Exhibit 10.1(d)
ACKNOWLEDGMENT OF
INTELLECTUAL PROPERTY COLLATERAL LIEN
This Acknowledgment of Intellectual Property Collateral Lien (this “Acknowledgment”) is dated as of November 14, 2005, by each of Evolving Systems, Inc., a Delaware corporation (“ESI”), Telecom Software Enterprises, LLC, a Colorado limited liability company (“TSE”) and Evolving Systems Holdings, Inc. (“ESH,” and together with ESI and TSE, individually and collectively, the “Grantor”), in favor of CapitalSource Finance LLC, a Delaware limited liability company, as Agent for the Lenders (as defined below) under the Loan Agreements (as defined below) (in such capacities, “Secured Party”).
W I T N E S S E T H:
WHEREAS, pursuant to (i) that certain Credit Agreement (as the same exists and may be amended, restated, supplemented, extended, renewed, replaced or otherwise modified from time to time, the “US Loan Agreement”), dated as of the date hereof, among Grantor, the other Credit Parties named therein, Secured Party and the Lenders named therein (the “US Lenders”) and (ii) that certain Revolving Facility Agreement (as the same exists and may be amended, restated, supplemented, extended, renewed, replaced or otherwise modified from time to time, the “UK Loan Agreement,” and together with the US Loan Agreement, the “Loan Agreements”), dated as of the date hereof, among Evolving Systems Ltd., Evolving Systems Holdings Ltd, the other Credit Parties named therein, Secured Party, as Agent, and the Lenders named therein (the “UK Lenders,” and together with the US Lenders, the “Lenders”), the Lenders have agreed to provide loans to each of the Borrowers under the Loan Agreements; and
WHEREAS, pursuant to the terms of the Security Agreement (as defined in the Loan Agreement), Grantor granted to Secured Party, for itself and the benefit of the Lenders, certain liens on the Collateral to secure its Obligations (as defined in the Security Agreement) under the Loan Agreement and the Guaranty (as defined in the Security Agreement); and
WHEREAS, pursuant to the terms of the Security Agreement, Grantor is required to execute and deliver this Acknowledgment in favor of Secured Party, for itself and the benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce Secured Party and Lenders to enter into the Loan Documents and to make the loans thereunder, Grantor hereby agrees with Secured Party as follows:
Section 1. Defined Terms. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Security Agreement or, to the extent the same are used or defined therein, the meanings provided in Article 9 of the UCC in effect on the date hereof. Whenever the context so requires, each reference to gender includes the masculine and feminine, the singular number includes the plural and vice versa. This Acknowledgment shall mean such agreement as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, from time to time. Unless otherwise specified, all accounting terms not defined in the Loan Documents shall have the meanings given to such terms in and shall be interpreted in accordance with GAAP.
References in this Acknowledgment to any Person shall include such Person and its successors and permitted assigns.
Section 2. Reaffirmation of Grant of Security Interest in Intellectual Property Collateral. Grantor, as collateral security for the full, prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations of Grantor, hereby reaffirms its grant to Secured Party, for itself and the benefit of the Lenders, of a first priority security interest in the Collateral, and further collaterally assigns, conveys, mortgages, pledges, hypothecates and transfers to Secured Party, for itself and the benefit of the Lenders, and grants to Secured Party, for itself and the benefit of the Lenders, a lien on and security interest in all of its right, title and interest in, to and under the following Collateral of Grantor (herein referred to as “Intellectual Property Collateral”):
(a) all of its owned Trademarks and any Trademark Licenses to which it is a party, including those referred to on Schedule I hereto;
(i) all renewals, reissues, continuations or extensions of the foregoing;
(ii) all goodwill of the business connected with the use of, and symbolized by, each Trademark and each Trademark License;
(iii) all Proceeds of the foregoing, including any claim by Grantor against third parties for past, present, future (i) infringement or dilution of any Trademark or Trademark licensed under any Trademark License or (ii) injury to the goodwill associated with any Trademark or any Trademark licensed under any Trademark License;
(b) all of its Copyrights and any Copyright Licenses to which it is a party, including those referred to on Schedule II hereto;
(i) all renewals, reissues, continuations or extensions of the foregoing; and
(ii) all Proceeds of the foregoing, including any claim by Grantor against third parties for past, present, future infringement or dilution of any Copyright or Copyright licensed under any Copyright License; and
(c) all of its Patents and any Patent Licenses to which it is a party, including those referred to on Schedule III hereto;
(i) all renewals, reissues, continuations or extensions of the foregoing; and
(ii) all Proceeds of the foregoing, including any claim by Grantor against third parties for past, present or future infringement or dilution of any Patent or any Patent licensed under any Patent License.
Section 3. Acknowledgment. The security interests reaffirmed herein are granted in conjunction with the security interest granted to Secured Party, for itself and the benefit of the Lenders, pursuant to the Security Agreement and Grantor hereby acknowledges and affirms that the rights and remedies of Secured Party and Lenders with respect to the security interest in the Intellectual Property Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein
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as if fully set forth herein. To the extent that there is any conflict or inconsistency between this Acknowledgment and the Security Agreement, the terms and conditions of the Security Agreement shall govern.
IN WITNESS WHEREOF, Grantor has caused this Acknowledgment of Intellectual Property Collateral Lien to be executed and delivered by its duly authorized offer as of the date first set forth above.
EVOLVING SYSTEMS, INC., as a Grantor |
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By: | /s/Brian R. Ervine | |
Name: Brian R. Ervine |
Title: Executive Vice President, Chief Financial and Administrative Officer |
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TELECOM SOFTWARE ENTERPRISES, LLC, as a Grantor |
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By: | /s/Brian R. Ervine | |
Name: Brian R. Ervine |
Title: Executive Vice President, Chief Financial and Administrative Offic |
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EVOLVING SYSTEMS HOLDINGS, INC., as a Grantor |
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By: | /s/Brian R. Ervine | |
Name: Brian R. Ervine |
Title: Executive Vice President, Chief Financial and Administrative Offic |
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Accepted and Agreed: |
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CAPITALSOURCE FINANCE LLC, as Secured Party |
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By: | /s/Steven A. Museles | |
| Name: Steven A. Museles |
| Title: Senior Vice President |
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SCHEDULE I
to
ACKNOWLEDGMENT OF INTELLECTUAL PROPERTY LIEN
TRADEMARK REGISTRATIONS
A. REGISTERED TRADEMARKS
Including Mark Reg. No. and Date
Type of
Trademark | | Jurisdiction | | Number | | Holder | | Date
Granted | | Description |
| | | | | | | | | | |
Service Mark | | United States | | 2,197,486 | | Evolving Systems, Inc. | | Oct. 20, 1998 | | Evolving Systems |
| | | | | | | | | | |
Trademark | | United States | | 2,355,550 | | Evolving Systems, Inc. | | June 6, 2000 | | Evolving Systems |
| | | | | | | | | | |
Trademark | | United States | | 2,357,983 | | Evolving Systems, Inc. | | June 13, 2000 | | Evolving Systems Logo (design)
 |
| | | | | | | | | | |
Trademark | | United States | | 2,196,447 | | Evolving Systems, Inc. | | Oct. 13, 1998 | | OrderPath |
| | | | | | | | | | |
Trademark | | United States | | 2,510,765 | | Evolving Systems, Inc. | | Nov. 20, 2001 | | NumberManager |
| | | | | | | | | | |
Trademark | | United States | | 2,673,290 | | Evolving Systems, Inc. | | Jan. 7, 2003 | | NumeriTrack |
| | | | | | | | | | |
Trademark and Service Mark | | United States | | 2,388,101 | | Evolving Systems, Inc. | | Sept. 19, 2000 | | What the World of Telecom is Coming to |
| | | | | | | | | | |
Trademark Supplemental Register | | United States | | 1,836,474 | | Evolving Systems, Inc. | | May 10, 1994 | | Evolving Systems |
| | | | | | | | | | |
Trademark | | United States | | 2,930,141 | | Evolving Systems, Inc. | | March 8, 2005 | | ServiceXpress |
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Trademark | | Canada | | TMA0530757 | | Evolving Systems, Inc. | | Aug. 3, 2000 | | EVOLVING SYSTEMS and Design |
| | | | | | | | | | |
Trademark | | Canada | | TMA0530911 | | Evolving Systems, Inc. | | Aug. 9, 2000 | | EVOLVING SYSTEMS |
| | | | | | | | | | |
Trademark | | Canada | | TMA0530826 | | Evolving Systems, Inc. | | Aug. 8, 2000 | | NODEMASTER |
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Trademark | | Canada | | TMA0530777 | | Evolving Systems, Inc. | | Aug. 7, 2000 | | NUMBERMANAGER |
| | | | | | | | | | |
Trademark | | Canada | | TMA0530912 | | Evolving Systems, Inc. | | Aug. 9, 2000 | | ORDERPATH |
| | | | | | | | | | |
Trademark | | Canada | | TMA0530778 | | Evolving Systems, Inc. | | Aug. 7, 2000 | | WHAT THE WORLD OF TELECOM IS COMING TO |
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Trademark | | European Community | | 2350692 | | Evolving Systems, Inc. | | Sept. 16, 2002 | | OmniPresence Server |
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Trademark | | State of Colorado | | 19991083946 | | Telecom Software Enterprises, LLC | | May 3, 1999 | | ServiceLink |
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Trademark | | State of Colorado | | 19991083945 | | Telecom Software Enterprises, LLC | | May 3, 1999 | | LNP WebLink |
B. TRADEMARK APPLICATIONS
None
C. TRADEMARK LICENSES
None.
D. LIST OF URLS/DOMAIN NAMES:
evolving.com
evolvinglearning.com
telecomse.com
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SCHEDULE II
to
ACKNOWLEDGMENT OF INTELLECTUAL PROPERTY LIEN
COPYRIGHT REGISTRATIONS
A. REGISTERED COPYRIGHTS
Including Copyright Reg. No. and Date
None.
B. COPYRIGHT APPLICATIONS
None.
C. COPYRIGHT LICENSES
Including Name of Agreement, Parties and Date of Agreement
None.
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SCHEDULE III
to
ACKNOWLEDGMENT OF INTELLECTUAL PROPERTY LIEN
PATENT REGISTRATIONS
A. REGISTERED PATENTS
County | | Holder | | Name | | Registration
Number | |
| | | | | | | |
United States | | Evolving Systems, Inc. | | Systems and Method for Providing Network Element Management Functionality for Managing and Provisioning Network Elements Associated with Number Portability | | 6,122,362 | |
| | | | | | | |
United States | | Evolving Systems, Inc. | | Systems and Methods for Providing Order and Service Mediation for Telecommunications Systems | | 6,169,793 B1 | |
| | | | | | | |
United States | | Evolving Systems, Inc. | | Apparatus and Method for Extracting Presence, Location and Availability Data from a Communication Device Deployed in a Network | | 6,662,015 B2 | |
B. PATENT LICENSES
None.
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SCHEDULE III
to
ACKNOWLEDGMENT OF INTELLECTUAL PROPERTY LIEN
PATENT REGISTRATIONS
A. PATENT APPLICATIONS
County | | Applicant | | Name | | Application
Number |
| | | | | | |
United States | | Evolving Systems, Inc. | | Presence, Location and Availability Communication System and Method | | 10/144,107 |
| | | | | | |
United States | | Evolving Systems, Inc. | | Test Harness for Enterprise Application Integration Environment | | 10/665,076 |
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