Attached files
file | filename |
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EX-4.2 - EX-4.2 - TERREMARK WORLDWIDE INC. | g23163exv4w2.htm |
EX-4.1 - EX-4.1 - TERREMARK WORLDWIDE INC. | g23163exv4w1.htm |
EX-10.3 - EX-10.3 - TERREMARK WORLDWIDE INC. | g23163exv10w3.htm |
EX-10.1 - EX-10.1 - TERREMARK WORLDWIDE INC. | g23163exv10w1.htm |
EX-10.2 - EX-10.2 - TERREMARK WORLDWIDE INC. | g23163exv10w2.htm |
EX-10.4 - EX-10.4 - TERREMARK WORLDWIDE INC. | g23163exv10w4.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (date of earliest event reported): April 23, 2010
TERREMARK WORLDWIDE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware | 1-12475 | 84-0873124 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
One Biscayne Tower
2 South Biscayne Boulevard, Suite 2800
Miami, Florida 33131
2 South Biscayne Boulevard, Suite 2800
Miami, Florida 33131
(Address of principal executive office)
Registrants telephone number, including area code: (305) 856-3200
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
On April 23, 2010, Terremark Worldwide, Inc., a Delaware corporation (we,
us, our or the Company), entered into a purchase agreement (the
Purchase Agreement), by and among the Company, certain of the Companys subsidiaries and
Credit Suisse Securities (USA) LLC, as the initial purchaser (the Initial Purchaser),
pursuant to which the Company agreed to issue and sell, and the Initial Purchaser agreed to
purchase, $50 million aggregate principal amount of Senior Secured Notes due 2017 (the New
Notes), which are guaranteed (the Guarantees and, together with the New Notes, the
Securities) by substantially all of the Companys domestic subsidiaries (the
Guarantors).
The Purchase Agreement contains customary representations and warranties of the parties and
indemnification and contribution provisions whereby the Company and the Guarantors, on the one
hand, and the Initial Purchaser, on the other, have agreed to indemnify each other against certain
liabilities.
On April 28, 2010 (the Closing Date), the Company consummated the issuance and sale
of the Securities under the Purchase Agreement in a private placement to qualified institutional
buyers in the United States in reliance on Rule 144A under the Securities Act of 1933, as amended
(the Securities Act), and outside the United States in reliance on Regulation S under the
Securities Act.
The New Notes are part of the same series as the Companys outstanding $420 million aggregate
principal amount of Senior Secured Notes due 2017 (the Existing Notes and, together with
the New Notes, the Notes), which were issued on June 24, 2009 (the Existing Notes
Issue Date) pursuant to an indenture, dated as of the Existing Notes Issue Date (the Base
Indenture), among the Company, the Guarantors and The Bank of New York Mellon Trust Company,
N.A., as trustee (the Trustee). The New Notes have been issued under the Base Indenture
as supplemented by a supplemental indenture, dated as of the Closing Date, by and among the
Company, the Guarantors and the Trustee (the Supplemental Indenture and, together with
the Base Indenture, the Indenture).
The New Notes are secured equally and ratably with the Existing Notes by a first priority
security interest in substantially all of the assets of the Company and the Guarantors, including
the pledge of 100% of all outstanding capital stock of each of the Companys domestic subsidiaries,
except Technology Center of the Americas, LLC and Terremark Federal Group, Inc., and 65% of all
outstanding capital stock of substantially all the Companys foreign subsidiaries (such security
interests and pledges, together, the Security Interests).
The Security Interests in favor of U.S. Bank National Association, as collateral trustee (the
Collateral Trustee) for the benefit of the holders of the Notes, have been granted
pursuant to each of the following instruments dated as of the Existing Notes Issue Date: (i) that
certain Security Agreement with the Collateral Trustee (the Security Agreement); (ii)
that certain Intellectual Property Security Agreement with the Collateral Trustee (the IP
Security Agreement); and (iii) that certain Collateral Trust Agreement with the Trustee, the
Collateral Trustee and the other Secured Debt Representatives from time to time party thereto (the
Collateral Trust Agreement and, together with the Security Agreement and the IP Security
Agreement, the Existing Security Documents), which Collateral Trust Agreement sets forth
the terms on which the Collateral Trustee will receive, hold, administer, maintain, enforce and
distribute the proceeds of all liens on the collateral securing the Notes and the Guarantees.
Additionally, in connection with the issuance of the New Notes, on
the Closing Date, (i) the Company, the Guarantors and the Collateral Trustee entered into
Amendment No. 1 to the Collateral Trust Agreement (the Amendment to Collateral Trust
Agreement), pursuant to which certain provisions of the Collateral Trust Agreement were
revised to conform the text thereof to the intent of the Indenture and the Collateral Trust
Agreement, and (ii) the Company and the Collateral Trustee entered into an Additional Secured Debt
Designation (the Additional Secured Debt Designation), pursuant to which the New Notes
have been designated as additional secured debt entitled to the Security Interests equally and
ratably with the Existing Notes.
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The Securities have not been registered under the Securities Act or any state securities laws
and may not be sold except in a transaction registered under, or exempt from, the registration
provisions of the Securities Act and applicable state securities laws. On the Closing Date, the
Company and the Guarantors entered into a registration rights agreement (the Registration
Rights Agreement), pursuant to which the Company and the Guarantors have agreed for the
benefit of the holders of the Securities to use their best efforts to file with the Securities and
Exchange Commission (the Commission) and cause to become effective a registration
statement (the Exchange Offer Registration Statement) with respect to a registered offer
to exchange the Securities for an issue of the Companys senior secured notes (the Exchange
Notes) guaranteed by the Guarantors (the Exchange Note Guarantees and, together with
the Exchange Notes, the Exchange Securities) with terms identical to the New Notes,
except that the Exchange Notes will not bear legends restricting transfer and will not contain
terms providing for the payment of additional interest as described below and in the Registration
Rights Agreement. In addition, we have agreed to file, in certain circumstances, a shelf
registration statement covering resales of the Securities.
If the exchange offer for the New Notes is not completed on or prior to the 210th
day following the Existing Notes Issue Date, the interest rate on the Notes will increase by 0.25%
per annum for the first 90-day period thereafter, and the amount of such additional interest will
increase by an additional 0.25% per annum for each subsequent 90-day period, up to a maximum of
1.0% per annum over the original interest rate on the New Notes (Additional Interest).
Additional Interest will also become payable if any of the following occurs: (i) our failure to
file with the Commission the Exchange Offer Registration Statement on or prior to the
90th day following the Existing Notes Issue Date; (ii) our failure to file with the
Commission a shelf registration statement on or prior to the 30th day following the
occurrence of an event requiring that we file a shelf registration statement; (iii) if on or prior
to the 180th day following the Existing Notes Issue Date, neither the Exchange Offer
Registration Statement nor a shelf registration statement has been declared effective by the
Commission; (iv) if on or prior to the 210th day following the Existing Notes Issue Date
a shelf registration statement, if required in lieu of Exchange Offer Registration Statement, has
not been declared effective by the Commission; or (v) if either the Exchange Offer Registration
Statement or a shelf registration statement that has been declared effective ceases to be
effective. Additional Interest shall cease to accrue and become payable: (i) following our cure
of any of the foregoing conditions, as applicable; (ii) on any Exchange Securities; (iii) on
Securities that cease to be outstanding; or (iv) after the Securities (x) become freely
transferable without restriction pursuant to Rule 144 under the Securities Act by persons that are
not our affiliates (provided that the one-year holding period specified by Rule 144(d)(1)(ii) has
been satisfied), (y) do not bear any restrictive legends and (z) do not bear a restrictive CUSIP
number.
Pursuant to the Registration Rights Agreement, the New Notes are presently accruing Additional
Interest at the rate of 0.75% per annum.
A description of the terms of the Notes, the Base Indenture and the Existing Security
Documents has been previously reported by the Company in its Current Report on Form 8-K, filed with
the Commission on June 29, 2009 (the June 8-K), and such description is incorporated by
reference in this Current Report on Form 8-K. Additionally, the full text of the Base
Indenture and the Existing Security Documents, which the Company has filed as Exhibit 4.1, Exhibit
10.2, Exhibit 10.3 and Exhibit 10.4 to the June 8-K, is incorporated by reference in this Current
Report on Form 8-K.
3
The foregoing description of the Supplemental Indenture, New Notes, Purchase Agreement,
Registration Rights Agreement, Amendment to Collateral Trust Agreement and Additional Secured Debt
Designation is only a summary and is qualified in its entirety by reference to the full text of the
Supplemental Indenture, form of New Note, Purchase Agreement, Registration Rights Agreement,
Amendment to Collateral Trust Agreement and Additional Secured Debt Designation, which are filed as
Exhibit 4.1, Exhibit 4.2, Exhibit 10.1, Exhibit 10.2, Exhibit 10.3 and Exhibit 10.4, respectively,
to this Current Report on Form 8-K and each of which is incorporated by reference herein.
ITEM 9.01 | Financial Statements and Exhibits |
(d) | Exhibits |
Exhibit No. | Description | |||
4.1 | Supplemental Indenture, dated April 28, 2010, by and among the
Company, certain of the Companys subsidiaries and The Bank of
New York Mellon Trust Company, N.A., as trustee. |
|||
4.2 | Form of New Note. |
|||
10.1 | Purchase Agreement, dated April 23, 2010, by and among the
Company, the Guarantors and the Initial Purchaser. |
|||
10.2 | Registration Rights Agreement, dated April 28, 2010, by and
among the Company, the Guarantors and the Initial Purchaser. |
|||
10.3 | Amendment to Collateral Trust Agreement, dated April 28, 2010,
by and among the Company, the Guarantors and the Collateral
Trustee. |
|||
10.4 | Additional Secured Debt Designation, dated April 28, 2010, by
and between the Company and the Collateral Trustee. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
TERREMARK WORLDWIDE, INC. |
||||
Date: April 29, 2010 | By: | /s/ Jose A. Segrera | ||
Jose A. Segrera | ||||
Chief Financial Officer |
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EXHIBIT INDEX
Exhibit No. | Description | |||
4.1 | Supplemental Indenture, dated April 28, 2010, by and among the
Company, certain of the Companys subsidiaries and The Bank of
New York Mellon Trust Company, N.A., as trustee. |
|||
4.2 | Form of New Note. |
|||
10.1 | Purchase Agreement, dated April 23, 2010, by and among the
Company, the Guarantors and the Initial Purchaser. |
|||
10.2 | Registration Rights Agreement, dated April 28, 2010, by and
among the Company, the Guarantors and the Initial Purchaser. |
|||
10.3 | Amendment to Collateral Trust Agreement, dated April 28, 2010,
by and among the Company, the Guarantors and the Collateral
Trustee. |
|||
10.4 | Additional Secured Debt Designation, dated April 28, 2010, by
and between the Company and the Collateral Trustee. |
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