Exhibit 10.1(g)


 


 


	
   

  	
  DATED

  	
  14 November 2005

  



 


 


(1) EVOLVING SYSTEMS HOLDINGS, INC.


(as Company)


 


- and -


 


(2) CAPITALSOURCE FINANCE LLC


(as Collateral Agent)


 


 


CHARGE OVER SHARES


(UK Secured Obligations)


 





















 


CONTENTS


 


	
  1.

  	
  DEFINITIONS AND
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  COVENANT TO PAY

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  GRANT OF SECURITY

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CONTINUING SECURITY

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  LIABILITY OF THE
  COMPANY RELATING TO SECURITY ASSETS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  REPRESENTATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  UNDERTAKINGS BY THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  RIGHTS AND OBLIGATIONS IN
  RESPECT OF CHARGED INVESTMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  POWER TO REMEDY

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  WHEN SECURITY BECOMES
  ENFORCEABLE

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  ENFORCEMENT OF SECURITY

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  RECEIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  POWERS OF RECEIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  APPLICATION OF PROCEEDS

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  SET-OFF

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  DELEGATION

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  FURTHER ASSURANCES

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  POWER OF ATTORNEY

  	
   

  
	
   

  	
   

  	
   

  
	
  19.

  	
  PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  20.

  	
  STAMP DUTY

  	
   

  
	
   

  	
   

  	
   

  
	
  21.

  	
  COSTS AND EXPENSES

  	
   

  
	
   

  	
   

  	
   

  
	
  22.

  	
  CURRENCIES

  	
   

  
	
   

  	
   

  	
   

  
	
  23.

  	
  INDEMNITY

  	
   

  
	
   

  	
   

  	
   

  
	
  24.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  25.

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  26.

  	
  PARTIAL INVALIDITY

  	
   

  
	
   

  	
   

  	
   

  
	
  27.

  	
  RELEASE

  	
   

  



 





















 


	
  28.

  	
  COUNTERPARTS

  	
   

  
	
   

  	
   

  	
   

  
	
  29.

  	
  GOVERNING LAW

  	
   

  
	
   

  	
   

  	
   

  
	
  30.

  	
  ENFORCEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE

  	
   

  
	
   

  	
   

  	
   

  
	
  The Initial Charged Securities

  	
   

  



 





















 


THIS
AGREEMENT is made on        2005


 


BETWEEN 


 


(1)                                  EVOLVING SYSTEMS HOLDINGS, INC., a company incorporated and registered under the laws of Delaware whose principal place of business is at 9777
Pyramid Court, Suite 100, Englewood, C080112 (the “Company”); and


 


(2)                                  CAPITALSOURCE FINANCE LLC
(as collateral agent for the Lender Parties (as defined below)) (in such
capacity, the “Collateral Agent”).


 


IT IS AGREED:


 


1.                                      DEFINITIONS
AND INTERPRETATION


 


1.1                               Definitions


 


In this
Deed:


 


(a)                                  terms defined in, or construed for the purposes of, the Revolving
Facility Agreement (as defined below) have the same meanings when used in this
Deed (unless the same are otherwise defined in this Deed); and 


 


(b)                                 the following terms have the following meanings:


 


“Act” means the Law of Property Act 1925;


 


“Charged
Investments” means the Charged Securities
and all present and future Related Rights accruing to all or any of the Charged
Securities;


 


“Charged Securities” means:


 


(a)                                  the securities specified in the schedule (The  Initial
Charged Securities) (“Initial
Charged Securities”);


 


(b)                                 any other stocks, shares, debentures, bonds or other securities of
the Company now or in future owned (legally or beneficially) by the Company,
held by any nominee, trustee, fiduciary or clearance system on its behalf or in
which the Company has an interest at any time; and


 


(c)                                  any Related Rights which are constituted by any stocks, shares,
debentures, bonds, warrants, coupons, negotiable instruments, certificates of
deposit or other securities or “investments”
(as defined in part II of schedule II to the Financial Services and
Markets Act 2000 as in force at the date of this Deed) now or in future owned
(legally or beneficially) by the Company, held by any nominee, trustee,
fiduciary or clearance system on its behalf or in which the Company has an
interest at any time;


 


“Default
Rate” has the meaning ascribed to it in the
Revolving Facility Agreement;


 


“Delegate” means any delegate, sub-delegate, agent, attorney or co-trustee
appointed by the Collateral Agent or by a Receiver;


 


1





















 


“Party” means a party to
this Deed;


 


“Receiver” means any receiver, receiver and manager or administrative receiver
appointed by the Collateral Agent under this Deed;


 


“Related
Rights” means, in relation to any Charged
Security:


 


(a)                                  all dividends, distributions and other income paid or payable on the
relevant Charged Security or on any asset referred to in paragraph (b) of
this definition; and


 


(b)                                 all rights, monies or property accruing or offered at any time in
relation to such Charged Security whether by way of redemption, substitution,
exchange, bonus or preference, under option rights or otherwise;


 


“Revolving
Facility Agreement” means the revolving
facility agreement dated the same date as this Deed and made between (1) the
Company and (2) CapitalSource Finance LLC, as Agent (including Collateral
Agent), Lender and L/C Issuer;


 


“Security” means the
Security Interests created by or pursuant to this Deed;


 


“Security
Assets” means all property and assets from
time to time mortgaged, charged or assigned (or expressed to be mortgaged,
charged or assigned) by or pursuant to this Deed;


 


“Security Interest” means
any mortgage, pledge, lien, charge, assignment by way of security,
hypothecation, security interest, title retention, preferential right or trust
arrangement or any other security agreement or arrangement having the effect of
security;


 


“Security
Period” means the period beginning on the
date of this Deed and ending on the date on which: 


 


(a)                                  all the UK Secured Obligations have been unconditionally and
irrevocably paid and discharged in full; and


 


(b)                                 no Lender Party has any further commitment, obligation or liability
under or pursuant to the Loan Documents.


 


“Share Pledge (US)” means the share pledge made between (1) Evolving Systems
Holdings, Inc. and (2) CapitalSource Finance LLC (as Collateral
Agent) and dated the same date as this deed and securing the obligations under
the Term Loan Agreement;


 


“Term Loan Agreement” means the term loan facility dated the same date as this Deed and
made between (1) Evolving Systems Inc., Telecom Software Enterprises, LLC
and the Company, (2) CapitalSource Finance LLC, in its capacities as Agent
(including Collateral Agent) and (3) the Lenders from time to time a party
thereto;


 


“UK Secured Obligations”
means all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or alone or in any other
capacity whatsoever) of the Company to CapitalSource Finance LLC. and/or the
other Lender Parties (or any of them) under or pursuant to the Revolving
Facility Agreement (including all monies covenanted to be paid under this
Deed), provided that no obligation or liability shall be included in the
definition of “UK Secured


 


2





















 


Obligations” to the extent
that, if it were so included, this Deed (or any part of it) would constitute
unlawful financial assistance within the meaning of sections 151 and 152 of the
Companies Act 1985 and provided further that the UK Secured Obligations shall
not include any “Obligations” as defined in the Term Loan Agreement or as
arising under any of the Loan Documents (as defined in the Term Loan
Agreement).


 


1.2                               Interpretation


 


(a)                                  Unless a contrary indication appears, any reference in this Deed to:


 


(i)                                     the “Company”, the “Collateral Agent” or any other “Lender Party” shall be construed so as to
include its successors in title, permitted assigns and permitted transferees;


 


(ii)                                  “this Deed”,
the “Revolving Facility Agreement”,
any other “Loan Document” or any
other agreement or instrument shall be construed as a reference to this Deed,
the Revolving Facility Agreement, such other Loan Document or such other
agreement or instrument as amended, supplemented, novated and/or replaced in
any manner from time to time (even if any of the same increases the obligations
of the Company or provides for further advances);


 


(iii)                               “assets” includes
any present and future properties, revenues and rights of every description and
includes uncalled capital;


 


(iv)                              an Event of Default that is “continuing”
shall be construed as meaning an Event of Default that has not been waived in
writing by the Agent nor remedied to the satisfaction of the Agent;


 


(v)                                 “including” or “includes” means including or includes
without limitation;


 


(vi)                              “UK Secured Obligations” includes obligations and liabilities which would be treated as such
but for the liquidation or dissolution of or similar event affecting the
Company;


 


(vii)                           a provision of law is a reference to that provision as amended or re-enacted;
and


 


(viii)                        the singular includes the plural and vice versa.


 


(b)                                 References to clauses and the schedule are to be construed,
unless otherwise stated, as references to clauses and the schedule of this
Deed and references to this Deed include its schedule.


 


(c)                                  Clause and schedule headings are for convenience only and shall
not affect the construction of this Deed.


 


(d)                                 Each undertaking of the Company (other than a payment obligation)
contained in this Deed must be complied with at all times during the Security
Period and is given by the Company for the benefit of the Collateral Agent and
each other Lender Party.


 


(e)                                  If the Collateral Agent or the Agent reasonably considers that an
amount paid by the Company to a Lender Party under a Loan Document is capable
of being avoided or otherwise set aside on the liquidation or administration of
the Company, then that


 


3





















 


amount
shall not be considered to have been irrevocably paid for the purposes of this
Deed.


 


(f)                                    The Parties intend that this document shall take effect as a deed
notwithstanding the fact that a Party may only execute this document under
hand.


 


1.3                               Trust


 


All
Security Interests and dispositions made or created and all obligations and
undertakings contained in this Deed to, in favour of or for the benefit of the
Collateral Agent are made, created and entered into in favour of the Collateral
Agent as trustee for the Lender Parties from time to time on the terms of the
Revolving Facility Agreement.


 


1.4                               Third party rights


 


A
person who is not a Party shall have no right under the Contracts (Rights of
Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this
Deed.


 


2.                                      COVENANT
TO PAY


 


2.1                               Covenant to pay


 


(a)                                  The Company covenants in favour of the Collateral Agent that it will
pay and discharge the UK Secured Obligations from time to time when they fall
due subject to any applicable grace periods provided for in the applicable Loan
Documents.


 


(b)                                 Every payment by the Company of a UK Secured Obligation which is
made to or for the benefit of a Lender Party to which that UK Secured
Obligation is due and payable in accordance with the Loan Document under which
such sum is payable to that Lender Party shall operate in satisfaction to the
same extent of the covenant contained in clause 2.1(a).


 


2.2                               Default interest


 


(a)                                  Any amount which is not paid under this Deed when due shall bear
interest (both before and after judgment and payable on demand) from the due
date until the date on which such amount is unconditionally and irrevocably
paid and discharged in full on a daily basis at the rate and in the manner
agreed in the Loan Document under which such amount is payable and, in the
absence of such agreement, at the Default Rate from time to time.


 


(b)                                 Default interest will accrue from day to day and will be charged in
accordance with the Revolving Facility Agreement.


 


3.                                      GRANT
OF SECURITY


 


3.1                               Nature of security


 


All
Security Interests and dispositions created or made by or pursuant to this Deed
are created or made:


 


(a)                                  in favour of the Collateral Agent;


 


(b)                                 with full title guarantee in accordance with the Law of Property
(Miscellaneous Provisions) Act 1994 (but subject to the Share Pledge (US)); and


 


4





















 


(c)                                  as continuing security for payment of the UK Secured Obligations.


 


3.2                               Charged Investments


 


The
Company charges and agrees to charge all of its present and future right, title
and interest in and to the following assets which are at any time owned by the
Company, or in which it from time to time has an interest:


 


(a)                                  by way of first fixed charge the Charged Securities referred to in
the schedule (The  Initial Charged Securities (but subject to
the grant of the Security Interests pursuant to the Share Pledge (US)); and


 


(b)                                 by way of first fixed charge all other Charged Securities (not
charged by clause 3.2(a)),


 


in each
case, together with:


 


(c)                                  all Related Rights from time to time accruing to those Charged
Securities; and 


 


(d)                                 all rights which the Company may have at any time against any
clearance or settlement system or any custodian in respect of any Charged
Investments.


 


4.                                      CONTINUING
SECURITY


 


4.1                               Continuing security


 


The
Security is continuing and will extend to the ultimate balance of the UK
Secured Obligations regardless of any intermediate payment or discharge in
whole or in part.  This Deed shall remain
in full force and effect as a continuing security for the duration of the
Security Period.


 


4.2                               Additional and separate security


 


This
Deed is in addition to, without prejudice to, and shall not merge with, any
other right, remedy, guarantee or Security Interest which the Collateral Agent
and/or any other Lender Party may at any time hold for any Secured Obligation. 


 


4.3                               Right to enforce


 


This
Deed may be enforced against the Company without the Collateral Agent and/or
any other Lender Party first having recourse to any other right, remedy,
guarantee or Security Interest held by or available to it or any of them.


 


5.                                      LIABILITY
OF THE COMPANY RELATING TO SECURITY ASSETS


 


Notwithstanding anything contained in this Deed or
implied to the contrary, the Company remains liable to observe and perform all
conditions and obligations assumed by it in relation to the Security
Assets.  The Collateral Agent is under no
obligation to perform or fulfil any such condition or obligation or to make any
payment in respect of such condition or obligation. 


 


5





















 


6.                                      REPRESENTATIONS


 


6.1                               General


 


The
Company makes the representations and warranties set out in this clause 6 to
the Collateral Agent and to each other Lender Party.


 


6.2                               No Security Interests


 


The
Security Assets are, or when acquired will be, beneficially owned by the
Company free from any Security Interest other than:


 


(a)                                  as created by this Deed; 


 


(b)                                 as created by the Share Pledge (US); and


 


(c)                                  as permitted by the Revolving Facility Agreement.


 


6.3                               No avoidance


 


This
Deed creates the Security Interests which it purports to create and is not
liable to be avoided or otherwise set aside on the liquidation or administration
of the Company or otherwise.


 


6.4                               Ownership of Security Assets


 


The
Company is the sole legal and beneficial owner of all the Security Assets.


 


6.5                               No proceedings pending or threatened


 


No
litigation, arbitration or administrative proceeding has currently been
started, or so far as the Company is aware, threatened in relation to any
Security Asset.


 


6.6                               Charged Securities fully paid


 


The
Charged Securities are fully paid.


 


6.7                               Entire share capital


 


The
Charged Securities constitute the entire share capital of Evolving Systems
Holdings Ltd.


 


6.8                               Time when representations made


 


(a)                                  All the representations and warranties in this clause 6 are made by
the Company on the date of this Deed and are also deemed to be made by the
Company on the date of each Utilisation Request and each Utilisation Date.


 


(b)                                 Each representation or warranty deemed to be made after the date of
this Deed shall be deemed to be made by reference to the facts and
circumstances existing at the date the representation or warranty is deemed to
be made.


 


6





















 


7.                                      UNDERTAKINGS
BY THE COMPANY


 


7.1                               Restrictions on dealing


 


The
Company shall not do or agree to do any of the following without the prior
written consent of the Collateral Agent:


 


(a)                                  create or permit to subsist any Security Interest on any Security
Asset (except as permitted under this Deed, the Share Pledge (US) or by the
Revolving Facility Agreement);


 


(b)                                 sell, transfer, lease, lend or otherwise dispose of (whether by a
single transaction or a number of transactions and whether related or not) the
whole or any part of its interest in any Security Asset other than to its sole
shareholder, Evolving Systems, Inc.; or


 


(c)                                  take or permit the taking of any action which may result in:


 


(i)                                     the rights attaching to any Security Asset being altered in any
respect that is adverse to the interests of the Collateral Agent or Lender; or 


 


(ii)                                  further securities in any relevant company being issued or allotted,
without first granting a Lien over such shares in favour of the Collateral
Agent.


 


7.2                               Deposit of documents of title


 


The
Company shall, immediately upon execution of this Deed (or (in relation to any
Charged Security acquired after the date of this Deed) as soon as is
practicable after its acquisition of such Charged Security) by way of security
for the UK Secured Obligations:


 


(a)                                  deposit with the Collateral Agent (or as the Collateral Agent may
direct (but such direction not to be inconsistent with its direction under the
Share Pledge (US))) all certificates and other documents of title or evidence
of ownership to the Charged Securities and their Related Rights; and


 


(b)                                 execute and deliver to the Collateral Agent:


 


(i)                                     instruments of transfer in respect of the Charged Securities (executed
in blank and left undated); and/or 


 


(ii)                                  such other documents as the Collateral Agent shall reasonably
require to enable it (or its nominees) to be registered as the owner of or
otherwise to acquire a legal title to the Charged Securities and their Related
Rights (or to pass legal title to any purchaser).


 


7.3                               Notification


 


The
Company shall:


 


(a)                                  notify the Collateral Agent within 14 days of receipt of every
notice received by it in relation to the Security Assets; and 


 


(b)                                 (if required by the Collateral Agent) shall immediately provide it
with a copy of that notice and either (A) comply with such notice or (B) make
such objections to it as the Collateral Agent may require or approve.


 


7





















 


7.4                               Calls


 


The Company
shall promptly pay all calls or other payments which may become due in respect of the Security Assets and all other
outgoings in respect of the Security Assets.


 


(a)                                  If the Company fails to make such payments, the Collateral Agent may
(without prejudice to the rights of the Collateral Agent under clause 9 (Power to remedy)) make such payments on
behalf of the Company.


 


(b)                                 Any sums so paid by the Collateral Agent shall be repayable by the
Company to the Collateral Agent on demand together with interest at the Default
Rate (both before and after judgment) from the date on which those payments
were made by the Collateral Agent and otherwise in accordance with clause 2.2 (Default interest).


 


7.5                               Compliance with laws


 


The
Company shall comply in all material respects with all obligations in relation
to the Security Assets under any present or future law, regulation, order or
instrument or under bye-laws, regulations or requirements of any competent
authority or other approvals, licences and consents.


 


7.6                               Information


 


(a)                                  The Company shall provide the Collateral Agent with all information
which it may reasonably request in relation to the Security Assets.


 


(b)                                 Without limiting its obligations under clause 7.6(a), the Company
shall comply with all requests for information within its knowledge relating to
a Security Asset which are made under section 212 of the Companies Act
1985 or which could be made under section 212 if the relevant company were
a public limited company or under any similar provision relating to the
Security Assets and, if it fails to do so, the Collateral Agent may provide
such information as it may have on behalf of the Company.


 


7.7                               Not prejudice


 


The
Company shall not do, cause or permit to be done anything which may in any way
depreciate, jeopardise or otherwise prejudice any material portion of the
Security Assets (or make any omission which has such an effect).


 


8.                                      RIGHTS
AND OBLIGATIONS IN RESPECT OF CHARGED INVESTMENTS


 


8.1                               Before Default


 


Unless
a Default occurs and is continuing, the Company shall be entitled to:


 


(a)                                  receive and retain all dividends, distributions and other monies
paid on or derived from the Charged Securities; and


 


(b)                                 exercise all voting and other rights and powers attaching to the
Charged Securities, provided that
it must not do so in a manner which:


 


(i)                                     has the effect of changing the terms of the Charged Securities (or
any class of them) or of any Related Rights; or


 


8





















 


(ii)                                  is prejudicial to the interests of the Collateral Agent and/or the
other Lender Parties under this Deed.


 


8.2                               Rights in respect of Charged Investments following an Event of
Default 


 


At any
time following the occurrence of an Event of Default which is continuing, the
Collateral Agent may complete the instrument(s) of transfer for all or any
Charged Securities on behalf of the Company in favour of itself or such other
person as it may select.


 


8.3                               Exoneration of the Collateral Agent


 


At any
time when any Charged Security is registered in the name of the Collateral
Agent or its nominee, the Collateral Agent shall be under no duty to:


 


(a)                                  ensure that any dividends, distributions or other monies payable in
respect of such Charged Security are duly and promptly paid or received by it
or its nominee; or 


 


(b)                                 verify that the correct amounts are paid or received; or 


 


(c)                                  take any action in connection with the taking up of any (or any
offer of any) Related Rights in respect of or in substitution for such Charged
Security.


 


9.                                      POWER TO
REMEDY


 


9.1                               Power to remedy


 


If at
any time the Company does not comply with any of its obligations under this
Deed, the Collateral Agent (without prejudice to any other rights arising as a
consequence of such non-compliance) shall be entitled (but not bound) to
rectify that default.  The Company
irrevocably authorises the Collateral Agent and its employees and agents by way
of security to do all things which are necessary or desirable to rectify that
default.


 


9.2                               Mortgagee in possession


 


The
exercise of the powers of the Collateral Agent under this clause 9 shall not
render it or any other Lender Party liable as a mortgagee in possession.


 


9.3                               Monies expended


 


The
Company shall pay to the Collateral Agent on demand any monies which are
expended by the Collateral Agent in exercising its powers under this clause 9,
together with interest at the Default Rate from the date on which those monies
were expended by the Collateral Agent (both before and after judgment) and
otherwise in accordance with clause 2.2 (Default
interest).


 


10.                               WHEN
SECURITY BECOMES ENFORCEABLE


 


10.1                        When enforceable


 


This
Security shall become immediately enforceable upon the occurrence of an Event
of Default and shall remain so for so long as such Event of Default is
continuing.


 


9





















 


10.2                        Statutory powers


 


The
power of sale and other powers conferred by section 101 of the Act (as
amended or extended by this Deed) shall be immediately exercisable upon and at
any time after the occurrence of any Event of Default and for so long as such
Event of Default is continuing.  


 


10.3                        Enforcement


 


After
this Security has become enforceable, the Collateral Agent may in its absolute
discretion enforce all or any part of the Security in such manner as it sees
fit.


 


11.                               ENFORCEMENT
OF SECURITY


 


11.1                        General


 


For the purposes of all powers implied by
statute, the UK Secured Obligations are deemed to have become due and payable
on the date of this Deed.  Sections 93
and 103 of the Act shall not apply to the Security.


 


11.2                        Powers of Collateral Agent


 


At any
time after the Security becomes enforceable, the Collateral Agent may without
further notice (unless required by law):


 


(a)                                  (or if so requested by the Company by written notice at any time
may) appoint any person or persons to be a receiver, receiver, and manager or
administrative receiver of all or any part of the Security Assets and/or of the
income of the Security Assets; and/or


 


(b)                                 appoint or apply for the appointment of any person who is
appropriately qualified as administrator of the Company; and/or


 


(c)                                  exercise all or any of the powers conferred on mortgagees by the Act
(as amended or extended by this Deed) and/or all or any of the powers which are
conferred by this Deed on a Receiver, in each case without first appointing a
Receiver or notwithstanding the appointment of any Receiver; and/or


 


(d)                                 exercise (in the name of the Company and without any further consent
or authority of the Company) any voting rights and any powers or rights which
may be exercised by the person(s) in whose name the Security Assets are
registered or who is the holder of any of them.


 


11.3                        Redemption of prior mortgages


 


At any
time after the Security has become enforceable, the Collateral Agent may:


 


(a)                                  redeem any prior Security Interest against any Security Asset;
and/or


 


(b)                                 procure the transfer of that Security Interest to itself; and/or


 


(c)                                  settle and pass the accounts of the holder of any prior Security
Interest and any accounts so settled and passed shall be conclusive and binding
on the Company.


 


All
principal, interest, costs, charges and expenses of and incidental to any such
redemption and/or transfer shall be paid by the Company to the Collateral Agent
on demand.


 


10





















 


11.4                        Privileges


 


Each Receiver
and the Collateral Agent is entitled to all the rights, powers, privileges and
immunities conferred by the Act on mortgagees and receivers when such receivers
have been duly appointed under the Act, except that section 103 of the Act
does not apply.


 


11.5                        No liability


 


(a)                                  Neither the Collateral Agent, any other Lender Party nor any
Receiver shall be liable (a) in respect of all or any part of the Security
Assets or (b) for any loss or damage which arises out of the exercise or
the attempted or purported exercise of, or the failure to exercise any of, its
or his respective powers (unless such loss or damage is caused by its or his
gross negligence or wilful misconduct).


 


(b)                                 Without prejudice to the generality of clause 11.5(a), neither the
Collateral Agent, any other Lender Party nor any Receiver shall be liable, by
reason of entering into possession of a Security Asset, to account as mortgagee
in possession or for any loss on realisation or for any default or omission for
which a mortgagee in possession might be liable.


 


11.6                        Protection of third parties


 


No
person (including a purchaser) dealing with the Collateral Agent or any
Receiver or Delegate will be concerned to enquire:


 


(a)                                  whether the UK Secured Obligations have become payable; or


 


(b)                                 whether any power which the Collateral Agent or the Receiver is
purporting to exercise has become exercisable; or


 


(c)                                  whether any money remains due under any Loan Document; or


 


(d)                                 how any money paid to the Collateral Agent or to the Receiver is to
be applied.


 


12.                               RECEIVER


 


12.1                        Removal and replacement


 


The
Collateral Agent may from time to time remove any Receiver appointed by it
(subject, in the case of an administrative receivership, to section 45 of
the Insolvency Act 1986) and, whenever it may deem appropriate, may appoint a
new Receiver in the place of any Receiver whose appointment has terminated.


 


12.2                        Multiple Receivers 


 


If at
any time there is more than one Receiver of all or any part of the Security
Assets and/or the income of the Security Assets, each Receiver shall have power
to act individually (unless otherwise stated in the appointment document).


 


12.3                        Remuneration


 


Any
Receiver shall be entitled to remuneration for his services at a rate to be
fixed by agreement between him and the Collateral Agent (or, failing such
agreement, to be fixed by the Collateral Agent).


 


11





















 


12.4                        Payment by Receiver


 


Only
monies actually paid by a Receiver to the Collateral Agent in relation to the
UK Secured Obligations shall be capable of being applied by the Collateral
Agent in discharge of the UK Secured Obligations.


 


12.5                        Agent of Company


 


Any
Receiver shall be the agent of the Company. 
The Company shall (subject to the Companies Act 1985 and the Insolvency
Act 1986) be solely responsible for his acts and defaults and for the payment
of his remuneration.  No Lender Party
shall incur any liability (either to the Company or to any other person) by
reason of the appointment of a Receiver or for any other reason.


 


13.                               POWERS
OF RECEIVER


 


13.1                        General powers


 


Any
Receiver shall have:


 


(a)                                  all the powers which are conferred by the Act on mortgagees in
possession and receivers appointed under the Act;


 


(b)                                 (whether or not he is an administrative receiver) all the powers which
are listed in schedule 1 of the Insolvency Act 1986; and 


 


(c)                                  all powers which are conferred by any other law conferring power on
receivers.


 


13.2                        Additional powers


 


In
addition to the powers referred to in clause 13.1 (General powers), a Receiver shall have the following powers:


 


(a)                                  to take possession of, collect and get in all or any part of the
Security Assets and/or income in respect of which he was appointed;


 


(b)                                 to manage the Security Assets as he thinks fit;


 


(c)                                  to redeem any security and to borrow or raise any money and secure
the payment of any money in priority to the UK Secured Obligations for the
purpose of the exercise of his powers and/or defraying any costs or liabilities
incurred by him in such exercise;


 


12





















 


(d)                                 to sell or concur in selling or otherwise disposing of all or any
part of the Security Assets in respect of which he was appointed without the
need to observe the restrictions imposed by section 103 of the Act.  The consideration for any such transaction
may consist of cash, debentures or other obligations, shares, stock or other
valuable consideration (and the amount of such consideration may be dependent
upon profit or turnover or be determined by a third party).  Any such consideration may be payable in a
lump sum or by instalments spread over such period as he thinks fit;


 


(e)                                  to carry out any sale or other disposal of all or any part of the
Security Assets by conveying, transferring, assigning or leasing the same in
the name of the Company and, for that purpose, to enter into covenants and
other contractual obligations in the name of, and so as to bind, the Company;


 


(f)                                    to take any such proceedings (in the name of the Company or
otherwise) as he shall think fit in respect of the Security Assets and/or
income in respect of which he was appointed (including proceedings for recovery
of rent or other monies in arrears at the date of his appointment);


 


(g)                                 to enter into or make any such agreement, arrangement or compromise
as he shall think fit;


 


(h)                                 to insure, and to renew any insurances in respect of, the Security
Assets as he shall think fit (or as the Collateral Agent shall direct);


 


(i)                                     to appoint and employ such managers and officers and engage such
professional advisers as he shall think fit (including, without prejudice to
the generality of the foregoing power, to employ his partners and firm); and


 


(j)                                     to:


 


(i)                                     give valid receipts for all monies and to do all such other things
as may seem to him to be incidental or conducive to any other power vested in
him or necessary or desirable for the realisation of any Security Asset; 


 


(ii)                                  exercise in relation to each Security Asset all such powers and
rights as he would be capable of exercising if he were the absolute beneficial
owner of the Security Assets; and


 


(iii)                               use the name of the Company for any of the above purposes.


 


14.                               APPLICATION
OF PROCEEDS


 


14.1                        Application


 


All
monies received by the Collateral Agent or any Receiver under or in connection
with this Deed or the Security Assets after the Security has become enforceable
shall (subject to the rights and claims of any person having a security ranking
in priority to the Security) be applied in the following order:


 


(a)                                  first, in satisfaction of, or provision for, all costs, charges and
expenses incurred and payments made by the Collateral Agent, any other Lender
Party or any Receiver and of all remuneration due to the Receiver in connection
with this Deed or the Security Assets;


 


(b)                                 secondly, in or towards the satisfaction of the remaining UK Secured
Obligations; and


 


(c)                                  thirdly, in payment of any surplus to the Company or other person entitled
to it.


 


14.2                        Contingencies


 


If the
Security is enforced at a time when no amounts are due under the Loan Documents
(but at a time when amounts may become so due), the Collateral Agent or a
Receiver may pay the proceeds of any recoveries effected by it into a blocked
suspense account.


 


15.                               SET-OFF


 


Upon
the occurrence and during the continuation of an Event of Default, the
Collateral Agent and each other Lender Party may (but shall not be obliged to)
set off any obligation which is


 


13





















 


due and
payable by the Company under the Loan Documents and unpaid against any
obligation (whether or not matured) owed by the Collateral Agent or such other
Lender Party to the Company, regardless of the place of payment, booking branch
or currency of either obligation provided that no obligation shall be set-off
that would constitute unlawful financial assistance within the meaning of
Sections 151 and 152 of the Companies Act 1985. 



 


15.1                        Currency


 


If the
obligations are in different currencies, the Collateral Agent or such other
Lender Party may convert either obligation at the Agent’s rate of exchange for that
currency on the day the provision requires the amount to be converted.  


 


15.2                        Amount


 


If
either obligation is unliquidated or unascertained, the Collateral Agent or
such other Lender Party may set off in an amount estimated by it in good faith
to be the amount of that obligation.


 


16.                               DELEGATION


 


Each of
the Collateral Agent and any Receiver may delegate, by power of attorney (or in
any other manner) to any person, any right, power or discretion exercisable by
it under this Deed upon any terms (including power to sub-delegate) which it
may think fit.  Neither the Collateral
Agent nor any Receiver shall be in any way liable or responsible to the Company
for any loss or liability arising from any act, default, omission or misconduct
on the part of any Delegate.


 


17.                               FURTHER
ASSURANCES


 


The
Company shall, at its own expense, promptly take whatever action the Collateral
Agent or a Receiver may require for:


 


(a)                                  creating, perfecting or protecting the Security Interests intended
to be created by this Deed; and


 


(b)                                 facilitating the realisation of any Security Asset or the exercise
of any right, power or discretion exercisable by the Collateral Agent or any
Receiver or Delegate in respect of any Security Asset,


 


including
the execution of any transfer, conveyance, assignment or assurance of any
property whether to the Collateral Agent or to its nominees, the giving of any
notice, order or direction and the making of any registration which, in any
such case, the Collateral Agent may think expedient provided that the Charged
Securities shall only be transferred in accordance with clause 8.2 of this
Deed.


 


18.                               POWER
OF ATTORNEY


 


The
Company, by way of security, irrevocably and severally appoints the Collateral
Agent, each Receiver and any Delegates to be its attorney to take any action
which the Company is obliged to take under this Deed, including under clause 17
(Further assurances). The Company
ratifies and confirms whatever any attorney does or purports to do pursuant to
its appointment under this clause.


 


14





















 


19.                               PAYMENTS


 


19.1                        Payments


 


Subject
to clause 19.2 (Gross-up), all
payments to be made by the Company in respect of this Deed shall be made:


 


(a)                                  in immediately available funds to the credit of such account as the
Collateral Agent may designate; and


 


(b)                                 without (and free and clear of, and without any deduction for or on
account of):


 


(i)                                     any set-off or counterclaim; or


 


(ii)                                  except to the extent compelled by law, any deduction or withholding
for or on account of Tax.


 


19.2                        Gross-up


 


If the
Company is compelled by law to make any deduction or withholding from any sum
payable under this Deed to the Collateral Agent or any other Lender Party, the
sum so payable by the Company shall be increased so as to result in the receipt
by the Collateral Agent or such other Lender Party of a net amount equal to the
full amount expressed to be payable under this Deed.


 


20.                               STAMP
DUTY


 


The
Company shall:


 


(a)                                  pay all present and future stamp, registration and similar Taxes or
charges which may be payable, or determined to be payable, in connection with
the execution, delivery, performance or enforcement of this Deed or any
judgment given in connection therewith; and


 


(b)                                 indemnify the Collateral Agent, each other Lender Party and any
Receiver on demand against any and all costs, losses or liabilities (including,
without limitation, penalties) with respect to, or resulting from, its delay or
omission to pay any such stamp, registration and similar Taxes or charges.


 


21.                               COSTS
AND EXPENSES


 


21.1                        Transaction and amendment expenses


 


The
Company shall promptly on demand pay to the Collateral Agent and each other
Lender Party the amount of all reasonable costs, charges and expenses
(including, without limitation, reasonable legal fees, valuation, accountancy
and consultancy fees (and any VAT or similar Tax thereon)) incurred by the
Collateral Agent or any other Lender Party in connection with: 


 


(a)                                  the negotiation, preparation, printing, execution, registration,
perfection and completion of this Deed, the Security or any document referred
to in this Deed; or 


 


(b)                                 any actual or proposed amendment or extension of, or any waiver or
consent under, this Deed.


 


15





















 


21.2                        Enforcement and preservation costs


 


The
Company shall promptly on demand pay to the Collateral Agent, each other Lender
Party and any Receiver the amount of all costs, charges and expenses
(including, without limitation, legal fees (and any VAT or similar Tax
thereon)) incurred by any of them in connection with the enforcement, exercise
or preservation (or the attempted enforcement, exercise or preservation) of any
of their respective rights under this Deed or any document referred to in this
Deed or the Security (including all remuneration of the Receiver).


 


21.3                        Default interest


 


Any amount demanded under clause 21.1 (Transaction and amendment expenses) or
21.2 (Enforcement and preservation costs)
shall bear interest at the Default Rate (both before and after judgment) from
the day on which those costs, charges or expenses were paid, incurred or
charged by the relevant person and otherwise in accordance with clause 2.2 (Default interest).


 


22.                               CURRENCIES


 


22.1                        Conversion


 


All
monies received or held by the Collateral Agent or any Receiver under this Deed
may be converted from their existing currency into such other currency as the
Collateral Agent or the Receiver considers necessary or desirable to cover the
obligations and liabilities comprised in the UK Secured Obligations in that other
currency at the Spot Rate of Exchange. 
The Company shall indemnify the Collateral Agent against all costs,
charges and expenses incurred in relation to such conversion.  Neither the Collateral Agent nor any Receiver
shall have any liability to the Company in respect of any loss resulting from
any fluctuation in exchange rates after any such conversion.


 


22.2                        Currency indemnity


 


No
payment to the Collateral Agent (whether under any judgment or court order or
in the liquidation, administration or dissolution of the Company or otherwise)
shall discharge the obligation or liability of the Company in respect of which
it was made, unless and until the Collateral Agent shall have received payment
in full in the currency in which the obligation or liability was incurred and,
to the extent that the amount of any such payment shall on actual conversion
into such currency fall short of such obligation or liability expressed in that
currency, the Collateral Agent shall have a further separate cause of action
against the Company and shall be entitled to enforce the Security to recover
the amount of the shortfall.


 


23.                               INDEMNITY


 


The
Company shall indemnify the Collateral Agent, each other Lender Party, any
Receiver and any attorney, agent or other person appointed by the Collateral
Agent under this Deed and the Collateral Agent’s officers and employees (each
an “Indemnified Party”) on demand
against any cost, loss, liability or expense (however arising) incurred by any
Indemnified Party as a result of or in connection with:


 


(a)                                  anything done or omitted in the exercise or purported exercise of
the powers contained in this Deed;


 


(b)                                 the Security Assets or the use or holding of them by any person ; or



 


(c)                                  any breach by the Company of any of its obligations under this Deed,


 


16





















 


except
to the extent a final and non-appealable order or judgment binding on such
Indemnified Party of a court of competent jurisdiction determines the same
arose out of the gross negligence or wilful misconduct of such Indemnified
Party. 


 


24.                               MISCELLANEOUS


 


24.1                        Appropriation and suspense account


 


(a)                                  The Collateral Agent may apply all payments received in respect of
the UK Secured Obligations in reduction of any part of the UK Secured
Obligations in accordance with the Revolving Facility Agreement.


 


(b)                                 All monies received, recovered or realised by the Collateral Agent
under, or in connection with, this Deed may at the discretion of the Collateral
Agent be credited to a separate interest bearing suspense account for so long
as the Collateral Agent determines (with interest accruing thereon at such
rate, if any, as the Collateral Agent may determine for the account of the
Company) without the Collateral Agent having any obligation to apply such monies
and interest or any part thereof in or towards the discharge of any of the UK
Secured Obligations.


 


24.2                        New accounts


 


If the
Collateral Agent or any other Lender Party receives, or is deemed to be
affected by, notice, whether actual or constructive, of any subsequent Security
Interest (other than as permitted by the Revolving Facility Agreement)
affecting any Security Asset and/or the proceeds of sale of any Security Asset,
it may open a new account or accounts for the Company. If it does not open a new
account, it shall nevertheless be treated as if it had done so at the time when
it received or was deemed to have received such notice. As from that time all
payments made to the Collateral Agent or such other Lender Party will be
credited or be treated as having been credited to the new account and will not
operate to reduce any amount of the UK Secured Obligations.


 


24.3                        Changes to the Parties 


 


(a)                                  The Company may not assign any of its rights under this Deed.


 


(b)                                 The Collateral Agent may assign or transfer all or any part of its
rights under this Deed pursuant to the resignation or removal of the Collateral
Agent in accordance with the Revolving Facility Agreement.  The Company shall, immediately upon being
requested to do so by the Collateral Agent, enter into such documents as may be
necessary or desirable to effect such assignment or transfer.


 


24.4                        Tacking


 


(a)                                  Each Finance Party shall perform its obligations under the Revolving
Facility Agreement (including any obligation to make available further advances).


 


(b)                                 This Deed secures advances already made and further advances to be
made.


 


24.5                        Amendments and waivers


 


Any
provision of this Deed may be amended only if the Collateral Agent and the
Company so agree in writing and any breach of this Deed may be waived before or
after it occurs only if the Collateral Agent so agrees in writing.
A waiver given or consent granted by the Collateral


 


17





















 


Agent
under this Deed will be effective only if given in writing and then only in the
instance and for the purpose for which it is given.


 


24.6                        Calculations and certificates


 


A
certificate of the Collateral Agent specifying the amount of any UK Secured
Obligation due from the Company (including details of any relevant calculation
thereof) shall be prima facie evidence of such amount against the Company in
the absence of manifest error.


 


24.7                        Waiver, rights and remedies


 


No
failure to exercise, nor any delay in exercising, on the part of the Collateral
Agent (or any other Lender Party), any right or remedy under this Deed shall
operate as a waiver, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise, or the exercise of any other
right or remedy.  The rights and remedies
provided are cumulative and not exclusive of any rights or remedies provided by
law.


 


25.                               NOTICES


 


25.1                        Revolving Facility Agreement


 


Clause
12.5 of the Revolving Facility Agreement (Notice)
(relating to all communications to be made under the Revolving Facility
Agreement) is incorporated into this Deed as if fully set out in this Deed
except that references to the Revolving Facility Agreement shall be construed
as references to this Deed.  The address
and fax numbers of each Party for all communications or documents given under
or in connection with this Deed are those identified with its name below or
those subsequently notified from time to time by the relevant Party for the
purposes of the Revolving Facility Agreement to the Agent (or, in the case of the
Agent, by it to the other parties to the Revolving Facility Agreement).


 


25.2                        No deemed notice to Collateral Agent


 


Any
notice to the Collateral Agent shall be deemed to have been given only on
actual receipt by the Collateral Agent.


 


26.                               PARTIAL
INVALIDITY


 


All the
provisions of this Deed are severable and distinct from one another and if at
any time any provision is or becomes illegal, invalid or unenforceable in any
respect under any law of any jurisdiction, neither the legality, validity or
enforceability of any of the remaining provisions nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction will
in any way be affected or impaired.


 


27.                               RELEASE


 


27.1                        Release


 


Upon
the expiry of the Security Period (but not otherwise) the Collateral Agent and
each other Lender Party shall, at the request and cost of the Company, take
whatever action is necessary to release or re-assign (without recourse or
warranty) the Security Assets from the Security.


 


18





















 


27.2                        Reinstatement


 


Where any discharge (whether in respect of the obligations of the
Company or any security for those obligations or otherwise) is made in whole or
in part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be restored on insolvency,
liquidation or otherwise (without limitation), the liability of the Company
under this Deed shall continue as if the discharge or arrangement had not
occurred.  The Collateral Agent may
concede or compromise any claim that any payment, security or other disposition
is liable to avoidance or restoration.


 


28.                               COUNTERPARTS


 


This
Deed may be executed in any number of counterparts, and this has the same
effect as if the signatures (and seals, if any) on the counterparts were on a
single copy of this Deed.  


 


29.                               GOVERNING
LAW


 


This Deed is governed by English law.


 


30.                               ENFORCEMENT


 


30.1                        Non-exclusive Jurisdiction of English courts


 


(a)                                  The courts of England have non-exclusive jurisdiction to settle any
dispute arising out of or in connection with this Deed (including a dispute
regarding the existence, validity or termination of this Deed) (a “Dispute”).


 


(b)                                 This clause 30 is for the benefit of the Lender Parties only.  As a result, no Lender Party shall be
prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction.  To the extent allowed
by law, the Lender Parties may take concurrent proceedings in any number of
jurisdictions.


 


30.2                        Service of process


 


Without
prejudice to any other mode of service allowed under any relevant law the
Company:


 


(a)                                  irrevocably appoints Evolving Systems Limited as its agent for
service of process in relation to any proceedings before the English courts in
connection with any Loan Document and accepts that appointment); and


 


(b)                                 agrees that failure by a process agent to notify the Company of the
process will not invalidate the proceedings concerned.


 


If any
person appointed as process agent is unable for any reason to act as agent for
service of process, the Company must immediately (and in any event within 5
days of such event taking place) appoint another agent on terms acceptable to
the Collateral Agent.  Failing this, the
Collateral Agent may appoint another agent for this purpose.


 


The
Company expressly agrees and consents to the provisions of this clause 30
and clause 29 (Governing law).


 


IN WITNESS of which this
Deed has been duly executed by the Company as a deed and duly executed by the
Collateral Agent and has been delivered on the date written at the beginning of
this Deed.


 


19





















 


SCHEDULE


 


The Initial Charged Securities


 


	
  Name of company in which

  shares are held

  	
   

  	
  Name of any

  nominee holder

  	
   

  	
  Class of

  shares held

  	
   

  	
  Number of

  shares held

  	
   

  	
  Issued share

  capital

  	
   

  
	
  Evolving Systems Holdings Ltd

  	
   

  	
  N/A

  	
   

  	
  Ordinary

  	
   

  	
  100

  	
   

  	
  £

  	
  100

  	
   

  
											



 


20





















 


EXECUTION PAGE


 


	
  THE COMPANY

  
	
   

  
	
  EXECUTED as a deed (but
  not delivered until

  	
  )

  	
   

  
	
  the
  date of this Deed) by

  	
  )

  	
   

  
	
  EVOLVING SYSTEMS HOLDINGS, INC.

  	
  )

  	
   

  
	
  acting
  by:

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Director

  	
  /s/Brian
  R. Ervine

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Secretary

  	
  /s/Anita T. Moseley

  	
   

  
					



 


	
  Address:

  	
  9777
  Pyramid Court

  
	
   

  	
  Suite 100

  
	
   

  	
  Englewood

  
	
   

  	
  CO
  80112

  
	
   

  	
   

  
	
  Facsimile no:

  	
  (303)
  802-1138

  
	
   

  	
   

  
	
  Attention:

  	
  Anita
  Moseley

  
	
   

  	
  Senior
  Vice President)

  



 


 


	
  THE COLLATERAL AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a deed by

  	
  )

  	
   

  
	
  CAPITALSOURCE FINANCE LLC

  	
  )

  	
   

  
	
   

  	
   

  	
  /s/Steven
  A. Museles

  	
   

  
	
  Address:

  	
  4445
  Willard Avenue

  	
  Signature

  
	
   

  	
  12th
  Floor

  	
   

  
	
   

  	
  Chevy
  Chase

  	
   

  
	
   

  	
  Maryland
  20815

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile no:

  	
  (301)
  841-2313

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Corporate
  Finance Group

  	
   

  
	
   

  	
  Portfolio
  Manager)

  	
   

  
						



 


21