Exhibit 10.1(k)
THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION
AGREEMENT (AS AMENDED, THE "SUBORDINATION AGREEMENT"), DATED AS OF NOVEMBER 14,
2005, AMONG EVOLVING SYSTEMS, INC., A DELAWARE CORPORATION, THE OTHER OBLIGORS
(AS DEFINED THEREIN), THE JUNIOR CREDITORS (AS DEFINED THEREIN) AND
CAPITALSOURCE FINANCE LLC, AS AGENT FOR THE LENDERS FROM TIME TO TIME A PARTY TO
THE CREDIT AGREEMENTS (AS DEFINED THEREIN), ALL AS MORE PARTICULARLY DESCRIBED
IN THE SUBORDINATION AGREEMENT, AND EACH HOLDER OF THIS INSTRUMENT, BY ITS
ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT.
$
Principal Amount
November 14, 2005
SUBORDINATED NOTE
EVOLVING SYSTEMS, INC.
FOR VALUE RECEIVED, EVOLVING SYSTEMS, INC., a Delaware corporation ("Maker"),
having its principal place of business at 9777 Mount Pyramid Court, Englewood,
Colorado 80112, hereby promises to pay to the order of [Insert Name of Payee]
("Payee"), having an address at [Insert Address of Payee], the principal sum of
Dollars ($
) in lawful money of the
United States of America on or before May 16, 2011 (the "Maturity Date").
1.
DEFINITIONS; INTERPRETATIONS.
IN ADDITION TO OTHER TERMS DEFINED
ELSEWHERE IN THIS NOTE, THE CAPITALIZED TERMS SET FORTH IN SCHEDULE 1 ATTACHED
HERETO AND INCORPORATED HEREIN BY REFERENCE SHALL HAVE THE MEANINGS SET FORTH
THEREIN UNLESS DEFINED ELSEWHERE HEREIN OR THE CONTEXT OTHERWISE CLEARLY
REQUIRES.
EXCEPT AS OTHERWISE PROVIDED HEREIN, FINANCIAL AND ACCOUNTING TERMS
USED ELSEWHERE IN THIS NOTE SHALL BE DEFINED IN ACCORDANCE WITH GAAP.
2.
PAYMENTS OF PRINCIPAL AND INTEREST.
ON EACH QUARTERLY PAYMENT
DATE, SO LONG AS THE PAYMENT IS OTHERWISE PERMITTED UNDER THE TERMS OF THE
SUBORDINATION AGREEMENT, PAYEE SHALL RECEIVE A PAYMENT CONSISTING OF PRINCIPAL
AND ACCRUED AND UNPAID INTEREST EQUAL TO PAYEE'S PRO RATA SHARE OF MAKER'S
AVAILABLE CASH FOR PAYMENT, IF ANY. ALL PAYMENTS SHALL BE APPLIED FIRST TO
ACCRUED AND UNPAID INTEREST AND THEN TO PRINCIPAL OUTSTANDING UNDER THIS NOTE.
ON EACH QUARTERLY PAYMENT DATE, MAKER SHALL DELIVER TO PAYEE A CERTIFICATE OF
THE CHIEF FINANCIAL OFFICER OF MAKER SETTING FORTH IN REASONABLE DETAIL A
CALCULATION OF MAKER'S AVAILABLE CASH FOR PAYMENT FOR THE MOST RECENTLY ENDED
FISCAL QUARTER.
3.
PRE-DEFAULT INTEREST RATE.
SO LONG AS NO EVENT OF DEFAULT (AS
HEREINAFTER DEFINED) HAS OCCURRED AND IS CONTINUING, THE OUTSTANDING PRINCIPAL
BALANCE OF THIS NOTE SHALL BEAR INTEREST AT A RATE PER ANNUM EQUAL TO ELEVEN
PERCENT (11%).
FROM AND AFTER JANUARY 1, 2008, SO LONG AS NO EVENT OF DEFAULT
HAS OCCURRED AND IS CONTINUING, THE OUTSTANDING PRINCIPAL BALANCE OF THIS NOTE
SHALL BEAR INTEREST AT A RATE PER ANNUM EQUAL TO FOURTEEN PERCENT (14%).
TO THE
EXTENT NOT PAID WHEN DUE, INTEREST SHALL BE COMPOUNDED QUARTERLY UNTIL PAID.
4.
POST-DEFAULT INTEREST RATE.
FOLLOWING THE OCCURRENCE AND DURING
THE CONTINUANCE OF AN EVENT OF DEFAULT, THE OUTSTANDING PRINCIPAL BALANCE OF
THIS NOTE SHALL BEAR INTEREST AT A RATE PER ANNUM (THE "DEFAULT RATE") EQUAL TO
TWO PERCENT (2%) IN EXCESS OF THE