SHALL HAVE RECEIVED ORIGINAL CERTIFICATES OF ALL SUCH
REQUIRED INSURANCE POLICIES, AND CONFIRMATION THAT SUCH CERTIFICATES ARE IN
EFFECT AND THAT THE PREMIUMS THEN DUE AND OWING WITH RESPECT THERETO HAVE BEEN
PAID IN FULL, WHICH CERTIFICATES SHALL NAME THE AGENT, FOR THE BENEFIT OF THE
LENDER PARTIES, AS SOLE BENEFICIARY, LOSS PAYEE OR ADDITIONAL INSUREDS, (EXCEPT
IN THE CASE OF ADDITIONAL INSUREDS AS PERMITTED BY SECTION 6.4(C)) AS
APPLICABLE;
(H)
AGENT SHALL HAVE RECEIVED (OR SHALL RECEIVE SIMULTANEOUSLY WITH
THE FUNDING OF THE INITIAL ADVANCE, AS APPLICABLE) ALL FEES, CHARGES AND
EXPENSES DUE AND PAYABLE TO AGENT AND LENDERS ON OR PRIOR TO THE CLOSING DATE
PURSUANT TO THE LOAN DOCUMENTS;
(I)
ALL IN FORM AND SUBSTANCE SATISFACTORY TO AGENT IN ITS PERMITTED
DISCRETION, AGENT SHALL HAVE RECEIVED SUCH CONSENTS, APPROVALS AND AGREEMENTS
FROM SUCH THIRD PARTIES AS AGENT AND ITS COUNSEL SHALL DETERMINE IN THEIR
PERMITTED DISCRETION ARE NECESSARY OR DESIRABLE WITH RESPECT TO (I) THE LOAN
DOCUMENTS AND/OR THE TRANSACTIONS CONTEMPLATED THEREBY, (II) CLAIMS AGAINST ANY
CREDIT PARTY OR ANY OF THE COLLATERAL, AND/OR (III) AGREEMENTS, DOCUMENTS OR
INSTRUMENTS TO WHICH ANY CREDIT PARTY IS A PARTY OR BY WHICH ANY OF ITS
PROPERTIES OR ASSETS ARE BOUND OR SUBJECT, INCLUDING WITHOUT LIMITATION LANDLORD
WAIVERS AND CONSENTS FOR EACH PROPERTY LEASE;
(J)
AGENT SHALL HAVE COMPLETED ITS DUE DILIGENCE EXAMINATIONS OF EACH
CREDIT PARTY, AND THEIR SUBSIDIARIES INCLUDING, WITHOUT LIMITATION,
(I) EXAMINATION OF THE COLLATERAL AND ITS FINANCIAL DUE DILIGENCE, (II) AN
EXAMINATION OF THE TERMS AND CONDITIONS OF ALL OBLIGATIONS OWED BY SUCH PERSON
DEEMED MATERIAL BY AGENT, THE RESULTS OF WHICH SHALL BE SATISFACTORY TO AGENT,
AND (III) CUSTOMER REFERENCE CHECKS AND CALLS, CREDIT CHECKS AND BACKGROUND
CHECKS WITH RESPECT TO THE RELEVANT KEY MANAGEMENT AND PRINCIPALS OF EACH CREDIT
PARTY AND THEIR SUBSIDIARIES;
(K)
THERE SHALL BE NO EVENT OF DEFAULT UNDER A MATERIAL CONTRACT AS OF
THE CLOSING DATE;
(L)
NO MATERIAL ADVERSE EFFECT SHALL HAVE OCCURRED SINCE JUNE 30,
2005 AND AGENT SHALL HAVE RECEIVED THE AUDITED FINANCIAL STATEMENTS OF EVOLVING
SYSTEMS AND ITS CONSOLIDATED SUBSIDIARIES FOR THE FISCAL YEAR ENDED DECEMBER 31,
2004 AND THE UNAUDITED FINANCIAL STATEMENTS EVOLVING SYSTEMS AND ITS
CONSOLIDATED SUBSIDIARIES ON A CONSOLIDATED, CONSOLIDATING AND PRO-FORMA BASIS
FOR THE EIGHT (8)-MONTH PERIOD ENDING AND AS OF AUGUST 31, 2005;
(M)
AGENT SHALL HAVE RECEIVED EVIDENCE THAT (I) CONSOLIDATED EBITDA OF
EVOLVING SYSTEMS (CALCULATED, FOR PURPOSES OF THIS SUBSECTION WITHOUT REGARD FOR
THE AMOUNTS THAT WOULD BE ACCRUED IN CONNECTION WITH TSE CONTINGENT OBLIGATIONS
IF THE CREDIT PARTIES ACCRUED FOR SUCH AMOUNTS) FOR THE SIX (6)-MONTH PERIOD
ENDED ON JUNE 30, 2005 WAS AT LEAST TWO MILLION SEVEN HUNDRED FIFTY THOUSAND
DOLLARS ($2,750,000);
(N)
AGENT SHALL HAVE RECEIVED A COMPLETED BORROWING BASE CERTIFICATE
SETTING FORTH THE BORROWING BASE AS OF A DATE NOT MORE THAN THIRTY (30) DAYS
PRIOR TO THE CLOSING DATE, AND NOT MORE THAN $2,000,000 IN REVOLVING LOANS SHALL
BE ADVANCED ON THE CLOSING DATE, AND, AFTER THE FUNDING OF THE ANY LOANS ON