Exhibit 10.33
GUARANTY OF NON-RECOURSE OBLIGATIONS
THIS GUARANTY OF NON-RECOURSE OBLIGATIONS (this "AGREEMENT" or
"GUARANTY"), made as of December 31, 2004, between TERREMARK WORLDWIDE, INC., a
Delaware corporation, having an address at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx
Xxxxx, Xxxxx, Xxxxxxx 00000 ("GUARANTOR"), for the benefit of CITIGROUP GLOBAL
MARKETS REALTY CORP., a New York corporation, having an office at 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("AGENT").
W I T N E S S E T H :
WHEREAS, Agent has agreed to acquire the Existing Note and the
Existing Mortgage by assignment from the Existing Lender, and to make an advance
to TECHNOLOGY CENTER OF THE AMERICAS, LLC, a Delaware limited liability company
("BORROWER"), in the amount necessary to make the total outstanding principal
amount thereof FORTY-NINE MILLION AND 00/100 DOLLARS ($49,000,000.00) (the
"LOAN"); and
WHEREAS, to evidence the Loan, Borrower is this day executing
an Amended and Restated Renewal and Future Advance Promissory Note, dated the
date hereof, in the principal amount of $49,000,000.00 (the "NOTE") to Agent
pursuant to a Loan Agreement dated the date hereof, between the Borrower and the
Agent (the "LOAN AGREEMENT"; capitalized terms used but not defined herein shall
have the respective meanings ascribed thereto in the Loan Agreement); and
WHEREAS, Borrower shall, pursuant to the Loan Agreement, grant
to Agent an Amended and Restated Mortgage, Assignment of Leases and Rents,
Security Agreement and Fixture Filing (the "MORTGAGE"), with respect to the
Mortgaged Property (as such term is defined in the Loan Agreement) in order to
secure the Note; and
WHEREAS, Guarantor indirectly owns the entire interest in
Borrower and shall derive a substantial economic benefit from the making of the
Loan by Agent to Borrower; and
WHEREAS, as a condition precedent to the making of the Loan,
Borrower has agreed to procure and deliver to Agent this Agreement; and
WHEREAS, Agent has declined to make the Loan unless this
Agreement is duly executed by Guarantor and delivered to Agent.
NOW, THEREFORE, in consideration for, and as an inducement to,
Agent's making the Loan, and for other good and valuable consideration the legal
sufficiency of which and receipt thereof are hereby acknowledged, and
notwithstanding any provision to the contrary contained in the Loan Agreement,
the Note, the Mortgage or any of the other Loan Documents (as such term is
defined in the Loan Agreement), including without limitation, any "non-recourse"
provision, Agent and Guarantor do hereby agree as follows:
1. Guarantor, on behalf of itself and its successors and
assigns (collectively, "SUCCESSORS") does hereby absolutely, unconditionally,
irrevocably and personally: (i) guaranty
to Agent payment and performance of all of the obligations, representations,
covenants, warranties and liabilities of Borrower under clauses (D) and (E) of
the proviso to Section 8.24 of the Loan Agreement and (ii) agrees to reimburse
Agent for, and hold Agent harmless from and against, any and all losses,
damages, claims, expenses, deficiencies, liabilities and costs (including,
without limitation, reasonable attorneys' fees and disbursements) incurred,
suffered or sustained by Agent and/or its successors and assigns as a result of
or arising out of, in connection with or resulting from, the enforcement of this
Agreement against Guarantor (the obligations of Guarantor under clauses "i" and
"ii" above being referred to hereinafter, collectively, as "GUARANTOR'S
OBLIGATION").
2. It is agreed that the obligations of Guarantor hereunder
shall be primary and this Agreement shall be enforceable against Guarantor and
its Successors without the necessity for any suit or proceeding of any kind or
nature whatsoever brought by Agent against Borrower or its respective successors
or assigns or any other party or against any security for the payment of the
Guarantor's Obligation and without the necessity of any notice of non-payment or
non-observance or of any notice of acceptance of this Agreement or of any notice
of demand to which Guarantor might otherwise be entitled (including, without
limitation, diligence, presentment, notice of maturity, extension of time,
protest, notice of dishonor or default, change in nature or form of the
Guarantor's Obligation, acceptance of further security, release of further
security, imposition or agreement arrived at as to the amount of or the terms of
the Guarantor's Obligation, notice of adverse change in Borrower's financial
condition and any other fact that might materially increase the risk to
Guarantor), all of which Guarantor hereby expressly waives. Guarantor hereby
expressly agrees that the validity of this Agreement and the obligations of
Guarantor hereunder shall in no way be terminated, affected, diminished,
modified or impaired by reason of the assertion of or the failure to assert by
Agent against Borrower, or its successors or assigns, any of the rights or
remedies reserved to Agent pursuant to the provisions of the Loan Agreement, the
Note, the Mortgage or any other Loan Documents.
3. Guarantor waives, and covenants and agrees that it will not
at any time insist upon, plead or in any manner whatsoever claim or take the
benefit or advantage of, any and all appraisal, valuation, stay, extension,
marshaling-of-assets or redemption laws, or right of homestead or exemption,
whether now or at any time hereafter in force, that may delay, prevent or
otherwise affect the performance by Guarantor of its obligations under, or the
enforcement by Agent of, this Agreement. Guarantor further covenants and agrees
not to set up or claim any defense, counterclaim, cross-claim, offset, set-off,
right of recoupment, or other objection of any kind to any action, suit or
proceeding in law, equity or otherwise, or to any demand or claim that may be
instituted or made by Agent hereunder other than the defense of the actual
timely performance of Guarantor's Obligation hereunder. Guarantor represents,
warrants and agrees that, as of the date hereof, its obligations under this
Agreement are not subject to any counterclaims, cross-claims, rights of
recoupment, offsets or affirmative or other defenses of any kind against Agent.
4. Guarantor agrees that any notice or directive given at any
time by Guarantor to Agent that is inconsistent with any waiver contained in
this Agreement shall be void and may be ignored by Agent, and, in addition, may
not be pleaded or introduced as evidence in any litigation relating to this
Agreement for the reason that such pleading or introduction would be at variance
with the written terms of this Agreement, unless Agent has
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specifically agreed otherwise in a writing, signed by a duly authorized officer.
Guarantor specifically acknowledges and agrees that the foregoing waivers are of
the essence of the Loan transaction and that, but for this Agreement and such
waivers, Agent would not make the Loan to Borrower.
5. The provisions of this Agreement are for the benefit of
Agent and its successors and assigns, and nothing herein contained shall impair,
as between Borrower and Agent, the obligations of Borrower under the Loan
Agreement, the Note, the Mortgage or any of the other Loan Documents.
6. This Agreement shall be a continuing guaranty and the
liability of Guarantor hereunder shall in no way be terminated, affected,
modified, impaired or diminished (to the extent permitted by law) by reason of
the happening, from time to time, of any of the following, although without
notice or the further consent of Guarantor:
(a) any assignment, amendment, modification or waiver of or
change in any of the terms, covenants, conditions or provisions of the
Loan Agreement, the Note, the Mortgage or any of the other Loan
Documents or the invalidity or unenforceability of any of the
foregoing; or
(b) any extension of time that may be granted by Agent to
Borrower, Guarantor or Guarantor's Successors; or
(c) any action that Agent or Borrower may take or fail to take
under or in respect of any of the Loan Documents or by reason of any
waiver of, or failure to enforce any of the rights, remedies, powers or
privileges available to Agent under this Agreement or available to
Agent at law, equity or otherwise, or any action on the part of Agent
or Borrower granting indulgence or extension in any form whatsoever; or
(d) any dealing, transaction, matter or thing occurring
between Agent, Borrower, Guarantor or Guarantor's Successors; or
(e) any sale, exchange, release, or other disposition of any
property pledged, mortgaged or conveyed, or any property in which Agent
has been granted a lien or security interest to secure any indebtedness
of Borrower to Agent; or
(f) any release of any person or entity who may be liable in
any manner for the payment and collection of any amounts owed by
Borrower to Agent; or
(g) the application of any sums by whomsoever paid or however
realized to any amounts owing by Borrower to Agent in such manner as
Agent shall determine in its sole discretion; or
(h) any Event of Default, whether or not Agent has exercised
any of its rights and remedies as set forth in the Loan Agreement or
the Mortgage upon the happening of any such Event of Default; or
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(i) Borrower's and/or Guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of
Borrower's or Guarantor's assets, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
or readjustment, or the commencement of other similar proceedings
affecting Borrower or Guarantor or any of the assets of either of them,
including, without limitation, (A) the release or discharge of Borrower
from the payment and performance of its obligations under any of the
Loan Documents by operation of law, or (B) the impairment, limitation
or modification of the liability of Borrower, its partners or Guarantor
in bankruptcy, or of any remedy for the enforcement of the Guarantor's
Obligation, under any of the Loan Documents, or Guarantor's liability
under this Agreement, resulting from the operation of any present or
future provisions of the Federal Bankruptcy Code or other present or
future federal, state or applicable statute of law or from the decision
in any court; or
(j) any change in or termination of the ownership interest of
Guarantor in Borrower (whether direct or indirect); or
(k) any conveyance of the Mortgaged Property, whether or not
pursuant to a foreclosure sale, a deed in lieu of foreclosure, a
transfer through bankruptcy, or otherwise.
7. Guarantor acknowledges that this Guaranty and Guarantor's
Obligations are and shall at all times continue to be absolute, unconditional
and irrevocable in all respects, and shall at all times be valid and enforceable
irrespective of any other agreement or circumstances of any nature whatsoever
that might otherwise constitute a defense to this Guaranty or the obligations of
any other person or party (including, without limitation, Borrower or any other
guarantor) relating to this Guaranty or the obligations of Guarantor hereunder.
8. Guarantor agrees that if at any time all or any part of any
payment at any time received by Agent from Borrower or Guarantor under or with
respect to this Agreement is or must be rescinded or returned by Agent for any
reason whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of Borrower or Guarantor), then Guarantor's Obligations hereunder
shall, to the extent of the payment rescinded or returned, be deemed to have
continued in existence notwithstanding such previous receipt by Agent, and
Guarantor's Obligations hereunder shall continue to be effective or reinstated,
as the case may be, as to such payment, as though such previous payment to Agent
had never been made.
9. Until such time as the Loan shall have been paid in full
and all of Guarantor's Obligation has been satisfied, Guarantor (a) shall have
no right of subrogation against Borrower by reason of any payments or acts of
performance by Guarantor in compliance with the obligations of Guarantor
hereunder; (b) hereby waives any right to enforce any remedy that Guarantor now
or hereafter shall have against Borrower by reason of any one or more payments
or acts of performance in compliance with the obligations of Guarantor
hereunder; (c) shall subordinate any liability or indebtedness of Borrower now
or hereafter held by Guarantor or any affiliate of Guarantor to the obligations
of Borrower under the Loan Documents; and (d) shall not file, assert or receive
payment on any claim, whether now existing or hereafter arising,
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against Borrower in the event of the commencement of a case by or against
Borrower under federal or state insolvency laws.
10. Guarantor represents and warrants to Agent, with the
knowledge that Agent is relying upon the same, as follows:
(a) Guarantor is solvent and has the legal right to enter into
this Agreement and to perform its obligations under the terms hereof;
(b) to the best of Guarantor's knowledge, there is no action,
suit, proceeding or investigation pending or threatened against or
affecting Guarantor at law, in equity, in admiralty or before any
arbitrator or any governmental department, commission, board, bureau,
agency or instrumentality (domestic or foreign) that is likely to
result in any material adverse change in the property, assets or
condition (financial or otherwise) of Guarantor or that is likely to
impair materially the ability of Guarantor to perform its obligations
under this Agreement; and
(c) all financial statements that have heretofore been
furnished by Guarantor to Agent in connection with this Agreement, and
all such financial statements that hereafter may be furnished to Agent
by Guarantor, have been and shall be prepared by an independent
certified public accountant approved by Agent in accordance with the
Loan Agreement, shall be consistent in form with prior statements and
shall be certified by Guarantor (provided no default shall have
occurred and be continuing under the Loan, in which event any such
statements shall be certified by such independent certified public
accountant); are and shall be, to the best of Guarantor's knowledge,
true, correct and complete; and do and shall fairly present the
financial condition of Guarantor, all as of the respective dates
thereof.
11. As long as this Agreement shall be outstanding, Guarantor
shall furnish to Agent, within seventy-five (75) days after the end of each
calendar year, Guarantor's financial statement for such period, in scope and
detail reasonably satisfactory to Agent. For so long as Guarantor is a reporting
company under Section 13 or 15 of the Securities Exchange Act of 1933,
Guarantor's Form 10-K for such period shall be deemed reasonably satisfactory to
Agent.
12. Guarantor and Agent acknowledge and agree that this
Agreement is a guaranty of payment and performance and not of collection and
enforcement in respect of any of the Guarantor's Obligation. No exculpatory
language contained in any of the other Loan Documents shall in any event or
under any circumstances modify, qualify or affect the personal recourse
obligations and liabilities of Guarantor hereunder.
13. Agent may freely assign any or all of its rights under
this Agreement, but any such assignment shall be made only to the subsequent
holder of the Note and no such assignment shall increase Guarantor's Obligation
or diminish its rights hereunder. In the event of any such assignment, Agent
shall give Guarantor prompt notice of same, but the consent of Guarantor shall
not be required for any such assignment and failure to give such notice shall
not affect the validity or enforceability of any such assignment or subject
Agent to any liability and Guarantor shall continue to remain bound by and
obligated to perform under and with respect to
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this Agreement. Guarantor shall not assign any of its obligations under this
Agreement without the prior consent of the Agent.
14. The representations, warranties and obligations of
Guarantor set forth in this Agreement shall survive until this Agreement shall
terminate in accordance with the terms hereof.
15. This Agreement contains the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements relating to such subject matter and may not be modified,
amended, supplemented or discharged except by a written agreement signed by
Guarantor and Agent. This Agreement also may be discharged by full performance
of the Guarantor's Obligation in accordance with the terms hereof, or as
otherwise provided herein.
16. If all or any portion of any provision contained in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, such provision or portion thereof shall be deemed
stricken and severed from this Agreement and the remaining provision and
portions thereof shall continue in full force and effect.
17. All notices, requests, demands and other communications
under or in connection with this Agreement shall be in writing and shall be
deemed to have been given or made for all purposes when delivered in person to
the addresses set forth below or three (3) business days after same is sent by
registered or certified mail, return receipt requested, postage prepaid, to the
following addresses:
If to Guarantor: The address listed above
With a copy to: Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxxx, Esq.
and
If to Agent: The address listed above
With a copy to: Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx, Esq.
The above addresses may be changed on written notice given as hereinabove
provided. Notices may be sent by a party hereto or on its behalf by its
attorney.
18. This Agreement shall be binding upon Guarantor and its
Successors and shall inure to the benefit of Agent and its successors and
assigns.
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19. The failure of Agent to enforce any right or remedy
hereunder, or promptly to enforce any such right or remedy, shall not constitute
a waiver thereof, nor give rise to any estoppel against Agent, nor excuse
Guarantor from its obligations hereunder. Any waiver of any such right or remedy
to be enforceable against Agent must be expressly set forth in writing signed by
Agent.
20.
(a) Any suit initiated by Agent against Guarantor or in
connection with or arising, directly or indirectly, out of or relating
to, this Agreement (an "ACTION") may, at Agent's option, be brought in
any state or federal court in the State of New York having jurisdiction
over the subject matter hereof. Guarantor hereby submits himself to the
jurisdiction of any such court and agrees that service of process
against Guarantor in any such action may be effected by any means
permissible under federal law or under the laws of the state in which
such Action is brought. Guarantor hereby agrees that insofar as is
permitted under applicable law, this consent to personal jurisdiction
shall be self-operative and no further instrument or action, other than
service of process in one of the manners specified in this Guaranty, or
as otherwise permitted by law, shall be necessary in order to confer
jurisdiction upon Guarantor.
(b) Guarantor agrees that, provided that service of process is
effected upon Guarantor in one of the manners hereinafter specified or
as otherwise permitted by law, Guarantor irrevocably waives, to the
fullest extent permitted by law, and agrees not to assert, by way of
motion, as a defense or otherwise, (i) any objection that Guarantor may
have or may hereafter have to the laying of the venue of any Action
brought in any court as provided for by this Agreement, (ii) any claim
that any Action brought in any such court has been brought in an
inconvenient forum, or (iii) any claim that Guarantor is not personally
subject to the jurisdiction of such court. Guarantor agrees that,
provided that service of process is effected upon Guarantor in one of
the manners specified in this Guaranty or as otherwise permitted by
law, a final judgment from which Guarantor has not appealed or may not
appeal in any Action brought in any such court shall be conclusive and
binding upon Guarantor and may, so far as permitted under applicable
law, be enforced in the courts of any state or any federal court or in
any other courts to the jurisdiction of which it is subject, by a suit
upon such judgment and that Guarantor shall not assert any defense,
counterclaim or set-off in any such suit upon such judgment.
(c) Guarantor hereby irrevocably designates and appoints
Corporation Service Company (the "SERVICE AGENT") as Guarantor's
authorized agent to accept and acknowledge on Guarantor's behalf
service of any and all process that may be served in any Action.
(d) Guarantor agrees to execute, deliver and file all such
further instruments or documents as may be necessary under the laws of
the State of New York or the laws of the United States in order to make
effective (i) the appointment of Service Agent as agent for service of
process as provided above and (ii) Guarantor's consent to jurisdiction
as provided for in this Guaranty.
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(e) Guarantor hereby consents to process being served in any
Action by the mailing of a copy thereof by registered or certified
mail, postage prepaid, return receipt requested, to the notice address
for Guarantor as set forth in this Guaranty or to Service Agent at the
address provided for herein. If Service Agent shall desire to resign as
agent for service of process, Guarantor shall substitute a party having
an office within the Borough of Manhattan and reasonably acceptable to
Agent to act as Service Agent (it being agreed that any such
resignation shall not be effective unless and until the replacement
Agent agrees in writing to act as Service Agent for service of
process). Guarantor hereby agrees that provided that service is made in
accordance with this paragraph or as otherwise permitted by law,
Guarantor irrevocably waives, to the fullest extent permitted by law,
all claim of error in connection with any such service and agrees that
such service (i) shall be deemed in every respect effective service of
process upon it in any Action, and (ii) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon
and personal delivery to Guarantor.
(f) Nothing in this Agreement shall limit Agent's right to
serve process in any manner permitted by law or limit Agent's right or
the right of any of its successors or assigns to bring proceedings
against Guarantor in the courts of any jurisdiction(s).
(g) To the extent that Guarantor has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment before judgment,
attachment in aid of execution, execution or otherwise) with respect to
Guarantor or Guarantor's property, Guarantor hereby irrevocably waives
such immunity in respect of its obligations under this Agreement.
(h) As a further inducement to Agent's making of the Loan to
Borrower, and in consideration thereof, Agent and Guarantor each
covenant and agree that in any action or proceeding brought on, under
or by virtue of this Agreement, Agent and Guarantor each shall and do
hereby unconditionally and irrevocably waive trial by jury.
(i) Guarantor hereby further covenants and agrees to and with
Agent that Guarantor may be joined in any action against Borrower in
connection with the Loan Agreement, the Note, the Mortgage, or any of
the other Loan Documents, solely with respect to the subject matter of
this Agreement.
(j) Guarantor covenants and agrees to indemnify and save Agent
harmless of and from, and defend it against, all losses, costs,
liabilities, expenses, damages or claims suffered by reason of
Guarantor's failure to perform its obligations hereunder.
21. All of Agent's rights and remedies under the Loan
Agreement, the Note, the Mortgage or any of the other Loan Documents or under
this Agreement are intended to be distinct, separate and cumulative and no such
right or remedy therein or herein mentioned is intended to be in exclusion of or
a waiver of any other right or remedy available to Agent.
22. Guarantor hereby consents that from time to time, before
or after any default by Borrower, with or without further notice to or assent
from Guarantor, any security at any time held by or available to Agent for any
obligation of Borrower, or any security at any
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time held by or available to Agent for any obligation of any other person or
party secondarily or otherwise liable for all or any portion of the Loan, may be
exchanged, surrendered or released and any obligation of Borrower, or of any
such other person or party, may be changed, altered, renewed, extended,
continued, surrendered, compromised, waived or released in whole or in part, or
any default with respect thereto waived, and Agent may fail to set off and may
release, in whole or in part, any balance of any deposit account or credit on
its books in favor of Borrower, or of any such other person or party, and may
extend further credit in any manner whatsoever to Borrower, and generally deal
with Borrower or any such security or other person or party as Agent may see
fit; and Guarantor shall remain bound under this Agreement notwithstanding any
such exchange, surrender, release, change, alteration, renewal, extension,
continuance, compromise, waiver, action, inaction, extension of further credit
or other dealing. This Agreement is independent of, and in addition to, all
collateral granted, pledged or assigned under the Loan Documents.
23. The terms of this Agreement have been negotiated, and this
Agreement has been executed and delivered in the State of New York, and it is
the intention of the parties hereto that this Agreement be construed and
enforced in accordance with the laws of such State.
24. This Agreement may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
25. This Agreement may be executed in counterparts, which
together shall constitute the same instrument.
NO FURTHER TEXT ON THIS PAGE
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IN WITNESS WHEREOF, Guarantor has executed and delivered this
Agreement as of the date and year first above written.
GUARANTOR
TERREMARK WORLDWIDE, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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