Exhibit 10.50


 


GUARANTY


 


This GUARANTY
(as amended, restated, supplemented, or otherwise modified and in effect from
time to time, this “Guaranty”) is
made as of this 31st day of October, 2007, jointly and severally, by
each of Averion, Inc., a Delaware corporation (“Averion Inc.”) and
IT&E International, a California corporation (“IT&E,” and together with
Averion Inc. and each other person or entity who becomes a party to this
Guaranty by execution of a joinder in the form of Exhibit A
attached hereto, is referred to individually as a “Guarantor” and collectively
as the “Guarantors”) in favor of
Cumulus Investors, LLC, a Nevada limited liability company, on its own behalf
and in its capacity as collateral agent (together with its successors and
assigns in such capacity, the “Collateral
Agent”) for the benefit of the Buyers (as defined in the Purchase
Agreement described below).


 


W I T N E S
S E T H:


 


WHEREAS, as of the date hereof, Buyers have made
certain financial accommodations to AVERION
INTERNATIONAL CORP., a Delaware corporation (the “Company”) and purchased certain secured
senior notes in an original aggregate principal amount of up to $26,000,000
(such notes, together with any promissory notes or other securities issued in
exchange or substitution therefor or replacement thereof, as any of the same may be
amended, supplemented, restated or modified and in effect from time to time,
the “Notes”);


 


WHEREAS, the Notes are being acquired by Buyers
pursuant to a Securities Purchase Agreement dated as of October 31, 2007
among the Buyers and the Company (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “Purchase Agreement”);


 


WHEREAS, pursuant to a Pledge Agreement of even date
herewith (as the same may be amended, restated, supplemented or otherwise
modified and in effect from time to time, the “Company Pledge Agreement”) by the Company in favor of the
Collateral Agent, the Company has pledged and granted a lien on and security
interest in all of the capital stock and other equity interests of each of
Averion Inc. and IT&E to Collateral Agent, for its benefit and the benefit
of the Buyers;


 


WHEREAS, pursuant to a Security Agreement of even
date herewith (as the same may be amended, restated, supplemented or
otherwise modified and in effect from time to time, the “Security Agreement”) by the “Debtors” (as defined therein), in favor of
the Collateral Agent, each of the Debtors (including the Company and the
Guarantors) has granted the Collateral Agent, for its benefit and the benefit
of the Buyers, a first priority security interest in, lien upon and pledge of
each of its rights in the Collateral (as defined in the Security Agreement);
and


 


WHEREAS, the Guarantors are direct or indirect
subsidiaries of the Company and, as such, will derive substantial benefit and
advantage from the financial accommodations available to the Company set forth
in the Purchase Agreement, the Notes and the other Transaction Documents, and
it will be to each Guarantor’s direct interest and economic benefit to assist
the Company in procuring said financial accommodations from Buyers.


 

















 


NOW, THEREFORE, for and in consideration of the premises
and in order to induce Buyers to purchase the notes and make the financial
accommodations contemplated by the Purchase Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby jointly and severally agrees as follows:


 


1.                                       Definitions:  Capitalized terms used herein
without definition and defined in the Purchase Agreement are used herein as
defined therein. In addition, as used herein:


 


“Bankruptcy Code”
shall mean the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et
seq.), as amended and in effect from time to time thereunder.


 


“Event of Default”
shall have the meaning ascribed to such term in the Notes.


 


“Obligations”
shall mean (i) all obligations, liabilities and indebtedness of every
nature of the Company from time to time owed or owing to the Buyers and
Collateral Agent, including, without limitation, all obligations, liabilities
and indebtedness of every nature of the Company under the Security Documents,
the Purchase Agreement, the Notes, the Registration Rights Agreement and the
other Transaction Documents, including, without limitation, the principal
amount of all debts, claims and indebtedness, accrued and unpaid interest and
all fees, taxes, indemnities, costs and expenses, whether primary, secondary,
direct, contingent, fixed or otherwise, heretofore, now and/or from time to
time hereafter owing, due or payable whether before or after the filing of a
bankruptcy, insolvency or similar proceeding under applicable federal, state,
foreign or other law and whether or not an allowed claim in any such
proceeding, and (ii) all obligations, liabilities and indebtedness of
every nature of the Guarantors from time to time owed or owing to the Buyers
and/or Collateral Agent, including, without limitation, all obligations,
liabilities and indebtedness of every nature of the Guarantors under or in
respect of this Guaranty, the Security Documents, the Purchase Agreement, the
Notes, the Registration Rights Agreement and the other Transaction Documents,
as the case may be, including, without limitation, the principal amount of
all debts, claims and indebtedness, accrued and unpaid interest and all fees,
taxes, indemnities, costs and expenses, whether primary, secondary, direct,
contingent, fixed or otherwise, heretofore, now and/or from time to time
hereafter owing, due or payable whether before or after the filing of a
bankruptcy, insolvency or similar proceeding under applicable federal, state,
foreign or other law and whether or not an allowed claim in any such
proceeding.


 


2.                                       Guaranty of Payment.


 


(a)                                  Each Guarantor, jointly and severally, hereby
unconditionally and irrevocably guaranties (as primary obligor and not merely
as a surety) the full and prompt payment and performance to Buyers and
Collateral Agent, on behalf of itself and in its capacity as collateral agent
for the benefit of Buyers, when due, upon demand, at maturity or by reason of
acceleration or otherwise and at all times thereafter, of any and all of the
Obligations.


 


(b)                                 Each Guarantor acknowledges that valuable
consideration supports this Guaranty, including, without limitation, the
consideration set forth in the recitals above, as well as any commitment to
lend, extension of credit or other financial accommodation, whether


 


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heretofore
or hereafter made by Buyers to the Company; any extension, renewal or
replacement of any of the Obligations; any forbearance with respect to any of
the Obligations or otherwise; any cancellation of an existing guaranty; any
purchase of any of the Company’s assets by any Buyer or Collateral Agent; or
any other valuable consideration.


 


(c)                                  Each Guarantor agrees that all payments under
this Guaranty shall be made in United States currency and in the same manner as
provided for the Obligations.


 


(d)                                 Notwithstanding any provision of this
Guaranty to the contrary, it is intended that this Guaranty, and any interests,
liens and security interests granted by any Guarantor as security for this
Guaranty, not constitute a “Fraudulent Conveyance” (as defined below) in the
event that this Guaranty or such interest is subject to the Bankruptcy Code or
any applicable fraudulent conveyance or fraudulent transfer law or similar law
of any state. Consequently, Guarantors, Collateral Agent and Buyers agree that
if this Guaranty, or any such interests, liens or security interests securing
this Guaranty, would, but for the application of this sentence, constitute a
Fraudulent Conveyance, this Guaranty and each such lien and security interest
shall be valid and enforceable only to the maximum extent that would not cause
this Guaranty or such interest, lien or security interest to constitute a
Fraudulent Conveyance, and this Guaranty shall automatically be deemed to have
been amended accordingly at all relevant times. For purposes hereof, “Fraudulent Conveyance” means a fraudulent
conveyance under Section 548 of the Bankruptcy Code or a fraudulent
conveyance or fraudulent transfer under the provisions of any applicable
fraudulent conveyance or fraudulent transfer law or similar law of any state,
as in effect from time to time.


 


3.                                       Costs and Expenses. Each Guarantor, jointly and severally,
agrees to pay on demand, all reasonable costs and expenses of every kind
incurred by any Buyer or Collateral Agent: (a) in enforcing this Guaranty,
(b) in collecting any of the Obligations from the Company or any
Guarantor, and (c) in realizing upon or protecting or preserving any
collateral for this Guaranty or for payment of any of the Obligations. “Costs and expenses” as used in the
preceding sentence shall include, without limitation, reasonable attorneys’
fees incurred by any Buyer or Collateral Agent in retaining counsel for advice,
suit, appeal, any insolvency or other proceedings under the Bankruptcy Code or
otherwise, or for any purpose specified in the preceding sentence.


 


4.                                       Nature of Guaranty: Continuing, Absolute and
Unconditional.


 


(a)                                  This Guaranty is and is intended to be a
continuing guaranty of payment of the Obligations, and not of collectibility,
and is intended to be independent of and in addition to any other guaranty,
indorsement, collateral or other agreement held by Buyers or Collateral Agent
therefor or with respect thereto, whether or not furnished by a Guarantor. None
of Buyers and Collateral Agent shall be required to prosecute collection, enforcement
or other remedies against Company, any other Guarantor or guarantor of the
Obligations or any other person or entity, or to enforce or resort to any of
the Collateral or other rights or remedies pertaining thereto, before calling
on a Guarantor for payment. The obligations of each Guarantor to repay the
Obligations hereunder shall be unconditional. Each Guarantor shall have no
right of subrogation with respect to any payments made by any Guarantor
hereunder until the termination of this Guaranty in accordance with Section 8
below, and hereby waives any benefit of, and any


 


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right
to participate in, any security or collateral given to Buyers to secure payment
of the Obligations, and each Guarantor agrees that it will not take any action
to enforce any obligations of the Company to any Guarantor prior to the
Obligations being finally and irrevocably paid in full in cash, provided
that, in the event of the bankruptcy or insolvency of the Company, Collateral
Agent, for the benefit of itself and Buyers, and Buyers shall be entitled
notwithstanding the foregoing, to file in the name of any Guarantor or in its
own name a claim for any and all indebtedness owing to a Guarantor by the
Company (exclusive of this Guaranty), vote such claim and to apply the proceeds
of any such claim to the Obligations.


 


(b)                                 For the further security of Buyers and
without in any way diminishing the liability of the Guarantors, following the
occurrence and during the continuance of an Event of Default, all debts and
liabilities, present or future of the Company to the Guarantors and all monies
received from the Company or for its account by the Guarantors in respect
thereof shall be received in trust for Buyers and Collateral Agent and forthwith
upon receipt shall be paid over to Collateral Agent, for its benefit and in its
capacity as collateral agent for the benefit of Buyers, until all of the
Obligations have been finally and irrevocably paid in full in cash. This
assignment and postponement is independent of and severable from this Guaranty
and shall remain in full effect whether or not any Guarantor is liable for any
amount under this Guaranty.


 


(c)                                  This Guaranty is absolute and unconditional
and shall not be changed or affected by any representation, oral agreement, act
or thing whatsoever, except as herein provided. This Guaranty is intended by
the Guarantors to be the final, complete and exclusive expression of the
guaranty agreement between the Guarantors and Buyers. No modification or
amendment of any provision of this Guaranty shall be effective against any
party hereto unless in writing and signed by a duly authorized officer of such
party.


 


(d)                                 Each Guarantor hereby releases the Company
from all, and agrees not to assert or enforce (whether by or in a legal or
equitable proceeding or otherwise) any “claims” (as defined in Section 101(5) of
the Bankruptcy Code), whether arising under any law, ordinance, rule,
regulation, order, policy or other requirement of any domestic or foreign
government or any instrumentality or agency thereof, having jurisdiction over
the conduct of its business or assets or otherwise, to which the Guarantors are
or would at any time be entitled by virtue of its obligations hereunder, any
payment made pursuant hereto or the exercise by any Buyer or Collateral Agent
of its rights with respect to the Collateral, including any such claims to
which such Guarantors may be entitled as a result of any right of
subrogation, exoneration or reimbursement.


 


5.                                       Certain Rights and Obligations.


 


(a)                                  Each Guarantor acknowledges and agrees that
Buyers and Collateral Agent, for its benefit and as collateral agent for the
benefit of Buyers, may, without notice, demand or any reservation of rights
against such Guarantor and without affecting such Guarantor’s obligations
hereunder, from time to time:


 


(i)                                     renew, extend, increase, accelerate or
otherwise change the time for payment of, the terms of or the interest on the
Obligations or any part thereof or grant other indulgences to the Company
or others;


 


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(ii)                                  accept from any person or entity and hold
collateral for the payment of the Obligations or any part thereof, and
modify, exchange, enforce or refrain from enforcing, or release, compromise,
settle, waive, subordinate or surrender, with or without consideration, such
collateral or any part thereof;


 


(iii)                               accept and hold any indorsement or guaranty
of payment of the Obligations or any part thereof, and discharge, release
or substitute any such obligation of any such indorser or guarantor, or
discharge, release or compromise any Guarantor, or any other person or entity
who has given any security interest in any collateral as security for the
payment of the Obligations or any part thereof, or any other person or
entity in any way obligated to pay the Obligations or any part thereof,
and enforce or refrain from enforcing, or compromise or modify, the terms of
any obligation of any such indorser, guarantor, or person or entity;


 


(iv)                              dispose of any and all collateral securing
the Obligations in any manner as the Collateral Agent, in its sole discretion, may deem
appropriate, and direct the order or manner of such disposition and the
enforcement of any and all endorsements and guaranties relating to the
Obligations or any part thereof as Collateral Agent in its sole discretion
may determine;


 


(v)                                 (a) sell, exchange, enforce, waive,
substitute, liquidate, terminate, release, abandon, fail to perfect,
subordinate, accept, substitute, surrender, exchange, affect, impair or
otherwise alter or release any collateral for any Obligation or any other
guaranty therefor in any manner, (b) receive, take and hold additional
collateral to secure any Obligation, (c) add, release or substitute any
one or more other Guarantors, makers or endorsers of any Obligation or any part thereof
and (d) otherwise deal in any manner with the Company and any other
Guarantor, maker or endorser of any Obligation or any part thereof;


 


(vi)                              settle, release, compromise, collect or
otherwise liquidate the Obligations;


 


(vii)                           determine the manner, amount and time of
application of payments and credits, if any, to be made on all or any part of
any component or components of the Obligations (whether principal, interest,
fees, costs, and expenses, or otherwise), including, without limitation, the
application of payments received from any source to the payment of indebtedness
other than the Obligations even though Buyers might lawfully have elected to
apply such payments to the Obligations to amounts which are not covered by this
Guaranty;


 


(viii)                        take advantage or refrain from taking
advantage of any security or accept or make or refrain from accepting or making
any compositions or arrangements when and in such manner as Collateral Agent,
in its sole discretion, may deem appropriate;


 


(ix)                                (a) modify, amend, supplement or
otherwise change, (b) accelerate or otherwise change the time of payment,
or (c) waive or otherwise consent to noncompliance with any Obligation or
any Transaction Document pursuant to the terms thereof;


 


and
generally do or refrain from doing any act or thing which might otherwise, at
law or in equity, release the liability of such Guarantor as a guarantor or
surety in whole or in part, and in no case shall Buyers or Collateral Agent be
responsible or shall any Guarantor be released either


 


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in
whole or in part for any act or omission in connection with Buyers or
Collateral Agent having sold any security at less than its value.


 


(b)                                 Following the occurrence of an Event of
Default, and upon demand by Collateral Agent, each Guarantor, jointly and
severally, hereby agrees to pay the Obligations to the extent hereinafter
provided:


 


(i)                                     without deduction by reason of any setoff,
defense (other than payment) or counterclaim of the Company or any other
Guarantor;


 


(ii)                                  without requiring presentment, protest or
notice of nonpayment or notice of default to any Guarantor, to the Company or
to any other person or entity;


 


(iii)                               without demand for payment or proof of such
demand or filing of claims with a court in the event of receivership,
bankruptcy or reorganization of the Company or any other Guarantor;


 


(iv)                              without requiring Buyers or Collateral Agent
to resort first to the Company (this being a guaranty of payment and not of
collection), to any other Guarantor, or to any other guaranty or any collateral
which Buyers or Collateral Agent may hold;


 


(v)                                 without requiring notice of acceptance hereof
or assent hereto by any Buyer or Collateral Agent; and


 


(vi)                              without requiring notice that any of the
Obligations has been incurred, extended or continued or of the reliance by any
Buyer or Collateral Agent upon this Guaranty;


 


all
of which each Guarantor hereby waives.


 


(c)                                  Each Guarantor’s obligation hereunder shall
not be affected by any of the following, all of which such Guarantor hereby
waives:


 


(i)                                     any failure to perfect or continue the
perfection of any security interest in or other lien on any collateral securing
payment of any of the Obligations or any Guarantor’s obligation hereunder;


 


(ii)                                  the invalidity, unenforceability, propriety
of manner of enforcement of, or loss or change in priority of any document or
any such security interest or other lien or guaranty of the Obligations;


 


(iii)                               any failure to protect, preserve or insure
any such collateral;


 


(iv)                              failure of a Guarantor to receive notice of
any intended disposition of such collateral;


 


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(v)                                 any defense arising by reason of the
cessation from any cause whatsoever of liability of the Company including,
without limitation, any failure, negligence or omission by any Buyer or
Collateral Agent in enforcing its claims against the Company;


 


(vi)                              any release, settlement or compromise of any
obligation of the Company, any other Guarantor or any other guarantor of the
Obligations;


 


(vii)                           the invalidity or unenforceability of any of
the Obligations;


 


(viii)                        any change of ownership of the Company, any
other Guarantor or any other guarantor of the Obligations or the insolvency,
bankruptcy or any other change in the legal status of the Company, any other
Guarantor or any other guarantor of the Obligations;


 


(ix)                                any change in, or the imposition of, any law,
decree, regulation or other governmental act which does or might impair, delay
or in any way affect the validity, enforceability or the payment when due of
the Obligations;


 


(x)                                   the existence of any claim, setoff or other
rights which the Guarantor, Company, any other Guarantor or guarantor of the
Obligations or any other person or entity may have at any time against any
Buyer, Collateral Agent, the Company, any other Guarantor or guarantor in
connection herewith or any unrelated transaction;


 


(xi)                                any Buyer’s or Collateral Agent’s election in
any case instituted under chapter 11 of the Bankruptcy Code, of the application
of section 1111(b)(2) of the Bankruptcy Code;


 


(xii)                             any use of cash collateral, or grant of a
security interest by the Company, as debtor in possession, under sections 363
or 364 of the Bankruptcy Code;


 


(xiii)                          the disallowance of all or any portion of any
of any Buyer’s or Collateral Agent’s claims for repayment of the Obligations
under sections 502 or 506 of the Bankruptcy Code;


 


(xiv)                         any workout, insolvency, bankruptcy,
proceeding, reorganization, arrangement, liquidation or dissolution by or
against the Company, any other Guarantor or any of the Company’s other
Subsidiaries or any procedure, agreement, order, stipulation, election, action
or omission thereunder, including any discharge or disallowance of, or bar or
stay against collecting, any Obligation (or any interest thereon) in or as a
result of any such proceeding;


 


(xv)                            any other fact or circumstance which might
otherwise constitute grounds at law or equity for the discharge or release of a
Guarantor from its obligations hereunder, all whether or not such Guarantor
shall have had notice or knowledge of any act or omission referred to in the
foregoing clauses (i) through (xvi) of this Section 5(c).


 


6.                                       Representations and Warranties. Each Guarantor further represents and
warrants to Buyers and Collateral Agent that: (a) such Guarantor is a
corporation or other entity duly incorporated or organized, as applicable,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, as applicable, and has full power, authority and


 


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legal
right to own its property and assets and to transact the business in which it
is engaged; (b) such Guarantor has full power, authority and legal right
to execute and deliver, and to perform its obligations under, this
Guaranty, and has taken all necessary action to authorize the guarantee
hereunder on the terms and conditions of this Guaranty and to authorize the
execution, delivery and performance of this Guaranty; (c) this Guaranty
has been duly executed and delivered by such Guarantor and constitutes a legal,
valid and binding obligation of such Guarantor enforceable against such
Guarantor in accordance with its terms, except to the extent that such
enforceability is subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance and moratorium laws and other laws of general application
affecting enforcement of creditors’ rights generally, or the availability of
equitable remedies, which are subject to the discretion of the court before
which an action may be brought; and (d) the execution, delivery and
performance by each Guarantor of this Guaranty do not require any action by or
in respect of, or filing with, any governmental body, agency or official and do
not violate, conflict with or cause a breach or a default under any provision
of applicable law or regulation or of the organizational documents of any
Guarantor or of any agreement, judgment, injunction, order, decree or other
instrument binding upon it.


 


7.                                       Negative Covenants. Each Guarantor covenants with Buyers and
Collateral Agent that such Guarantor shall not grant any security interest in
or permit any lien, claim or encumbrance upon any of its assets in favor of any
person or entity other than liens and security interests in favor of Buyers and
Collateral Agent and other Permitted Liens.


 


8.                                       Termination. This Guaranty shall not terminate until such time, if any, as (i) all
Indebtedness under the Notes secured hereby shall be finally and irrevocably
paid in full in cash, (ii) no Notes shall remain outstanding, (iii) all
commitments to lend or make financial accommodations under the Purchase
Agreement shall have terminated and (iv) there shall exist no other
outstanding payment or reimbursement obligations (other than contingent
indemnification obligations for which no claims shall have been asserted) of
the Company or the Guarantors to the Collateral Agent under any of the
Transaction Documents. Thereafter, but subject to the following, Collateral
Agent, on its behalf and as agent for Buyers, shall take such action and
execute such documents as the Guarantors may reasonably request (and at
the Guarantors’ cost and expense) in order to evidence the termination of this
Guaranty. Each Guarantor further agrees that, to the extent that the Company
makes a payment or payments to Buyers or Collateral Agent on the Obligations,
or Buyers or Collateral Agent receive any proceeds of collateral securing the
Obligations or any other payments with respect to the Obligations, which
payment or receipt of proceeds or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
to be returned or repaid to the Company, its estate, trustee, receiver, debtor
in possession or any other person or entity, including, without limitation, the
Guarantors, under any insolvency or bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such payment, return or
repayment, the obligation or part thereof which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the date when such initial payment, reduction or satisfaction
occurred, and this Guaranty shall continue in full force notwithstanding any
contrary action which may have been taken by any Buyer or Collateral Agent
in reliance upon such payment, and any such contrary action so taken shall be
without prejudice to any Buyer’s or Collateral Agent’s rights under this
Guaranty and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.


 


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9.                                       Guaranty of Performance. Each Guarantor also guaranties the full,
prompt and unconditional performance of all obligations and agreements of every
kind owed or hereafter to be owed by the Company to Buyers and Collateral Agent
under the Purchase Agreement, the Registration Rights Agreement, Security
Documents, the Notes and the other Transaction Documents. Every provision for
the benefit of Buyers and Collateral Agent contained in this Guaranty shall
apply to the guaranty of performance given in this paragraph.


 


10.                                 Waivers; Reliance. Each Guarantor hereby unconditionally and
irrevocably waives and agrees not to assert any claim, defense, setoff or
counterclaim based on diligence, promptness, presentment, requirements for any
demand or notice hereunder including any of the following:  (a) any demand for payment or
performance and protest and notice of protest, (b) any notice of
acceptance, (c) any presentment, demand, protest or further or other
requirements of any kind with respect to any Obligation (including any accrued
but unpaid interest thereon) becoming immediately due and payable and (d) any
other notice in respect of any Obligation or any part thereof, and any
defense arising by reason of any disability or other defense of the Company or
any other Guarantor. Each Guarantor hereby assumes responsibility for keeping
itself informed of the financial condition of the Company, each other Guarantor
and any other guarantor, maker or endorser of any Obligation or any part thereof,
and of all other circumstances bearing upon the risk of nonpayment of any
Obligation or any part thereof that diligent inquiry would reveal, and
each Guarantor hereby agrees that no Collateral Agent or Buyer shall have any
duty to advise any Guarantor of information known to it regarding such
condition or any such circumstances.


 


11.                                 Miscellaneous.


 


(a)                                  The terms “Company” and “Guarantor” as used
in this Guaranty shall include: (i) any successor individual or
individuals, association, partnership, limited liability company or corporation
to which all or substantially all of the business or assets of the Company or
such Guarantor shall have been transferred and (ii) any other association,
partnership, limited liability company, corporation or entity into or with
which the Company or such Guarantor shall have been merged, consolidated,
reorganized, or absorbed.


 


(b)                                 Without limiting any other right of any Buyer
or Collateral Agent, whenever any Buyer or Collateral Agent has the right to
declare any of the Obligations to be immediately due and payable (whether or
not it has been so declared), Collateral Agent, on its behalf and in its
capacity as agent for the benefit of Buyers, at its sole election without
notice to the undersigned may appropriate and set off against the
Obligations:


 


(i)                                     any and all indebtedness or other moneys due
or to become due to any Guarantor by any Buyer or Collateral Agent in any
capacity; and


 


(ii)                                  any credits or other property belonging to
any Guarantor (including all account balances, whether provisional or final and
whether or not collected or available) at any time held by or coming into the
possession of any Buyer or Collateral Agent, or any affiliate of any Buyer or
Collateral Agent, whether for deposit or otherwise;


 


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whether
or not the Obligations or the obligation to pay such moneys owed by any Buyer
or Collateral Agent is then due, and the applicable Buyer or Collateral Agent
shall be deemed to have exercised such right of set off immediately at the time
of such election even though any charge therefor is made or entered on such
Buyer’s or Collateral Agent’s records subsequent thereto. Collateral Agent
agrees to notify such Guarantor in a reasonably practicable time of any such
set-off; however, failure to so notify such Guarantor shall not affect the
validity of any set-off.


 


(c)                                  Each Guarantor’s obligation hereunder is to
pay the Obligations in full in cash when due according to the Notes, the
Security Documents, the other Transaction Documents and the other agreements,
documents and instruments governing the Obligations to the extent provided
herein, and shall not be affected by any stay or extension of time for payment
by the Company or any other Guarantor resulting from any proceeding under the
Bankruptcy Code or any similar law.


 


(d)                                 No course of dealing between the Company or
any Guarantor and Buyers or Collateral Agent and no act, delay or omission by
Buyers or Collateral Agent in exercising any right or remedy hereunder or with
respect to any of the Obligations shall operate as a waiver thereof or of any
other right or remedy, and no single or partial exercise thereof shall preclude
any other or further exercise thereof or the exercise of any other right or
remedy. Any Buyer or Collateral Agent may remedy any default by the
Company under any agreement with the Company or with respect to any of the
Obligations in any reasonable manner without waiving the default remedied and
without waiving any other prior or subsequent default by the Company. All
rights and remedies of Buyers and Collateral Agent hereunder are cumulative.


 


(e)                                  This Guaranty shall inure to the benefit of
each Buyer and Collateral Agent, and each such entity’s successors and assigns.


 


(f)                                    Collateral Agent may assign its rights
hereunder upon written notice to Guarantors, in which event such assignee shall
be deemed to be Collateral Agent hereunder with respect to such assigned
rights.


 


(g)                                 Captions of the sections of this Guaranty are
solely for the convenience of the parties hereto, and are not an aid in the
interpretation of this Guaranty and do not constitute part of the
agreement of the parties set forth herein.


 


(h)                                 If any provision of this Guaranty is
unenforceable in whole or in part for any reason, the remaining provisions
shall continue to be effective.


 


(i)                                     All questions concerning the construction,
validity, enforcement and interpretation of this Guaranty shall be governed by
the internal laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York. Each Guarantor hereby
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives,


 


10

















 


and
agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Each Guarantor hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. Notwithstanding the foregoing,
the Collateral Agent may enforce its rights or remedies in any other
jurisdiction.


 


(j)                                     Notices. All notices, approvals, requests, demands and other communications
hereunder shall be delivered or made in the manner set forth in, and shall be
effective in accordance with the terms of, the Purchase Agreement or, in the
case of communications to the Collateral Agent, directed to the notice address
set forth in the Security Agreement; provided, that any communication shall be
effective as to any Guarantor if made or sent to the Company in accordance with
the foregoing.


 


12.                                 WAIVERS.


 


(a)                                  EACH GUARANTOR WAIVES THE
BENEFIT OF ALL VALUATION, APPRAISAL AND EXEMPTION LAWS.


 


(b)                                 UPON THE OCCURRENCE OF A
DEFAULT OR EVENT OF DEFAULT, EACH GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE
AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY ANY BUYER OR COLLATERAL AGENT,
ON ITS BEHALF AND IN ITS CAPACITY AS AGENT FOR THE BENEFIT OF BUYERS, OF ITS
RIGHTS TO REPOSSESS THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY,
ATTACH OR LEVY UPON THE COLLATERAL WITHOUT PRIOR NOTICE OR HEARING. EACH
GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH
RESPECT TO THIS TRANSACTION AND THIS GUARANTY.


 


(c)                                  EACH GUARANTOR WAIVES ITS
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS GUARANTY, OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY BUYER OR
COLLATERAL AGENT. EACH GUARANTOR AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION
SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
EACH GUARANTOR FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS GUARANTY OR ANY PROVISION HEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS GUARANTY.


 


11

















 


13.                                 Collateral Agent. The terms and provisions of Section 5.12
of the Security Agreement which set forth the appointment of the Collateral
Agent and the indemnifications to which the Collateral Agent is entitled are
hereby incorporated by reference herein as if fully set forth therein.


 


14.                                 Payments Free of Taxes.


 


(a)                                  Definitions. In this Section 14:


 


(i)                                     “Excluded
Taxes” means, with respect to the Collateral Agent or the Buyers, or
any other recipient of any payment to be made by or on account of any
obligations of any Guarantor under this Guaranty, or under any other Security
Document, income or franchise taxes imposed on (or measured by) its net income
by the United States of America or such other jurisdiction under the laws of
which such recipient is organized or in which its principal office is located.


 


(ii)                                  “Governmental
Authority” means the government of the United States of America or
any other nation, or any political subdivision thereof, whether state or local,
or any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government over the
Company or any of its Subsidiaries, or any of their respective properties,
assets or undertakings.


 


(iii)                               “Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


(iv)                              “Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.


 


(b)                                 Any and all payments by or on account of any
obligation of any of the Guarantors under this Guaranty or any other Security
Document shall be made without any set-off, counterclaim or deduction and free
and clear of and without deduction for any Indemnified Taxes; provided that if
any Guarantor shall be required to deduct any Indemnified Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 14(b)), the Collateral
Agent or Buyers, as applicable, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Guarantor shall
make such deductions and (iii) such Guarantor shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.


 


(c)                                  Indemnification by the Guarantors. Each Guarantor shall indemnify the
Collateral Agent and the Buyers, within ten (10) days after written demand
therefor, for the full amount of any Indemnified Taxes paid by the Collateral
Agent or Buyers, as applicable, on or with respect to any payment by or on
account of any obligation of such Guarantor under this Guaranty and the other
Security Documents (including Indemnified Taxes or imposed or asserted on or
attributable to amounts payable under this Section 14) and any penalties,
interest and expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate of


 


12

















 


the
Collateral Agent or any Buyer as to the amount of such payment or liability
under this Section 14 shall be delivered to such Guarantor and shall be
conclusive absent manifest error.


 


15.                                 Counterparts. This Guaranty may be executed in two
or more identical counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to each other party; provided that a facsimile, .pdf
or similar electronically transmitted signature shall be considered due
execution and shall be binding upon the signatory thereto with the same force
and effect as if the signature were an original signature.


 


- Remainder
of page Intentionally Left Blank; Signature Page Follows -


 


13

















 


IN WITNESS WHEREOF, Guarantors have executed this
Guaranty as of the date first written above.


 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  AVERION INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip T. Lavin, Ph.D.

  	
   

  
	
   

  	
  Name:

  	
   Philip T. Lavin,
  Ph.D.

  	
   

  
	
   

  	
  Title:

  	
   Chief Executive
  Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  IT&E INTERNATIONAL, a California

  corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Philip T. Lavin, Ph.D.

  	
   

  
	
   

  	
  Name:

  	
   Philip T. Lavin,
  Ph.D.

  	
   

  
	
   

  	
  Title:

  	
   Chief Executive
  Officer

  	
   

  
						



 


[Signature Page to Guaranty]


 

















 


EXHIBIT A


 


FORM OF
JOINDER

JOINDER TO GUARANTY


 


The undersigned, [                  ]
a [                  ],
hereby joins in the execution of that certain Guaranty dated as of October    ,
2007 (the “Guaranty”), by each of [              ], a [         ], [                ], a [       ], and each other person or entity that
becomes a Guarantor thereunder after the date and pursuant to the terms
thereof, to and in favor of                             ,
a                       ,
as Collateral Agent. By executing this Joinder, the undersigned hereby agrees
that it is a Guarantor thereunder with the same force and effect as if
originally named therein as a Guarantor. The undersigned agrees to be bound by
all of the terms and provisions of the Guaranty and represents and warrants
that the representations and warranties set forth in Section 6 of
the Guaranty are, with respect to the undersigned, true and correct as of the
date hereof. Each reference to a Guarantor in the Guaranty shall be deemed to
include the undersigned.


 


In Witness Whereof, the undersigned has executed
this Joinder this      day of               ,
200  .


 


	
   

  	
   

  	
   

  



 


A-1