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 Buyer s”) 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
”);
