EXHIBIT 4.7


 


EXECUTION COPY


 


TRADEMARK
SECURITY AGREEMENT


 


TRADEMARK SECURITY AGREEMENT, dated as of
this 2nd day of November, 2004, by and between Evolving Systems, Inc., a
Delaware corporation (the “Maker”), and Advent International
Corporation, a Delaware corporation, as collateral agent (in such capacity, “Collateral
Agent”) for the holders of the Notes (defined below) from time to time
(each individually a “Payee” and collectively, the “Payees”).


 


WHEREAS, the Maker has executed and delivered
the following notes in favor of Payees: 
(i) the Senior Secured Note dated of even date herewith in the original
principal amount of $4,000,000 (as the same may be amended, restated, or
modified from time to time, the “Initial Short Term Note”) and (ii) the
Senior Secured Notes dated of even date herewith in the aggregate original
principal amount of $11,950,000 (consisting of a non-escrow note in the
original principal amount of $10,355,000 and an escrow note in the original
principal amount of  $1,595,000) (as the
same may be amended, restated, modified or replaced in substitution from time
to time, the “Initial A Notes”);


 


WHEREAS, the Maker may execute and deliver in
the future the following notes in favor of Payees:  (i) additional Senior Secured Notes to assignees
of the holder of the Initial Short Term Note (as they may be amended, restated,
modified or replaced in substitution from time to time, the “Additional
Short Term Notes” and collectively with the Initial Short Term Note, the “Short
Term Notes”); (ii) additional Senior Secured Notes to assignees of the
holder of the Initial A Notes, including, without limitation, any additional
payment in kind notes as of a later date in the same form (as they may be
amended, restated, modified or replaced in substitution from time to time, the “Additional
A Notes”  and collectively with the
Initial A Notes, the “A Notes”); (iii) additional Senior Secured Notes
in exchange for the A Notes in an aggregate original principal amount to be
determined (as they may be amended, restated, or modified from time to time,
the “B-1 Notes”); and (iv) Senior Secured Convertible Notes in exchange
for the A Notes in an aggregate original principal amount to be determined (as
they may be amended, restated, or modified from time to time, the “Convertible
Notes”, and together with the Short Term Notes, the A Notes and the B-1
Notes, each individually a “Note” and collectively the “Notes”);
and


 


WHEREAS, the
Maker, now owns or has rights in or may hereafter acquire or have rights in “Trademarks”
(defined as all of the following: all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names,
trade dress, logos, other source of business identifiers and general
intangibles of like nature, now existing or hereafter adopted or acquired by
Maker, all registrations thereof or similar property rights, and all
applications in connection therewith, including, without limitation,
registrations and applications in the United States Patent and Trademark Office
or in any similar office or agency of the United States, any state thereof or
any other country or any political subdivision thereof, and all renewals
thereof) including, without limitation, the Trademarks listed on Schedule A
annexed hereto, as such Schedule may be amended from time to time by the
addition of Trademarks subsequently registered or otherwise adopted or
acquired; and


 


WHEREAS, pursuant to the terms of the
Security Agreement, dated on or about the date hereof (the “Security
Agreement”), the Maker has granted to the Collateral Agent (for the benefit
of itself and the Payees) a security interest in all right, title and interest
of the Maker in and to all personal property whether now owned, presently
existing or hereafter acquired or created, including, without


 





















 


limitation, all right, title and interest of
the Maker in, to and under all Trademarks whether now owned, presently existing
or hereafter arising, acquired or created, and all proceeds thereof or income
therefrom, to secure the payment and performance of the “Obligations”
(as defined in the Security Agreement).


 


NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Maker does, as security for the Obligations, hereby grant to the Collateral
Agent (for the benefit of itself and the Payees) a continuing security interest
in all of the Maker’s right, title and interest in, to and under the following
(all of the following items or types of property being collectively referred to
herein as the “Trademark Collateral”), whether presently existing or
hereafter arising or acquired:


 


(i)            each Trademark and all of the
goodwill of the business connected with the use of, and symbolized by, each
Trademark, including, without limitation, each Trademark referred to in
Schedule A annexed hereto; and


 


(ii)           all products and proceeds of,
and income from, any of the foregoing, including, without limitation, any claim
by any Maker against third parties for the past, present or future infringement
or dilution of any Trademark or for injury to the goodwill associated with any
Trademark.


 


The term “Trademark Collateral” shall not
include any U.S. trademark or service mark application, to the extent the
security interest granted hereunder would cause the invalidation of such
trademark or service mark application, until such time as a statement to allege
use (or the equivalent) with respect thereto has been filed with, and accepted
by, the United States Patent and Trademark Office.


 


The Maker agrees to deliver updated copies of
Schedule A to the Collateral Agent at the end of any fiscal quarter in which
the Maker registers or otherwise adopts or acquires any Trademark not listed on
Schedule A hereto, and to execute and deliver to the Collateral Agent a
supplemental Trademark Security Agreement in form and substance reasonably
satisfactory to the Collateral Agent, modified to reflect such subsequent
acquisitions and registrations.  The Maker further agrees, upon the reasonable request
of the Collateral Agent and at the Collateral Agent’s option, to take any and
all other actions as the Collateral Agent may determine to be necessary or
useful for the attachment, perfection and first priority of, and the ability of
the Collateral Agent to enforce, the Collateral Agent’s security interest in
any and all of the Trademark Collateral.


 


Upon the occurrence and during the
continuance of an Event of Default (as defined in the Security Agreement), the
Maker agrees that if any person, firm, corporation or other entity shall do or
perform any acts which the Collateral Agent believes constitute an infringement
of any Trademark, or violate or infringe any right of the Maker, the Collateral
Agent or the Payees therein or if any person, firm, corporation or other entity
shall do or perform any acts which the Collateral Agent believes constitute an
unauthorized or unlawful use thereof, then the Collateral Agent may and shall
have the right to take such steps and institute such suits or proceedings as
the Collateral Agent may deem advisable or necessary to prevent such acts and
conduct and to secure damages and other relief by reason thereof, and to
generally take such steps as may be advisable or necessary or proper for the
full protection of the rights of the parties. 
The Collateral Agent may take such steps or institute such suits or
proceedings in its own name or in the name of the Maker or in the names of the
parties jointly.


 


This security interest is granted in
conjunction with the security interests granted to the Collateral Agent (for
the benefit of the Payees) pursuant to the Security Agreement.  The Maker does hereby further acknowledge and
affirm that the rights and remedies of the Collateral Agent (for the benefit of
itself and the Payees) with respect to the security interest in the Trademark
Collateral made and


 


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granted hereby are subject to,
and more fully set forth in, the Security Agreement, the terms and provisions
of which are incorporated by reference herein as if fully set forth herein.


 


This Trademark Security Agreement is made for
collateral purposes only.  Until the
Termination Date (as defined in the Security Agreement), the Collateral Agent
(on behalf of itself and the Payees), shall execute and deliver to the Maker at
the Maker’s expense, without representation, warranty or recourse, all releases
and reassignments, termination statements and other instruments as may be
necessary or proper to terminate the security interest of the Collateral Agent (for
the benefit of itself and the Payees) in the Trademark Collateral, subject to
any disposition thereof which may have been made by the Collateral Agent
pursuant to the terms hereof or of the Security Agreement.


 


So long as no Event of Default shall have
occurred and be continuing, and subject to the provisions of this Trademark
Security Agreement, the Security Agreement and the Notes, the Maker may use,
license and exploit the Trademark Collateral in any lawful manner not otherwise
prohibited hereunder, under the Security Agreement and under the Notes.


 


THIS TRADEMARK SECURITY AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ANY CONFLICT OF LAWS
PRINCIPLES.


 


This Trademark Security Agreement and the security interest created
hereby shall terminate upon the Termination Date and all rights to the
Trademark Collateral shall revert to the Maker. 
Upon such termination, the Collateral Agent shall at the Maker’s expense
(a) deliver to the Maker all Trademark Collateral in the Collateral Agent’s
possession or control and all instruments of assignment executed in connection
therewith, free and clear of the liens hereof and (b) take such other actions
and execute and deliver such other documents and instruments, as may be reasonably
requested by the Maker, in order to evidence the termination of this Trademark
Security Agreement and to release any lien or security interest in any
Trademark Collateral securing the Obligations.


 


In the event
of a conflict between this Trademark Security Agreement and the Security
Agreement, the provisions of the Security Agreement will govern.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, the Maker has caused this
Trademark Security Agreement to be duly executed as of the date first above
written.


 


	
   

  	
  EVOLVING
  SYSTEMS , INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ STEPHEN
  K. GARTSIDE, JR.

  	
   

  
	
   

  	
  Name:
  Stephen K. Gartside, Jr.

  
	
   

  	
  Title:
  President and CEO

  
	
   

  	
   

  
	
  Acknowledged and Agreed:

  	
   

  
	
   

  	
   

  
	
  Advent International Corporation, as Collateral
  Agent

  	
   

  
	
   

  	
   

  
	
  By 

  	
  /s/ JANET L. HENNESSY

  	
   

  	
   

  
	
   

  	
  Name: Janet L. Hennessy

  	
   

  	
   

  
	
   

  	
  Title: Vice President

  	
   

  	
   

  



 


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  STATE OF KINGDOM
  OF  ENGLAND

  	
  )

  	
   

  
	
   

  	
  :

  	
  ss.:

  
	
  COUNTY OF CITY
  OF  LONDON

  	
  )

  	
   

  



 


On the 2nd day of November, in the year 2004,
before me personally came Stephen Krone Gartside, Jr., , to me known, who, being
by me sworn, did say that he is the President of Evolving Systems, Inc.,
which corporation is described in, and which corporation executed the above
instrument, and that s/he signed his/her name by order of the Board of
Directors of said corporation.


 


	
   

  	
  /s/ E.F.F.
  FOGAN

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
   

  	
  Notary
  Public of London, England

  
	
   

  	
   

  
	
   

  	
  (My
  commission expires at death)

  
	
   

  	
   

  
	
   

  	
   

  
	
  (SEAL)