Exhibit 10.64


 


AMENDMENT NO. 1 TO


GUARANTY


 


THIS
AMENDMENT NO. 1 TO GUARANTY (this “Amendment”) dated as of June 27, 2008 is
made, jointly and severally, by HESPERION US,
INC. a Maryland corporation (“Hesperion”,
and together with 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
Agreements described below).


 


W I T N E S S E T H:


 


WHEREAS,
Cumulus Investors, LLC (“Cumulus”),
ComVest Investment Partners II LLC (“ComVest”),
Dr. Philip T. Lavin, Dr. Gene Resnick, MicroCapital Fund LP and MicroCapital
Fund, Ltd. (the “Prior 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 $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 “Prior  Notes”);


 


WHEREAS,
the Prior Notes were acquired by the Prior Buyers pursuant to a Securities Purchase
Agreement dated as of October 31, 2007, as amended, among the Prior Buyers and
the Company (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the “Prior
Purchase Agreement”) and in
connection therewith certain parties entered into a Guaranty, dated as of
October 31, 2007 (the “Guaranty”);


 


WHEREAS,
IT&E International and Averion Inc. were the prior guarantors under the
Guaranty and in each case have since been dissolved and as such Hesperion US
will now replace such companies as a guarantor under the Guaranty;


 


WHEREAS,
on the date hereof, Cumulus and ComVest (collectively, the “New Buyers” and collectively with the Prior
Buyers, the “Buyers”) have
purchased certain Senior Secured Notes of the Company in the aggregate original
principal amount of $2,000,000 (such notes, together with any promissory notes
or other securities issued in exchange or substitution therefor or in
replacement thereof, and as any of the same may be amended, restated, modified
or supplemented and in effect from time to time, being herein referred to
individually and collectively as the “New
Notes,” and collectively with the Prior Notes, the “Notes”);


 


WHEREAS,
the New Notes are being acquired by the New Buyers and the New Buyers have made
certain financial accommodations to the Company pursuant to a Securities
Purchase Agreement of even date herewith among the Company and the New Buyers
(as the same may be amended, supplemented or otherwise modified from time to
time, the “New Purchase Agreement”
and collectively with the Prior Purchase Agreement, the “Purchase Agreements”);


 

















 


WHEREAS,
the parties desire to amend the Guaranty to reflect and include the New Notes
issued pursuant to the New Purchase Agreement as well as the Prior Notes issued
pursuant to the Prior Purchase Agreement;


 


WHEREAS,
pursuant to a Security Agreement dated October 31, 2007 (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,
have derived or will derive substantial benefit and advantage from the financial
accommodations available to the Company set forth in the Purchase Agreements,
the Notes and the other Transaction Documents, and it has been or 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 Agreements, 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.             Preamble and Recitals. The Preamble and Recitals of the Guaranty
are hereby amended by deleting them in their entirety and replacing them with
the Preamble and Recitals of this Amendment as set forth above.


 


2.             Definitions.


 


(a)           The following defined terms used in
the Guaranty (including, as applicable, the Preamble and Recitals thereto) are
hereby amended by deleting the definitions of such defined terms in their
entirety and replacing them with the following definitions:


 


“Buyers” shall have the meaning ascribed
thereto in the Recitals hereto.


 


“Guarantors” shall have the meaning ascribed
thereto in the Preamble hereto.


 


“Guaranty” shall have the meaning ascribed
thereto in the Recitals hereto.


 


“Notes” shall have the meaning ascribed
thereto in the Recitals hereto.


 


“Security Agreement” shall have the meaning
ascribed thereto in the Recitals hereto.


 


(b)           The following defined terms are
hereby added to the Guaranty:


 


“ComVest” shall have the meaning ascribed
thereto in the Recitals hereto.


 


2

















 


“Cumulus” shall have the meaning ascribed
thereto in the Recitals hereto.


 


“Hesperion” shall have the meaning ascribed
thereto in the Preamble hereto.


 


“New Buyers” shall have the meaning ascribed
thereto in the Recitals hereto.


 


“New Notes” shall have the meaning ascribed
thereto in the Recitals hereto.


 


“New Purchase Agreement” shall have the
meaning ascribed thereto in the Recitals hereto.


 


“Prior Buyers” shall have the meaning
ascribed thereto in the Recitals hereto.


 


“Prior Notes” shall have the meaning
ascribed thereto in the Recitals hereto.


 


“Prior Purchase Agreement” shall have the
meaning ascribed thereto in the Recitals hereto.


 


“Purchase Agreements” shall have the meaning
ascribed thereto in the Recitals hereto.


 


(c)           The Guaranty shall be amended such
that in all places where the term “Purchase Agreement” is used, the term
“Purchase Agreements” shall replace it in its entirety.


 


(d)           The defined term “Registration Rights
Agreement” shall be deleted in its entirety in all places in the Guaranty where
the term is used.


 


3.             Section 5(c)(xv). Section 5(c)(xv) of the Guaranty shall be
amended by deleting in its entirety and replacing with the following:


 


“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 (xiv)
of this Section 5(c).”


 


4.             Effect of this Amendment. 
Except as expressly set forth herein, no other amendments, changes or
modifications to the Agreement are intended or implied and in all other
respects the Guaranty is hereby specifically ratified and confirmed by all
parties.  All references to the Guaranty
in any other document, instrument, agreement or writing shall be deemed to
refer to the Guaranty as amended hereby.


 


5.             Miscellaneous.


 


(a)           This Amendment shall be binding upon
and inure to the benefit of the Guarantors and the Collateral Agent and their
respective successors and assigns.


 


3

















 


(b)           This Amendment and the rights and
obligations of the parties hereunder shall be construed in accordance with and
governed by the laws of the State of New York, without regard to conflict of
laws principles.


 


(c)           This Amendment may be executed in
multiple counterparts, each of which shall be deemed an original and together
shall constitute one document.  The
headings listed herein are for convenience only.  This Amendment may be executed and
transmitted via facsimile or electronic transmission in PDF form with the same
validity as if it were an ink-signed document.


 


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


 


4

















 


IN
WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first
written above.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  HESPERION
  US, INC., a
  Maryland

  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence R. Hoffman

  
	
   

  	
  Name:

  	
  Lawrence R. Hoffman

  
	
   

  	
  Title:

  	
  Treasurer

  



 


[Signature Page to Guaranty]