Exhibit 10.1


 


 


 


	To:	The Directors of




Evolving Systems, Inc. (incorporated in Delaware
with registration number 02580274)


Evolving Systems Holdings Limited (company registration number 05272751)


Evolving Systems BLS
Limited (company registration number 10723209)


Evolving Systems Limited (company registration number
02325854)


Evolving Systems Lumata Limited (previously known as
Lumata UK Limited) (company registration number 03962393)


 


Date:  July 1, 2020


 


Dear Sirs/Madams


 


EVOLVING SYSTEMS HOLDINGS LIMITED
AND OTHERS - AMENDMENT AND WAIVER LETTER


 


	1.	BACKGROUND



 


		(a)	We refer to a facilities agreement
dated 16 August 2017 and made between (1)  Evolving
Systems, Inc. as Parent, (2) Evolving Systems Holdings Limited as Company and Original Borrower, (3) the companies listed in schedule
1 to it as Original Borrowers, (4) the companies listed in schedule 1 to it as Original Guarantors, and (5) East West Bank as
Lender as amended from time to time (the “Facilities Agreement”).



 


		(a)	This Letter is supplemental to and amends the Facilities Agreement.



 


		(b)	The Obligors have requested that the Lender agree certain amendments to
and waivers in respect of the Facilities Agreement. The Lender has consented to the amendments to and waivers in respect of the
Facilities Agreement contemplated by this Letter.



 


	2.	DEFINITIONS AND INTERPRETATION



 


	2.1	Definitions



 


In this Letter terms defined
in, or construed for the purposes of, the Facilities Agreement have the same meanings when used in this Letter (unless the same
are otherwise defined in this Letter):


 


		(a)	“Amended
                                         Facilities Agreement” means the Facilities Agreement as amended pursuant to
                                         paragraph 5.1 (Amendments) of this Letter;



 


		(b)	“Documents” means this Letter and each other agreement
referred to in paragraph 1 of schedule 1 (Conditions precedent); and



 


		(c)	“Effective Date” means the date on which the Lender gives
written notice to the Parent that it has received each of the documents and other evidence listed in schedule 1 (Conditions
precedent) in a form and substance satisfactory to the Lender.



  


2350 Mission College Blvd., STE
988 Santa Clara, CA 95054 ● Tel. 408.440.7760 ● Nasdaq: EWBC





 






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	2.2	Paragraphs



 


		(a)	In this Letter, any reference to a “paragraph” or “schedule”
is, unless the context otherwise requires, a reference to a paragraph or schedule of this Letter.



 


		(b)	Paragraph and schedule headings are for ease of reference only.



 


	2.3	Continuing obligations



 


Subject to the provisions of
this Letter:


 


		(a)	the Facilities Agreement and all the other Finance Documents shall remain
in full force and effect;



 


		(b)	as from the Effective Date, the Facilities Agreement shall be read and construed
as one document with this Letter; and



 


		(c)	nothing in this Letter shall constitute or be construed as a waiver (save
as specifically and expressly waived under paragraphs 3 (Formal waiver) and 4 (Grant of waiver) of this Letter) or
release of any right or remedy of the Lender under the Finance Documents, nor otherwise prejudice any right or remedy of the Lender
under the Facilities Agreement or any other Finance Document.



 


	3.	FORMAL WAIVER



 


The Parent has informed the
Lender that as at the date of this Letter, the Parent is in breach of clause 20.2(b) (Financial condition) of the Facilities
Agreement by failing to maintain the minimum EBITDA for the measuring periods ended 31 March 2020 and 30 April 2020 (the “Breach”).


 


The Breach represents a breach
of the specified provision of the Facilities Agreement and consequently certain Events of Default have occurred and are continuing.


 


The Parent has requested
that the Lender waive the Events of Default which are continuing as a result of the Breach.


 


	4.	GRANT OF WAIVER



 


The Lender agrees to formally
waive the Events of Default which are continuing as a result of the Breach.


 


Any waiver granted in accordance
with this Letter shall apply only to the matters specifically referred to in this Letter and is given in reliance upon any information
supplied to the Lender by the Parent being true, complete and accurate. Such consent shall be without prejudice to any rights which
the Lender may now or hereafter have in relation to any other circumstances or matters other than as specifically referred to in
this Letter (and whether subsisting at the date hereof or otherwise) or in relation to any such information being other than true,
complete and accurate, which rights shall remain in full force and effect.


 


Any waiver granted in accordance
with this Letter does not constitute an amendment, deletion or addition to the provisions of the Facilities Agreement, and it shall
not operate as a waiver in respect of any other right or remedy.


 


 


2350 Mission College Blvd., STE
988 Santa Clara, CA 95054 ● Tel. 408.440.7760 ● Nasdaq: EWBC


 






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	5.	AMENDMENTS AND FURTHER ASSURANCE



 


	5.1	Amendments



 


With effect from the Effective
Date, the Facilities Agreement shall be amended in accordance with schedule 2 (Amendments) to this Letter.


 


	5.2	Further assurance



 


Each Obligor shall (and the
Parent shall procure that each Obligor shall), at the request of the Lender and at its own expense, do all such acts and things
necessary or desirable to give effect to the amendments effected or to be effected pursuant to this Letter.


 


	6.	LAPSE



 


		(a)	If the Effective Date does not occur on or before the date which falls 30
days after the date of this Letter, this Letter shall, subject to paragraph 6(b), terminate and cease to be of any effect.



 


		(b)	Paragraphs 2.3, 8 (Guarantee and Security Confirmations) and 10 (Fees,
Costs and Expenses) shall continue in full force and effect notwithstanding the termination of this Letter pursuant to paragraph
6(a).



 


	7.	REPRESENTATIONS AND RELIANCE



 


	7.1	Representations



 


		(a)	Each Obligor represents and warrants that:



 


		(i)	the board resolutions referred to in paragraph 1 of schedule 1 (Conditions
precedent) were duly and properly passed after compliance with all appropriate formalities and remain in full force and effect;



 


		(ii)	it is authorised to execute this Letter and any other Documents to which
it is a party; and



 


		(iii)	it is authorised to make the representations and warranties as provided
in paragraph 5.1(a)(i) to 5.1(a)(ii).



 


		(b)	Subject to paragraph 4 of this Letter, each Obligor makes the Repeating Representations
(as defined in the Amended Facilities Agreement) and the representations set out in paragraph 5.1(a) on the date of this Letter
(whether or not the Effective Date shall have occurred by such date) and on the Effective Date, by reference to the facts and circumstances
existing at such dates.



 


	7.2	Reliance



 


Each Obligor acknowledges
that the Lender has entered into this Letter in full reliance on the representations and warranties made by it in the terms stated
in this paragraph 7.


 


2350 Mission College Blvd., STE
988 Santa Clara, CA 95054 ● Tel. 408.440.7760 ● Nasdaq: EWBC


 









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	8.	GUARANTEE AND SECURITY CONFIRMATIONS



 


Each Obligor reaffirms that
(i) the guarantee and indemnity contained in clause 17 (Guarantee and indemnity) of the Facilities Agreement and (ii) the
Security constituted by the Transaction Security Documents shall:


 


		(a)	continue in full force and effect and extend to, and in the case of the Security
shall continue to secure, the obligations of the Obligors under the Facilities Agreement and the other Finance Documents, as amended
from time to time including as varied, amended, supplemented or extended by this Letter, notwithstanding any term or provision
of this Letter;



 


		(b)	not be released, reduced or impaired by (i) the execution, delivery and
performance of this Letter or any other document or agreement entered into pursuant to or contemplated by this Letter; or (ii)
any other Obligor not being bound by this Letter for any reason or by any Transaction Security provided to the Lender by any Obligor
being avoided or released or not being effective Security for the variation in the liabilities of the Obligors or any of them effected
by this Letter or such Transaction Security being limited or restricted in any way; and



 


		(c)	continue to secure the payment of liabilities and obligations of the Obligors
under the Finance Documents and that the definition of "Finance Documents" in the Facilities Agreement extends
to any amendment, supplementation, extension, novation, replacement, restatement and/or variation of any of them (however fundamental)
and accordingly that such guarantee and indemnity, and any Transaction Security granted by it, is intended to apply to and secure
any variation or increase in the liabilities or obligations of the Obligors at any time as a result (direct or indirect) of the
execution, delivery or performance of this Letter or the Facilities Agreement as amended by this Letter.



 


	9.	SUBORDINATION AGREEMENT CONFIRMATION



 


Each Obligor as Intra-Group
Creditor and Obligor under and as defined in the Subordination Agreement reaffirms that its and their obligations under the Subordination
Agreement remain valid, legal and binding notwithstanding the amendments to the Facilities Agreement effected by this Letter.


 


	10.	FEES, COSTS AND EXPENSES



 


The Parent shall within three
Business Days of demand pay the Finance Parties the amount of all costs and expenses (including legal fees) reasonably incurred
by any of them in connection with the negotiation, preparation, printing and execution of this Letter and any other documents referred
to in this Letter.


 


	11.	MISCELLANEOUS



 


	11.1	Counterparts



 


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


 


2350 Mission College Blvd., STE
988 Santa Clara, CA 95054 ● Tel. 408.440.7760 ● Nasdaq: EWBC


 






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	11.2	Third party rights



 


		(a)	Unless expressly provided to the contrary in a Finance Document, a person
(other than a Finance Party) who is not a party to this Letter has no right under the Contracts (Rights of Third Parties) Act 1999
to enforce or enjoy the benefit of any term of this Letter.



 


		(b)	The consent of any person who is not a party to this Letter is not required
to rescind or vary this Letter at any time.



 


	11.3	Finance Document



 


The Lender and the Parent agree that this Letter is
a Finance Document.


 


	11.4	Governing law



 


This Letter and any non-contractual obligations arising
out of or in connection with it shall be governed by English law.


 


Please confirm your agreement to the above by signing
and returning the enclosed copy of this Letter.


 


Yours faithfully


 


	/s/ BILL ALLEN	 
	For and on behalf of
	EAST WEST BANK as
    Lender




 


2350 Mission College Blvd., STE
988 Santa Clara, CA 95054 ● Tel. 408.440.7760 ● Nasdaq: EWBC


 









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SCHEDULE 1: CONDITIONS
PRECEDENT


 


	1.	OBLIGORS



 


A copy of a resolution of the board of directors of
each Obligor:


 


		(a)	approving the terms of, and the transactions contemplated by, this Letter
and resolving that it execute this Letter;



 


		(b)	authorising a specified person or persons to execute this Letter on its behalf; and



 


		(c)	authorising a specified person or persons, on its behalf, to sign and/or
despatch all documents and notices to be signed and/or despatched by it under or in connection with this Letter.



 


	2.	FINANCE DOCUMENTS



 


This Letter duly executed by the Parent and each of
the other Obligors.


 


	3.	OTHER DOCUMENTS AND EVIDENCE



 


		(a)	Evidence that the fees, costs and expenses referred to in paragraph 10 (Fees,
Costs and Expenses) have been paid.



 


		(b)	A copy of any other authorisation or other document, opinion or assurance
which the Lender considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated
by this Letter or for the validity and enforceability of this Letter.



 






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SCHEDULE 2: AMENDMENTS


 


	1.	AMENDMENTS



 


The Facilities Agreement will be amended as follows:


 


		(a)	the definition of “Termination Date” in clause 1.1 shall be deleted and replaced
with the following:



 


“Termination Date
means 31 December 2020.”


 


		(b)	clause 6.1.1 shall be deleted and replaced with the following:



 


“6.1.1 The Company
shall repay the Loans by paying to the Lender on each date set out in Column 1 below (each a Repayment Date) an amount equal to
the relevant amount (each a Repayment instalment) which is set out in Column 2 below opposite that date.


 


	Column 1	 	Column 2	 
	Payment Date	 	Capital Payment	 
	30 June 2020	 	$	142,484.10	 
	31 July 2020	 	$	142,484.10	 
	31 August 2020	 	$	142,484.10	 
	30 September 2020	 	$	142,484.10	 
	31 October 2020	 	$	142,484.10	 
	30 November 2020	 	$	142,484.10	 
	The Termination Date 
 (31 December 2020)	 	$	142,484.10	”



  


		(c)	clause 8.1 shall be amended to read as follows:



 


“8.1 Calculation of
interest


 


The rate of interest on each Loan for each Interest
Period is five percentage points (5%) per annum.”


 






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		(d)	a new clause 19.8 (Global Cash Report) shall be inserted after clause
19.7 (and subsequent clause numbers (and references thereto) shall be re-numbered accordingly) as follows:



 


“19.8 Global Cash
Report


 


The Parent shall, no later
than Friday of each week, provide a report of Parent’s global cash, current as of the date of submission, in a form acceptable
to the Lender.”


 


		(e)	The definition of “EBITDA” in clause 20.1 (Financial
Covenants) shall be deleted and replaced with the following:



 


““EBITDA”
means with respect to any Relevant Period, an amount equal to the sum of consolidated earnings, plus to the extent deducted
in the calculation of earnings, (a) interest expense, (b) income tax expense, (c) depreciation and amortization expense, (d)
stock based compensation, (e) other income expenses, (f) restructuring costs, (g) goodwill impairment, (h) acquisition costs,
and (i) currency adjustments.”


 


		(f)	clause 20.2 (a) shall be amended to read as follows:



 


“Minimum Cash:
the Parent shall maintain at all times, tested as of the last day of each month, unrestricted consolidated cash in demand deposit
and/or money market accounts, in an amount equal to at least One Million Five Hundred Thousand Dollars ($1,500,000).”


 


		(g)	clause 20.2 (b) shall be deleted and replaced with the following:



 


“Minimum EBITDA:
the Parent shall maintain at all times, tested as of the last day of each Quarter Date, EBITDA, measured on a trailing three (3)
month basis, of at least the following amounts for the respective measuring periods set forth below:


 


	Measuring period ending	 	Minimum EBITDA	 
	30 June 2020	 	$	200,000	 
	30 September 2020	 	$	300,000	 
	31 December 2020	 	$	250,000”	 



 






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[ON COPY]



 


To:        EAST WEST BANK as Lender


 


We acknowledge, agree and accept the above terms:


 


	THE OBLIGORS
	 
	/s/ MATTHEW STECKER	 
	/s/ MARK P. SZYNKOWSKI	 
	For and on behalf of
	EVOLVING SYSTEMS, INC.
	By: Matthew Stecker; Mark P.
    Szynkowski
	 
	/s/ MATTHEW STECKER	 
	For and on behalf of
	EVOLVING SYSTEMS HOLDINGS
    LIMITED
	By: Matthew Stecker
	 
	/s/ MATTHEW STECKER	 
	For and on behalf of
	EVOLVING SYSTEMS LIMITED
	By: Matthew Stecker
	 
	/s/ MATTHEW STECKER	 
	For and on behalf of
	EVOLVING SYSTEMS BLS LIMITED
	By: Matthew Stecker
	 
	/s/ MATTHEW STECKER	 
	For and on behalf of
	EVOLVING SYSTEMS LUMATA
    LIMITED (PREVIOUSLY KNOWN AS LUMATA UK LIMITED)
	By: Matthew Stecker




 






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