EX-10.67 Second Lien Subsidiary Guaranty



 





Exhibit 10.67




EXECUTION COPY




SECOND LIEN SUBSIDIARY GUARANTY




Dated as of July 31, 2007




From




THE GUARANTORS NAMED HEREIN




and




THE ADDITIONAL GUARANTORS REFERRED TO HEREIN




as Guarantors




in favor of




THE SECURED PARTIES REFERRED TO IN

THE CREDIT AGREEMENT REFERRED TO HEREIN




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TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	Section 1.

	 	Guaranty; Limitation of Liability
	 	 	1	 
	Section 2.

	 	Guaranty Absolute
	 	 	2	 
	Section 3.

	 	Waivers and Acknowledgments
	 	 	3	 
	Section 4.

	 	Subrogation
	 	 	4	 
	Section 5.

	 	Payments Free and Clear of Taxes, Etc.
	 	 	5	 
	Section 6.

	 	Representations and Warranties
	 	 	5	 
	Section 7.

	 	Covenants
	 	 	5	 
	Section 8.

	 	Amendments, Guaranty Supplements, Etc.
	 	 	5	 
	Section 9.

	 	Notices, Etc.
	 	 	6	 
	Section 10.

	 	No Waiver; Remedies
	 	 	6	 
	Section 11.

	 	Right of Set-off
	 	 	7	 
	Section 12.

	 	Indemnification
	 	 	7	 
	Section 13.

	 	Subordination
	 	 	7	 
	Section 14.

	 	Continuing Guaranty; Assignments under the Credit Agreement
	 	 	8	 
	Section 15.

	 	Execution in Counterparts
	 	 	9	 
	Section 16.

	 	Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
	 	 	9	 
	 
	 	 	 	 	 	 
	Exhibit A — Guaranty Supplement






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SECOND LIEN SUBSIDIARY GUARANTY




     SECOND LIEN SUBSIDIARY GUARANTY dated as of July 31, 2007 made by the Persons listed on the
signature pages hereof under the caption “Subsidiary Guarantors” and the Additional Guarantors (as
defined in Section 8(b)) (such Persons so listed and the Additional Guarantors being,
collectively, the “Guarantors” and, individually, each a “Guarantor”) in favor of the Secured
Parties (as defined in the Credit Agreement referred to below).



     PRELIMINARY STATEMENT. Terremark Worldwide, Inc., a Delaware corporation (the “Borrower”), is
party to a Second Lien Senior Secured Credit Agreement dated as of July 31, 2007 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”;
the capitalized terms defined therein and not otherwise defined herein being used herein as therein
defined) with certain Lenders party thereto, and Credit Suisse, acting through one or more of its
branches (“Credit Suisse”), as Administrative Agent and as Collateral Agent for such Lenders. Each
Guarantor, as a subsidiary of the Borrower, is engaged in a related and mutually interdependent
business with the Borrower and, as a consequence, will derive substantial direct and indirect
financial and business advantages and benefits from the transactions contemplated by the Credit
Agreement, including Borrower’s receipt of the funds contemplated thereby. It is a condition
precedent to the making of Term Loans by the Lenders under the Credit Agreement that each Guarantor
shall have executed and delivered this Guaranty.



     NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to make
Term Loans under the Credit Agreement, each Guarantor, jointly and severally with each other
Guarantor, hereby agrees as follows:



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Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or
by acceleration, demand or otherwise, of all Obligations of each other Loan Party now or hereafter
existing under or in respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations),
whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being
the “Guaranteed Obligations”), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by the Administrative Agent or any other Secured
Party in enforcing any rights under this Guaranty or any other Loan Document. Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any other Loan Party to any Secured Party
under or in respect of the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such
other Loan Party. This Guaranty is a guaranty of payment and not of collection.




     (b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Secured Party, hereby confirms that it is the intention of all
such Persons that this Guaranty and the Obligations of each Guarantor hereunder not constitute
a fraudulent transfer or conveyance for purposes of any Bankruptcy Law (as defined below), the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the Obligations of each
Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other
Secured Parties and the Guarantors hereby irrevocably agree that the Obligations of each Guarantor
under this Guaranty at any time shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance. For purposes hereof, the term “Bankruptcy Law” means any proceeding of the type
referred to in Section 8.01(f) or (g) of the Credit Agreement or Title 11, U.S.
Code, or any similar foreign, federal or state law for the relief of debtors.



     (c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Secured Party under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.



Section 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in
accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured
Party with respect thereto. The Obligations of each Guarantor under or in respect of this Guaranty
are independent of the Guaranteed Obligations or any other Obligations of any other Loan Party
under or in respect of the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is
brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan
Party is joined in any such action or actions. The liability of each Guarantor under this Guaranty
shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby
irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:





     (a) any lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;




     (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other Obligations of any other Loan Party under
or in respect of the Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;




     (c) any taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to departure from,
any other guaranty, for all or any of the Guaranteed Obligations;




     (d) any manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral or any other collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan Documents or any other
assets of any Loan Party or any of its Subsidiaries;



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     (e) any change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;




     (f) any failure of any Secured Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party now or hereafter known to such Secured Party
(each Guarantor waiving any duty on the part of the Secured Parties to disclose such
information);




     (g) the failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement (as hereinafter defined) or any other guaranty or agreement or the release or
reduction of liability of any Guarantor or other guarantor or surety with respect to the
Guaranteed Obligations; or




     (h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Secured Party that might
otherwise constitute a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.


This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any
Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been made.




     Section 3. Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice of nonperformance, default,
acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that any Secured Party protect, secure, perfect
or insure any Lien or any property subject thereto or exhaust any right or take any action against
any Loan Party or any other Person or any Collateral.



     (b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.



     (c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by any Secured Party that in any
manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any
other guarantor or any other Person or any Collateral and (ii) any defense based on any right
of set-off or counterclaim against or in respect of the Obligations of such Guarantor hereunder.

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     (d) Each Guarantor acknowledges that the Collateral Agent may, without notice to or demand
upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to
the recovery by the Collateral Agent and the other Secured Parties against such Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be afforded by Sections
580a and 580d of the California Code of Civil Procedure or any statute or law in any other
jurisdiction having similar effect or any other applicable law.



     (e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any
Secured Party to disclose to such Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or prospects of any other
Loan Party or any of its Subsidiaries now or hereafter known by such Secured Party.



     (f) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 2 and this Section 3 are knowingly made in contemplation of such
benefits.



     Section 4. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights
that it may now have or hereafter acquire against the Borrower, any other Loan Party or any other
insider guarantor that arise from the existence, payment, performance or enforcement of such
Guarantor’s Obligations under or in respect of this Guaranty or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of any Secured Party against
the Borrower, any other Loan Party or any other insider guarantor or any Collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower, any other Loan Party or any
other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim, remedy or right, unless and until all
of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Term Commitments shall have expired or been terminated. If any amount
shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior
to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and (b) the Scheduled Maturity Date, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be segregated from other
property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative
Agent in the same form as so received (with any necessary endorsement or assignment) to be credited
and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as
Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (i)
any Guarantor shall make payment to any Secured Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and (iii) the Scheduled Maturity Date shall have
occurred, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to
such Guarantor appropriate documents, without recourse and without


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representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this
Guaranty.



     Section 5. Payments Free and Clear of Taxes, Etc. Any and all payments by or on account of any obligation of any Guarantor hereunder or under
any other Loan Document shall be made free and clear of and without deduction or withholding for
any Indemnified Taxes or Other Taxes on the same terms and to the same extent that payments by the
Borrower are required to be made free and clear of Indemnified Taxes and Other Taxes pursuant to
Section 3.01 of the Credit Agreement.



     Section 6. Representations and Warranties. Each Guarantor hereby makes each representation and warranty made in the Loan Documents by
the Borrower with respect to such Guarantor and each Guarantor hereby further represents and
warrants as follows:




     (a) There are no conditions precedent to the effectiveness of this Guaranty that have
not been satisfied or waived.




     (b) Such Guarantor has, independently and without reliance upon any Secured Party and
based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty and each other Loan Document to which it
is or is to be a party, and such Guarantor has established adequate means of obtaining from
each other Loan Party on a continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other Loan Party.



     Section 7. Covenants. Each Guarantor covenants and agrees that, so long as any part of the Guaranteed Obligations
(other than Unaccrued Indemnity Claims) shall remain unpaid or any Lender shall have any Term
Commitment, such Guarantor will perform and observe, and cause each of its Subsidiaries to perform
and observe, all of the terms, covenants and agreements set forth in the Loan Documents on such
Guarantor’s or its Subsidiaries’ part to be performed or observed or that the Borrower has agreed
to cause such Guarantor or such Subsidiaries to perform or observe.



     Section 8. Amendments, Guaranty Supplements, Etc. (a) No amendment or waiver of any provision of this Guaranty and no consent to any departure
by any Guarantor therefrom shall in any event be effective unless the same shall
be in writing and signed by the Administrative Agent and the Required Lenders (or signed by
the Administrative Agent with the consent of the Required Lenders) and, in the case of an
amendment, the Guarantors, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Lenders (or signed by the
Administrative Agent with the consent of all the Lenders) (other than any Lender that is, at such
time, a Defaulting Lender), (i) release all or substantially all the value under this Guaranty, or
(ii) change this Section 8. Upon the sale of a Guarantor to a Person other than a Loan
Party or a Subsidiary of a Loan Party to the extent permitted in accordance with the terms of the
Loan Documents, such Guarantor shall be automatically released from this Guaranty without the
requirement of any further action on the part of the Lenders or any Agent.

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     (b) Upon the execution and delivery by any Person of a guaranty supplement in substantially
the form of Exhibit A hereto (each, a “Guaranty Supplement”), (i) such Person shall be referred to
as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference in
this Guaranty to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and
each reference in any other Loan Document to a “Subsidiary Guarantor” shall also mean and be a
reference to such Additional Guarantor, and (ii) each reference herein to “this Guaranty”,
“hereunder”, “hereof” or words of like import referring to this Guaranty, and each reference in any
other Loan Document to the “Subsidiary Guaranty”, “thereunder”, “thereof” or words of like import
referring to this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such
Guaranty Supplement.



     Section 9. Notices, Etc. All notices and other communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed, telecopied, telexed or
delivered, if to any Guarantor, in care of the Borrower at the Borrower’s address specified in
Section 10.02 of the Credit Agreement, if to any Agent or any Lender, at its address
specified in Section 10.02 of the Credit Agreement, or, as to any party, at such other
address as shall be designated by such party in a written notice to each other party. All such
notices and other communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively. Delivery by telecopier of an executed
counterpart of a signature page to any amendment or waiver of any provision of this Guaranty or of
any Guaranty Supplement to be executed and delivered hereunder shall be effective as delivery of an
original executed counterpart thereof.



     Section 10. No Waiver; Remedies. No failure on the part of any Secured Party to exercise, and no delay by any Secured Party
in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.



     Section 11. Right of Set-off. Upon (a) the occurrence and during the continuance of an Event of Default under Section
8.01(a) of the Credit Agreement, (b) an exercise or remedies under Section 8.02(b) of
the Credit Agreement or (c) amounts becoming due and payable pursuant to the proviso to
Section 8.02 of the Credit Agreement, each Agent and each Lender and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing by such Agent, such
Lender or such Affiliate to or for the credit or the account of any Guarantor against any and all
of the Obligations of such Guarantor now or hereafter existing under the Loan Documents,
irrespective of whether such Agent or such Lender shall have made any demand under this Guaranty or
any other Loan Document and although such Obligations may be unmatured. Each Agent and each Lender
agrees promptly to notify such Guarantor after



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any such set-off and application; provided, however,
that the failure to give such notice shall not affect the validity of such set-off and application.
The rights of each Agent and each Lender and their respective Affiliates under this Section
11 are in addition to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender and their respective Affiliates may have.



     Section 12. Indemnification. (a) Without limitation on any other Obligations of any Guarantor or remedies of the
Secured Parties under this Guaranty, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Secured Party and each Related Party (each, an
“Indemnified Party”) from and against, and shall pay on demand, any and all claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified Party in connection
with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding
obligations of any Loan Party enforceable against such Loan Party in accordance with their terms.



     (b) Each Guarantor hereby also agrees that none of the Indemnified Parties shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to any of the Guarantors or
any Related Parties, and each Guarantor hereby agrees not to assert any claim against any
Indemnified Party on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Term Loans, the Transaction Documents or any of the transactions contemplated by
the Transaction Documents.



     (c) Without prejudice to the survival of any of the other agreements of any Guarantor under
this Guaranty or any of the other Loan Documents, the agreements and obligations of each Guarantor
contained in Section 1(a) (with respect to enforcement expenses), the last sentence of
Section 2, Section 5 and this Section 12 shall survive the payment in full
of the Guaranteed Obligations and all of the other amounts payable under this Guaranty until the
expiration of any applicable statute of limitations.



     Section 13. Subordination



     . Each Guarantor hereby subordinates any and all debts, liabilities and other Obligations
owed to such Guarantor by each other Loan Party (the “Subordinated Obligations”) to the Guaranteed
Obligations to the extent and in the manner hereinafter set forth in this Section 13:




     (a) Prohibited Payments, Etc. Except during the continuance of an Event of
Default or a Default (each, a “Specified Default”) under Section 8.01(a),
(f) or (g) of the Credit Agreement, each Guarantor may receive regularly
scheduled payments from any other Loan Party on account of the Subordinated Obligations.
After the occurrence and during the continuance of any Event of Default or Specified
Default, however, unless the Administrative Agent otherwise agrees, no Guarantor shall
demand, accept or take any action to collect any payment on account of the Subordinated
Obligations.




     (b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that the Secured
Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations



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(including all interest and expenses accruing after the commencement of a proceeding under
any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post
Petition Interest”)) before such Guarantor receives payment of any Subordinated Obligations.




     (c) Turn-Over. Upon the occurrence and during the continuance of any Event of
Default or Specified Default, each Guarantor shall, if the Administrative Agent so requests,
collect, enforce and receive payments on account of the Subordinated Obligations as trustee
for the Secured Parties and deliver such payments to the Administrative Agent on account of
the Guaranteed Obligations (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without reducing or affecting
in any manner the liability of such Guarantor under the other provisions of this Guaranty.




     (d) Administrative Agent Authorization. Upon (a) the occurrence and during the
continuance of an Event of Default or Specified Default, the Administrative Agent is
authorized and empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Guarantor, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to require each
Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the Administrative
Agent for application to the Guaranteed Obligations (including any and all Post Petition
Interest).



     Section 14. Continuing Guaranty; Assignments under the Credit Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until
the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and (ii) the Scheduled Maturity Date, (b) be binding upon each
Guarantor, its successors and permitted assigns and (c) inure to the benefit of and be
enforceable by the Secured Parties and their successors, permitted transferees and permitted
assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, any
Secured Party may assign or otherwise transfer all or any portion of its rights and obligations
under the Credit Agreement (including, without limitation, all or any portion of its Term
Commitments, the Term Loans owing to it and the Note or Notes held by it) to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect thereof granted to
such Secured Party herein or otherwise, in each case as and to the extent provided in Section
10.06 of the Credit Agreement. No Guarantor shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Secured Parties.



     Section 15. Execution in Counterparts. This Guaranty and each amendment, waiver and consent with respect hereto may be executed in
any number of counterparts and by different parties thereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement. Delivery by telecopier or in .pdf or similar format by electronic mail
of an executed counterpart of a signature page to this Guaranty or any amendment or waiver of any
provision of the Guaranty or of any Guaranty Supplement to be executed and delivered hereunder
shall be effective as delivery of an original executed counterpart of this Guaranty hereof and
thereof.


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     Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This Guaranty shall be governed by, and construed in accordance with, the laws of the
State of New York.



     (b) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE
UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF
(COLLECTIVELY, “NEW YORK COURTS”), IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE AGENTS OR ANY
LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OF THE
OTHER LOAN DOCUMENTS IN THE COURTS OF ANY JURISDICTION, except that each of the Guarantors agrees
that (i) it will not bring any such action or proceeding
in any court other than New York Courts (it being acknowledged and agreed by the parties
hereto that any other forum would be inconvenient and inappropriate in view of the fact that more
of the Lenders who would be affected by any such action or proceeding have contacts with the State
of New York than any other jurisdiction), and (ii) in any such action or proceeding brought against
any Guarantor in any other court, it will not assert any cross-claim, counterclaim or setoff, or
seek any other affirmative relief, except to the extent that the failure to assert the same will
preclude such Guarantor from asserting or seeking the same in the New York Courts.



     (c) Each Guarantor irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in any New York State or federal court.
Each Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such suit, action or proceeding in any such court.



     (d) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE TERM LOANS OR THE ACTIONS OF ANY SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.



[Signature Page to Follow]



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11









 





     IN WITNESS WHEREOF, each Grantor has caused this Agreement to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above written.



	 	 	 	 	 
	 	NAP OF THE AMERICAS/WEST, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	PARK WEST TELECOMMUNICATIONS INVESTORS, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TECOTA SERVICES CORP.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





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	 	TERREMARK TRADEMARK HOLDINGS, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TERRENAP DATA CENTERS, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TERRENAP SERVICES, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





Terremark — Second Lien Subsidiary Guaranty




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	 	OPTICAL COMMUNICATIONS, INC.

 	 
	 	By:  	/s/ Marvin Wheeler
 	 
	 	 	Name:  	Marvin Wheeler 	 
	 	 	Title:  	 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TECHNOLOGY CENTER OF THE AMERICAS, LLC

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	NAP OF THE AMERICAS, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





Terremark — Second Lien Subsidiary Guaranty




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	 	TERREMARK LATIN AMERICA, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TERREMARK EUROPE, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TERREMARK FINANCIAL SERVICES, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





Terremark — Second Lien Subsidiary Guaranty




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	 	TERREMARK FORTUNE HOUSE #1, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TERREMARK MANAGEMENT SERVICES, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TERREMARK REALTY, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





Terremark — Second Lien Subsidiary Guaranty




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	 	TERREMARK TECHNOLOGY CONTRACTORS, INC.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	SPECTRUM TELECOMMUNICATIONS CORP.

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	TERREMARK FEDERAL GROUP, INC.

 	 
	 	By:  	/s/ Nelson Fonseca
 	 
	 	 	Name:  	Nelson Fonseca 	 
	 	 	Title:  	Treasurer & CFO 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





Terremark — Second Lien Subsidiary Guaranty




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	 	NAP OF THE CAPITAL REGION, LLC

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	EVP & Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	2601 S. Bayshore Drive
	 

	 	 
	 

	 	Suite 900
	 

	 	 
	 

	 	Miami, FL 33133
	 

	 	 





	 	 	 	 	 
	 	DATA RETURN LLC

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	222 West Las Colinas Blvd.
	 

	 	 
	 

	 	Suite 350-E
	 

	 	 
	 

	 	Irving, TX 75039
	 

	 	 





	 	 	 	 	 
	 	DIGITAL OPS LLC

 	 
	 	By:  	/s/ Jose A. Segrera
 	 
	 	 	Name:  	Jose A. Segrera 	 
	 	 	Title:  	 	 
	 



	 	 	 
	 

	 	Address for notices:
	 
	 	 
	 

	 	222 West Las Colinas Blvd.
	 

	 	 
	 

	 	Suite 350-E
	 

	 	 
	 

	 	Irving, TX 75039
	 

	 	 





Terremark — Second Lien Subsidiary Guaranty





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Exhibit A




To The




Second Lien Subsidiary Guaranty




FORM OF SECOND LIEN SUBSIDIARY GUARANTY SUPPLEMENT




[___________], [____]




Credit Suisse, as Administrative Agent




[Address of Administrative Agent]




Attention: _________




Terremark Worldwide, Inc.,

Second Lien Senior Secured Credit Agreement dated as of July 31, 2007




Ladies and Gentlemen:





     We refer to (i) the Second Lien Senior Secured Credit Agreement dated as of July 31, 2007
among Terremark Worldwide, Inc., a Delaware corporation, the Lenders party thereto, and Credit
Suisse, acting through one or more of its branches (“Credit Suisse”), as Administrative Agent and
Collateral Agent, and (ii) the Second Lien Subsidiary Guaranty referred to therein (such Second
Lien Subsidiary Guaranty, as in effect on the date hereof and as it may hereafter be amended,
supplemented or otherwise modified from time to time, together with this Guaranty Supplement, being
the “Subsidiary Guaranty”). The capitalized terms defined in the Subsidiary Guaranty or in the
Credit Agreement and not otherwise defined herein are used herein as therein defined



Section 1. Guaranty; Limitation of Liability. (a) The undersigned hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or
by acceleration, demand or otherwise, of all Obligations of each other Loan Party now or hereafter
existing under or in respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations),
whether direct or indirect, absolute or contingent, and whether for principal, interest, premium,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being
the “Guaranteed Obligations”), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by the Administrative Agent or any other Secured
Party in enforcing any rights under this Guaranty Supplement, the Subsidiary Guaranty or any other
Loan Document. Without limiting the generality of the foregoing, the undersigned’s liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any
other Loan Party to any Secured Party under or in respect of the Loan Documents but for the fact
that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization
or similar proceeding involving such other Loan Party.



 Terremark — Second Lien Subsidiary Guaranty




A-1









 








     (b) The undersigned, and by its acceptance of this Guaranty Supplement, the Administrative
Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons
that this Guaranty Supplement, the Subsidiary Guaranty and the Obligations of the undersigned
hereunder and thereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar foreign, federal or state law to the extent applicable to this Guaranty Supplement, the
Subsidiary Guaranty and the Obligations of the undersigned hereunder and thereunder. To effectuate
the foregoing intention, the Administrative Agent, the other Secured Parties and the undersigned
hereby irrevocably agree that the Obligations of the undersigned under this Guaranty Supplement and
the Subsidiary Guaranty at any time shall be limited to the maximum amount as will result in the
Obligations of the undersigned under this Guaranty Supplement and the Subsidiary Guaranty not
constituting a fraudulent transfer or conveyance.



     (c) The undersigned hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Secured Party under this Guaranty Supplement, the
Subsidiary Guaranty, or any other guaranty, the undersigned will contribute, to the maximum extent
permitted by applicable law, such amounts to each other Guarantor and each other guarantor so as to
maximize the aggregate amount paid to the Secured Parties under or in respect of the Loan
Documents.



     Section 2. Obligations Under the Guaranty. The undersigned hereby agrees, as of the date first above written, to be bound as a
Guarantor by all of the terms and conditions of the Subsidiary Guaranty to the same extent as each
of the other Guarantors thereunder. The undersigned further agrees, as of the date first above
written, that each reference in the Subsidiary Guaranty to an “Additional Guarantor” or a
“Guarantor” shall also mean and be a reference to the undersigned, and each reference in any other
Loan Document to a “Subsidiary Guarantor” or a “Loan Party” shall also mean and be a reference to
the undersigned.



     Section 3. Representations and Warranties. The undersigned hereby makes each representation and warranty set forth in Section
6 of the Subsidiary Guaranty (subject to any corresponding disclosure schedules provided
herewith, as approved by the Administrative Agent) to the same extent as each other Guarantor.



     Section 4. Delivery by Telecopier. Delivery of an executed counterpart of a signature page to this Guaranty Supplement by
telecopier or in .pdf or similar format by electronic mail shall be effective as delivery of an
original executed counterpart of this Guaranty Supplement.



     Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) This Guaranty Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.



     (b) THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK COURT IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY SUPPLEMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH
IT IS A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND


 Terremark — Second Lien Subsidiary Guaranty




A-2









 







UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH NEW YORK COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE AGENTS OR ANY LENDER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY SUPPLEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY JURISDICTION, except that the undersigned agrees that (i) it will
not bring any such action or proceeding in any court other than New York Courts (it being
acknowledged and agreed by the parties hereto that any other forum would be inconvenient and
inappropriate in view of the fact that more of the Lenders who would be affected by any such action
or proceeding have contacts with the State of New York than any other jurisdiction), and (ii) in
any such action or proceeding brought against the undersigned in any other court, it will not
assert any cross-claim, counterclaim or setoff, or seek any other affirmative relief, except to the
extent that the failure to assert the same will preclude the undersigned from asserting or seeking
the same in the New York Courts.



     (c) The undersigned irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Guaranty Supplement, the
Subsidiary Guaranty or any of the other Loan Documents to which it is or is to be a party in any
New York State or federal court. The undersigned hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.



     (d) THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE TERM LOANS OR THE ACTIONS OF ANY SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.



	 	 	 	 	 
	 	Very truly yours,





[NAME OF ADDITIONAL GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



Terremark — Second Lien Subsidiary Guaranty




A-3