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for Borrowers interest in such licenses or contract rights to be deemed Collateral and for Bank to have a security interest in it that might otherwise be restricted by the terms of the applicable license or agreement, whether now existing or entered into in the future, provided, however, that the failure to obtain any such consent or waiver shall not constitute a default under this Agreement.
6.15 Further Assurances . At any time and from time to time Borrower shall execute and deliver such further instruments and take such further action as may reasonably be requested by Bank to effect the purposes of this Agreement.
7. NEGATIVE COVENANTS .
So long as any Obligation shall remain unpaid (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) and Bank shall have any commitment to make Credit Extensions hereunder, Borrower will not do any of the following:
7.1 Dispositions . Convey, sell, lease, transfer or otherwise dispose of (collectively, a Transfer), or permit any of its Subsidiaries to Transfer, all or any part of its business or property, other than:
(a) Transfers of Inventory, use of cash, or liquidation or sale of cash equivalents, in each case in the ordinary course of business;
(b) Transfers of non-exclusive licenses and similar arrangements for the use of the property of Borrower or its Subsidiaries in the ordinary course of business (such license may include a restriction on assignability of the license and its continuation after a Change in Control);
(c) Transfers (whether in a single transaction or a series of transactions) of obsolete, worn out, replaced, damaged or excess property that is no longer needed in the ordinary course of business and has a book value not exceeding $200,000 in the aggregate in any fiscal year;
(d) Transfers not specifically permitted otherwise in this Section 7.1 (other than Capital Stock of a Credit Party to the extent owned by another Credit Party) to the extent (i) such sale is for fair market value and the aggregate fair market value of all assets so sold does not exceed an amount equal to $250,000 in any fiscal year, (ii) no Default or Event of Default exists or otherwise would result therefrom, (iii) after giving effect to such transaction, Parent is in compliance on a pro forma basis with the financial covenants referenced in Sections 6.8 to 6.11 (recomputed for the most recent period for which financial statements have been delivered in accordance with the terms hereof after giving effect thereto as of the first day of such period), and (iv) the sole consideration therefor received by Borrower or such Subsidiary is cash;
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(e) Transfers in connection with transactions otherwise permitted under the other subsections of this Section 7 to the extent permitted thereunder; and
(f) Transfers of property to any other Credit Party .
7.2 Change in Business; Change in Control or Principal Place of Business . Engage in any business, or permit any of its Subsidiaries to engage in any business, other than the development, distribution and implementation of software primarily for the communications industry and the provision of related services, and other activities that are reasonably incidental or ancillary thereto; or suffer or permit a Change in Control; or without twenty (20) days prior written notification to Bank, relocate its principal place of business or jurisdiction of incorporation or formation or change its legal name; or without Banks prior written consent, change the date on which its fiscal year ends.
7.3 Mergers or Acquisitions . Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the Capital Stock or property of another Person, other than:
(a) Permitted Investments; and
(b) upon not less than ten (10) Business Days prior written notice to Bank, any Subsidiary of Borrower may (A) merge with, or dissolve or liquidate into, or transfer its property to, Borrower or a Wholly-Owned Subsidiary of Borrower that is a Credit Party, provided that, with respect to any such merger, Borrower or such Wholly-Owned Subsidiary shall be the continuing or surviving entity and (B) merge with, or dissolve or liquidate into, or transfer its property to a Wholly-Owned Subsidiary of Parent as permitted by the US Loan Documents.
7.4 Indebtedness . Create, incur, assume or be or remain liable with respect to any Indebtedness, or permit any Subsidiary so to do, other than Permitted Indebtedness.
7.5 Encumbrances; Negative Pledges . (a) Create, incur, assume or suffer to exist any Lien with respect to any of its property, or assign or otherwise convey any right to receive income, including the sale of any Accounts, or permit any of its Subsidiaries so to do, except for Permitted Liens, or (b) agree with any Person other than Bank not to grant a security interest in, or otherwise encumber, any of its property, or permit any Subsidiary to do so except (i) in connection with any document or instrument governing Liens related to purchase money Indebtedness and capital leases which, in each case, otherwise constitute Permitted Liens, (ii) leased equipment, intellectual property and general intangibles of Borrower to the extent excluded from the Collateral, (iii) any Hedging Agreements, so long as such prohibition is limited to the assets securing Borrowers or such Subsidiarys obligations under the applicable Hedging Agreement and (iv) as a result of the Loan Documents and the US Loan Documents.
7.6 Distributions . Pay any dividends or make any other distribution or payment on account of or in redemption, retirement or purchase of any Capital Stock, or permit any of its Subsidiaries to do so, except that:
(a) Borrower and its Subsidiaries may make payments pursuant to and in accordance with the Cross License Agreement and Transfer Pricing Agreements; and
(b) Borrower and any Wholly-Owned Subsidiary of Borrower may declare and pay dividends and other distributions to Parent or to any other Wholly-Owned Subsidiary of Parent that is a Credit Party.
7.7 Investments . Directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries so to do, other than Permitted Investments; or suffer or permit any Subsidiary to be a party to, or be bound by, an agreement that restricts such Subsidiary from paying dividends or otherwise distributing property to Borrower except (i) as a result of the Loan Documents and the US Loan Documents and (ii) as permitted under the Transfer Pricing Agreements.
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7.8 Transactions with Affiliates . Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower except for:
(a) transactions expressly permitted by, and subject to the terms of, this Agreement, the other Loan Documents and the US Loan Documents;
(b) compensation and employment arrangements with employees, officers and directors in the ordinary course of business; and
(c) (i) transactions between or among any of the Credit Parties and/or their Wholly-Owned Subsidiaries that are, or concurrent with such transaction becomes, a Credit Party and (ii) transactions between or among the Parent and its Subsidiaries that are permitted by the US Loan Agreement;
(d) the Cross License Agreement and the Transfer Pricing Agreements;
(e) the agreements identified in the Schedule; and
(f) other transactions that are in the ordinary course of Borrowers business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arms length transaction with a non-affiliated Person.
7.9 Subordinated Debt . Make any payment in respect of any Subordinated Debt, or permit any of its Subsidiaries to make any such payment, except in compliance with the terms of such Subordinated Debt, or amend any provision contained in any documentation relating to the Subordinated Debt without Banks prior written consent except as permitted under the applicable subordination agreement.
7.10 Inventory and Equipment . Store any Inventory or Equipment with a fair market value in excess of $250,000 with a bailee, warehouseman, or other third party unless the third party has been notified of Banks security interest and Bank (a) has received an acknowledgment from the third party that it is holding or will hold the Inventory or Equipment for Banks benefit or (b) is in pledge possession of the warehouse receipt, where negotiable, covering such Inventory or Equipment. Store or maintain any Equipment or Inventory at a location other than (i) one or more of the locations set forth in Appendix 2 attached hereto or (ii) any other location or locations disclosed to Bank in writing.
7.11 Compliance . Become an investment company or be controlled by an investment company, within the meaning of the Investment Company Act of 1940, or become principally engaged in, or undertake as one of its important activities, the business of extending credit for the purpose of purchasing or carrying margin stock, or use the proceeds of any Credit Extension for such purpose.
8. EVENTS OF DEFAULT .
Any one or more of the following events shall constitute an Event of Default by Borrower under this Agreement:
8.1 Payment Default . If Borrower fails to pay (a) when due, any principal on any Advance or (b) within two (2) Business Days after the same shall become due and payable, any interest, Bank Expenses or other Obligations (other than principal) provided for or required under this Agreement or the other Loan Documents;
8.2 Covenant Default .
(a) If Borrower fails to perform any obligation under Section 6.3 (Financial Statements, Reports, Certificates), 6.4 (Taxes), 6.5 (Insurance), 6.7 (EBITDA), 6.8 (Fixed Charge Coverage Ratio), 6.9 (Senior Leverage Ratio), 6.10 (Minimum Liquidity) or 6.13 (Future Stock Pledges and Guaranties) or violates any of the covenants contained in Article 7 of this Agreement; or
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(b) If Borrower fails or neglects to perform or observe any other material term, provision, condition, covenant contained in this Agreement, or in any of the other Loan Documents and as to any default under such other term, provision, condition or covenant that can be cured, has failed to cure such default within 30 days after Borrower receives written notice thereof or any officer of Borrower becomes aware thereof, and within such time period the failure to have cured such default shall not be deemed an Event of Default (provided that no Credit Extensions will be required to be made during such cure period).
8.3 Material Adverse Effect . A Material Adverse Effect occurs;
8.4 Attachment . (a) If any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Borrower having an aggregate value in excess of $175,000 individually or $350,000 in the aggregate and is not discharged within 30 days, (b) if Borrower is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs for more than fifteen (15) calendar days which is reasonably likely to be, have or result in a Material Adverse Effect, (c) if a judgment or other claim becomes a lien or encumbrance upon any material portion of Borrowers assets, which has an aggregate fair market value in excess of $175,000 individually or $350,000 in the aggregate and such lien or encumbrance has not been released or removed within thirty (30) days of attaching, or (d) if a notice of lien, levy, or assessment is filed of record with respect to any material portion of Borrowers assets which has an aggregate fair market value in excess of $175,000 individually or $350,000 in the aggregate by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within thirty (30) days after Borrower receives notice thereof, provided that none of the foregoing as described in clauses (a) through (d) shall constitute an Event of Default where such action or event is stayed or an adequate bond has been posted pending a good faith contest by Borrower (provided that no Credit Extensions will be required to be made during such cure period);
8.5 Insolvency. If (a) Borrower is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts other than as a result of a bona fide dispute being contested in good faith or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness, (b) the value of the assets of the Borrower is less than its liabilities (taking into account contingent and prospective liabilities), or (c) a moratorium or other protection from its creditors is declared or imposed in respect of any indebtedness of the Borrower.
8.6 Insolvency Proceedings . If any corporate action, legal proceedings or other procedure or step is taken (including the making of an application, the presentation of a petition, the filing or service of a notice or the passing of a resolution) in relation to (a) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower other than, in the case of a winding-up, a winding up petition which is proved to the satisfaction of Bank (acting in good faith) to be an abuse of process or to have no real prospect of success and which is, in any event, discharged, stayed or dismissed within 14 days of its presentation and before it is advertise, (b) a composition, compromise, assignment or arrangement with any creditor of the Borrower, (c) the appointment of a liquidator, supervisor, receiver, administrative receiver, administrator, compulsory manager, trustee or other similar officer in respect of the Borrower, or (d) any analogous procedure or step is taken in any jurisdiction.
8.7 Other Agreements . If there is (a) an Event of Default as defined in the US Loan Agreement, (b) a default in the payment of any principal of or interest when due on any Indebtedness of Borrower (other than the Obligations) in the outstanding principal amount in excess of $250,000 in the aggregate, which default is not cured or waived within any applicable grace or cure period, or (c) a default or other failure to perform in any agreement to which Borrower is a party or by which it is bound relating to any Indebtedness (other than the Obligations) in the outstanding principal amount in excess of $750,000 in the aggregate, which default or breach is not cured or waived within any applicable grace or cure period, which results in a right by a third party or parties, whether or not exercised, to accelerate the maturity of such Indebtedness;
8.8 Judgments . If a judgment or judgments for the payment of money in an amount of at least $175,000 individually or $350,000 in the aggregate (excluding judgments and decrees to the extent covered by third party insurance of Borrower where such coverage has been acknowledged by the insurer) shall be rendered against Borrower and shall remain unsatisfied and unstayed for a period of thirty (30) days of being rendered
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(provided that no Credit Extensions will be required to be made prior to the satisfaction or stay of such judgment);
8.9 Misrepresentations . If any warranty or representation set forth herein or in any certificate delivered to Bank by Borrower pursuant to this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made; or
8.10 Guaranty. If any guaranty of all or a portion of the Obligations (a Guaranty) ceases for any reason to be in full force and effect, or any Guarantor fails to perform any obligation under any Guaranty or a security agreement securing any Guaranty (collectively, the Guaranty Documents) which failure to perform or is not cured or waived within any applicable grace or cure period, or any event of default occurs under any Guaranty Document or any Guarantor revokes or purports to revoke a Guaranty, or any warranty or representation of a Guarantor set forth in any Guaranty Document to which such Guarantor is a party or in any certificate delivered to Bank by a Guarantor in connection with any Guaranty Document shall prove to have been incorrect in any material respect when made or deemed made, or if any of the circumstances described in Sections 8.4, 8.5 or 8.6 (as to the UK Guarantor only), 8.7 or 8.8 occur with respect to any Guarantor.
9. BANKS RIGHTS AND REMEDIES .
9.1 Rights and Remedies . Upon the occurrence and during the continuance of an Event of Default, Bank may, at its election, without notice of its election and without demand, do any one or more of the following, all of which are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents, or otherwise, immediately due and payable (provided that upon the occurrence of an Event of Default described in Section 8.5, all Obligations shall become immediately due and payable without any action by Bank);
(b) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement or under any other Loan Document;
(c) Exercise any or all of its rights, remedies, powers or discretions to the extent such right, remedy or power arises as a result of an Event of Default under the Loan Documents; and
(d) Demand that Borrower (i) deposit cash with Bank in an amount equal to the amount of any Letters of Credit remaining undrawn, as collateral for the repayment of any future drawings under such Letters of Credit, and (ii) pay in advance all Letters of Credit fees scheduled to be paid or payable over the remaining term of the Letters of Credit, and borrower shall promptly deposit and pay such amounts.
9.2 Accounts Collection . At any time after the occurrence and during the continuance of an Event of Default, Bank may notify any Person owing funds to Borrower of Banks security interest in such funds and verify the amount of such Account. After the occurrence and during the continuance of an Event of Default, Borrower shall collect all amounts owing to Borrower for Bank, receive in trust all payments as Banks trustee, and promptly deliver such payments to Bank in their original form as received from the account debtor, with proper endorsements for deposit.
9.3 Bank Expenses . If Borrower fails to pay any amounts or furnish any required proof of payment due to third persons or entities, as required under the terms of this Agreement, then Bank may do any or all of the following after reasonable written notice to Borrower: (a) make payment of the same or any part thereof; or (b) obtain and maintain insurance policies of the type discussed in Section 6.5 of this Agreement, and take any action with respect to such policies as Bank reasonably deems prudent. Any amounts so paid or deposited by Bank shall constitute Bank Expenses, shall be due and payable within 10 Business Days following demand, and, to the extent not paid when due, shall bear interest at the then applicable rate hereinabove provided, and shall be secured by the Collateral. Any payments made by Bank shall not constitute an agreement by Bank to make similar payments in the future or a waiver by Bank of any Event of Default under this Agreement.
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9.4 Remedies Cumulative . Banks rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative. Bank shall have all other rights and remedies not inconsistent herewith as provided by law, or in equity. No exercise by Bank of one right or remedy shall be deemed an election, and no waiver by Bank of any Event of Default on Borrowers part shall be deemed a continuing waiver. No delay by Bank shall constitute a waiver, election, or acquiescence by it. No waiver by Bank shall be effective unless made in a written document signed on behalf of Bank and then shall be effective only in the specific instance and for the specific purpose for which it was given.
9.5 Demand; Protest . Except as expressly provided for herein or in any other Loan Document, Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, notice of any default or any other notice (to the maximum extent permitted by applicable law) of any kind in connection with the Loan Documents or the Collateral.
10. NOTICES .
Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other Loan Document shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, or by telefacsimile to Borrower or to Bank, as the case may be, at its addresses set forth below:
If to Borrower: |
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EVOLVING SYSTEMS LIMITED |
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9777 Pyramid Court, Suite 100 |
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Englewood, CO 80112 |
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Attn: Anita T. Moseley, Company Secretary |
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FAX: (303) 802-1138 |
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with a copy to: |
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Attn: Brian R. Ervine, Director |
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FAX: (303) 802-1420 |
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If to Bank: |
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Bridge Bank, N.A. |
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55 Almaden Blvd. |
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San Jose, CA 95113 |
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Attn: Dan Pistone |
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FAX: (408) 423-8520 |
The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other.
Notices sent by personal delivery or recognized overnight delivery service, or mailed by first-class, certified or registered mail, shall be deemed to have been given when received; notices sent by telefacsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day). Notices delivered through electronic communications to the extent provided in the next paragraph shall be effective as provided in such paragraph.
Notices and other communications to Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Bank. Bank may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless each of the Persons sending and receiving particular notices or communications otherwise agree, (i) notices and other communications sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement from the intended recipient by return e-mail (but excluding automated return e-mail, such as e-mail sent by the return receipt requested function) or other written acknowledgement, provided that if such notice or other communication is not sent during the normal business hours
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of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER .
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California, without regard to principles of conflicts of law. Each of Borrower and Bank hereby submits to the non-exclusive jurisdiction of the state and Federal courts located in the County of Santa Clara, State of California. BORROWER AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
If the jury waiver set forth in Section is not enforceable, then any dispute, controversy or claim arising out of or relating to this Agreement, the Loan Documents or any of the transactions contemplated therein shall be settled by judicial reference pursuant to Code of Civil Procedure Section 638 et seq. before a referee sitting without a jury, such referee to be mutually acceptable to the parties or, if no agreement is reached, by a referee appointed by the Presiding Judge of the California Superior Court for Santa Clara County. This Section shall not restrict a party from exercising remedies under the Code or from exercising pre-judgment remedies under applicable law.
12. GENERAL PROVISIONS .
12.1 Successors and Assigns . This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties; provided, however, that neither this Agreement nor any rights hereunder may be assigned by Borrower without Banks prior written consent, which consent may be granted or withheld in Banks sole discretion. Subject to compliance with Section 12.4 by both Bank and the Transferee (as defined in Section 12.4 (Taxes)), Bank shall have the right without the consent of or notice to Borrowers to sell, transfer, negotiate, or grant participation in all or any part of, or any interest in, Banks obligations, rights and benefits hereunder.
12.2 Indemnification . Borrower shall defend, indemnify and hold harmless Bank and its
officers, employees, and agents against: (a) all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with the transactions contemplated by this Agreement and the other Loan Documents; and (b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank as a result of or in any way arising out of, following, or consequential to transactions between Bank and Borrower under this Agreement and the other Loan Documents (including without limitation reasonable attorneys fees and expenses), except for losses caused by the gross negligence or willful misconduct of the Person seeking indemnification.
12.3 Time of Essence . Time is of the essence for the performance of all obligations set forth in this Agreement.
12.4 Taxes
(a) Subject to this Section 12.4, any and all payments by Borrower or any other Credit Party to Bank under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for, any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding such taxes (including income taxes or franchise taxes) as are imposed on or measured by the net income of Bank by the jurisdiction under the laws of which Bank is
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organized or maintains a Lending Office or other taxable presence or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as Taxes).
(b) In addition, Borrower and the other Credit Parties shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Loan Document (hereinafter referred to as Other Taxes).
(c) Subject to this Section 12.4, the Credit Parties shall indemnify and hold harmless Bank for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 12.4) paid by Bank and any liability (including penalties, interest, additions to tax and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted except in the case of Taxes or Other Taxes incurred due to the wilful breach by Bank of any law or regulation. Payment under this indemnification shall be made within three (3) Business Days from the date Bank makes written demand therefor.
(d) If any Credit Party shall be required by law to deduct or withhold any Taxes or Other Taxes from or in respect of any sum payable hereunder to Bank, then, subject to this Section 12.4:
(i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 12.4), Bank receives an amount equal to the sum it would have received had no such deductions been made;
(ii) such Credit Party shall make such deductions; and
(iii) such Credit Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(e) Within ten (10) days after the date of any payment by any Credit Party of Taxes or Other Taxes, Borrower shall furnish to Bank the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment satisfactory to Bank.
(f) Subject to the proviso to this Section 12.4(f), Bank shall not be entitled to any additional amounts solely in respect of a deduction or withhold for or on account of United Kingdom Taxes (a UK Withholding Tax Deduction) in respect of interest payable by the Borrower hereunder, if on the date on which the payment falls due, the payment could have been made to Bank without a UK Withholding Tax Deduction if Bank was entitled under a Treaty to a full exemption from UK Withholding Tax Deductions in respect of interest payable hereunder, but on such date Bank is not or has ceased to be entitled to a full exemption from UK Withholding Tax Deductions other than as a result of any change after the Closing Date in any existing law, regulation, treaty or directive or in the interpretation or application thereof; provided that, in the case of the first due date for the payment of interest under Section 2.3(c) (i.e., March 10, 2008), where Section 12.4(i)(ii) applies and has been complied with by Bank, but an approval under the Treaty has not yet been obtained, interest hereunder shall accrue but not be payable (and shall not thereby be treated as an Advance) until the earlier of (x) an Event of Default occurring, and (y) the relevant approval being granted and (z) the date which (but for this provision) would have been the second due date for the payment of interest under Section 2.3(c) (i.e., April 10, 2008) and Section 2.3(c) shall be varied accordingly. On the earlier of (i) three (3) Business Days following Bank notifying Borrower that the relevant approval has been granted or Borrower otherwise becoming aware thereof and (ii) such second due date for the payment of interest under Section 2.3(c) (i.e., April 10, 2008), interest shall in any event be payable in accordance with Section 12.4(a) and (d).
(g) Notwithstanding any other provision of any Loan Document but subject to the next following sentence, if at any time after the Closing Date or the making of any Advance (x) any change in any existing law, regulation, treaty or directive or in the interpretation or application thereof, (y) any new law,
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regulation, treaty or directive enacted or any interpretation or application thereof, or (z) compliance by Bank with new request or directive (whether or not having the force of law) from any Governmental Authority: (i) subjects Bank to any tax, levy, impost, deduction, assessment, charge or withholding imposed by any taxing authority with respect to any Loan Document, or changes the basis of taxation of payments to Bank of any amount payable thereunder (except in each case, for net income taxes imposed generally by any taxing authority under the law of the jurisdiction where Bank is organized or where it has a Lending Office or its principal place of business (or, if different, in which, other than by reason of its execution and performance of the Loan Documents, it is treated as resident for tax purposes) or in which its applicable lending office is located, with respect to interest or commitment fees or other fees payable hereunder or changes in the rate of tax on the overall net income of Bank), or (ii) imposes on Bank any other condition or increased cost (not related to taxation) in connection with the transactions contemplated thereby or participations therein; and the result of any of the foregoing is to increase the cost to Bank of making or continuing or maintaining any Loan hereunder or to reduce any amount receivable hereunder, then, in any such case, the Credit Parties shall promptly pay to Bank any additional amounts necessary to compensate Bank, on an after-tax basis, for such additional cost or reduced amount as determined by Bank (acting reasonably and in good faith). The Credit Parties shall not be required to pay any amounts as provided in the preceding sentence, (i) to the extent such increased cost or reduced amount is attributable to the wilful breach by Bank (or its Affiliate) of any law or regulation, (ii) to the extent such increased cost or reduced amount is attributable to a withholding for or on account of Tax in respect of which the Credit Parties have complied with Section 12.4(d) or (iii) to the extent Bank shall have already been compensated, or is not entitled to compensation, for such increased cost or reduced amount under Section 12.4(c). If Bank becomes entitled to claim any additional amounts pursuant to this Section 12.4 it shall reasonably promptly after obtaining knowledge thereof notify Borrower of the event by reason of which Bank has become so entitled, and each such notice of additional amounts payable pursuant to this Section 12.4 submitted by Bank to the Credit Parties shall, absent manifest error, be final, conclusive and binding for all purposes.
(h) If at any time the Borrower or any other Credit Party is required by law to make any deduction or withholding from any sum payable by it under this Agreement or any other Loan Document (or if subsequently there is any change in the rates at which or the manner in which such deductions or withholdings are calculated), it shall promptly notify Bank upon becoming aware of the same. In addition, Bank shall promptly notify Borrower upon becoming aware of any circumstances as a result of which Borrower or any other Credit Party is or would be required to make any deduction or withholding from any sum payable by it under this Agreement or under any other Loan Document (or if subsequently there is or would be any change in the rates at which or the manner in which such deductions or withholdings are calculated), whether as a result of Bank ceasing to beneficially own interest payable hereunder or otherwise. If Bank ceases to be a Treaty Lender by reason of an action taken by Bank or by reason of a failure by Bank to take any action as required by this Agreement shall, upon becoming aware of such action or failure, also promptly notify Borrower of its change in status, the date of such change and the reason for its change in status. The Borrower or any Credit Party, as appropriate, shall pay the full amount deducted to the relevant taxing or other authority in accordance with the applicable law and promptly provide an original tax certificate of withholding to Bank.
(i) To the extent that the Borrower or another Credit Party reasonably determines that (i) Bank may recover Taxes deducted from payments made by Borrower or such Credit Party under any Loan Document to the extent Borrower or such Credit Party shall have paid additional amounts in respect of such Taxes under Section 12.4(d) or (ii) a withholding or deduction for or on account of taxes may be avoided or reduced if, in either case, Bank completes certain procedural formalities and/or provides properly completed and executed documentation prescribed by applicable law, Bank shall within a reasonable timeframe cooperate with Borrower to complete such procedural formalities and/or provide such documentation to the Borrower (in each case but save as further provided below, upon the Borrowers reasonable request and at the Borrowers sole cost and expense); and provided that (save as further provided below Bank determines in its sole, good faith reasonable judgment that completing such procedural formalities and/or providing such documentation will not disadvantage or prejudice Bank in any manner and provided further that Bank acknowledges that Section 12.4(i)(ii) applies (without limitation to any further application of this Section 12.4(i)) from the date of this Agreement until the date on which Bank receives approval under the Treaty to a full exemption from UK Withholding Tax Deductions in respect of interest payable hereunder and the costs of completing with the requisite procedural formalities in respect of such approval shall be borne by Bank.
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(j) If Bank determines in its sole, good faith reasonable judgment that it has received a remission for, or a refund or direct credit in respect of and specifically associated with any Taxes or Other Taxes as to which it has been indemnified by any Credit Party, or with respect to which such Credit Party has paid additional amounts, it shall promptly notify the Credit Party of such remission, refund or direct credit and shall within 30 days from the date of receipt of such refund or benefit of such remission or direct credit pay over the amount of such refund or benefit of such remission or direct credit (including any interest paid or credited by the relevant Governmental Authority attributable to such remission, refund or direct credit) to the Credit Party but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party with respect to the Taxes or Other Taxes giving rise to such remission, refund or direct credit, net of all out-of-pocket expenses of such Person. Notwithstanding any other provision of this Agreement, if Bank has made a payment to any Credit Party in respect of a remission, refund or direct credit of Taxes or Other Taxes pursuant to the preceding sentence, to the extent any remission is withdrawn or any refund or direct credit is required to be repaid to the relevant taxing authority, such amount shall be treated as a Tax subject to indemnification under this Section 12.4.
(k) If, at any time, Borrower requests Bank to deliver any forms or other documentation in addition to those forms required to be delivered by such Lender pursuant to Section 12.4, then Borrower shall, on demand reimburse Bank for any costs and expenses (including attorneys fees and expenses) reasonably incurred by Bank in the preparation or delivery of such forms or other documentation.
(l) If Borrower is required to pay additional amounts to Bank pursuant to Section 12.4, then Bank shall use its reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its Lending Office so as to eliminate any such additional payment by Borrower which may thereafter accrue if such change in the judgment of Bank is not otherwise disadvantageous to Bank. In addition to the foregoing and if Bank deems it commercially reasonable in its sole discretion, such Lender agrees to obtain a refund or credit for any additional amounts paid by Borrower to Bank pursuant to Sections 12.4, and, to the extent any such refund or credit is obtained, apply such amounts to the outstanding Obligations owing by such Credit Party under this Agreement. The Borrower shall indemnify the Bank for all costs and expenses reasonably incurred by the Bank as a result of steps taken by it pursuant to this Section 12.4(l).
(m) If:
(i) Bank (the Existing Bank) assigns or transfers any of its rights or obligations under this Agreement or changes its Lending Office; and
(ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, a Credit Party would be obliged to make a payment to the assignee or transferee (the Transferee) or Bank acting through its new Lending Office under this Section 12.4,
then the Transferee or Bank acting through its new Lending Office is only entitled to receive payment under this Section 12.4 to the same extent as the Existing Bank or Bank acting through its previous Lending Office would have been if the assignment, transfer or change had not occurred.
(n) On claiming reimbursement or compensation pursuant to this Section 12.4 Bank shall deliver to Borrower a certificate setting forth in reasonable detail the amount payable to Bank hereunder and such certificate shall be conclusive and binding on the Credit Parties in the absence of manifest error.
(o) The agreements and obligations of the Credit Parties in this Section 12.4 shall survive the payment of all other Obligations. Save as provided otherwise in this Section 12.4, this Section 12 does not in any way limit the obligations of any Credit Party under the Loan Documents.
12.5 Severability of Provisions . Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
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12.6 Amendments in Writing, Integration . Neither this Agreement nor the Loan Documents can be amended or terminated orally. All prior agreements, understandings, representations, warranties, and negotiations between the parties hereto with respect to the subject matter of this Agreement and the Loan Documents, if any, are merged into this Agreement and the Loan Documents.
12.7 Counterparts . This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic copy shall be effective as delivery of a manually executed counterpart of this Agreement.
12.8 Survival . All covenants, representations and warranties made in this Agreement shall survive the execution and delivery of the Loan Documents and the making and funding of the Advances so long as any Obligations remain outstanding (other than contingent indemnity obligations for which no claim has been made) or Bank has any obligation to make Credit Extensions to Borrower. The obligations of Borrower to indemnify Bank with respect to the expenses, damages, losses, costs and liabilities described in Section 12.2 and the confidentiality provisions of Section 12.9 shall survive until all applicable statute of limitations periods with respect to actions that may be brought have run.
12.9 Confidentiality . In handling any confidential information Bank and all employees and agents of Bank, including but not limited to accountants, shall exercise the same degree of care that it exercises with respect to its own proprietary information of the same types to maintain the confidentiality of any non-public information thereby received or received pursuant to this Agreement or the other Loan Documents except that disclosure of such information may be made (i) to the subsidiaries or affiliates of Bank in connection with their present or prospective business relations with Borrower (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential in accordance with this Section 12.9), (ii) to prospective transferees or purchasers of any interest in the Loans, provided that they have (x) entered into a comparable confidentiality agreement in favor of Borrower to which Borrower is a party or pursuant to which Parent and its Subsidiaries are third party beneficiaries and (y) delivered a copy of such confidentiality agreement to Borrower, (iii) as required by law, regulations, rule or order, subpoena, judicial order or similar order, (iv) as may be required in connection with the examination, audit or similar investigation of Bank by a regulatory authority or examiner regulating or having jurisdiction over Bank and requiring or requesting such disclosure and (v) as Bank may determine in connection with the enforcement of any remedies hereunder at any time during the existence of an Event of Default. Confidential information hereunder shall not include information that either: (a) is in the public domain or in the knowledge or possession of Bank when disclosed to Bank with no confidentiality obligations to a third party, or becomes part of the public domain after disclosure to Bank through no fault of Bank; or (b) is disclosed to Bank by a third party on a non-confidential basis other than as a result of this Section 12.9, provided Bank does not have actual knowledge that such third party is prohibited from disclosing such information. Should Bank be required to disclose any such information by virtue of a subpoena or similar process by any court, tribunal, or agency pursuant to items (iii), (iv) or (v) above, then Bank shall use commercially reasonable efforts to promptly notify Borrower thereof so as to allow Borrower or the other applicable Credit Party, at its sole cost and expense, to seek a protective order or to take any other appropriate action to protect its rights.
12.10 Patriot Act . To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. WHAT THIS MEANS FOR YOU: when you open an account, we will ask your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your drivers license or other identifying documents.
12.11 No Consequential Damages . No party to this Agreement or any other Loan Document, nor any agent or attorney of such party or Bank, shall be liable to any other party to this Agreement or any other Person on any theory of liability for any special, indirect, consequential or punitive damages.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
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EVOLVING SYSTEMS LIMITED |
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By: |
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Brian R. Ervine |
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Title: |
Director |
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BRIDGE BANK, N.A. |
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By: |
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Title: |
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APPENDIX 1
NAME OF ACCOUNT DEBTOR |
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% WH TAXES |
Accenture |
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10% |
Alaska Communications |
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Alcatel |
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Alltel |
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AT&T Bellsouth |
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AT&T Cingular |
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Comcast |
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Cox |
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Cable & Wireless Panama |
|
|
Leap/Crickett |
|
|
Lucent |
|
|
Qwest |
|
|
AT&T (Formerly SBC) |
|
|
Shaw |
|
|
SNET |
|
|
Sprint/Nextel |
|
|
Embarq |
|
|
Telenor Pakistan |
|
|
Telcordia |
|
|
Tw Telecom |
|
|
TNS |
|
|
Vartec |
|
|
Verisign |
|
|
Verizon |
|
|
Accenture |
|
|
American Telecommunication, Inc. |
|
Brazil 25% & 20%; Mexico 10% |
Bulgaria Telecom |
|
15% |
British Telecom |
|
|
Cable & Wireless |
|
|
Cybercity |
|
|
Danet |
|
|
Lebanon MIC 1 S.A.L. |
|
|
Hutchison UK |
|
|
Hutchison Whampoa |
|
|
Inmarsat |
|
|
Monet |
|
|
MTN SA |
|
|
MTN Nigeria |
|
5% |
NEC Japan |
|
|
NTL (Acquired By Virgin Media) |
|
|
Siemens AG/VIPNet |
|
|
Siemans CAC |
|
|
Nokia/Siemans |
|
|
SiMobile |
|
|
Swisscom |
|
|
T-Mobile |
|
|
Tele2 |
|
|
Virgin Media |
|
|
VipNet |
|
|
Vodafone Egypt |
|
15% |
Vodafone Greece |
|
|
IBM Greece |
|
|
Vodafone Japan |
|
10% |
Vodafone UK |
|
|
Wireless Trade |
|
5% |
34
Appendix 2
Locations of Inventory and Equipment
Office Locations |
|
Evolving Systems, Inc.
|
|
Evolving Systems Limited
|
|
Evolving Systems Limited
|
|
Tertio Deutschland GmbH
|
|
Evolving Systems Networks India
Private Ltd.
|
|
Evolving Systems Networks India
Private Ltd.
|
|
Evolving Systems Limited |
P-3-15, Plaza Damas |
60, Jalan Sri Hartamas 1, |
Sri Hartamas |
50480 Kuala Lumpur |
Malaysia |
35
EXHIBIT B
ADVANCE REQUEST FORM
1
EXHIBIT C
BORROWING BASE CERTIFICATE
Borrower: EVOLVING SYSTEMS LIMITED |
|
Lender: Bridge Bank, N.A. |
|
|
|
Commitment Amount: $5,000,000 |
|
|
* Or 120 days in the case of Accounts of Qwest, Vodafone Egypt and Cable & Wireless Panama (or any of their respective successors)
The undersigned represents and warrants that the foregoing is true, complete and correct in all material respects, and that the information reflected in this Borrowing Base Certificate complies in all material respects with the representations and warranties set forth in the Loan and Security Agreement between the undersigned and Bridge Bank, N.A..
EVOLVING SYSTEMS LIMITED |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
Authorized Signer |
|
|
|
1
EXHIBIT D
COMPLIANCE CERTIFICATE
TO: |
|
BRIDGE BANK, N.A. |
|
|
|
FROM: |
|
EVOLVING SYSTEMS LIMITED |
The undersigned authorized officer of EVOLVING SYSTEMS LIMITED (Borrower) hereby certifies, solely in his or her capacity as an authorized officer of Borrower, that in accordance with the terms and conditions of the Loan Agreement between Borrower and Bank (the Agreement), (i) Borrower is in compliance for the period ending with all covenants except as noted below, (ii) no Default or Event of Default exists as of the date hereof[, except as set forth in Schedule [ ] attached hereto], and (iii) all representations and warranties of Borrower stated in the Agreement are true and correct in all material respects as of the date hereof except [(x) as set forth in Schedule [ ] attached hereto and (y)] to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date. Attached herewith are the [audited/unaudited] financial statements required pursuant to Section 6.3[(a)][(b)] of the Agreement. Such financial statements fairly present in all material respects the consolidated financial position and results of operations of Borrower (or such Subsidiary) and its consolidated Subsidiaries as of the dates and for the relevant periods indicated (subject in the case of unaudited financial statements, to year end adjustments and matters that would be disclosed in financial statement notes). Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.
Please indicate compliance status by circling Yes/No under Complies column.
Reporting Covenant |
|
Required |
|
Complies |
||||||
|
|
|
|
|
|
|
|
|
||
Monthly financial statements |
|
Monthly within 30 days |
|
Yes |
|
No |
|
N/A |
||
Annual (CPA Audited) |
|
FYE within 120 days |
|
Yes |
|
No |
|
N/A |
||
10K and 10Q |
|
(as applicable) |
|
Yes |
|
No |
|
N/A |
||
A/R Audit |
|
Initial and Annual |
|
Yes |
|
No |
|
N/A |
||
Operating Budget |
|
within 30 days of FYE |
|
Yes |
|
No |
|
N/A |
||
IP Report |
|
Upon Banks request within 10 days |
|
Yes |
|
No |
|
N/A |
||
Deposit balances with Bank |
|
$ |
|
Yes |
|
No |
|
N/A |
||
Deposit balances outside Bank |
|
$ |
|
Yes |
|
No |
|
N/A |
||
5% Licenses Report |
|
Monthly |
|
Yes |
|
No |
|
N/A |
||
|
|
|
|
|
|
|
|
|
||
Financial Covenant |
|
Required |
|
Actual |
|
Complies |
||||
|
|
|
|
|
|
|
|
|
|
|
EBITDA measured on a trailing 12 month basis* |
|
$4,700,000 through 6/30/08 and $4,250,000 thereafter |
|
$ |
|
Yes |
|
No |
|
N/A |
Fixed Charge Coverage Ratio* |
|
1.30:1.00 through 3/31/2008; 1.15:1.00 thereafter |
|
:1.00 |
|
Yes |
|
No |
|
N/A |
Senior Leverage Ratio* |
|
2.25:1.00 through 9/30/2008; 1.75:1.00 thereafter |
|
:1.00 |
|
Yes |
|
No |
|
N/A |
Minimum Liquidity |
|
$4,500,000 |
|
$ |
|
Yes |
|
No |
|
N/A |
*beginning March 31, 2008 and at the end of each fiscal quarter thereafter.
Comments Regarding Exceptions: See Attached. |
|
BANK USE ONLY |
|||||||
|
|
|
|||||||
Sincerely, |
|
Received by: |
|
|
|
||||
|
|
AUTHORIZED SIGNER |
|||||||
|
|
|
|||||||
|
|
Date: |
|
|
|
||||
|
|
Verified: |
|
|
|
||||
SIGNATURE |
|
AUTHORIZED SIGNER |
|||||||
|
|
|
|||||||
|
|
Date: |
|
|
|
||||
TITLE |
|
|
|||||||
Date: |
|
Compliance Status |
Yes |
No |
|||||
1
ANNEX A
SHARES
None.
1
Exhibit 10.1(d)
DATED 22 FEBRUARY 2008
EVOLVING SYSTEMS LIMITED
AND
BRIDGE BANK, N.A.
DEBENTURE
19 Cavendish Square
London W1A 2AW
DX 42748 Oxford Circus North
telephone +44(0)20 7636 1616
fax +44 (0)20 7491 2899
Ref : 028176/00002/H3326953.5
CONTENTS
CLAUSE |
|
PAGE |
|
1. |
DEFINITIONS AND INTERPRETATION |
2 |
|
2. |
COVENANT TO PAY |
12 |
|
3. |
INTEREST |
12 |
|
4. |
SECURITY |
12 |
|
5. |
CONVERSION OF FLOATING CHARGE |
14 |
|
6. |
FURTHER ASSURANCE |
15 |
|
7. |
DEPOSIT OF DOCUMENTS AND TITLE DEEDS |
16 |
|
8. |
NEGATIVE PLEDGE |
16 |
|
9. |
THE DEPOSIT ACCOUNT |
17 |
|
10. |
THE BOOK DEBTS ACCOUNT |
17 |
|
11. |
REPRESENTATIONS AND WARRANTIES |
18 |
|
12. |
UNDERTAKINGS |
18 |
|
13. |
Dividends and voting rights |
21 |
|
14. |
COSTS AND BANKS PERFORMANCE OF COVENANTS |
23 |
|
15. |
DEFAULT |
23 |
|
16. |
STATUTORY POWER OF SALE |
24 |
|
17. |
RECEIVER OR ADMINISTRATOR |
24 |
|
18. |
PROTECTION OF THIRD PARTIES |
27 |
|
19. |
No LIABILITY AS MORTGAGEE IN POSSESSION AND INDEMNITY |
27 |
|
20. |
REASSIGNMENT |
28 |
|
21. |
POWER OF ATTORNEY |
28 |
|
22. |
CUMULATIVE AND CONTINUING SECURITY |
29 |
|
23. |
AVOIDANCE OF PAYMENTS |
29 |
|
24. |
PRIOR CHARGES |
29 |
|
25. |
OPENING A NEW ACCOUNT |
30 |
|
26. |
SUSPENSE ACCOUNT |
30 |
|
27. |
PAYMENTS AND WITHHOLDING TAXES |
30 |
|
28. |
CURRENCY |
31 |
|
29. |
SET-OFF |
31 |
|
30. |
ASSIGNMENT |
32 |
|
31. |
WAIVERS |
32 |
|
32. |
SEVERABILITY |
32 |
|
33. |
THE LAND REGISTRY |
32 |
|
34. |
NOTICES |
33 |
|
35. |
LAW AND JURISDICTION |
33 |
|
36. |
COUNTERPARTS AND DELIVERY |
33 |
|
1
THIS DEBENTURE is made as a Deed on the 22nd day of February 2008
BETWEEN :
(1) EVOLVING SYSTEMS LIMITED (registered in England and Wales under company number 02325854) the registered office of which is at One Angel Square, Torrens Street, London EC1V 1PL (the Chargor ); and
(2) BRIDGE BANK, N.A. of 55 Almaden Boulevard, San Jose, A 95113, United States of America (the Bank ).
RECITALS
(A) The Bank has agreed to make available to the Chargor a revolving loan facility of up to US$5,000,000 (five million American dollars) subject to and upon the terms and conditions contained in the Loan Agreement (as defined below).
(a) The Bank requires the Chargor, and the Chargor has agreed, to enter into this Debenture for the purpose of providing security to the Bank for the Secured Liabilities.
IT IS AGREED as follows:
In this Debenture the following expressions have the following meanings, unless the context otherwise requires:
Administrator |
|
means any administrator appointed pursuant to this Debenture. |
|
|
|
|
|
Book Debts |
|
means: |
|
|
|
|
|
|
|
(a) |
all book and other debts in existence from time to time (including, without limitation, any sums whatsoever owed by banks or similar institutions), both present and future, due, owing to or which may become due, owing to or purchased or otherwise acquired by the Chargor; and |
|
|
|
|
|
|
(b) |
the benefit of all rights whatsoever relating to the debts referred to above including, without limitation, any related agreements, documents, rights and remedies (including, without limitation, negotiable or non-negotiable instruments, guarantees, indemnities, legal and equitable charges, reservation of proprietary rights, rights of tracing, unpaid vendors liens and all similar connected or related rights and assets). |
2
Book Debts Account |
|
means such separate and denominated account or accounts with the Bank, Royal Bank of Scotland plc or such bank as may be specified or approved in writing by the Bank for the purpose of receiving payments of the proceeds of realisation and collection of Book Debts (the Borrowers account number 21775153 with Royal Bank of Scotland plc (sort code 15 -10 -00) being so approved at todays date). |
|
|
|
Cash Deposit |
|
means all sums from time to time standing to the credit of the Deposit Accounts and all interest on such sums. |
|
|
|
Charged Property |
|
means the whole or any part of the property, assets, income and undertaking of the Chargor from time to time mortgaged, charged or assigned to the Bank pursuant to this Debenture. |
|
|
|
Contracts |
|
means all the Chargors rights, title, interest and benefit in and to any contract the details of which are referred to in Schedule 3. |
|
|
|
Costs |
|
means all costs, charges or expenses of whatsoever nature (including, without limitation, legal fees) including, without limitation, disbursements and any Value Added Tax to be charged on such costs, charges, expenses and disbursements. |
|
|
|
Default Rate |
|
means the annual rate of interest specified in the second sentence of Clause 2.3(b) of the Loan Agreement. |
3
Deposit Accounts |
|
means the interest bearing accounts with Royal Bank of Scotland plc (sort code 15-10-00) Account Numbers or names 21775188, EVOSYS USD1, TERTEL EURI, Euro Money Fund and Sterling Money Fund and the Book Debts Account;
or such other accounts as the Bank may in its discretion, approve or require, as any such account may be redesignated or renumbered from time to time and Deposit Accounts means any of them. |
|
|
|
Distribution Rights |
|
means all allotments, accretions, offers, options, rights, bonuses, benefits and advantages, whether by way of conversion, redemption, preference, option or otherwise which at any time accrue to or are offered or arise in respect of any Investments or Shares, and includes all dividends, interest and other distributions paid or payable on or in respect of them. |
|
|
|
Event of Default |
|
means any of those events or circumstances set out in Clause 8 (Events of Default) of the Loan Agreement and an Event of Default is continuing if it has not been remedied to the satisfaction of the Bank or waived by it in writing. |
|
|
|
Facility Documents |
|
means this Debenture, the Loan Agreement and each of the Security Documents. |
|
|
|
Fixtures |
|
means all assets of whatsoever nature, apart from land and buildings, forming part of any freehold or leasehold property owned by the Chargor and deemed by law to be immovable property other than tenants fixtures. |
|
|
|
Future Plant and Machinery |
|
means all plant and machinery, equipment, fittings, installations, apparatus, tools, motor vehicles and all other such assets (other than Fixtures) whatsoever, wherever situate, which become the property of the Chargor after the date of this Debenture. |
4
Future Property |
|
means all estates and other interests in any freehold, leasehold or other immovable property (including, without limitation, all Fixtures on such property) which become the property of the Chargor after the date of this Debenture, all proceeds of sale derived from such property and the benefit of all covenants to which the Chargor is entitled in respect of such property. |
|
|
|
Insolvency Act |
|
means the Insolvency Act 1986. |
|
|
|
Intellectual Property |
|
means all subsisting patents and subsisting rights of a similar nature held in any part of the world, applications for patents and such rights, divisions and continuations of such applications for patents, registered and unregistered trade marks (including but not limited to those listed in Schedule 1B), registered and unregistered service marks, registered designs, utility models (in each case for their full period and all extensions and renewals of them), applications for any of them and the right to apply for any of them in any part of the world, inventions, confidential information, Know-how, business names, trade names, brand names, copyright and rights in the nature of copyright, design rights and get-up and any similar rights existing in any country; and the benefit (subject to the burden) of any and all agreements, arrangements and licences in connection with any of the foregoing. |
|
|
|
Investments |
|
means all or any stocks, shares (other than any Shares and the Chargors shares in Evolving Systems GmbH), bonds and securities of any kind (marketable or otherwise), negotiable instruments and warrants and any other financial instruments as defined in the Regulations. |
5
Know-how |
|
means all the body of knowledge, technical experience, expertise and skills, technical processes, secret processes formulae and technical information held by the Chargor and relating to its business, which is not in the public domain. |
|
|
|
Loan Agreement |
|
means the Loan Agreement dated the date of this Debenture and made between the Bank (1) and the Chargor (2). |
|
|
|
LPA |
|
means the Law of Property Act 1925. |
|
|
|
Material Adverse Effect |
|
has the meaning given to it in the Loan Agreement (as if Loan Agreement and Collateral there were Facility Documents and Charged Property respectively and with such other changes as are necessary to fit the context). |
|
|
|
Occupational Leases |
|
means all leasehold interests and other occupational rights whatsoever (including, without limitation, all licences and agreements for leases) in existence from time to time relating to the whole or any part of the Property, the immediate reversion to which is vested in the Chargor. |
|
|
|
Other Property |
|
means all estates and other interests in any freehold, leasehold or other immovable property (including, without limitation, all Fixtures on such property) which are the property of the Chargor at the date of this Debenture and do not form part of the Scheduled Property, all proceeds of sale derived from such property and the benefit of all covenants to which the Chargor is entitled in respect of such property. |
|
|
|
Permitted Lien |
|
shall have the same meaning as in the Loan Agreement with such changes as are necessary to fit this context. |
6
Permitted Transfer |
|
(a) |
means a conveyance, sale, lease, transfer or disposition by the Chargor permitted under Clause 7.1 of the Loan Agreement. |
|
|
|
|
Planning Acts |
|
means the Planning and Compulsory Purchase Act 2004, the Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990, the Planning (Hazardous Substances) Act 1990, the Planning and Compensation Act 1991, and the Local Government Planning and Land Act 1980 . |
|
|
|
|
|
Plant and Machinery |
|
means all plant and machinery, equipment fittings, installations and apparatus, tools, motor vehicles and all other such assets (other than Fixtures) whatsoever, wherever situate, which are the property of the Chargor at the date of this Debenture. |
|
|
|
|
|
Property |
|
means the Scheduled Property, the Other Property and the Future Property. |
|
|
|
|
|
Receiver |
|
means any receiver appointed pursuant to this Debenture. |
|
|
|
|
|
Regulations |
|
means the Financial Collateral Arrangements (No 2) Regulations 2003 (S.I. 2003/3226) or equivalent legislation in any applicable jurisdiction bringing into effect Directive 2002/47/EC on financial collateral arrangements, and Regulation means any of them. |
|
|
|
|
|
Rights |
|
means all the Chargors rights, title and interest from time to time in any lease, licence or occupational right whatsoever together with the entire benefit of all the Chargors rights, title and interest from time to time in any renewal of, replacement of or variation to any such lease, licence or occupational right (including, without limitation, all its rights, title and interest in any occupational Lease, agreement for any Occupational Lease and any associated agreements which may be granted by the Chargor or any person deriving title from the Chargor from time to time over or in respect of the whole or any part of the Property and any other properties (freehold or leasehold) in which the Chargor has an interest). |
7
8
|
|
payment at such rates and upon such terms as may from time to time be agreed and all commission, fees, costs (including, without limitation, legal fees) and other charges and provided always that no obligation or liability shall be included in the definition of Secured Liabilities to the extent that, if it were so included, this Debenture (or any part of it) would constitute unlawful financial assistance within the meaning of sections 151 and 152 of the Companies Act 1985. |
|
|
|
Security Documents |
|
means any document entered into by any person from time to time creating (a) any Security Interest, directly or indirectly, for the obligations of the Chargor or any other person under the Facility Documents including, without limitation, this Debenture or (b) any guarantee, indemnity or other similar undertaking in respect of any such obligations. |
|
|
|
Security Interest |
|
means any mortgage, charge, assignment, pledge, lien, right of set-off, hypothecation encumbrance, priority or other security interest (whether fixed or floating) including, without limitation, any hold-back or flawed asset arrangement together with any preferential right, retention of title, deferred purchase, leasing, sale or purchase, sale and leaseback arrangement, trust agreement declaration of trust, trust arising by operation of law, any option or agreement for any of the same or any arrangement which has substantially the same commercial or substantive effect as the creation of security. |
Shares |
|
means all shares held by the Chargor in its Subsidiaries and which are listed in Schedule 1A but not including its shares in Evolving Systems GmbH. |
Unless otherwise defined in this Debenture, terms defined in the Loan Agreement bear the same meaning in this Debenture.
If there is any conflict between the provisions of this Debenture and the provisions of the Loan Agreement, the provisions of the Loan Agreement shall prevail.
The terms of the other Finance Documents and of any side letters between any parties in relation to any Finance Document are incorporated in this Deed to the extent required to ensure that any purported disposition of the Charged Property contained in this Deed is a valid disposition in accordance with section 2(1) Law of Property (Miscellaneous Provisions) Act 1989.
Save as expressly provided in clause 18.2 and save for a Receiver or Administrator and their delegates and sub-delegates or as otherwise expressly provided to the contrary in a Facility Document a third party (being any person other than the Chargor and the Bank) has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed. Notwithstanding any term of any Facility Document, the consent of any such third party is not required to rescind or vary this Deed at any time.
The perpetuity period applicable to all trusts declared by this Deed shall be 80 years.
11
Paragraph 14 of Schedule B1 of the Insolvency Act 1986 (as inserted by section 248 of, and Schedule 16 to, the Enterprise Act 2002) applies to the floating charge created by this Deed.
The Chargor shall on demand pay to the Bank or discharge, as the case may be, all the Secured Liabilities when the Secured Liabilities become due.
The Chargor shall pay to the Bank interest on the Secured Liabilities (after as well as before any demand made or judgment obtained or the liquidation or administration of the Chargor) at the rates and upon the terms set out in Clause 2.3(a) of the Loan Agreement or if applicable the Default Rate and shall be compounded and computed in accordance with such Clause 2.3.
By way of continuing security in favour of the Bank for the payment and discharge of the Secured Liabilities, the Chargor with full title guarantee hereby charges to the Bank or assigns to the Bank (as the case may be) the property set out below in the manner set out below. (Each assignment set out below is an absolute assignment for the purposes of Section 136 of the LPA (Legal assignments of things in action) and is not made by way of charge only):
By way of first fixed charge by way of legal mortgage, the Scheduled Property and all Rights relating to the Scheduled Property in existence at the date of this Debenture.
By way of first fixed charge:
By way of absolute legal assignment, the Contracts.
By way of first fixed charge, the Book Debts.
By way of first fixed charge, all the Intellectual Property of the Chargor.
By way of first fixed charge, the Plant and Machinery.
By way of first fixed charge, the Future Plant and Machinery.
By way of first fixed charge, all the goodwill and uncalled capital for the time being of the Chargor.
By way of first floating charge, all the undertaking and assets of the Chargor whatsoever, wherever situate, whether movable, immovable, present or future (including without limitation, its uncalled capital for the time being and all the undertaking and assets of the Chargor referred to above which are, for any reason not validly charged or assigned pursuant to Clauses 4.1 (Scheduled Property) to 4.10 (Goodwill) (inclusive) of this Debenture).
The Bank may by notice to the Chargor convert the floating charge contained in this Debenture into a fixed charge as regards such Charged Property as the Bank may specify (whether generally or specifically) in that notice (i) if it considers (acting reasonably) that it would be desirable to do so in order to protect, preserve or supplement the charges over the Charged Property or the priority of those charges; or (ii) on, or at any time following, the occurrence of an Event of Default (if the Event of Default is continuing at the relevant time).
14
If, without the prior written consent of the Bank:
the floating charge created by this Debenture over the Charged Property the subject of such Security Interest or process will automatically, without notice, be converted into a fixed charge as soon as such event occurs but without prejudice to any other circumstance in which such floating charge may crystallise.
The Chargor shall:
The Chargor shall not:
Until all the security constituted by this Debenture is discharged the Chargor shall:
it is absolutely, solely and beneficially entitled to all the Charged Property as from the date it or any part of it fails to be charged under this Debenture and the rights of the Chargor in respect of the Charged Property are free from any Security Interest of any kind other than a Permitted Lien;
it has not sold or agreed to sell or otherwise disposed of, or agreed to dispose of, the benefit of all or any of the Chargors right, title and interest in and to the Charged Property except by means of a Permitted Transfer;
all Shares and Investments beneficially owned by it as at the date of this Debenture are described opposite its name in Schedule 1A.
The Chargor gives each of the undertakings contained in this Clause to the Bank.
18
The undertakings in this Clause shall remain in force during the continuance of the security constituted by this Debenture.
The Chargor shall furnish to the Bank as soon as reasonably practicable following written demand from the Bank such information and supply such documents or papers relating to the Charged Property from time to time as the Bank may in its discretion reasonably require.
The Chargor shall notify the Bank in writing of the happening of any Event of Default promptly upon any of its responsible personnel becoming aware of the same.
Except as permitted under the Loan Agreement, the Chargor shall:
The Chargor shall:
19
The Chargor shall not grant, create, or permit to be acquired, any easement, right, interest or privilege relating to or affecting the whole or any part of the Property.
The Chargor shall not
The Chargor shall:
The Chargor shall, at its expense, grant the Bank or its solicitors on reasonable request all such facilities within the power of the Chargor to enable the Bank or such solicitors to carry out investigations of title to the Property and to carry out general enquiries relating to the Property which a prudent mortgagee might carry out.
13.3.2 comply with all other conditions and obligations assumed by it in respect of any of the Shares and Investments where failure to so comply would adversely affect the interests of the Bank.
22
If the Chargor fails to perform any of the undertakings contained in Clause 12.4 (Property) to Clause 12.9 (Occupational Leases) (inclusive), the Bank may (save in relation to Environmental Matters) perform any such covenant at the Chargors expense and the Chargor shall reimburse the Bank for the Costs of such performance on demand. Nothing in this Debenture shall oblige the Bank to perform any covenant of the Chargor.
This Debenture will become enforceable on the occurrence of any Event of Default which is continuing or if the Chargor requests the Bank to appoint a Receiver or Administrator over the whole or any part of its undertaking or. assets or if a petition is presented for an administration order to be made in respect of the Chargor or any document or notice is signed for the appointment of an administrator of the Chargor under the Insolvency Act.
23
None of the restrictions imposed by the LPA in relation to the appointment of receivers, the giving of notice or otherwise shall apply.
The Receiver and Administrator each has (but is not obliged to exercise) all the powers (save in relation to Environmental Matters) to do or abstain from doing anything which the Chargor could do or abstain from doing in relation to the Charged Property in addition to the powers conferred by the LPA and the Insolvency Act as if, in each case he was an administrative receiver appointed thereunder.
The Receiver and Administrator are both at all times and for all purposes the agent of the Chargor. Subject to the provisions of the Insolvency Act, the Chargor is solely responsible for all the Receiver and Administrators acts, defaults, neglect and
25
misconduct of any nature whatsoever and for his remuneration and Costs, to the exclusion of liability on the part of the Bank, save to the extent arising from the Receiver or Administrators fraud, wilful default or gross negligence.
Where more than one Receiver or Administrator is appointed, each has the power to act severally unless the Bank specifies otherwise in the appointment.
The provisions of Sections 99 to 109 inclusive of the LPA are varied and extended to the extent that all monies received by the Receiver or Administrator be applied in the following order:
Neither the Bank nor the Receiver or Administrator is:
If the Bank or the Receiver or Administrator enters into possession of the Charged Property, such person may at any time go out of possession at the discretion of such person.
27
The Chargor hereby agrees to indemnify and hold harmless the Bank, any Administrator and any Receiver from and against all actions, claims, expenses, demands and liabilities whether arising out of contract or in tort or in any other way incurred or which may at any time be incurred by him or by any manager, agent, officer, servant or workman for whose debt, default or miscarriage he may be answerable for anything done or omitted to be done in the exercise or purported exercise of his powers under the provisions of this Debenture except for losses caused by the gross negligence or willful misconduct of the person seeking indemnification.
Subject to Clause 23.1 (Avoidance of payments). upon irrevocable discharge in full of the Secured Liabilities the Bank shall reassign to the Chargor all the Chargors rights. title, interest and benefit in and to the Charged Property and the Bank shall, at the request and cost of the Chargor, take whatever action is necessary to release or re-assign the Charged Property from this Debenture.
The Bank may, in its reasonable discretion credit to any suspense or impersonal account and hold in such account, on such terms as the Bank may in its reasonable discretion think fit, all monies received, recovered or realised by the Bank pursuant to this Debenture (including, without imitation, the proceeds of any conversion of currency) pending the application from time to time (as the Bank may effect in its discretion) of such monies and accrued interest if any, in or towards satisfaction of the Secured Liabilities.
Subject to Clause 12 of the Loan Agreement, the Chargor shall pay and discharge the Secured Liabilities without any set-off, counterclaim, restriction or condition, without regard to any equities between the Chargor and the Bank and free and clear of, and without deduction or withholding for, or on account of, any Taxes, except to the extent that the Chargor is required by law to deduct or withhold any Taxes, in which case it shall pay to the Bank such additional amount as may be necessary in order to ensure that the net amount received by the Bank after the required deduction or withholding (including, without limitation, any required deduction or
30
withholding on such additional amount) is equal to the amount that the Bank would have received had no such deduction or withholding been made. Any additional amount paid under this Clause shall be treated as agreed compensation and not as interest.
The Chargor agrees the Bank may at any time without notice or further demand notwithstanding any settlement of account or other matter whatsoever, combine or
31
consolidate all or any of its then existing accounts wherever situate (whether current, deposit, loan or of any other nature whatsoever whether subject to notice or not and whether in sterling or in any other currency) and set-off or transfer any sum standing to the credit of any one or more such accounts in or towards satisfaction of the Secured Liabilities. Where such combination set-off or transfer requires the conversion of one currency into another, such conversion shall be calculated at the Exchange Rate for purchasing the currency for which the Chargor is liable, with the existing currency.
Neither the Bank nor the Chargor may assign, transfer, novate or dispose of any of or any interest in, its rights and obligations under this Debenture, save as provided in Clause 12.1 (Successors and Assigns) of the Loan Agreement.
No failure or delay or other relaxation or indulgence on the part of the Bank to exercise any power, right or remedy shall operate as a waiver thereof nor shall any single or partial exercise or waiver of any power, right or remedy preclude its further exercise or the exercise of any other power, right or remedy.
Each of the provisions of this Debenture is distinct and severable from the others and if at any time one or more of such provisions is or becomes illegal, invalid or unenforceable the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
The Chargor hereby applies to the Chief Land Registrar to enter a restriction in the Proprietorship Registers of the registered titles (if any) of the Scheduled Property or, in the case of the first registration of the whole or any part of the Scheduled Property, against the Scheduled Property, or both, of a restriction in the following form:
Except under an order of the Registrar no disposition or dealing by the proprietor of the land is to be registered without the consent of the proprietor for the time being of the charge hereby created.
32
Each party may give any notice, demand or other communication under or in connection with this debenture in the manner set forth and subject to the terms of section 10 of the loan agreement at the address identified with its name below.
This Debenture shall be governed by and construed in accordance with English law.
IN WITNESS WHEREOF this Debenture has been executed and delivered as a deed on the date written at the beginning of this Debenture.
34
SCHEDULE 1
THE SCHEDULED PROPERTY
Short Description of Property |
|
Title Number (if any) |
|
|
|
None |
|
|
35
SCHEDULE 1A
THE SHARES
Name of Company |
|
Number of Shares |
None |
|
|
SCHEDULE 1B
TRADEMARKS
Mark |
|
Registration Number |
|
Class |
|
Filing Date |
Evident |
|
E1620657 |
|
09, 16, 38, 42 |
|
07/04/2000 |
Tertio |
|
E1023795 |
|
09, 16, 38, 42 |
|
14/12/1998 |
Provident |
|
E1022870 |
|
09, 16, 38, 42 |
|
14/12/1998 |
Evident |
|
2175392 |
|
09, 16, 38, 42 |
|
20/08/1998 |
Tertio |
|
2175389 |
|
09, 16, 38, 42 |
|
20/08/1998 |
Tertio |
|
1578744 |
|
42 |
|
20/07/1994 |
Tertio |
|
2010862 |
|
38 |
|
10/02/1995 |
Provident |
|
2184361 |
|
09, 16, 38, 42 |
|
14/12/1998 |
Tertio
|
|
2175453 |
|
09, 16, 38, 42 |
|
28/08/1998 |
Stylized
|
|
2201294 |
|
09, 16, 38, 42 |
|
25/06/1999 |
Observant |
|
2175386 |
|
09, 16, 38, 42 |
|
20/08/1998 |
Stylized
|
|
E1225598 |
|
9, 16, 42 |
|
21/06/2000 |
Observant
|
|
E681585 |
|
9, 16, 38, 42 |
|
26/12/1999 |
36
SCHEDULE 2
FORM OF NOTICE TO THIRD PARTY BANK
Part I
Notice
[TO BE TYPED ON THE HEADED NOTEPAPER OF THE CHARGOR]
To: [ ]
Attention [ ]
[Date]
Dear Sirs
Account No. [ ] Sort Code [ ] (the Deposit Account)
Account No. [ ] Sort Code [ ] (the Book Debts Accounts)
We hereby give you notice that by a Debenture dated the same date as this letter, (the Debenture), we have charged to Bridge Bank, N.A. (the Bank ) Bank all our rights, title, interest and benefit in and to the Book Debts Accounts and the Deposit Account and all amounts standing to the credit of such accounts from time to time, all interest on such sums and all other amounts of whatever nature deriving directly or indirectly from such sums.
Please return a copy of the attached letter on your own headed notepaper with a receipted copy of this notice forthwith, to the Bank care of its solicitors Howard Kennedy, facsimile number 020 7663 8713, attention Simon Pullen Esq.
37
We hereby agree to indemnify you on demand for and against any and all costs, losses and expenses suffered or incurred by you as a result of complying with the undertakings contained in the attached letter to the Bank with which you are hereby instructed to comply, together with all other instructions which you may receive from the Bank from time to time in relation to such undertakings.
Expressions defined in the Debenture shall have the same meanings when used in this notice.
This notice shall be governed by and construed in accordance with English law.
Yours faithfully
For and on behalf of
Evolving Systems Limited
38
Part 2
Acknowledgement from Third Party Bank (TPB)
[TO BE TYPED ON THE HEADED NOTEPAPER OF TPB]
To: |
Bridge Bank, N.A. (the Bank) |
|
|
|
|
|
|
|
Care of |
|
|
|
|
|
|
|
Howard Kenney |
|
|
|
|
|
|
|
19 Cavendish Square |
|
|
|
|
|
|
|
London |
|
|
|
|
|
|
|
W1A 2AW |
|
|
|
|
|
|
|
|
|
|
|
Attention: |
Simon Pullen Esq |
|
|
|
|
|
|
Fax: |
020 7663 8713 |
|
[Date]
Dear Sirs
Evolving Systems Limited (the Chargor)
We refer to the notice received today from the Chargor (a copy of which we attach, duly receipted) (the Notice ).
Expressions defined in the Notice shall have the same meanings in this letter.
1. We hereby acknowledge that the Chargor has charged to the Bank all of its rights, title, interest and benefit in and to the Account and the Deposit Account (the Accounts ).
2. We hereby irrevocably undertake to you that until receipt by us of a notice from you confirming that you no longer have any interest in the Accounts we shall:
2.1 not exercise any right of combination, consolidation, merger or set-off which we may have in respect of, or otherwise exercise any other right which we may have to apply any monies from time to time standing or accruing to the credit of the Accounts;
2.2 promptly notify you of (a) any renewal, renumbering or redesignation of the Accounts save for any renewal, renumbering or redesignation which does not materially alter the identity of the Accounts; and (b) any Security Interest in respect of the Accounts
39
on the part of a third party coming to our notice (or the attempted creation of any such Security Interest);
2.3 promptly send to you copies of all monthly Account statements, given or made by us in connection with the Accounts;
2.4 upon receipt by us of a notice from you declaring that an Event of Default has occurred and is continuing not permit or effect any withdrawal or transfer from the Accounts save for withdrawals and transfers requested by you in writing to us pursuant to the terms of this letter; and
2.5 upon receipt by us of a notice from you declaring that an Event of Default has occurred and is continuing, comply with all instructions received by us from you or purportedly from you from time to time on the Business Day following receipt with respect to the conduct of the Accounts provided that such instructions are given in writing, by facsimile to number [ ] or post to [ ], attention [ ] or as otherwise notified to you by us from time to time and are signed by or purportedly signed by [ ]] and provided further that such instructions are received by 12 noon (London time) on any Business Day and [TPB] telephones telephone number [ ] (or any other employee of the Bank approved by you to us, in writing from time to time) by 5 p.m. (London time) on that same Business Day (or as soon thereafter as is practicable) to obtain verification of such instructions and provided further that, upon receipt by us of a notice from you declaring that an Event of Default has occurred and is continuing, we shall permit no withdrawals whatsoever from the relevant account until we have complied with your instructions.
This letter shall be governed by and construed in accordance with English law.
Yours faithfully
For and on behalf of
[TPB]
40
SCHEDULE 3
THE CONTRACTS
NONE
41
EXECUTED and DELIVERED as a DEED
for and on behalf of
EVOLVING SYSTEMS LIMITED by:
|
Director |
|
|
|
|
|
Secretary |
|
Notice Details :
Address: |
|
c/o Evolving Systems |
|
|
9777 Pyramid Court |
|
|
Suite 100 |
|
|
Englewood |
|
|
Colorado |
|
|
80112 USA |
|
|
|
Fax No: |
|
001 303 802 1138 |
|
|
|
Attention: |
|
Anita T. Moseley |
|
|
|
With a copy to: |
|
|
|
|
|
Fax No: |
|
001 303 802 1420 |
|
|
|
Attention: |
|
Brian R. Ervine |
42
EXHIBIT 10.1 ( e)
UNCONDITIONAL
GUARANTY
(UK GUARANTOR)
BRIDGE BANK, N.A. (Lender) proposes to enter into a loan transaction with EVOLVING SYSTEMS LIMITED (Borrower), which is a direct, Wholly-Owned Subsidiary of the undersigned guarantor (Guarantor). The loan and other credit extensions are being made by Lender to Borrower pursuant to a Loan Agreement dated as of February 22, 2008 (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced from time to time (the Agreement). Guarantor expects to derive economic benefit from Lenders doing so and dealing with Borrower in accordance with the Agreement and other Loan Documents. All terms used without definition in this Guaranty shall have the meaning assigned to them in the Agreement. Terms defined in the California Uniform Commercial Code as in effect from time to time (the Code) and not otherwise defined in this Guaranty or the Agreement shall have the meanings defined for those terms in the Code. With respect to terms defined in more than one article of the Code, unless otherwise specified such terms will have the meaning specified in Article 9 of the Code.
For and in consideration of the loans and other credit extensions by Lender to Borrower, and acknowledging that Lender would not enter into the Agreement without the benefit of this Guaranty (Guaranty), Guarantor hereby unconditionally and irrevocably guarantees the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
NOW, THEREFORE , Guarantor and the Lender agree as follows:
1. If Borrower does not pay or perform when due any of the Obligations in strict accordance with the Agreement, Guarantor shall promptly pay all amounts due thereunder (including, without limitation, all principal, interest, and fees) and otherwise to proceed to perform the Obligations.
2. If there is more than one guarantor, the obligations hereunder are joint and several, and whether or not there is more than one guarantor, the obligations hereunder are independent of the obligations of Borrower and any other person or entity, and a separate action or actions may be brought and prosecuted against Guarantor whether action is brought against Borrower or whether Borrower be joined in any such action or actions. Guarantor waives the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof, to the extent permitted by law. Guarantors liability under this Guaranty is not conditioned or contingent upon the genuineness, validity, regularity or enforceability of the Agreement.
3. Guarantor authorizes Lender, without notice or demand to Guarantor and without affecting its liability hereunder, from time to time in accordance with the applicable provisions of the Agreement and the other Loan Documents to (a) renew, extend, or otherwise change the terms of the Agreement or any part thereof; (b) take and hold security for the payment of this Guaranty or the Agreement, and exchange, enforce, waive and release any such security; and (c) apply such security and direct the order or manner of sale thereof as Lender in its sole discretion may determine.
4. Guarantor waives any right to require Lender to (a) proceed against Borrower, any guarantor or any other person; (b) proceed against or exhaust any security held from Borrower; or (c) pursue any other remedy in Lenders power whatsoever. Lender may, at its election, exercise or decline or fail to exercise any right or remedy it may have against Borrower or any security held by Lender, including without limitation the right to foreclose upon any such security by judicial or nonjudicial sale, without affecting or impairing in any way the liability of Guarantor hereunder. Guarantor waives any defense arising by reason of any disability or other defense of Borrower or by reason of the cessation from any cause whatsoever of the liability of Borrower other than satisfaction in full of the Obligations. Guarantor waives any setoff, defense or counterclaim that Borrower may have against Lender other than satisfaction in full of the Obligations. Guarantor waives any defense arising out of the absence, impairment or loss of any right of reimbursement or subrogation or any other rights against Borrower. Until the Obligations have been paid in full (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted), Guarantor shall have no right of subrogation or reimbursement, contribution or other rights against Borrower arising out or relating to this Guaranty or any sums paid by Guarantor hereunder, and Guarantor waives any right to enforce any remedy that Lender now has or may hereafter have against Borrower arising out of or
relating to this Guaranty or any sums paid by such Guarantor hereunder. Guarantor waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Guaranty and of the existence, creation, or incurring of new or additional indebtedness. Notwithstanding the foregoing, Guarantor does not hereby waive any notices specifically required in any Loan Document to which Guarantor is a party but agrees that the failure of Lender to provide any such notices pursuant to the provisions of any such Loan Document shall not release or diminish Guarantors obligations, liabilities, agreements or duties hereunder, or otherwise affect this Guaranty in any way. Guarantor assumes the responsibility for being and keeping itself informed of the financial condition of Borrower and of all other circumstances bearing upon the risk of nonpayment of any indebtedness or nonperformance of any obligation of Borrower, warrants to Lender that it will keep so informed, and agrees that absent a request for particular information by Guarantor, Lender shall not have any duty to advise Guarantor of information known to Lender regarding such condition or any such circumstances. Guarantor waives the benefits of California Civil Code sections 2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850, 2899 and 3433. The waivers of rights in this Section 4 are made to the extent permitted by applicable law and are made in favor of Lender only and its successors and permitted assigns and shall not be deemed a waiver of such rights for the benefit of any other Person.
5. If Borrower becomes insolvent or is adjudicated bankrupt or files a petition for reorganization, arrangement, composition or similar relief under any present or future provision of the United States Bankruptcy Code or if such a petition is filed against Borrower, and in any such proceeding some or all of any indebtedness or obligations under the Agreement are terminated or rejected or any obligation of Borrower is modified or abrogated, or if Borrowers obligations are otherwise avoided for any reason, Guarantor agrees that Guarantors liability hereunder shall not thereby be affected or modified and such liability shall continue in full force and effect as if no such action or proceeding had occurred. This Guaranty shall continue to be effective or be reinstated, as the case may be, if any payment must be returned by Lender upon the insolvency, bankruptcy or reorganization of Borrower, Guarantor, any other guarantor, or otherwise, as though such payment had not been made.
6. Until all of the Obligations (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) have been paid in full, any indebtedness of Borrower now or hereafter held by Guarantor is hereby subordinated to any indebtedness of Borrower to Lender; provided that so long as no Event of Default has occurred and is continuing, Guarantor may continue to receive and retain payments on such obligations and indebtedness provided such payments are not prohibited under the Agreement. During the existence of an Event of Default, such indebtedness of Borrower to Guarantor shall be collected, enforced and received by Guarantor as trustee for Lender and, if Lender so requests, be paid over to Lender on account of the indebtedness of Borrower to Lender but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty.
7. Guarantor agrees to pay, no later than five Business Days after written demand therefor, reasonable attorneys fees and all other costs and expenses which may be incurred by Lender in the enforcement of this Guaranty and any agreements executed by Guarantor in connection with this Guaranty (including without limitation security agreements). Lender shall endeavor to provide reasonable supporting documentation for the amount of any claims under the foregoing sentence. No terms or provisions of this Guaranty may be changed, waived, revoked or amended except by a written instrument executed by Lender and Guarantor. Should any provision of this Guaranty be determined by a court of competent jurisdiction to be unenforceable, all of the other provisions shall remain effective. This Guaranty, together with any agreements (including without limitation any security agreements or any pledge agreements) executed by Guarantor in connection with this Guaranty, embodies the entire agreement among the parties hereto with respect to the matters set forth herein, and supersedes all prior agreements among the parties with respect to the matters set forth herein. No course of prior dealing among the parties, no usage of trade, and no parol or extrinsic evidence of any nature shall be used to supplement, modify or vary any of the terms hereof. There are no conditions to the full effectiveness of this Guaranty. Lender may assign this Guaranty to a permitted assignee of Lender under the Agreement without in any way affecting Guarantors liability under it. This Guaranty shall inure to the benefit of Lender and its successors and permitted assigns. This Guaranty is in addition to the guaranties of any other guarantors and any and all other guaranties of Borrowers indebtedness or liabilities to Lender.
8. Guarantor represents and warrants to Lender that (i) Guarantor has taken all necessary and appropriate corporate action to authorize the execution, delivery and performance by Guarantor of this Guaranty and
(ii) execution, delivery and performance of this Guaranty by Guarantor do not conflict with or result in a breach of or constitute a default under (x) Guarantors organizational documents or (y) agreements to which it is party or by which it is bound, the effect of which default under this clause (y) would reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.
9. So long as any Obligation shall remain unpaid (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) and Bank shall have any commitment to make Credit Extensions under the Agreement, Guarantor will not, except as permitted by the Agreement or the US Loan Agreement, do any of the following: (i) it will not directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries so to do, other than the shares of Borrower; (ii) it will not merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the Capital Stock or property of another Person, other than the shares of Borrower; (iii) that it will not transfer any of the shares of Borrower to another Person; and (iv) it will not create, incur, assume or suffer to exist any Lien with respect to any of its property, or assign or otherwise convey any right to receive income, or permit any of its Subsidiaries so to do.
10. So long as any Obligation shall remain unpaid (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) and Bank shall have any commitment to make Credit Extensions under the Agreement, Guarantor shall do all of the following, except as otherwise permitted under the Agreement or the US Loan Agreement:
10.1 Guarantor shall maintain its existence, remain in good standing in its jurisdiction of organization, and continue to qualify in each jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the business operations or condition (financial or otherwise) of Guarantor. Guarantor shall maintain in force all licenses, approvals and agreements, the loss of which would reasonably be expected to have a material adverse effect on its business operations or condition (financial or otherwise).
10.2 Guarantor shall comply in all material respects with the provisions of its organizational documents, and shall not amend any such documents in any manner materially adversely affecting Lender without Lenders prior written consent, which will not be unreasonably withheld. Guarantor shall comply with all statutes, laws, ordinances, directives, orders, and government rules and regulations to which it is subject if non-compliance with such laws would reasonably be expected to materially adversely affect the business operations or condition (financial or otherwise) of Guarantor.
11. This Guaranty shall be governed by the laws of the State of California, without regard to conflicts of laws principles. GUARANTOR WAIVES ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. Guarantor submits to the jurisdiction of the state and federal courts located in Santa Clara County, California for purposes of this Guaranty and the Agreement. If the jury waiver in this Section is for any reason unenforceable, Lender and Guarantor will resolve all disputes by reference to a referee pursuant to Code of Civil Procedure Section 638 et seq, sitting without a jury, such referee to be by mutual agreement or, if none, as selected by the Presiding Judge of the California Superior Court for Santa Clara County.
12. All payments made by Guarantor hereunder will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any governmental authority or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding any tax imposed on or measured by the net income or profits of a bank pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such bank is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as Taxes). If any Taxes are so levied or imposed, Guarantor agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Guaranty, after withholding or deduction for or on account of
any Taxes, will not be less than the amount provided for herein and in the Agreement and related loan documents. Notwithstanding, the foregoing provisions of this Section 12, Guarantor shall have the full benefits and rights afforded to Borrower in Section 12.4 of the Agreement with respect to any and all payments made by Guarantor under this Guaranty.
13. This Guaranty is secured by that certain Charge Over Shares, dated as of the date hereof, between Guarantor and Lender which is governed by English law, pursuant to which Guarantor has pledged to Lender the shares of Borrower.
IN WITNESS WHEREOF , the undersigned Guarantor has executed this Guaranty as a Deed as of February 22, 2008.
|
EXECUTED and DELIVERED AS A DEED for and on behalf of: |
||||
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|||
|
EVOLVING SYSTEMS HOLDINGS LIMITED |
||||
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By: |
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|||
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Name: |
Brian R. Ervine |
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Title: Director |
||||
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By: |
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|||
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|||
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Name: |
Anita T. Moseley |
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|||
|
Title: Secretary |
||||
Exhibit 10.1 (f)
DATED 22 FEBRUARY 2008
EVOLVING SYSTEMS HOLDINGS LIMITED
and
BRIDGE BANK, N.A.
CHARGE OVER SHARES
19 Cavendish Square
London W1A 2AW
DX 42748 Oxford Circus North
telephone +44(0)20 7636 1616
fax +44 (0)20 7491 2899
Ref : 028176/00002/H3326944.4
CONTENTS
Clause |
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Heading |
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Page No. |
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1. |
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DEFINITIONS AND INTERPRETATION |
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1 |
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2. |
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COVENANT TO PAY |
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6 |
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3. |
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INTEREST |
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6 |
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4. |
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SECURITY |
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6 |
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5. |
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FURTHER ASSURANCE |
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6 |
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6. |
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DEPOSIT OF DOCUMENTS AND TITLE DEEDS |
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7 |
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7. |
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NEGATIVE PLEDGE |
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8 |
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8. |
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DIVIDENDS, VOTING RIGHTS AND NOMINEES |
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8 |
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9. |
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REPRESENTATIONS AND WARRANTIES |
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10 |
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10. |
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UNDERTAKINGS |
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11 |
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11. |
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COSTS UNDERTAKING |
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13 |
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12. |
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DEFAULT |
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13 |
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13. |
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STATUTORY POWER OF SALE |
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14 |
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14. |
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PROTECTION OF THIRD PARTIES |
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14 |
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15. |
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NO LIABILITY AS MORTGAGEE IN POSSESSION |
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15 |
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16. |
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POWER OF ATTORNEY |
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15 |
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17. |
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CUMULATIVE AND CONTINUING SECURITY |
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16 |
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18. |
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AVOIDANCE OF PAYMENTS |
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16 |
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19. |
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PRIOR CHARGES |
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17 |
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20. |
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OPENING A NEW ACCOUNT |
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17 |
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21. |
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SUSPENSE ACCOUNT |
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17 |
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22. |
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PAYMENTS AND WITHHOLDING TAXES |
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17 |
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23. |
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CURRENCY |
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18 |
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24. |
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SET-OFF |
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19 |
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25. |
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ASSIGNMENT |
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19 |
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26. |
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WAIVERS |
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19 |
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27. |
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SEVERABILITY |
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20 |
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28. |
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NOTICES |
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20 |
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29. |
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COUNTERPARTS AND DELIVERY |
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20 |
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30. |
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LAW AND JURISDICTION |
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21 |
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THIS CHARGE is made as a Deed the 22nd day of February 2008
BETWEEN :
(1) E VOLVING SYSTEMS HOLDINGS LIMITED (registered in England and Wales under company number 05272751 the registered office of which is at One Angel Square, Torrens Street, London EC1V 1PL (the Chargor ); and
(2) BRIDGE BANK, N.A. of 55 Almaden Boulevard, San Jose, A 95113, United States of America (the Bank ).
RECITALS
(A) The Bank has agreed to make available to the Borrower (as defined below) a revolving loan facility of up to US$5,000,000 (five million American dollars) subject to and upon the terms and conditions contained in the Loan Agreement (as defined below).
(B) The Chargor entered into a Guaranty dated the date of this Charge in favour of the Bank in respect of the liabilities of the Borrower to the Bank (the Guaranty ).
(C) The Bank requires the Chargor, and the Chargor has agreed, to enter into this Charge for the purpose of providing security to the Bank for the Secured Liabilities (as defined below).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
In this Charge the following expressions have the following meanings, unless the context otherwise requires:
Act |
means the Law of Property Act 1925. |
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Borrower |
means Evolving Systems Limited (registered in England and Wales under company number 02325854) the registered office of which is at One Angel Square, Torrens Street, London EC1V 1PL. |
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Charged Property |
means the whole or any part of the property, assets, income and undertaking of the Chargor from time to time mortgaged, |
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charged or assigned to the Bank pursuant to this Charge. |
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Costs |
means all costs, charges or expenses of whatsoever nature (including, without limitation, legal fees) including, without limitation, disbursements and any Value Added Tax to be charged on such costs, charges, expenses and disbursements. |
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Default Rate |
means the annual rate of interest specified in the second sentence of Cause 2.3(b) of the Loan Agreement. |
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Derivative Assets |
means all stocks, shares, warrants or other securities, tights, dividends, interest or other property (whether of a capital or income nature) accruing, offered, issued or deriving at any time by way of dividend, bonus, redemption, exchange, purchase, substitution, conversion, consolidation, subdivision, preference, option or otherwise attributable to any of the Shares or any Derivative Assets previously described. |
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Event of Default |
means any of those events or circumstances set out in Clause 8 (Events of Default) of the Loan Agreement and an Event of Default is continuing if it has not been remedied to the satisfaction of the Bank or waived by it in writing. |
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Facility Documents |
means this Charge, the Loan Agreement, the Guaranty and each of the Security Documents. |
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Future Shares |
means all shares and other securities issued to the Chargor as a result of its ownership of the Shares. |
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Insolvency Act |
means the Insolvency Act 1986. |
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Loan Agreement |
means the Loan Agreement dated the date of this Charge and made between the Bank (1) and the Borrower (2). |
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LPA |
means the Law of Property Act 1925. |
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Material Adverse Effect |
has the meaning given to it in the Loan Agreement (as if Loan Agreement and Collateral there were Facility Documents and Charged Property respectively and with such other changes as are necessary to fit the context). |
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Nominees |
means the Bank, its agents, nominees and any other person holding the Shares and the Derivative Assets on behalf of the Bank from time to time. |
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Permitted Lien |
shall have the same meaning as in the Loan Agreement. |
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Receiver |
means a receiver appointed pursuant to this Charge or to any applicable law, whether alone or jointly, and includes a receiver and/or manager. |
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Reservations |
means the principle that equitable remedies may be granted or refused at the discretion of the Court, the limitation on enforcement by laws relating to the bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors. |
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Secured Liabilities |
means all moneys, debts and liabilities from time to time due, owing or incurred by the Chargor to the Bank on any current or other account whatsoever pursuant to the Facility Documents in each case: |
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(a)whether present or future; |
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(b) whether alone or jointly with any other person; |
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(c) whether actual or contingent; |
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(d) whether as principal or as surety; |
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(e) in whatsoever name, firm or style; |
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(f) in whatsoever currency denominated; or |
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(g) otherwise |
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together with interest to the date of payment at such rates and upon such terms as set forth in the Loan Agreement and all commission, fees, costs (including, without limitation, legal fees) and other charges. |
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Security Documents |
means any document entered into by any person from time to time creating any Security Interest, directly or indirectly, for the obligations of the Borrower under the Facility Documents including, without limitation, this Charge and the Guaranty. |
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Security Interest |
means any mortgage, charge, assignment, pledge, lien, right of set-off, hypothecation, encumbrance, priority or other security interest (whether fixed or floating) including, without limitation, any hold-back or flawed asset arrangement together with any preferential right, retention of title, deferred purchase, leasing, sale or purchase, sale and leaseback arrangement, trust agreement, declaration of trust, trust arising by operation of law, any option or agreement for any of the same or any arrangement which has substantially the same commercial or substantive effect as the creation of security. |
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Shares |
means all stocks, shares and other securities |
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listed in the Schedule (The Shares) whether held in the United Kingdom or elsewhere and irrespective of whether in any such case the deposit was made or the certificates or other documents were received by the Bank or its Nominees for the purposes of creating security, safe custody, collection or otherwise. |
Unless otherwise defined in this Charge, terms defined in the Loan Agreement bear the same meaning in this Charge.
2. COVENANT TO PAY
The Chargor shall on demand pay to the Bank or discharge, as the case may be, all the Secured Liabilities when the Secured Liabilities become due.
3. INTEREST
The Chargor shall pay to the Bank interest on the Secured Liabilities (after as well as before any demand made or judgment obtained or the liquidation or administration of the Borrower) at the rates and upon the terms set forth in Clause 2.3(a) of the Loan Agreement or if applicable the Default Rate and shall be compounded and computed in accordance with such Clause 2.3.
4. SECURITY
By way of continuing security in favour of the Bank for the payment and discharge of the Secured Liabilities, the Chargor with full title guarantee hereby charges to the Bank by way of first fixed charge, the Shares and Derivative Assets.
5. FURTHER ASSURANCE
The Chargor shall:
6. DEPOSIT OF DOCUMENTS AND TITLE DEEDS
7. NEGATIVE PLEDGE
The Chargor shall not:
8. DIVIDENDS, VOTING RIGHTS AND NOMINEES
For so long as no Event of Default has occurred and is continuing, the Borrower may:
The Bank may at its discretion (in the name of the Chargor or otherwise, after the occurrence of an Event of Default which is continuing and without any consent or authority on the part of the Chargor) exercise all the powers given to trustees by Section 10(3) and (4) of the Trustee Act 1925 (as amended by Section 9 of the Trustee Investments Act 1961) in respect of those Shares and the Derivative Assets subject to a trust.
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The Bank shall be entitled to provide for the safe custody by third parties of all stock and share certificates and documents of title deposited with the Bank or the Nominees as the Bank may require at the expense of the Chargor and shall not be responsible for any loss of or damage to any such certificates or documents.
9. REPRESENTATIONS AND WARRANTIES
it is absolutely, solely and beneficially entitled to all the Charged Property as from the date it or any part of it falls to be charged under this Charge and the rights of the Chargor in respect of the Charged Property are free from any Security Interest of any kind other than a Permitted Lien;
it has the power to enter into and perform, and has taken all necessary action to authorise the entry into, performance and delivery of, the Facility Documents to which it is or will be a party and the transactions contemplated by those Facility Documents;
subject to Reservations, each Facility Document to which it is a party constitutes, or when executed in accordance with its terms will constitute, its legal, valid and binding obligation enforceable in accordance with its terms.
the entry into, and the performance by it of the Facility Documents to which it is a party are not in conflict with nor constitute a breach of any provision contained in Chargors Organizational Documents, and will not constitute an event of default under any agreement to which Chargor is a party or by which Chargor is bound, the effect of which would reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.
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it has not sold or agreed to sell or otherwise disposed of, or agreed to dispose of, the benefit of all or any of the Chargors right, title and interest in and to the Charged Property; and
10. UNDERTAKINGS
The Chargor gives each of the undertakings contained in this Clause to the Bank.
The undertakings in this Clause shall remain in force during the continuance of the security constituted by this Charge.
The Chargor shall comply with all requirements of any duly empowered authority, all obligations under any statute and all byelaws and regulations relating to it or the whole or any part of the Charged Property , in each case, non-compliance with which would reasonably be expected to have a Material Adverse Effect.
11
The Chargor shall furnish to the Bank promptly on demand by the Bank such information and supply such documents or papers relating to the Charged Property from time to time as the Bank may in its reasonable discretion require.
The Chargor shall:
11. COSTS UNDERTAKING
The Chargor shall promptly on demand pay or reimburse to the Bank the amount of all reasonable Costs incurred by the Bank (which shall form part of the Secured Liabilities) in connection with:
12. DEFAULT
This Charge will become enforceable on the occurrence of any Event of Default which is continuing or if the Chargor requests the Bank to appoint a receiver over the whole or any part of the Charged Property.
At any time after this Charge has become enforceable, the Bank may (without prejudice to any other of its rights and remedies and without notice to the Chargor ) do all or any of the following:
13. STATUTORY POWER OF SALE
14. PROTECTION OF THIRD PARTIES
15. NO LIABILITY AS MORTGAGEE IN POSSESSION
The Bank is not:
If the Bank enters into possession of the Charged Property, such person may at any time go out of possession at the discretion of such person.
16. POWER OF ATTORNEY
17. CUMULATIVE AND CONTINUING SECURITY
18. AVOIDANCE OF PAYMENTS
19. PRIOR CHARGES
20. OPENING A NEW ACCOUNT
21. SUSPENSE ACCOUNT
The Bank may, in its reasonable discretion credit to any suspense or impersonal account and hold in such account, on such terms as the Bank may in its discretion think fit, all monies received, recovered or realised by the Bank pursuant to this Charge (including, without limitation, the proceeds of any conversion of currency) pending the application from time to time (as the Bank may effect in its discretion) of such monies and accrued interest, if any, in or towards satisfaction of the Secured Liabilities.
22. PAYMENTS AND WITHHOLDING TAXES
Subject to Clause 12 of the Loan Agreement, the C hargor shall pay and discharge the Secured Liabilities without any set-off, counterclaim, restriction or condition, without regard to any equities between the Chargor and the Bank and free and clear of, and without deduction or withholding for, or on account of, any taxes, except to
17
the extent that the Chargor is required by law to deduct or withhold any Taxes, in which case it shall pay to the Bank such additional amount as may be necessary in order to ensure that the net amount received by the Bank after the required deduction or withholding (including, without limitation, any required deduction or withholding on such additional amount) is equal to the amount that the Bank would have received had no such deduction or withholding been made. Any additional amount paid under this Clause shall be treated as agreed compensation and not as interest.
23. CURRENCY
24. SET-OFF
The Chargor agrees the Bank may at any time without notice or further demand notwithstanding any settlement of account or other matter whatsoever, combine or consolidate all or any of its then existing accounts wherever situate including any accounts in the name of the Bank or of the Chargor jointly with others (whether current, deposit, loan or of any other nature whatsoever whether subject to notice or not and whether in sterling or in any other currency) and set-off or transfer any sum standing to the credit of any one or more such accounts in or towards satisfaction of the Secured Liabilities. Where such combination, set-off or transfer requires the conversion of one currency into another, such conversion shall be calculated at the Banks exchange rate for purchasing the currency for which the Chargor is liable, with the existing currency.
25. ASSIGNMENT
This Charge shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties and shall bind all persons who become bound as a chargor to this Charge; provided, however, that neither this Charge nor any rights hereunder may be assigned by the Chargor without Banks prior written consent, which consent may be granted or withheld in Banks sole discretion. Bank shall have the right without the consent of or notice to the Chargor to sell, transfer, negotiate, or grant participation in all or any part of, or any interest in, Banks obligations, rights and benefits hereunder to a person to whom it is permitted to do so under the terms of Clause 12 of the Loan Agreement.
26. WAIVERS
No failure or delay or other relaxation or indulgence on the part of the Bank to exercise any power, right or remedy shall operate as a waiver thereof nor shall any single or partial exercise or waiver of any power, right or remedy preclude its further exercise or the exercise of any other power, right or remedy.
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27. SEVERABILITY
Each of the provisions of this Charge is distinct and severable from the others and if at any time one or more of such provisions is or becomes illegal, invalid or unenforceable the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
28. NOTICES
29. COUNTERPARTS AND DELIVERY
This Charge shall be governed by and construed in accordance with English Law.
IN WITNESS WHEREOF this Charge has been executed and delivered as a deed on the date written at the beginning of this Charge.
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THE SCHEDULE
The Shares
The entire issued share capital of the Borrower comprising:
1. 1,488,205 Ordinary Shares of 5 pence each.
2. 1,475,104 Deferred Ordinary Shares of 5 pence each.
3. 180,703 New Ordinary Shares of 5 pence each.
22
EXECUTED and DELIVERED as a DEED
for and on behalf of
EVOLVING SYSTEMS HOLDINGS LIMITED by:
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Director |
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Secretary |
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Notice Details :
Address: |
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c/o Evolving Systems |
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9777 Pyramid Court |
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Suite 100 |
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Englewood |
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Colorado |
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80112 USA |
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Fax No: |
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001 303 802 1138 |
Attention: |
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Anita T. Moseley |
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With a copy to: |
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Fax No: |
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001 303 802 1420 |
Attention: |
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Brian R. Ervine |
23
Exhibit 10.1(g)
UNCONDITIONAL
GUARANTY
(US GUARANTOR)
BRIDGE BANK, N.A. (Lender) proposes to enter into a loan transaction with EVOLVING SYSTEMS LIMITED (Borrower), which is an indirect, Wholly-Owned Subsidiary of the undersigned guarantor (Guarantor). The loan and other credit extensions are being made by Lender to Borrower pursuant to a Loan Agreement dated as of February 22, 2008 (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced from time to time (the Agreement). Guarantor expects to derive economic benefit from Lenders doing so and dealing with Borrower in accordance with the Agreement and other Loan Documents. All terms used without definition in this Guaranty shall have the meaning assigned to them in the Agreement. Terms defined in the California Uniform Commercial Code as in effect from time to time (the Code) and not otherwise defined in this Guaranty or the Agreement shall have the meanings defined for those terms in the Code. With respect to terms defined in more than one article of the Code, unless otherwise specified such terms will have the meaning specified in Article 9 of the Code.
For and in consideration of the loans and other credit extensions by Lender to Borrower, and acknowledging that Lender would not enter into the Agreement without the benefit of this Guaranty (Guaranty), Guarantor hereby unconditionally and irrevocably guarantees the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
NOW, THEREFORE , Guarantor and the Lender agree as follows:
1. If Borrower does not pay or perform when due any of the Obligations in strict accordance with the Agreement, Guarantor shall promptly pay all amounts due thereunder (including, without limitation, all principal, interest, and fees) and otherwise to proceed to perform the Obligations.
2. If there is more than one guarantor, the obligations hereunder are joint and several, and whether or not there is more than one guarantor, the obligations hereunder are independent of the obligations of Borrower and any other person or entity, and a separate action or actions may be brought and prosecuted against Guarantor whether action is brought against Borrower or whether Borrower be joined in any such action or actions. Guarantor waives the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof, to the extent permitted by law. Guarantors liability under this Guaranty is not conditioned or contingent upon the genuineness, validity, regularity or enforceability of the Agreement.
3. Guarantor authorizes Lender, without notice or demand to Guarantor and without affecting its liability hereunder, from time to time in accordance with the applicable provisions of the Agreement and the other Loan Documents to (a) renew, extend, or otherwise change the terms of the Agreement or any part thereof; (b) take and hold security for the payment of this Guaranty or the Agreement, and exchange, enforce, waive and release any such security; and (c) apply such security and direct the order or manner of sale thereof as Lender in its sole discretion may determine.
4. Guarantor waives any right to require Lender to (a) proceed against Borrower, any guarantor or any other person; (b) proceed against or exhaust any security held from Borrower; or (c) pursue any other remedy in Lenders power whatsoever. Lender may, at its election, exercise or decline or fail to exercise any right or remedy it may have against Borrower or any security held by Lender, including without limitation the right to foreclose upon any such security by judicial or nonjudicial sale, without affecting or impairing in any way the liability of Guarantor hereunder. Guarantor waives any defense arising by reason of any disability or other defense of Borrower or by reason of the cessation from any cause whatsoever of the liability of Borrower other than satisfaction in full of the Obligations. Guarantor waives any setoff, defense or counterclaim that Borrower may have against Lender other than satisfaction in full of the Obligations. Guarantor waives any defense arising out of the absence, impairment or loss of any right of reimbursement or subrogation or any other rights against Borrower. Until the Obligations have been paid in full, (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted), Guarantor shall have no right of subrogation or reimbursement, contribution or other rights against Borrower arising out or relating to, this Guaranty or any sums paid by Guarantor hereunder, and Guarantor waives any right to enforce any remedy that Lender now has or may hereafter have against Borrower arising out or relating to this Guaranty or any sums paid by such Guarantor hereunder. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Guaranty and of the existence, creation, or incurring of new or additional indebtedness. Notwithstanding the foregoing, Guarantor does not hereby waive any notices specifically required in any Loan Document to which Guarantor is a party but agrees that the failure of Lender to provide any such notices pursuant to the provisions of any such Loan Document shall not release or diminish Guarantors obligations, liabilities, agreements or duties hereunder, or otherwise affect this Guaranty in any way. Guarantor assumes the responsibility for being and keeping itself informed of the financial condition of Borrower and of all other circumstances bearing upon the risk of nonpayment of any indebtedness or nonperformance of any obligation of Borrower, warrants to Lender that it will keep so informed, and agrees that absent a request for particular information by Guarantor, Lender shall not have any duty to advise Guarantor of information known to Lender regarding such condition or any such circumstances. Guarantor waives the benefits of California Civil Code sections 2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850, 2899 and 3433. The waivers of rights in this Section 4 are made to the extent permitted by applicable law and are made in favor of Lender only and shall not be deemed a waiver of such rights for the benefit of any other Person.
5. If Borrower becomes insolvent or is adjudicated bankrupt or files a petition for reorganization, arrangement, composition or similar relief under any present or future provision of the United States Bankruptcy Code or if such a petition is filed against Borrower, and in any such proceeding some or all of any indebtedness or obligations under the Agreement are terminated or rejected or any obligation of Borrower is modified or abrogated, or if Borrowers obligations are otherwise avoided for any reason, Guarantor agrees that Guarantors liability hereunder shall not thereby be affected or modified and such liability shall continue in full force and effect as if no such action or proceeding had occurred. This Guaranty shall continue to be effective or be reinstated, as the case may be, if any payment must be returned by Lender upon the insolvency, bankruptcy or reorganization of Borrower, Guarantor, any other guarantor, or otherwise, as though such payment had not been made.
6. Until all of the Obligations (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) have been paid in full, any indebtedness of Borrower now or hereafter held by Guarantor is hereby subordinated to any indebtedness of Borrower to Lender; provided that so long as no Event of Default has occurred and is continuing, Guarantor may continue to receive and retain payments on such obligations and indebtedness provided such payments are not prohibited under the Agreement. During the existence of an Event of Default, such indebtedness of Borrower to Guarantor shall be collected, enforced and received by Guarantor as trustee for Lender and, if Lender so requests, be paid over to Lender on account of the indebtedness of Borrower to Lender but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty.
7. Guarantor agrees to pay, not later than five Business Days after written demand therefor, reasonable attorneys fees and all other costs and expenses which may be incurred by Lender in the enforcement of this Guaranty and any agreements executed by Guarantor in connection with this Guaranty (including without limitation security agreements). Lender shall endeavor to provide reasonable supporting documentation for the amount of any claims under the foregoing sentence. No terms or provisions of this Guaranty may be changed, waived, revoked or amended except by a written instrument executed by Lender and Guarantor. Should any provision of this Guaranty be determined by a court of competent jurisdiction to be unenforceable, all of the other provisions shall remain effective. This Guaranty, together with any agreements (including without limitation any security agreements or any pledge agreements) executed by Guarantor in connection with this Guaranty, embodies the entire agreement among the parties hereto with respect to the matters set forth herein, and supersedes all prior agreements among the parties with respect to the matters set forth herein. No course of prior dealing among the parties, no usage of trade, and no parol or extrinsic evidence of any nature shall be used to supplement, modify or vary any of the terms hereof. There are no conditions to the full effectiveness of this Guaranty. Lender may assign this Guaranty to a permitted assignee of Lender under the Agreement without in any way affecting Guarantors liability under it. This Guaranty shall inure to the benefit of Lender and its successors and permitted assigns. This Guaranty is in addition to the guaranties of any other guarantors and any and all other guaranties of Borrowers indebtedness or liabilities to Lender.
8. Guarantor represents and warrants to Lender that (i) Guarantor has taken all necessary and appropriate corporate action to authorize the execution, delivery and performance by Guarantor of this Guaranty and (ii) execution, delivery and performance of this Guaranty by Guarantor do not conflict with or result in a breach of or constitute a default under (x) Guarantors organizational documents or (y) agreements to which it is party or by
which it is bound, the effect of which default under this clause (y) would reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.
9. So long as any Obligation shall remain unpaid (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) and Bank shall have any commitment to make Credit Extensions under the Agreement, Guarantor shall do all of the following, except as otherwise permitted under the Agreement:
9.1 Guarantor shall maintain its existence, remain in good standing in its jurisdiction of organization, and continue to qualify in each jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the business operations or condition (financial or otherwise) of Guarantor. Guarantor shall maintain in force all licenses, approvals and agreements, the loss of which would reasonably be expected to have a material adverse effect on its business operations or condition (financial or otherwise).
9.2 Guarantor shall comply in all material respects with the provisions of its organizational documents, and shall not amend any such documents in any manner materially adversely affecting Lender without Lenders prior written consent, which will not be unreasonably withheld. Guarantor shall comply with all statutes, laws, ordinances, directives, orders, and government rules and regulations to which it is subject if non-compliance with such laws would reasonably be expected to materially adversely affect the business operations or condition (financial or otherwise) of Guarantor.
10. This Guaranty shall be governed by the laws of the State of California, without regard to conflicts of laws principles. GUARANTOR WAIVES ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. Guarantor submits to the jurisdiction of the state and federal courts located in Santa Clara County, California for purposes of this Guaranty and the Agreement. If the jury waiver in this Section is for any reason unenforceable, Lender and Guarantor will resolve all disputes by reference to a referee pursuant to Code of Civil Procedure Section 638 et seq, sitting without a jury, such referee to be by mutual agreement or, if none, as selected by the Presiding Judge of the California Superior Court for Santa Clara County.
11. All payments made by Guarantor hereunder will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any governmental authority or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding any tax imposed on or measured by the net income or profits of a bank pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such bank is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as Taxes). If any Taxes are so levied or imposed, Guarantor agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Guaranty, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein and in the Agreement and related loan documents. Notwithstanding the foregoing provisions of this Section 11, Guarantor shall have the full benefits and rights afforded to Borrower in Section 12.4 of the Agreement with respect to any and all payments made by Guarantor under this Guaranty.
12. To secure performance of this Guaranty and any amounts due under this Guaranty, Guarantor grants Lender a security interest in all of such Guarantors personal property, now owned or hereafter arising, including accounts, inventory, equipment, general intangibles, intellectual property, copyrights, patents, trademarks, financial assets, securities, instruments, deposit accounts, chattel paper, investment property, and the proceeds thereof (collectively, the Collateral). Guarantor shall not encumber, sell, license or otherwise dispose of any interest in the Collateral without Lenders prior written consent, except as permitted under that certain Loan and Security Agreement, dated as of February 22, 2008, between Guarantor and Lender, as such agreement may hereafter be amended, modified, supplemented, extended, renewe d, restated or replaced from time to time
Guarantor authorizes Lender to file a financing statement, and take such other actions as Lender deems appropriate to perfect this security interest.
Notwithstanding the foregoing, the Collateral does not include any property that constitutes the capital stock of a controlled foreign corporation (as defined in the Internal Revenue Code of 1986, as amended, and the regulations thereunder) in excess of 65% of the voting power of all classes of capital stock of such controlled foreign corporations entitled to vote.
Notwithstanding the foregoing, the Collateral does not include any lease under which Guarantor is a lessee, license under which Guarantor is a licensee, other contract right, property right or agreement to which Guarantor is a party, any securities or other investment property owned by Guarantor that is subject to contractual prohibitions against or limitations on the transfer or pledging of such securities or property, or any equipment owned by Guarantor that is subject to a purchase money Lien or capitalized lease obligation if the contract or other agreement in which such Lien is granted (or in the documentation for such capitalized lease obligations) validly prohibits the creation of any other Lien on such equipment, or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of Guarantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights, agreement or documentation (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity); provided, however, in each such case, consent has not been obtained despite Guarantors commercially reasonable efforts to obtain it; and provided further, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability, other restriction or assignment shall be remedied and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property right or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such lease, license, contract, property rights, agreement, securities, other investment property, or equipment.
IN WITNESS WHEREOF , the undersigned Guarantor has executed this Guaranty as of February 22, 2008.
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EVOLVING SYSTEMS, INC. |
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By: |
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Name: Brian R. Ervine |
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Title: Executive Vice President, Chief Financial and |
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Administrative Officer |
Exhibit 10.1 (h)
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this Agreement ) is made as of February 22, 2008 by and among (i) each of the parties a signatory hereto as junior creditors (each individually and all collectively, together with their successors and assigns and all other holders of Junior Debt, the Junior Creditors ); (ii) EVOLVING SYSTEMS, INC. , a Delaware corporation, ( ESI ), and the other US Obligors on the signature page hereto (if any); and (iii) BRIDGE BANK, N.A. , the Senior Creditor ).
INTRODUCTION
A. ESI, as borrower, Evolving Systems Holdings, Inc., as a guarantor, CapitalSource Finance LLC, a Delaware limited liability company, as agent (in such capacity, the Existing Agent ), and the lenders from time to time parties thereto are party to that certain Credit Agreement dated as of November 14, 2005 (the Existing US Credit Agreement ), pursuant to which, among other things, the lenders thereunder have made certain term loans and financial accommodations to ESI, as the borrower thereunder.
B . Evolving Systems Limited, certain other obligors, CSE Finance Inc. and the other lenders from time to time parties thereto have entered into a Revolving Facility Agreement dated as of November 14, 2005 (the Existing Revolving Loan Credit Agreement and together with the Existing US Credit Agreement, the Existing Credit Agreements ), pursuant to which, among other things, the lenders thereunder have made certain revolving loans and financial accommodations to certain of the obligors thereunder.
C. ESI previously entered into certain unsecured subordinated notes each dated November 14, 2005 evidencing indebtedness in the aggregate original principal amount of $4,869,700.47 (as the same may be amended, supplemented or otherwise modified from time to time as permitted hereunder, together with all notes and other instruments issued in replacement thereof or substitution therefor, the Junior Notes ).
D. In connection with and as a condition precedent to the execution of the Existing Credit Agreements, the Existing Agent, the lenders party to the Existing Credit Agreements, the Junior Creditors, ESI and the other US Obligors party thereto entered into that certain Subordination Agreement dated as of November 14, 2005 (the Existing Subordination Agreement ).
E . ESI and the Senior Creditor are entering into a Loan and Security Agreement dated the date hereof (as the same may be amended, supplemented, replaced, substituted, refinanced or otherwise modified from time to time, as permitted hereunder, the US Loan Agreement ), pursuant to which, among other things, the Senior Creditor is agreeing, subject to the terms and conditions set forth therein, to make certain loans and financial accommodations to ESI, as borrower thereunder to, among other things, refinance ESIs indebtedness under the Existing US Credit Agreement.
F. Evolving Systems Limited and the Senior Creditor are entering into a Loan Agreement dated the date hereof (as the same may be amended, supplemented, replaced,
substituted, refinanced or otherwise modified from time to time, as permitted hereunder, the UK Loan Agreement and together with the US Loan Agreement, the Credit Agreements ), pursuant to which, among other things, the Senior Creditor is agreeing, subject to the terms and conditions set forth therein, to make certain revolving loans and financial accommodations to Evolving Systems Limited to, among other things refinance the indebtedness under the Existing Revolving Loan Credit Agreement.
G . As an inducement to and as one of the conditions precedent to the agreement of the Senior Creditor under the Credit Agreements to consummate the transactions contemplated thereby, the Senior Creditor has required the execution and delivery of this Agreement by the Junior Creditors and ESI.
NOW THEREFORE, in order to induce the Senior Creditor to consummate the transactions contemplated by the Credit Agreements, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:
1. Definitions . Capitalized terms used but not otherwise defined in this Agreement shall have the meanings assigned to such terms in the applicable Credit Agreement. As used in this Agreement, the following terms have the following meanings:
Bankruptcy Code shall mean, collectively, (i) with respect to ESI and any other US Obligor, Chapter 11 of Title 11 of the United States Code, as amended from time to time and any successor statutes and all rules and regulations promulgated thereunder and (ii) with respect to any other Obligor organized or otherwise formed under the laws of England, the Insolvency Act of 1986, as amended from time to time and any successor acts and all rules and regulations promulgated thereunder.
Collection Action shall mean, with respect to the Junior Debt, any action (a) to sue for, take or receive from or on behalf of any US Obligor, by set-off or in any other manner, the whole or any part of any moneys which may now or hereafter be owing by any US Obligor with respect to the Junior Debt, (b) to initiate or participate with others in any suit, action or Proceeding against any US Obligor or its property to (i) enforce payment of or to collect the whole or any part of the Junior Debt or (ii) commence judicial enforcement of any of the rights and remedies under the Junior Debt Documents or applicable law with respect to the Junior Debt, (c) to accelerate any Junior Debt, (d) to cause any US Obligor to honor any redemption, put or mandatory payment obligation with respect to the Junior Debt or any other equity interests of any US Obligor or (e) to take any action under the provisions of any state, local, federal or foreign law, including, without limitation, the UCC, or under any contract or agreement, to enforce against, foreclose upon, take possession of or sell any property or assets of any US Obligor.
Debtor Relief Law shall mean, collectively, the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws from time to time in effect affecting the rights of creditors generally, in each case as amended from time to time.
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Junior Debt shall mean, collectively, all of the obligations, liabilities and indebtedness of ESI (and, if applicable, any other US Obligors) to the Junior Creditors evidenced by the Junior Notes and all other amounts now or hereafter owed by ESI or such other US Obligor to the Junior Creditors under or in respect of any of the Junior Debt Documents.
Junior Debt Documents shall mean, collectively, the Junior Notes, any guaranty with respect to the Junior Debt and all other documents, agreements and instruments evidencing the foregoing and/or executed and delivered in connection therewith.
Junior Default shall mean (i) a default in the payment of the Junior Debt or in the performance of any term, covenant or condition contained in any of the Junior Debt Documents, or (ii) any other occurrence permitting the Junior Creditors to accelerate the payment of, or put or cause the redemption of, all or any portion of the Junior Debt or any of the Junior Debt Documents.
Missed Secondary Default Payments shall have the meaning set forth in Section 2.3(b) .
Obligor or Obligors shall mean, each individually and all collectively, each US Obligor, Evolving Systems Limited, Evolving Systems Holdings Limited and all guarantors of the Senior Debt or, if applicable, the Junior Debt (it being understood that there is no requirement under the Junior Debt Documents that any Person guarantee the Junior Debt).
Paid in Full or Payment in Full shall mean the irrevocable and indefeasible payment in full in cash of all of the Senior Debt and the termination of the lending commitments under the Senior Debt Documents.
Permitted Junior Debt Payments shall mean payments of principal and interest on the Junior Debt on a non-accelerated basis (whether such payments are regularly scheduled payments or optional prepayments) in accordance with the terms of the Junior Debt Documents as in effect on the date hereof or as modified in accordance with the terms of this Agreement.
Person shall mean any natural person, corporation, general or limited partnership, limited liability company, firm, trust, association, government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.
Proceeding shall mean any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, dissolution or other winding up of a Person, including, without limitation, any of the foregoing under Debtor Relief Laws.
Reorganization Subordinated Securities shall mean any debt or equity securities issued in a Proceeding in substitution of all or any portion of the Junior Debt, in each case that (a) are subordinated in right of payment, performance and otherwise to the Senior Debt (or any debt and/or equity securities issued in substitution of all or any portion of the Senior Debt) to at least the same extent that the Junior Debt is subordinated to the Senior Debt pursuant to the terms of this Agreement, (b) do not have the benefit of any obligation of any Person (whether as issuer, guarantor or otherwise) unless the Senior Debt has at least the same benefit of the obligation of
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such Person, and (c) do not have any terms, and are not subject to or entitled to the benefit of any agreement or instrument that has terms, that are more burdensome to the issuer of or other obligor on such debt or equity securities than are the terms of (x) any such debt or equity securities issued to the Senior Creditor in connection with such Proceeding or (y) the Junior Debt immediately prior to such issuance; provided in each case that the Junior Creditors shall have entered into such supplements to or modifications of this Agreement as the Senior Creditor reasonably may request to reflect the continued subordination of the Reorganization Subordinated Securities to the Senior Debt (or debt and equity securities issued in substitution of all or a portion thereof).
Senior Covenant Default shall mean any Event of Default (or other term of similar import or meaning) under the Senior Debt Documents (other than a Senior Payment Default).
Senior Debt shall mean the Obligations, as such term is defined in each Credit Agreement, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and from time to time hereafter owing, due or payable, whether before or after the filing of a Proceeding, together with (a) any amendments, modifications, refinancings, replacements, renewals or extensions thereof and (b) any interest accruing thereon after the commencement of a Proceeding, without regard to whether or not such interest is an allowed claim; provided, however, that in no event shall the aggregate outstanding principal amount of the Senior Debt exceed $10,000,000, reduced by the aggregate amount of all principal payments made thereon (whether scheduled or unscheduled, optional or mandatory or otherwise made) at any time and from time to time under the $4,000,000 term loan facility under the US Loan Agreement. Senior Debt shall be considered to be outstanding whenever any loan commitment under any Senior Debt Document is outstanding.
Senior Debt Documents shall mean, collectively, the Credit Agreements, the other Loan Documents and all other documents, agreements and instruments evidencing, securing or otherwise pertaining to all or any portion of the Senior Debt.
Senior Default shall mean any Senior Payment Default or Senior Covenant Default.
Senior Payment Default shall mean any failure by any Obligor to make any required payment of interest or principal, or any fee (including, without limitation, any letter of credit fees) or other monetary payment, under the Senior Debt Documents, including, without limitation, any default in payment of Senior Debt after acceleration thereof and/or the filing of a Proceeding, or any failure to pay the amounts described in this definition regardless of any requirement of notice or lapse of time or both before such failure to pay becomes an Event of Default under the Senior Debt Documents.
Senior Secondary Default shall mean the Senior Covenant Defaults under Section 8.2(b) of the Credit Agreements which, in the Senior Creditors reasonable discretion, are capable of being remedied or cured.
US Obligor or US Obligors shall mean, each individually and all collectively, ESI and all US Persons who are guarantors of the Senior Debt or, if applicable, the Junior Debt (it being
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understood that there is no requirement under the Junior Debt Documents that any Person guarantee the Junior Debt).
US Persons shall mean a Person incorporated or otherwise organized under the laws of the United States of America or a state of the United States of America or the District of Columbia.
2. Subordination .
2.1 Subordination of Junior Debt to Senior Debt . Each of the US Obligors covenants and agrees, and each of the Junior Creditors by its acceptance of the Junior Notes (whether upon original issue or transfer or assignment) covenants and agrees, that (a) the payment of any and all of the Junior Debt is subordinate and subject in right of payment, to the extent and in the manner hereinafter set forth, to the prior Payment in Full of the Senior Debt and (b) the existing and hereafter acquired liens and security interests of the Senior Creditor in any Collateral is senior, regardless of the time, order, lack or method of perfection, to all existing and hereafter acquired liens and security interests, if any, of the Junior Creditors (or any agent therefor) in the Collateral, if any, securing all or any portion of the Junior Debt. Senior Creditor, whether now outstanding or hereafter created, incurred, assumed or guaranteed, shall be deemed to have acquired Senior Debt in reliance upon the provisions contained in this Agreement. The parties hereto intend this Agreement to be deemed enforceable by any applicable court under any Bankruptcy Code and other Debtor Relief Laws.
2.2 Proceedings .
(a) Payments and Distributions . In the event of any Proceeding involving any Obligor or any Property of any Obligor, (i) all Senior Debt first shall be Paid in Full before any payment of, or payment or distribution with respect to, the Junior Debt shall be made (other than a distribution of Reorganization Subordinated Securities); (ii) any payment or distribution, whether in cash, property or securities which, but for the terms hereof, otherwise would be payable or deliverable in respect of the Junior Debt (other than a distribution of Reorganization Subordinated Securities), shall be paid or delivered directly to the Senior Creditor (to be held and/or applied by the Senior Creditor in accordance with the terms of the applicable Credit Agreement) until all Senior Debt is Paid in Full, and each of the Junior Creditors irrevocably authorizes, empowers and directs all receivers, trustees, liquidators, custodians, conservators and others having authority in the premises to effect all such payments and distributions, and each of the Junior Creditors also irrevocably authorizes, empowers and directs the Senior Creditor to demand, sue for, collect and receive every such payment or distribution; and (iii) each of the Junior Creditors agrees to execute and deliver to the Senior Creditor or its representative all such further instruments confirming the authorization referred to in the foregoing clause (ii).
(b) Proofs of Claim; Claims; Voting; and Other Matters . The Junior Creditors shall not initiate, prosecute or participate in any claim or action in any Proceeding or otherwise challenging the enforceability, validity, perfection or priority of the Senior Debt, this Agreement, or any liens and security interests securing the Senior
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Debt. In the event the Junior Creditors (i) fail to execute, verify, deliver and file any proofs of claim in respect of the Junior Debt in connection with any Proceeding prior to the date that is 30 days before the expiration of the time to file any such proof or (ii) fail to vote any such claim in any Proceeding prior to the date that is 15 days before the expiration of the time to vote any such claim, the Junior Creditors hereby irrevocably authorize, empower and appoint the Senior Creditor as their agent and attorney-in-fact to execute, verify, deliver and file such proofs of claim and to vote such claim (including the right to vote to accept or reject any plan of partial or complete liquidation, reorganization, arrangement, composition, or extension); provided the Senior Creditor shall have no obligation to exercise any such authority with respect to the Junior Creditors claim. In the event that the Senior Creditor votes any claim in accordance with the authority granted hereby, the Junior Creditors shall not be entitled to change or withdraw such vote.
(c) Reinstatement . The Senior Debt shall continue to be treated as Senior Debt and the provisions of this Agreement shall continue to govern the relative rights and priorities of the Senior Creditor and the Junior Creditors even if all or part of the Senior Debt or the security interests securing the Senior Debt are subordinated, set aside, avoided or disallowed in connection with any such Proceeding. This Agreement shall be reinstated if at any time any payment of any of the Senior Debt is rescinded or must otherwise be returned by Senior Creditor or any representative of Senior Creditor.
(d) Collateral . To the extent that the Junior Creditors have or acquire any liens or other rights with respect to any Collateral, the Junior Creditors shall not assert such rights in any Proceeding without the prior written consent of the Senior Creditor unless requested to do so by the Senior Creditor, in which case the Junior Creditors shall seek to exercise such rights in the manner requested by the Senior Creditor.
2.3 Junior Debt Payments .
(a) Restrictions on Payments; Commencement of Payment Blockage . The terms of the Junior Debt Documents to the contrary notwithstanding, ESI and the other US Obligors each hereby agrees that it may not make, and each Junior Creditor hereby agrees that it will not accept, any payment or distribution on account of, or any redemption, purchase or acquisition of, the Junior Debt (by set off or otherwise) until the Senior Debt is Paid in Full; provided that Permitted Junior Debt Payments may be made by ESI (and, if applicable, the other US Obligors) and accepted by the Junior Creditors so long as, at the time of such payment or immediately after giving effect thereto:
(i) no Senior Default exists or would be created by the making of such payment;
(ii) such Permitted Junior Debt Payment is not made from proceeds of the Senior Debt under the UK Loan Agreement; and
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(iii) the Obligors have delivered compliance certificates pursuant to the Credit Agreements certifying that the Obligors would have been in compliance on a pro forma basis (recomputed for the most recent period for which financial statements have been delivered to the Senior Creditor after giving effect thereto as of the first day of such period) with the financial covenants set forth in the Credit Agreements assuming the financial covenant levels for the then current period shall apply, and the Obligors shall have provided to Senior Creditor such other evidence thereof as requested by Senior Creditor to the satisfaction of Senior Creditor.
With each payment on the Junior Debt, ESI shall certify in writing to the Junior Creditors that such payment is a Permitted Junior Debt Payment and that no Senior Default exists. ESI shall provide a copy of such written certification to the Senior Creditor. If a Senior Default has occurred at the time such payment is made by ESI (or, if applicable, any other US Obligor), the Senior Creditor shall have 120 days from the date the Senior Creditor receives such written certification to notify the Junior Creditors that a Senior Default did exist at the time such payment was made and that such payment was received by the Junior Creditors in violation of this Agreement. In the event that the Junior Creditors are notified by the Senior Creditor within such 120 day period that the Junior Creditors received such payment in violation of this Agreement, the Junior Creditors shall promptly return such payment to the Senior Creditor. If the Senior Creditor fails to notify the Junior Creditors within such 120 day period, the Junior Creditors shall have no further obligation or liability to return such payment.
No Senior Default shall be deemed to have been cured or waived for purposes of this Section 2.3(a) unless and until ESI and the Junior Creditors shall have received a written waiver or notice of cure of any such Senior Default from Senior Creditor. To the extent such Senior Default is cured or waived, the Senior Creditor agrees to provide the Junior Creditors with notice thereof within a reasonable period of time.
(b) Limited Exception to Payment Blockage . In the event that the Junior Creditors would be permitted to received a Permitted Junior Debt Payment under Section 2.3(a) above in respect of the Junior Debt solely but for the occurrence of a Senior Secondary Default (a Missed Secondary Default Payment ), and provided no other Senior Default that is not a Senior Secondary Default exists and the Junior Creditors are otherwise permitted to receive such Permitted Junior Debt Payments pursuant to Sections 2.3(a)(ii), (iii) and (iv) above, the Junior Creditors shall be permitted to receive any such Missed Secondary Default Payment upon the earlier to occur of (i) the cure or waiver of such Senior Secondary Default as provided in Section 2.3(a) or (ii) 180 days from the date written notice is provided by any Junior Creditor to Senior Creditor notifying Senior Creditor of such Missed Secondary Default Payment.
(c) Non-Applicability to Proceeding . The provisions of this Section 2.3 shall not apply to any payment with respect to which Section 2.2 would be applicable.
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2.4 Restriction on Action by the Junior Creditors .
(a) Notwithstanding any of the Junior Creditors rights under applicable law or any provision of the Junior Debt Documents to the contrary and except as otherwise expressly permitted under clauses (b) and (c) below, the Junior Creditors hereby acknowledge and agree that the Junior Creditors shall not take any Collection Action, until the Senior Debt is Paid in Full.
(b) In the event that ESI (or, if applicable, any other US Obligor) is permitted under this Agreement to make a Permitted Junior Debt Payment in respect of the Junior Debt and is required to make such payment pursuant to the Junior Debt Documents but fails to make such payment, the Junior Creditors may, after one (1) year from the date written notice is provided by any Junior Creditor to the Senior Creditor notifying the Senior Creditor of such failure to pay, sue for such missed payment; provided , however , that (i) such action to sue shall not include any right on the part of Junior Creditors to take any other Collection Action, including accelerating any Junior Debt or foreclosing upon or otherwise exercising any rights to any property or assets of ESI or any other US Obligors, and (ii) any moneys obtained by the Junior Creditors with respect to any such Collection Action permitted under this Section 2.4(b) during any Senior Default shall in any event be held in trust for the benefit of the Senior Creditor and the Senior Creditor and promptly paid or delivered to the Senior Creditor for the benefit of Senior Creditor in the form received until all Senior Debt is Paid in Full.
(c) In the event that the Senior Creditor accelerates all of the Senior Debt, a Junior Creditor may, upon ten days prior written notice to the Senior Creditor, accelerate its Junior Debt and obtain a judgment; provided , however , that if following such acceleration of all of the Senior Debt, such acceleration is rescinded, then each such Junior Creditor shall likewise rescind such acceleration of the Junior Debt and shall not be permitted to take any further action with respect to such judgment, and provided , further that (i) such acceleration right shall not include any right on the part of Junior Creditors to take any other Collection Action or to enforce such judgment, including foreclosing upon or otherwise exercising any rights to any property or assets of ESI or any other US Obligors until all Senior Debt is Paid in Full, (ii) any moneys obtained by the Junior Creditors with respect to any such Collection Action permitted under this Section 2.4(c) shall in any event be held in trust for the benefit of the Senior Creditor and promptly paid or delivered to the Senior Creditor in the form received until all Senior Debt is Paid in Full and (iii) in the case of acceleration by all Junior Creditors in accordance with this Section 2.4(c) , any one Junior Creditor may provide such notice on behalf of all Junior Creditors in a notice specifying it is being given on behalf of all Junior Creditors.
(d) Notwithstanding anything to the contrary contained in this Agreement, in the event of a Change of Control (as such term is defined in the Junior Notes as in effect on the date of this Agreement), the Junior Creditors may take the following action:
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(i) With respect to an event under (i) or (ii) of such Change of Control definition, a Junior Creditor may, from the earlier to occur of (A) receipt by Senior Creditor of Payment in Full of the Senior Debt as a result of any of the transactions completed under (i) or (ii) of such Change of Control definition, or (B) if there has not been an acceleration of the Senior Debt (if there has been an acceleration of the Senior Debt, the provisions of Section 2.4(c) shall apply), within 180 days from the date such transactions under (i) or (ii) of such Change of Control definition are consummated, accelerate its Junior Debt and accept and receive payment in satisfaction of its Junior Debt in accordance with the terms of the Junior Debt Documents; provided in the case of acceleration by all Junior Creditors in accordance with this Section 2.4(d)(i) , any one Junior Creditor may provide such notice on behalf of all Junior Creditors in a notice specifying it is being given on behalf of all Junior Creditors; or
(ii) With respect to an event under (iii) or (iv) of such Change of Control definition, upon ten days prior written notice from a Junior Creditor to the Senior Creditor, such Junior Creditor may accelerate its Junior Debt and accept and receive payment in satisfaction of its Junior Debt; provided , in the case of acceleration by all Junior Creditors in accordance with this Section 2.4(d)(ii) , any one Junior Creditor may provide such notice on behalf of all Junior Creditors in a notice specifying it is being given on behalf of all Junior Creditors.
(e) The Junior Creditors hereby waive any right they may have to require that the Senior Creditor to marshal any assets of the Obligors in favor of the Junior Creditors, and the Junior Creditors agree that they shall not acquire, by subrogation or otherwise, any lien, estate, right or other interest in any collateral of the Obligors or the proceeds therefrom. Until the Senior Debt is Paid in Full, the Junior Creditors shall not (i) institute any judicial or administrative proceeding against any Obligor, the Senior Creditor, (ii) take any other action, including without limitation, any Collection Action (except as expressly permitted under Sections 2.4(b), (c) or (d) above), or (iii) fail to take any actions or give or fail to give any consent, in each case which directly or indirectly would interfere with or delay the exercise by the Senior Creditor of its rights and remedies under the Senior Debt Documents.
(f) The US Obligors agree that any applicable statute of limitations shall be tolled during any standstill period and waive any right to assert any defense based upon any such statute of limitations without giving effect to such tolling.
2.5 No Liens .
(a) The Junior Creditors shall not seek to obtain, and shall not take, accept, obtain or have, any lien or security interest in any Collateral as security for all or any part of the Junior Debt other than judgment liens obtained in connection with a Collection Action permitted hereby and, in the event that the Junior Creditors obtain any liens or security interests in any Collateral not otherwise permitted hereby, the Junior Creditors shall (or shall cause its agent to) promptly execute and deliver to the Senior
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Creditor such documents, agreements and instruments, and take such other actions, as the Senior Creditor shall request to release such liens and security interests in such Collateral.
(b) The Senior Creditor shall have the exclusive right as to the exercise and enforcement of all privileges and rights with respect to the Collateral in its sole discretion, including, without limitation, the exclusive right to take or retake control or possession of such Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate such Collateral or settle or adjust insurance claims with respect thereto. Without in anyway limiting the foregoing, if in connection with any sale or other disposition of Collateral the Senior Creditor requests that the Junior Creditors release their liens upon such Collateral, then the Junior Creditors shall execute and deliver such documents, agreements and instruments, and take such other actions as are necessary to release the Junior Creditors liens in such Collateral, subject to the Junior Creditors right to retain a lien subordinated hereunder on any proceeds from the disposition of such Collateral in excess of the amount of the Senior Debt outstanding.
(c) In furtherance of this Section 2.5 , each of the Junior Creditors hereby irrevocably appoints the Senior Creditor its attorney-in-fact, with full authority in the place and stead of such Junior Creditor and in the name of such Junior Creditor or otherwise, to execute and deliver any document, agreement or instrument which the Junior Creditors may be required to deliver pursuant to this Section 2.5 . The Senior Creditor shall have no responsibility for or obligation or duty with respect to any of the Collateral or any matter or proceeding arising out of or relating thereto, including, without limitation, any obligation or duty to collect any sums due in respect thereof or to protect or preserve any rights pertaining thereto.
2.6 Amendment of Junior Debt Documents . Until the Senior Debt is Paid in Full, and anything contained in the Junior Debt Documents or any of the Senior Debt Documents to the contrary notwithstanding, the Junior Creditors shall not, without the prior written consent of the Senior Creditor, agree to any amendment or supplement to, or other modification of, the Junior Debt Documents or the Junior Debt the effect of which is to (a) increase the maximum principal amount of the Junior Debt, (b) increase the rate of interest (cash or otherwise) on any of the Junior Debt (except for regularly scheduled interest at the non-default rate of interest to the extent expressly provided in the Junior Debt Documents as in effect on the date of this Agreement), (c) change the date upon which regularly scheduled payments of principal or interest on the Junior Debt are due, (d) add or make more restrictive any event of default or any covenant with respect to the Junior Debt or make any change to any event of default or any covenant which would have the effect of making such event of default or covenant more restrictive than those in effect in the Credit Agreements on the date of this Agreement, (e) change the final maturity date of any Junior Debt to a date that is earlier than the date which is 180 days after the scheduled maturity date of the Senior Debt, (f) take any liens or security interests in assets of the Obligors or any other property or assets securing the Senior Debt, (g) change any redemption, put or prepayment provisions of the Junior Debt, (h) alter the subordination provisions with respect to the Junior Debt, including, without limitation, subordinating the Junior Debt to any other indebtedness, or (i) change or amend any other term of the Junior Debt Documents if such change or amendment would result in a Senior Default, increase the obligations of any Obligor or confer additional material rights on the Junior
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Creditors or any holder of the Junior Debt in a manner adverse to any Obligor or the Senior Creditor.
2.7 Incorrect Payments . If any payment or distribution on account of the Junior Debt not permitted to be made by the Obligors or received by the Junior Creditors under this Agreement is received by the Junior Creditors in violation of this Agreement before all Senior Debt is Paid in Full, such payment or distribution shall not be commingled with any asset of the Junior Creditor, shall be held in trust by the Junior Creditors for the benefit of the Senior Creditor and shall be promptly paid over to the Senior Creditor, or its designated representative, for application (in accordance with the Credit Agreements) to the payment of the Senior Debt then remaining unpaid, until all of the Senior Debt is Paid in Full.
2.8 Transfer . No Junior Creditor shall sell, assign, pledge, dispose of or otherwise transfer all or any portion of the Junior Debt or any Junior Debt Document (a) without giving written notice within fifteen (15) days of such action to the Senior Creditor, (b) unless prior to the consummation of any such action, the transferee thereof shall execute and deliver to the Senior Creditor a joinder to this Agreement providing for the continued subordination of the Junior Debt to the Senior Debt as provided herein and for the continued effectiveness of all of the rights of the Senior Creditor arising under this Agreement, and (c) unless, following the consummation of any such action, there shall be either (i) no more than five (5) holders of the Junior Debt, or (ii) one Person acting as agent for all of the Junior Creditors pursuant to documentation reasonably satisfactory to the Senior Creditor and the Junior Creditors such that any notice of a Senior Default and other notices and communications to be delivered to or by the Junior Creditors hereunder shall be made to or obtained from such agent and shall be binding on the Junior Creditors as if directly received by or obtained from the Junior Creditors. Notwithstanding the failure to execute or deliver any joinder to this Agreement in form and substance satisfactory to the Senior Creditor, the subordination effected hereby shall survive any sale, assignment, pledge, disposition or other transfer of all or any portion of the Junior Debt, and the terms of this Agreement shall be binding upon the successors and assigns of the Junior Creditors.
2.9 Legends . Until the Senior Debt is Paid in Full, the Junior Notes and all other Junior Debt Documents at all times shall contain in a conspicuous manner the following legend:
This instrument and the rights and obligations evidenced hereby are subordinate in the manner and to the extent set forth in that certain Subordination Agreement (as the same may be amended, supplemented, replaced, substituted, refinanced or otherwise modified from time to time, the Subordination Agreement ) dated as of February 22, 2008 among Evolving Systems, Inc., a Delaware corporation, the other US Obligors (as defined therein), the Junior Creditors (as defined therein) and the Senior Creditor (as defined therein), all as more particularly described in the Subordination Agreement, and each holder of this instrument, by its acceptance hereof, shall be bound by the provisions of the Subordination Agreement.
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3. Modifications to Senior Debt . The Senior Creditor may at any time without the consent of or notice to the Junior Creditors, without incurring liability to the Junior Creditors and without impairing or releasing the obligations of the Junior Creditors under this Agreement, change the manner or place of payment or extend the time of payment of, increase the interest rates and fees applicable to or renew or alter any of the other terms of the Senior Debt (including increases to the principal amount of outstanding Senior Debt subject to the proviso under the definition of Senior Debt in this Agreement) or the Senior Debt Documents, or amend, modify, supplement, restate, substitute, replace or refinance in any manner any Senior Debt Document or any other any agreement, note, guaranty or other instrument evidencing or securing or otherwise relating to the Senior Debt.
4. Continued Effectiveness of this Agreement . The terms of this Agreement, the subordination effected hereby, and the rights and the obligations of the Junior Creditors, the US Obligors, the Senior Creditor arising hereunder shall not be affected, modified or impaired in any manner or to any extent by the validity or enforceability of any of the Senior Debt Documents or the Junior Debt Documents, or any exercise or non-exercise of any right, power or remedy under or in respect of the Senior Debt, the Senior Debt Documents, the Junior Debt or the Junior Debt Documents. The Junior Creditors hereby acknowledge that the provisions of this Agreement are intended to be enforceable at all times, whether before the commencement of, after the commencement of, in connection with or premised on the occurrence of a Proceeding.
5. No Contest . Each of the Junior Creditors agrees that it will not at any time contest the validity, perfection, priority or enforceability of the Senior Debt, the Senior Debt Documents, or the liens and security interests of the Senior Creditor in any Collateral.
6. Representations and Warranties . Each Junior Creditor hereby represents and warrants as follows:
6.1 Existence and Power . Such Junior Creditor is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized.
6.2 Authority . Such Junior Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action and are not prohibited by such partys organizational documents.
6.3 Binding Agreements . This Agreement, when executed and delivered, will constitute the valid and legally binding obligation of such Junior Creditor, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors rights generally and by equitable principles.
6.4 Conflicting Agreements; Litigation . No provisions of any mortgage, indenture, contract, agreement, statute, rule, regulation, judgment, decree or order binding on the Junior Creditors conflicts with, or requires any consent which has not already been obtained under, or would in any way prevent the execution, delivery or performance by such Junior Creditor of the terms of this Agreement or the other Junior
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Debt Documents to which such Junior Creditor is a party. No pending or, to the best of such Junior Creditors knowledge, threatened, litigation, arbitration or other proceedings if adversely determined would prevent the performance by such Junior Creditor of the terms of this Agreement or the other Junior Debt Documents to which such Junior Creditor is a party.
6.5 Ownership . Such Junior Creditor is the sole owner, beneficially and of record, of the Junior Notes held by it, the other Junior Debt Documents to which such Junior Creditor is a party and the Junior Debt owing to such Junior Creditor.
6.6 Defaults . No Junior Default exists under or with respect to the Junior Note(s) held by such Junior Creditor or any of the other Junior Debt Documents to which such Junior Creditor is a party.
7. Senior Creditor . The Senior Creditor hereby represents and warrants to the Junior Creditors as follows:
7.1 Existence and Power . The Senior Creditor is a national association.
7.2 Authority . The Senior Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action and are not prohibited by its organizational documents.
7.3 Binding Agreements . This Agreement, when executed and delivered, will constitute the valid and legally binding obligation of the Senior Creditor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors rights generally and by equitable principles.
7.4 Conflicting Agreements; Litigation . No provisions of any mortgage, indenture, contract, agreement, statute, rule, regulation, judgment, decree or order binding on the Senior Creditor conflicts with, or requires any consent which has not already been obtained under, or would in any way prevent the execution, delivery or performance of the terms of this Agreement by the Senior Creditor. No pending or, to the best of the Senior Creditors knowledge, threatened, litigation, arbitration or other proceedings if adversely determined would prevent the performance of the terms of this Agreement by the Senior Creditor.
8. Notice of Junior Default . Each of the Junior Creditors shall provide the Senior Creditor with written notice of the occurrence of a Junior Default under its Junior Note and ESI shall provide the Senior Creditor with a written notice of the occurrence of each Junior Default, and each Junior Creditor who has provided such notice and ESI shall notify the Senior Creditor in writing in the event such Junior Default is waived; provided that (i) any failure to deliver any such notices shall not otherwise affect the subordination provisions or other obligations of the Junior Creditors or the US Obligors hereunder, (ii) no such notice shall be effective for purposes of Section 2.4(b) unless specifically stating so therein and (iii) any one Junior Creditor may
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provide such notices on behalf of all Junior Creditors in a notice specifying it is being given on behalf of all Junior Creditors.
9. Cumulative Rights, No Waivers . Each and every right, remedy and power granted to the Senior Creditor or the Junior Creditors hereunder shall be cumulative and in addition to any other rights, remedy or power specifically granted herein or in the Senior Debt Documents or the Junior Debt Documents, as applicable, or now or hereafter existing in equity, at law, by virtue of statute or otherwise, and may be exercised by the Senior Creditor or any Junior Creditor, as applicable, from time to time, concurrently or independently and as often and in such order as the Senior Creditor or the Junior Creditors, as applicable, may deem expedient. Any failure or delay on the part of Senior Creditor or any of the Junior Creditors, as applicable, in exercising any such right, remedy or power, or abandonment or discontinuance of steps to enforce the same, shall not operate as a waiver thereof or affect the rights of the Senior Creditor or Junior Creditors, as applicable, thereafter to exercise the same, and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power, and no such failure, delay, abandonment or single or partial exercise of the rights of the Senior Creditor or the Junior Creditors, as applicable, hereunder shall be deemed to establish a custom or course of dealing or performance among the parties hereto.
10. Modification . This Agreement may be amended or modified only by a writing signed by the US Obligors, the Senior Creditor and the holders of at least 50.1% of the then outstanding principal balance of the Junior Notes. The Junior Creditors may waive any right under this Agreement or grant a consent by action of the holders of at least 50.1% of the then outstanding principal balance of the Junior Notes. Any notice or demand given to the Junior Creditor by the Senior Creditor in any circumstances not specifically required by the Senior Creditor shall not entitle the Junior Creditors to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder. Any notice or demand given to the Senior Creditor by any Junior Creditor in any circumstances not specifically required by the Junior Creditors shall not entitle the Senior Creditor to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder.
11. Additional Documents and Actions . The Junior Creditors at any time, and from time to time, after the execution and delivery of this Agreement, promptly will execute and deliver such further documents and do such further acts and things as the Senior Creditor reasonably may request in order to effect fully the purposes of this Agreement.
12. Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and shall be given only by, and shall be deemed to have been received upon: (a) registered or certified mail, return receipt requested, on the date on which such notice was received as indicated in such return receipt; (b) delivery by a nationally recognized overnight courier, one Business Day after deposit with such courier, or (c) facsimile or electronic transmission, in each case upon telephone or further electronic communication from the recipient acknowledging receipt (whether automatic or manual from recipient), as applicable.
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Notices shall be addressed as follows:
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If to the Junior Creditors: |
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Karen Singer |
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c/o Romulus Holdings |
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2200 Fletcher Avenue, Fifth Floor |
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Fort Lee, NJ 07024 |
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with copies to: |
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Andrews Kurth LLP |
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450 Lexington Avenue |
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New York, NY 10017 |
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Attention: |
Paul Silverstein, Esq. |
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Fax No: |
212-850-2929 |
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Milfam II Limited Partnership |
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4550 Gordon Drive |
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Naples, FL 34102 |
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Attention: |
Lloyd I. Miller, Managing Partner |
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with copies to: |
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Andrews Kurth LLP |
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450 Lexington Avenue |
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New York, NY 10017 |
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Attention: |
Paul Silverstein, Esq. |
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Fax No: |
212-850-2929 |
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(b) |
If to the US Obligors: |
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Evolving Systems, Inc. |
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9777 Pyramid Court |
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Suite 100 |
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Englewood, Colorado 80112 |
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Attention: |
Anita T. Moseley, General Counsel |
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Facsimile: |
(303) 802-1138 |
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(c) |
If to the Senior Creditor: |
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Bridge Bank, N.A. |
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55 Almaden Blvd. |
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San Jose, CA 95113 |
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Attn: Dan Pistone |
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FAX: (408) 423-8520 |
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or in any case, to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section 11 . A notice not given as provided above shall, if it is in writing, be deemed given if and when actually received by the party to whom given.
13. Severability . In the event that any provision of this Agreement is deemed to be invalid, illegal or unenforceable by reason of the operation of any law or by reason of the interpretation placed thereon by any court or governmental authority, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and the affected provision shall be modified to the minimum extent permitted by law so as most fully to achieve the intention of this Agreement.
14. Successors and Assigns . This Agreement shall inure to the benefit of the successors and assigns of the Senior Creditor and the Junior Creditors and shall be binding upon their respective successors and assigns and the US Obligors. Upon any lender (a Refinancing Lender ) refinancing all or any portion of the Senior Debt, such Refinancing Lender shall automatically be entitled to all the rights and powers of the Senior Creditor hereunder without the need for any further action on the part of any party hereto. The Senior Creditor, without notice to or consent of the Junior Creditors, may assign or transfer any or all of the Senior Debt or any interest therein to any Person and, notwithstanding any such assignment or transfer, or any subsequent assignment or transfer, the Senior Debt shall, subject to the terms hereof, be and remain Senior Debt for purposes of this Agreement, and every permitted assignee or transferee of any of the Senior Debt or of any interest therein shall, to the extent of the interest of such permitted assignee or transferee in the Senior Debt, be entitled to rely upon and be the third party beneficiary of the subordination provided under this Agreement and shall be entitled to enforce the terms and provisions hereof to the same extent as if such assignee or transferee were initially a party hereto. EACH OF THE JUNIOR CREDITORS AND THE US OBLIGORS ACKNOWLEDGES AND AGREES THAT THE SENIOR CREDITOR AT ANY TIME AND FROM TIME TO TIME MAY DIVIDE AND REISSUE (WITHOUT SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH DIVISION) THE NOTES EVIDENCING THE SENIOR DEBT, THE OBLIGATIONS UNDER THE CREDIT AGREEMENTS, THE COLLATERAL AND THE SENIOR DEBT DOCUMENTS TO ONE OR MORE OTHER PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS IN THE SENIOR DEBT DOCUMENTS. The term Senior Creditor in this Agreement include transferees and participants of the Senior Debt, Refinancing Lenders and any of their respective successors and assigns, each of which shall have all rights and benefits of Senior Creditor hereunder. Each transferee and participant of the Senior Debt (to the extent provided in the applicable Credit Agreement) shall have all of the rights and benefits with respect to the Obligations under the applicable Credit Agreement, the notes evidencing Senior Debt, the Collateral, this Agreement and the Senior Debt Documents held by it as fully as the original holder thereof.
15. Counterparts . This Agreement may be executed in one or more counterpart originals, which, taken together, shall constitute one fully-executed instrument. Any signature delivered by facsimile shall be deemed to be a counterpart original hereto.
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16. Defines Rights of Creditors; Obligors Obligations Unconditional . The provisions of this Agreement are solely for the purpose of defining the relative rights of the Junior Creditors, the Senior Creditor and shall not be deemed to create any rights or priorities in favor of any other Person, including, without limitation, any Obligor. As between the Obligors and the Senior Creditor, nothing contained herein shall impair the unconditional and absolute obligation of the Obligors to the Senior Creditor to pay the Senior Debt as such Senior Debt shall become due and payable in accordance with the Senior Debt Documents. As between ESI and the other US Obligors and the Junior Creditors, nothing contained herein shall impair the unconditional and absolute obligation of ESI or, if applicable, the other US Obligors to the Junior Creditors to pay the Junior Debt as such Junior Debt shall become due and payable in accordance with the Junior Debt Documents, subject to the terms of this Agreement.
17. Subrogation . After and subject to the indefeasible Payment in Full of the Senior Debt, and prior to the irrevocable and indefeasible repayment in full in cash of the Junior Debt, the Junior Creditors shall be subrogated to the rights of the Senior Creditor to the extent that payments and distributions otherwise payable to the Junior Creditors have been applied to the Senior Debt in accordance with the provisions of this Agreement. For purposes of such subrogation, no payments or distributions to the Senior Creditor of any cash, property or securities to which the Junior Creditors would be entitled except for the provisions of this Agreement, and no payments pursuant to the provisions of this Agreement to the Senior Creditor by the Junior Creditors, shall, as among the Obligors, their creditors (other than the Senior Creditor) and the Junior Creditors be deemed to be a payment or distribution by such Obligor to or on account of the Senior Debt; it being understood that the provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the Junior Creditors, on the one hand, and the Senior Creditor, on the other hand. The Senior Creditor shall have no obligation or duty to protect the Junior Creditors rights of subrogation arising pursuant to this Agreement or under any applicable law, nor shall the Senior Creditor be liable for any loss to, or impairment of, any subrogation rights held by the Junior Creditors.
18. Conflict . In the event of any conflict between any term, covenant or condition of this Agreement and any term, covenant or condition of any of the Junior Debt Documents or the Senior Debt Documents, the provisions of this Agreement shall control and govern.
19. Headings . The paragraph headings used in this Agreement are for convenience only and shall not affect the interpretation of any of the provisions hereof.
20. Termination . This Agreement shall terminate upon the indefeasible Payment in Full of the Senior Debt.
21. Choice of Law and Venue; Jury Trial Waiver . This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California, without regard to principles of conflicts of law. Each of Senior Creditor, the Junior Creditors and the Obligors, hereby submits to the non-exclusive jurisdiction of the state and Federal courts located in the County of Santa Clara, State of California. EACH OF SENIOR CREDITOR, THE JUNIOR CREDITORS AND THE OBLIGORS HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
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CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
If the jury waiver set forth in Section is not enforceable, then any dispute, controversy or claim arising out of or relating to this Agreement, or any of the transactions contemplated therein shall be settled by judicial reference pursuant to Code of Civil Procedure Section 638 et seq. before a referee sitting without a jury, such referee to be mutually acceptable to the parties or, if no agreement is reached, by a referee appointed by the Presiding Judge of the California Superior Court for Santa Clara County. This Section shall not restrict a party from exercising remedies under the Code or from exercising pre-judgment remedies under applicable law.
22. Waiver of Consolidation . Each of the Junior Creditors acknowledges and agrees that (i) the Obligors are each separate and distinct entities; and (ii) it will not at any time insist upon, plead or seek advantage of any substantive consolidation, piercing of the corporate veil or any other order or judgment that causes an effective combination of the assets and liabilities of the Obligors in any Proceeding under Debtor Relief Laws or other similar proceeding.
23. Defense to Enforcement Provision . If any of the Junior Creditors, in contravention of the terms of this Agreement, shall commence, prosecute or participate in any Proceeding or Collection Action with respect to the Junior Debt against any Obligor, then Senior Creditor may (i) intervene and interpose such defense or pleas in its name, and/or (ii) by virtue of this Agreement, restrain the enforcement thereof in the name of Senior Creditor. If any of the Junior Creditors, in contravention of the terms of this Agreement, obtains any cash or other assets of any Obligor as a result of any Proceeding or Collection Action with respect to the Junior Debt, such Junior Creditor agrees forthwith to pay, deliver and assign to the Senior Creditor, with appropriate endorsements, any such cash or other assets for application to the Senior Debt owing to Senior Creditor until the Senior Debt has been Paid in Full.
(Signatures appear on the following page.)
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IN WITNESS WHEREOF, the Junior Creditors, ESI and the Senior Creditor have caused this Subordination Agreement to be executed as of the date first above written.
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JUNIOR CREDITORS: |
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KAREN SINGER |
[Counterpart Signature Page to Subordination Agreement]
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JUNIOR CREDITORS: |
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MILFAM II LIMITED PARTNERSHIP |
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By: |
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Name: |
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Title: |
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[Counterpart Signature Page to Subordination Agreement]
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US OBLIGORS: |
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EVOLVING SYSTEMS, INC. |
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By: |
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Name: |
Brian R. Ervine |
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Title: |
Executive Vice President and Chief |
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Financial Officer |
[Counterpart Signature Page to Subordination Agreement]
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SENIOR CREDITOR: |
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BRIDGE BANK, N.A. |
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By: |
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Name: |
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Title: |
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[Counterpart Signature Page to Subordination Agreement]
Exhibit 10.1(i)
MASTER AMENDMENT
TO
SUBORDINATED NOTES
This Master Amendment to Subordinated Notes (this Amendment ) is entered into effective as of February 22, 2008 (the Effective Date ), by and among (i) Evolving Systems, Inc., a Delaware corporation ( Maker ) and (ii) the holders of the Subordinated Notes identified on the signature pages hereto (the Junior Creditors ).
Recitals
A. Maker, as borrower, Evolving Systems Holdings, Inc., as a guarantor, and CapitalSource Finance, LLC, as Agent and the existing Senior Lender thereunder, are party to that certain Credit Agreement dated as of November 14, 2005 (the Existing US Credit Agreement ), pursuant to which, among other things, the Existing Senior Lenders thereunder have made certain term loans and financial accommodations to Maker, as the borrower thereunder.
B. Evolving Systems Limited, certain other obligors, CSE Finance Inc., as Agent, and CapitalSource Finance, LLC, as the existing Senior Lender thereunder, have entered into a Revolving Facility Agreement dated as of November 14, 2005 (the Existing Revolving Loan Credit Agreement and together with the Existing US Credit Agreement, the Existing Credit Agreements ), pursuant to which, among other things, the Existing Senior Lenders thereunder have made certain revolving loans and financial accommodations to certain of the obligors thereunder.
C. Maker previously entered into certain unsecured subordinated notes each dated November 14, 2005 evidencing indebtedness in the aggregate original principal amount of $4,869,700.47 (as the same have been and may be further amended, supplemented or otherwise modified from time to time as permitted hereunder and under the Subordinated Agreement referred to below, together with all notes and other instruments issued in replacement thereof or substitution therefor, the Subordinated Notes ). Defined terms used in this Amendment and not defined in this Amendment have the respective meanings assigned to such terms in the Subordinated Notes.
D. In connection with and as a condition precedent to the execution of the Existing Credit Agreements, the Existing Agent, Existing Senior Lenders, Junior Creditors, Maker and the other US Obligors party thereto entered into that certain Subordination Agreement dated as of November 14, 2005 (the Existing Subordination Agreement ).
E. Maker and Bridge Bank, N.A. (the Refinancing Lender ) are entering into a Loan and Security Agreement dated the date hereof (as the same may be amended, supplemented, replaced, substituted, refinanced or otherwise modified from time to time, as permitted hereunder, the US Loan Agreement ), pursuant to which, among other things, the Refinancing Lender is agreeing, subject to the terms and conditions set forth therein, to make certain loans and financial accommodations to Maker, as borrower thereunder to, among other things, refinance Makers indebtedness under the Existing US Credit Agreement.
F. Evolving Systems Limited, an indirect wholly-owned Subsidiary of Maker, and the Refinancing Lender are entering into a Loan Agreement dated the date hereof (as the same may be amended, supplemented, replaced, substituted, refinanced or otherwise modified from time to time, as permitted hereunder, the UK Loan Agreement and together with the US Loan Agreement, the Credit Agreements ), pursuant to which, among other things, the Refinancing Lender is agreeing, subject to the terms and conditions set forth therein, to make certain revolving loans and financial accommodations to
Evolving Systems Limited to, among other things refinance the indebtedness under the Existing Revolving Loan Credit Agreement.
G. As an inducement to and as one of the conditions precedent to the agreement of the Refinancing Lender under the Credit Agreements to consummate the transactions contemplated thereby, the Refinancing Lender has required (i) the execution and delivery of a Subordination Agreement, dated as of the date hereof (as the same may be amended, supplemented, replaced, substituted, refinanced or otherwise modified from time to time, as permitted hereunder, the Subordination Agreement ) and (ii) the execution and delivery of this Amendment, in each case in order to replace and supersede the Existing Subordination Agreement and to subordinate the Subordinated Notes to the indebtedness under the Credit Agreements on the terms and subject to the provisions of the Subordination Agreement and the Subordinated Notes.
H. The Junior Creditors executing and delivering this Amendment constitute all of the holders of the Subordinated Notes.
NOW, THEREFORE, based upon the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Maker and each of the Junior Creditors hereby agree as follows:
1. Amendments to Subordinated Notes . Effective as of the Effective Date, each of the Subordinated Notes is hereby amended as follows:
(a) The legend at the top of the first page of each Subordinated Note is hereby amended and restated in its entirety as follows:
THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT ( AS THE SAME MAY BE AMENDED, SUPPLEMENTED, REPLACED, SUBSTITUTED, REFINANCED OR OTHERWISE MODIFIED FROM TIME TO TIME , THE SUBORDINATION AGREEMENT), DATED AS OF FEBRUARY 22, 2008, AMONG EVOLVING SYSTEMS, INC., A DELAWARE CORPORATION, THE OTHER OBLIGORS (AS DEFINED THEREIN), THE JUNIOR CREDITORS (AS DEFINED THEREIN), AND THE SENIOR CREDITOR (AS DEFINED THEREIN), ALL AS MORE PARTICULARLY DESCRIBED IN THE SUBORDINATION AGREEMENT, AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
(b) The definition of ESI Entities is hereby amended and restated in its entirety as follows:
ESI Entities shall mean each individually and all collectively, Maker, Evolving Systems, Ltd., Evolving Systems Holdings, Ltd. and all guarantors of the Senior Debt (as defined in the Subordination Agreement) or the Notes, if any.
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(c) The definition of Revolving Loan Availability is hereby amended and restated in its entirety as follows:
Revolving Loan Availability shall mean, with respect to any Quarterly Payment Date, the lesser of (i) the average daily amount of availability under the revolving credit facilities in the Senior Credit Agreements for the last calendar month of the applicable fiscal quarter and (ii) $4,500,000.
(d) The definition of Revolving Loan Credit Agreement is hereby replaced in its entirety with the following definition of UK Loan Agreement, and each reference in the Subordinated Notes to Revolving Loan Credit Agreement shall hereafter mean and refer to UK Loan Agreement:
UK Loan Agreement shall mean the Loan Agreement, dated as of February 22, 2008, between Evolving Systems Limited, as borrower, and Bridge Bank, N.A., as lender, as the same may be amended, supplemented, replaced, substituted, refinanced or otherwise modified from time to time (subject to any applicable restrictions contained in the Subordination Agreement).
(e) The definition of Senior Credit Agent is hereby replaced in its entirety with the following definition of Senior Creditor, and each reference in the Subordinated Notes to Senior Credit Agent or Senior Agent shall hereafter mean and refer to Senior Creditor:
Senior Creditor shall mean Bridge Bank, N.A., together with its successors and permitted assigns pursuant to the terms of the Senior Credit Agreements and the Subordination Agreement.
(f) The definition of Senior Credit Agreements is hereby amended and restated in its entirety as follows:
Senior Credit Agreements shall mean collectively the US Loan Agreement and the UK Loan Agreement.
(g) The definition of Subordination Agreement is hereby amended and restated in its entirety as follows:
Subordination Agreement shall mean that certain Subordination Agreement, dated as of February 22, 2008, among Maker, the other obligors named therein, the Senior Creditor and the holders of the Notes party thereto, as the same may be amended, supplemented, replaced, substituted, refinanced or otherwise modified from time to time in accordance with its terms.
(h) The definition of Term Loan Agreement is hereby replaced in its entirety with the following definition of US Loan Agreement, and each reference in the Subordinated Notes to Term Loan Agreement shall hereafter mean and refer to US Loan Agreement:
US Loan Agreement shall mean the Loan and Security Agreement, dated as of February 22, 2008, between Maker and Bridge Bank, N.A., as lender, as the same may be amended, supplemented, replaced, substituted, refinanced or otherwise modified from time to time (subject to any applicable restrictions contained in the Subordination Agreement).
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Subordinated Notes remains in full force and effect is hereby ratified in its entirety by the undersigned. If there is a conflict between the terms of this Amendment and those of any of the Subordinated Notes, the terms of this Amendment shall
2. Effect of Amendments . Except as expressly amended by this Amendment, each of the control. All references in any document to any one or more of the Notes shall mean and refer to the applicable Notes, as amended pursuant to this Amendment. This Amendment shall be binding on all current and future holders of the Subordinated Notes and their respective successors and permitted assigns, regardless of whether any or all such parties, successors or assigns have entered into or otherwise approved or consented to this Amendment.
3. Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signatures to this Amendment may be transmitted via facsimile or .pdf file, and such signatures shall be deemed to be originals.
4. Governing Law . This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto have executed, or caused their duly authorized representatives to execute, this Master Amendment to Subordinated Notes to be effective as of Effective Date.
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EVOLVING SYSTEMS, INC. |
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Brian R. Ervine |
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Executive Vice President and Chief Financial |
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and Administrative Officer |
[Counterpart Signature Page to Master Amendment to Subordinated Notes]
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JUNIOR CREDITORS: |
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KAREN SINGER |
[Counterpart Signature Page to Master Amendment to Subordinated Notes]
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JUNIOR CREDITORS: |
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MILFAM II LIMITED PARTNERSHIP |
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[Counterpart Signature Page to Master Amendment to Subordinated Notes]
Exhibit 10.2
Standstill Agreement
This STANDSTILL AGREEMENT, dated February 25, 2008 (the Agreement ), is by and between Evolving Systems, Inc., a Delaware corporation (the Company ), and Karen Singer, as Trustee of the Singer Childrens Management Trust (the Stockholder and, together with the Stockholders Affiliates (as defined below) and Associates (as defined below) from time to time, the Singer Group ).
WHEREAS, the Stockholder is the beneficial owner of 2,592,528 shares of common stock, par value $0.001 per share, of the Company (the Common Stock ); and
WHEREAS, the Stockholder intends to acquire (such acquisition, the Share Acquisition ) 500,000 shares of common stock resulting from the conversion of Series B Redeemable Convertible Preferred Stock of the Company owned by Apax WW Nominees Ltd a/c AE4 ( Apax ), which acquisition is expected to be consummated following the execution of this Agreement; and
WHEREAS, the Stockholder has requested that the Company approve the Share Acquisition and waive the applicability of Section 203 of the Delaware General Corporation Law, as amended ( Section 203 ), and the Company wishes to grant such approval and waiver on the terms and conditions set forth in this Agreement; and
WHEREAS, the Stockholder wishes, and the Company has agreed to take such actions, to increase the number of directors constituting the board of directors of the Company (the Board ) by two (2) independent directors to nine (9) directors.
NOW, THEREFORE, in consideration of the premises, mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Stockholder, on behalf of the Singer Group, and the Company hereby agree as follows:
Section 1. Representations .
Section 2. Stockholder Director Nominations . As soon as practicable after the date hereof, the Board will (a) increase the size of the Board from seven (7) members to nine (9) members and (b) appoint two individuals proposed by the Stockholder (each a Singer Nominee), designating one of the newly created directorships for the class of directors to be elected at the 2008 Annual Meeting of the Stockholders of the Company (such class of directors, the 2008 Class ) and the other newly created directorship to be elected at the 2010 Annual Meeting of Stockholders (such class of directors, the 2010 Class ). Each such Singer Nominee shall, immediately upon his or her appointment to the Board as aforesaid, in all respects be, and be deemed to be, a full member of the Board having all voting and other rights appurtenant to such membership under the Companys Certificate of Incorporation, By-laws and otherwise. Upon his or her appointment as aforesaid, the Singer Nominee in the 2008 Class shall serve on the Board until the 2008 Annual Meeting of Stockholders, and at such 2008 Annual Meeting of Stockholders, such Singer Nominee shall be nominated by the Company as provided in the next sentence of this Section 2. The Company further agrees to nominate the Singer Nominee in the 2008 Class for election as a director of the Company at its 2008 Annual Meeting of Stockholders and use its reasonable best efforts to cause the election of the 2008 Singer Nominee to the Board of the Company for a three year term ending in 2011 and until his or her successor is duly elected and qualified. Upon his or her appointment as aforesaid, the Singer Nominee in the 2010 Class shall serve until the later of the date on which the Standstill Period expires or the date of the 2010 Annual Meeting of Stockholders. Notwithstanding the foregoing, the Board shall have no obligation to appoint such individuals to the Board if the Board determines in its reasonable discretion that either or both of such proposed Singer Nominees does not meet the requirements of an independent director under the then applicable NASDAQ listing standards or is otherwise determines in the exercise of such reasonable discretion that either or both of such proposed Singer Nominee are not qualified or acceptable to serve as a director of the Company. As a condition to the nomination to the Board of each of the Singer Nominees, each Singer Nominee shall execute and deliver a customary confidentiality agreement of the Company for such purposes and shall agree in writing to be bound by the terms and conditions of the Companys policies applicable to all directors, including, without limitation, the Companys Code of Business Conduct and insider trading policies as amended and in effect from time to time. Notwithstanding the foregoing, at and after such time after the date of this Agreement that the Stockholder beneficially owns ten percent
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(10%) or less of the outstanding shares of Common Stock, the obligations of the Company under this Section 2 shall terminate and be of no further force or effect.
Section 3. Voting .
Section 4. Additional Standstill Arrangements . During the Standstill Period and so long as there is no failure of the Company to be in compliance in all respects with the applicable material provisions of this Agreement, none of the Singer Group will, without the written consent of the Company, directly or indirectly, solicit, request, advise, assist or encourage others (other than exercising their rights to vote their respective Shares at an annual or special meeting of the stockholders of the Company, in each instance in compliance with the terms of this Agreement), to (a) effect, seek or offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way solicit or assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any assets of the Company or any of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries; or (iv) any solicitation of proxies (as such terms are used in the proxy rules promulgated by the SEC) or consent to vote any voting securities of the Company;
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(b) form, join, encourage, influence, advise or in any way participate in a group (as defined under the Exchange Act); (c) except as otherwise expressly provided herein, otherwise act, alone or in concert with others, to seek to control or influence the management, the Board or policies of the Company; (d) except as described in Section 2, nominate any person as a director of the Company or propose any matter to be voted on by stockholders of the Company; or (e) take any action which would reasonably be expected to force the Company to make a public announcement regarding any types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Stockholder also agrees that during the Standstill Period not to request the Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing provisions of this Section 4 or any other provision of this Agreement, if at any time or from time to time any third party or third parties (collectively, a Third Party) other than as a result of the direct or indirect solicitation, request, advice, assistance or encouragement of any member of the Singer Group, effects, seeks or offers or proposes to effect seek or offers or participates in, or in any way assists any other person, to effect, seek, offer, propose or participate in, any of the acts or activities (the Activities) referred to in items (i), (ii) (iii) and/or (iv) of clause (a) of the first sentence of this Section 4, then, so long as any one or more members of the Singer Group shall have given not less than 15 calendar days advance notice to the Chief Executive Officer of the Company of such member or members intention to communicate with the Third Party or the Board of the Company, such member or members of the Singer Group shall be free to communicate directly with the Board of the Company and/or such Third Party on a confidential, non-public basis in all respects about the Activities, including, without limitation, either in support of or in opposition to the Activities. Any one or more members of the Singer Group who wish to communicate with a Third Party and who will receive material non-public information about the Company in connection with such communication shall, before receiving such information, enter into a written non-disclosure agreement with the Company and such Third Party in form and substance mutually acceptable to the parties thereto.
Section 5. Press Releases and Other Public Statements . During the Standstill Period the Company and the Stockholder agree as follows:
Section 6. Remedies . Each party hereto hereby acknowledges and agrees that irreparable harm would occur in the event any of the provisions of this Agreement were not performed in accordance with
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their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to specific relief hereunder, including, without limitation, an injunction or injunctions to prevent and enjoin breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in any state or federal court in the State of Delaware or in any state or federal court in the State of Colorado, in addition to any other remedy to which they may be entitled at law or in equity. Any requirements for the securing or posting of any bond with such remedy are hereby waived.
Section 7. Amendment; Waiver . Any provision of this Agreement may be amended or waived, if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment by all parties hereto, or in the case of a waiver, by the party hereto against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
Section 8. No Assignment or Benefit to Third Parties . The Stockholder may not assign, or cause to be assigned, any of its rights under this Agreement or delegate, or cause to be delegated, any of the obligations relating to the Singer Group under this Agreement by operation of law or otherwise, without the prior written consent of the Company. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Stockholder and the Company and their respective permitted successors and permitted assigns, any right or remedy under or by reason of this Agreement.
Section 9. Entire Agreement . This Agreement, together with the schedule hereto, contain the entire understanding of the parties with respect to the subject matter hereof and may be amended only by an agreement in writing executed by the parties hereto.
Section 10. Notices . All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be validly given, made or served, if in writing and sent by U.S. registered mail, return receipt requested, by facsimile, with written confirmation of receipt, or by electronic mail in portable document format, with written confirmation of receipt:
if to the Company:
Evolving Systems, Inc.
9777 Pyramid Court
Suite 100
Englewood, Colorado 80112
Facsimile: (303) 802-1138
Email: Anita.Moseley@evolving.com
Attention: General Counsel
with a copy to:
Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, Colorado 80203
Facsimile: (303) 866-0200
Email: charles.maguire@hro.com
Attention: Charles D. Maguire, Jr.
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if to the Stockholder:
Karen Singer
c/o Romulus Holdings
2200 Fletcher Avenue, Fifth Floor
Fort Lee, NJ 07024
with copies to:
Andrews Kurth LLP
450 Lexington Avenue
New York, NY 10017
Attention: Charles Uniman, Esq.
Fax No: 212-850-2929
Section 11. Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to any conflict of laws provisions thereof. Each party hereto, on behalf of itself and its Affiliates and Associates, hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the State of Delaware and/or the courts of the United States of America located in the State of Delaware, for any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and agree not to commence any action, suit or proceeding related thereto except in such courts. Each party hereto, on behalf of itself and its Affiliates and Associates, hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the courts in the State of Delaware and/or the courts of the United States of America located in the State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding in any such court has been brought in any inconvenient forum.
Section 12. Counterparts . This Agreement may be executed and delivered (including without limitation by facsimile or PDF signature) in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 13. No Presumption Against Draftsman . Each party hereto hereby acknowledges that the parties hereto fully negotiated the terms of this Agreement, that each such party had an equal opportunity to influence the drafting of the language contained in this Agreement and that there shall be no presumption against any such party on the ground that such party was responsible for preparing this Agreement or any part hereof.
Section 14. Enforceability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties hereto that the parties hereto would have executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid, void or unenforceable. In addition, the parties hereto shall use best efforts to agree upon and substitute a valid and enforceable term, provision, covenant or restriction for any such that is held invalid, void or unenforceable by a court of competent jurisdiction.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or caused the same to be executed by its duly authorized representative as of the date first above written.
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EVOLVING SYSTEMS, INC. |
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By: |
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Thaddeus Dupper |
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President & CEO |
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STOCKHOLDER |
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Karen Singer, Trustee for Singer Childrens Management Trust |
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