Exhibit 10.63
AMENDMENT NO. 2 TO
SECURITY
AGREEMENT
THIS AMENDMENT NO. 2 TO SECURITY
AGREEMENT (this “Amendment”) dated as of June 27,
2008 among AVERION INTERNATIONAL CORP. , a Delaware
corporation (the “ Company ”), HESPERION US,
INC., a Maryland corporation (“ Hesperion US ”,
and together with the Company and each other person or entity who
becomes a party to this hereto by execution of a joinder in the
form attached as Exhibit A, each individually a “
Debtor ” and, collectively, the “ Debtors
”) and Cumulus Investors, LLC, in its capacity as Collateral
Agent (as set forth in Section 5.12 hereof, together with its
successors and assigns in such capacity, the “ Secured
Party ”) for the benefit of itself and each of the Buyers
(as hereinafter defined).
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
(“ Lavin ”), Dr. Gene Resnick, MicroCapital
Fund LP and MicroCapital Fund, Ltd. (together with Cumulus and
ComVest, and their respective successors and assigns, individually
and collectively, the “ Prior Buyers ”) have
purchased certain Senior Secured Notes of the Company in the
aggregate original principal amount of $26,000,000 (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 “ Prior Notes
”);
WHEREAS, the Prior Notes were
acquired by the Prior Buyers and the Prior Buyers made certain
financial accommodations to the Company pursuant to a Securities
Purchase Agreement dated as of October 31, 2007, as amended,
among the Company and the Prior Buyers (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
“ Prior Purchase Agreement ”) and in connection
therewith a Security Agreement, dated as of October 31, 2007,
as amended (the “ Security Agreement
”);
WHEREAS, IT&E International and
Averion Inc. were the prior debtors under the Security Agreement
and in each case have since been dissolved and as such Hesperion US
will now replace such companies as a debtor under the Security
Agreement;
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 my 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 Security Agreement 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, this Amendment No. 2
to Security Agreement does not satisfy or act as a novation of the
obligations of any Debtor to Secured Party for the benefit of the
Buyers;
WHEREAS, each Debtor (other than the
Company) from time to time party hereto is a direct or indirect
subsidiary of the Company and, as such, has derived or will derive
substantial benefit and advantage from the financial accommodations
to the Company set forth in the Purchase Agreements and the Notes,
and it has been or will be to each such Debtor’s direct
interest and economic benefit to assist the Company in procuring
said financial accommodations from Buyers; and
WHEREAS, to induce the Buyers to
enter into the Purchase Agreements and purchase the Notes,
(i) each Debtor (other than the Company) has agreed to
guaranty the Liabilities (as hereinafter defined) of the Company
pursuant to the terms of a guaranty (such guaranty(ies), as they
may be amended, restated, modified or supplemented and in effect
from time to time, individually and collectively, the “
Guaranty ”) by each such Debtor in favor of Secured
Party (on its behalf and on behalf of the Buyers) and
(ii) each Debtor has agreed to pledge and grant a security
interest in all of its right, title and interest in and to the
Collateral (as hereinafter defined) to Secured Party, for the
benefit of itself and the Buyers, as security for the
Liabilities.
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1.
Preamble and Recitals
. The Preamble and Recitals of the
Security Agreement 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
.
