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EXHIBIT 10.32
[FORM OF NOTE]
THE SECURITY REPRESENTED BY THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR QUALIFIED UNDER
ANY STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED
OF EXCEPT WHILE A REGISTRATION STATEMENT IS
IN EFFECT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS. THE HOLDER OF THIS
SECURITY IS SUBJECT TO THE TERMS OF
THE PURCHASE AGREEMENT, DATED AS OF
DECEMBER 31, 2004 (THE "PURCHASE
AGREEMENT"), AMONG TERREMARK WORLDWIDE,
INC. (THE "COMPANY"), THE GUARANTORS
NAMED THEREIN, THE AGENT NAMED THEREIN AND
THE PURCHASERS NAMED THEREIN. A COPY
OF SUCH PURCHASE AGREEMENT IS AVAILABLE AT
THE OFFICES OF THE COMPANY.
FOR PURPOSES OF SECTIONS 1272, 1273 AND
1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND THE RULES AND
REGULATIONS THEREUNDER, THIS NOTE IS BEING
ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR
EACH $1,000 PRINCIPAL AMOUNT OF THIS
NOTE, (1) THE ISSUE PRICE IS $939.36; (2)
THE AMOUNT OF THE ORIGINAL ISSUE
DISCOUNT IS $224.07; (3) THE ISSUE DATE IS
DECEMBER 31, 2004; AND (4) THE YIELD
TO MATURITY IS 14.42% (COMPOUNDED
QUARTERLY).
SENIOR SECURED NOTES DUE 2009
$__________
No. __________
Terremark Worldwide, Inc., a corporation duly organized and
existing under the laws of Delaware (herein
called the "Company," which term
includes any successor Person under the
Purchase Agreement), for value received,
hereby promises to pay to [ ], or
registered assigns, the principal sum of $[ ]
Dollars (as such amount may be increased
from time to time in accordance with
Paragraph 2 on the reverse of this Note) on
March 10, 2009 (the "STATED
MATURITY").
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which
further provisions shall for all
purposes have the same effect as if set
forth at this place.
1
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: December , 2004
TERREMARK WORLDWIDE, INC.
By:
-------------------------------------
Name:
Title:
2
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[Form of Reverse of Note]
1. GENERAL. This Note is one of a duly authorized issue of
Notes of the Company designated as its
Senior Secured Notes due 2009 (herein
called the "NOTES"), limited in aggregate
principal amount to the sum of (a)
$30,000,000 and (b) the amount of interest
which, in accordance with the terms
of Paragraph 2 below, may be capitalized
and added to the principal amount of
the Notes, in each case, issued pursuant to
the Purchase Agreement, dated as of
December 31, 2004 (herein called the
"PURCHASE AGREEMENT"), among the Company,
the Guarantors named therein, the Agent
named therein and the Purchasers named
therein, to which Purchase Agreement and
all amendments thereto reference is
hereby made for a statement of the
respective rights, limitations of rights,
duties and immunities thereunder of the
Company and the Noteholders and of the
terms upon which the Notes are, and are to
be, issued and delivered.
Principal on this Note shall be payable only against surrender
therefor, while payments of interest on
this Note shall be made, in accordance
with the Purchase Agreement and subject to
applicable laws and regulations, by
check mailed on or before the due date for
such payment to the person entitled
thereto at such person's address appearing
on the Security Register or, by wire
transfer to such account as any Noteholder
shall designate by written
instructions received by the Company no
less than 15 days prior to any
applicable Interest Payment Date, which
wire instruction shall continue in
effect until such time as the Noteholder
otherwise notifies the Company or such
Noteholder no longer is the registered
owner of this Note.
2. INTEREST. The Company promises to pay interest on the
principal amount of this Note from the date
of issuance of this Note (or any
Predecessor Note) or from the most recent
Interest Payment Date to which
interest has been paid or duly provided
for, quarterly in arrears on March 30,
June 30, September 30 and December 30 in
each year commencing March 30, 2005
(each, an "INTEREST PAYMENT DATE") and at
Stated Maturity at the Applicable
Rate, until the principal hereof is paid;
PROVIDED, HOWEVER, that if any
Interest Payment Date falls on a date which
is not a Business Day, interest due
on such Interest Payment Date shall be paid
on the Business Day immediately
following such Interest Payment Date,
PROVIDED, FURTHER, that such interest
payment shall not include any interest
accruing after such Interest Payment
Date. On each such Interest Payment Date
occurring during the period during
which the Applicable Rate shall equal the
Standard Rate the Company may, at its
option and in its sole discretion, in lieu
of the payment in whole or in part of
interest due on this Note which is in
excess of 9 7/8% (other than default
interest as described below), pay such
amount in excess of 9 7/8% (and only such
excess amount) on this Note by adding such
amount to the principal amount of
this Note on such Interest Payment Date. If
the Company elects to pay a portion
of the interest due on this Note through an
increase in the principal amount of
this Note as provided in the immediately
preceding sentence, the Company shall,
within five (5) Business Days of each
relevant Interest Payment Date, deliver to
the Noteholder of this Note written notice
of such election, which notice shall
also state the amount of interest so added
to the principal of this Note and the
new principal amount of this Note.
Notwithstanding the foregoing, if at any time
the Applicable Rate shall have converted
from the Standard Rate to the Reduced
Rate in accordance with the terms of this
Note then (i) interest on this Note
shall accrue and be paid entirely in cash
(and no interest
