THE APPLICABLE
CREDIT PARTY OR SUBSIDIARY OF A CREDIT PARTY ON THE BASIS OF ASSUMPTIONS WHICH
WERE BELIEVED TO BE REASONABLE AS OF THE DATE OF SUCH PROJECTIONS IN LIGHT OF
CURRENT AND REASONABLY FORESEEABLE BUSINESS CONDITIONS).
THE FINANCIAL
STATEMENTS OF EVOLVING SYSTEMS INCLUDED IN THE SEC DOCUMENTS COMPLY AS TO FORM
IN ALL MATERIAL RESPECTS WITH APPLICABLE ACCOUNTING REQUIREMENTS AND THE
PUBLISHED RULES AND REGULATIONS OF THE SEC WITH RESPECT THERETO, HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP (EXCEPT, IN THE CASE OF UNAUDITED STATEMENTS,
AS PERMITTED BY FORM 10-Q OF THE SEC) APPLIED ON A CONSISTENT BASIS DURING THE
PERIODS INVOLVED (EXCEPT AS MAY BE INDICATED IN THE NOTES THERETO) AND FAIRLY
PRESENT IN ALL MATERIAL RESPECTS THE CONSOLIDATED FINANCIAL POSITION OF EVOLVING
SYSTEMS AND ITS CONSOLIDATED SUBSIDIARIES AS OF THE DATES THEREOF AND THE
CONSOLIDATED RESULTS OF THEIR OPERATIONS AND CASH FLOWS FOR THE PERIODS THEN
ENDED (SUBJECT, IN THE CASE OF UNAUDITED STATEMENTS, TO THE ABSENCE OF FOOTNOTE
DISCLOSURE AND TO NORMAL AND RECURRING YEAR-END AUDIT ADJUSTMENTS).
(C)
EXCEPT AS SET FORTH ON SCHEDULE 5.10(C), NO CREDIT PARTY HAS
(I) ENGAGED IN ANY "PROHIBITED TRANSACTIONS," AS DEFINED IN SECTION 406 OF ERISA
AND SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER, (II) FAILED TO MEET ANY APPLICABLE
MINIMUM FUNDING REQUIREMENTS UNDER SECTION 302 OF ERISA IN RESPECT OF ITS PLANS
AND NO FUNDING REQUIREMENTS HAVE BEEN POSTPONED OR DELAYED, (III) KNOWLEDGE OF
ANY EVENT OR OCCURRENCE WHICH WOULD CAUSE THE PENSION BENEFIT GUARANTY
CORPORATION TO INSTITUTE PROCEEDINGS UNDER TITLE IV OF ERISA TO TERMINATE ANY OF
ITS EMPLOYEE BENEFIT PLANS, (IV) ANY FIDUCIARY RESPONSIBILITY UNDER ERISA FOR
INVESTMENTS WITH RESPECT TO ANY PLAN EXISTING FOR THE BENEFIT OF PERSONS OTHER
THAN ITS EMPLOYEES OR FORMER EMPLOYEES, OR (V) WITHDRAWN, COMPLETELY OR
PARTIALLY, FROM ANY MULTI-EMPLOYER PENSION PLANS SO AS TO INCUR LIABILITY UNDER
THE MULTIEMPLOYER PENSION PLAN AMENDMENTS OF 1980.
WITH RESPECT TO EACH CREDIT
PARTY, THERE EXISTS NO EVENT DESCRIBED IN SECTION 4043 OF ERISA, EXCLUDING
SUBSECTIONS 4043(B)(2) AND 4043(B)(3) THEREOF, FOR WHICH THE THIRTY (30) DAY
NOTICE PERIOD CONTAINED IN 12 C.F.R. § 2615.3 HAS NOT BEEN WAIVED.
EACH CREDIT
PARTY HAS MAINTAINED ALL MATERIAL RECORDS REQUIRED TO BE MAINTAINED BY ANY
APPLICABLE GOVERNMENTAL AUTHORITY.
INTERMEDIATE HOLDCO HAS NOT ENGAGED, DOES
NOT PRESENTLY ENGAGE AND DOES NOT PROPOSE TO ENGAGE IN ANY BUSINESS OTHER THAN
THE OWNERSHIP OF THE EQUITY SECURITIES OF EVOLVING SYSTEMS HOLDINGS LIMITED, A
COMPANY ORGANIZED UNDER THE LAWS OF ENGLAND AND WALES, AND ACTIVITIES INCIDENTAL
THERETO.
5.11
INTELLECTUAL PROPERTY
(A)
EXCEPT AS SET FORTH ON SCHEDULE 5.11, AS OF THE CLOSING DATE, OR
AS THEREAFTER OTHERWISE DISCLOSED IN WRITING TO AGENT FROM TIME TO TIME, NO
CREDIT PARTY OR SUBSIDIARY OF A CREDIT PARTY OWNS OR LICENSES ANY MATERIAL
PATENTS, PATENT APPLICATIONS, REGISTERED TRADEMARKS, TRADEMARK APPLICATIONS,
TRADE NAMES, REGISTERED SERVICE MARKS, SERVICE MARK APPLICATIONS, REGISTERED
COPYRIGHTS OR COPYRIGHT APPLICATIONS OTHER THAN OFF-THE-SHELF LICENSES READILY
AVAILABLE IN THE OPEN MARKET.
EACH