ADDITIONAL SECURED DEBT DESIGNATION
Exhibit
10.4
Reference is made to the Collateral Trust Agreement dated as of June 24, 2009 (as amended,
supplemented, amended and restated or otherwise modified and in effect from time to time, the
“Collateral Trust Agreement”) among Terremark Worldwide, Inc., a Delaware corporation (the
“Company”), the Guarantors from time to time party thereto, The Bank of New York Mellon Trust
Company, N.A., as Trustee under the Indenture (as defined therein), the other Secured Debt
Representatives from time to time party thereto and U.S. Bank National Association, as Collateral
Trustee. Capitalized terms used but not otherwise defined herein shall have the meaning set forth
in the Collateral Trust Agreement. This Additional Secured Debt Designation is being executed and
delivered in order to designate additional secured debt as Parity Lien Debt entitled to the benefit
of the Collateral Trust Agreement.
The undersigned, the duly appointed Chief Financial Officer of the Company hereby certifies on
behalf of the Company that:
The Company intends to incur additional Secured Debt (“Additional Secured
Debt”) which will be Parity Lien Debt permitted by each applicable Secured Debt
Document to be secured by a Parity Lien Equally and Ratably with all existing and
future Parity Lien Debt;
The Additional Secured Debt is permitted to be incurred and secured Equally and
Ratably by a Parity Lien under each applicable Secured Debt Document;
The name and address of the Secured Debt Representative for the Additional
Secured Debt for purposes of Section 7.7 of the Collateral Trust Agreement is:
The Bank of New York Mellon Trust Company, N.A.
00000 Xxxxxxxxx Xxxxxxx X.
Xxxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
00000 Xxxxxxxxx Xxxxxxx X.
Xxxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
The Company has caused a copy of this Additional Secured Debt Designation to be
delivered to each existing Secured Debt Representative; and
The Company and each Guarantor has duly authorized, executed (if applicable)
and recorded (or caused to be recorded) in each appropriate governmental office all
relevant filings and recordations to ensure that the Additional Secured Debt is
secured by the Collateral in accordance with the
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Security Documents, including, without limitation, the applicable Required
Mortgage Amendment Deliverables (as defined in the Mortgage); provided that, with
respect to the issuance of the Additional Notes, the Company and the Guarantors
shall use their reasonable best efforts to have all necessary actions taken promptly
following the date of the issuance of such Additional Notes to amend the relevant
Security Documents governing the Mortgages and the pledge agreements governing the
Company’s foreign subsidiaries to reflect the issuance of the Additional Notes, such
actions to be completed no later than 60 days thereafter.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, the Company has caused this Additional Secured Debt Designation to be duly
executed by the undersigned officer as of April 28, 2010.
| TERREMARK WORLDWIDE, INC. |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
[Signature Page]
ACKNOWLEDGEMENT OF RECEIPT
The undersigned, the duly appointed Collateral Trustee under the Collateral Trust Agreement, hereby
acknowledges receipt of an executed copy of this Additional Secured Debt Designation.
| U.S. BANK NATIONAL ASSOCIATION, as Collateral Trustee |
||||
| By: | /s/ Xxxx X’Xxxxx | |||
| Name: | Xxxx X’Xxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
[Signature Page]
