8-K

UNITED STATES
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

Date of Report (date of earliest event reported): January 5, 2007

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.)

2601 S. Bayshore Drive
Miami, Florida 33133

(Address of principal executive office)

Registrant’s 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.

     On January 5, 2007, Terremark Worldwide, Inc. (“TWW”), entered into a Purchase Agreement with Credit Suisse, Cayman Islands Branch and Credit Suisse, International (the “Purchasers”), the guarantors named therein, and the agent named therein, for the sale of (i) $10 million aggregate principal amount of TWW’s Senior Subordinated Secured Notes due June 30, 2009 (the “Series A Notes”) to Credit Suisse, Cayman Islands Branch, and (ii) $4 million in aggregate principal amount of TWW’s 0.5% Senior Subordinated Convertible Notes due June 30, 2009 to Credit Suisse, International (the “Series B Notes”) issued pursuant to an Indenture between TWW and The Bank of New York Trust Company, N.A., as trustee (the “Indenture”). TWW and its subsidiaries are subject to certain covenants and restrictions specified in the Purchase Agreement with the Purchasers, including covenants that restrict their ability to pay dividends, make certain distributions or investments and incur certain indebtedness.

     The Series A Notes bear interest at the Eurodollar Rate, as calculated under terms of the Series A Note, plus 8.00% (increasing on January 1, 2009 to the Eurodollar Rate plus 9.00% through the maturity date). All interest under the Series A Notes is “payable in kind” and will be added to the principal amount of the Series A Notes quarterly beginning March 30, 2007. The Series A Notes are secured by substantially all of TWW’s and its subsidiaries’ assets pursuant to the terms of the Security Agreement dated January 5, 2007 among TWW, the guarantors named therein and Credit Suisse, Cayman Islands Branch, as agent (the “Security Agreement”).

     The Series B Notes bear interest at 0.5% per annum for the first 24 months increasing thereafter to 1.50% until maturity. All interest under the Series B Notes is “payable in kind” and will be added to the principal amount of the Series B Notes semi-annually beginning July 1, 2007. The Series B Notes are convertible into shares of the Company’s common stock, par value $0.001 par value per share (the “Common Stock”) at the option of the holders, at $8.14 per share subject to certain adjustments set forth in the Indenture.

     If there is a change in control of TWW, the holders of the Series A and Series B Notes have the right to require TWW to repurchase their notes in cash at a repurchase price equal to 100% of the principal amount, plus accrued and unpaid interest. TWW may, at its option, redeem the Series A Notes, in whole or in part at any time prior to the stated maturity, at the then outstanding balance of such notes (including interest that has accreted to principal) plus accrued but unaccreted interest. TWW may redeem, at its option, all of the Series B Notes on any interest payment date after June 5, 2007 at a redemption price equal to (i) certain amounts set forth in the Indenture (expressed as percentages of the principal amount outstanding on the date of redemption), plus (ii) the amount (if any) by which the fair market value on such date of the Common Stock into which the Series B Notes are then convertible exceeds the principal amount of the Series B Notes on such date, plus (iii) accrued, but unpaid interest if redeemed during certain monthly periods following the closing date.

     TWW also paid an arrangement fee (the “Arrangement Fee”) to Credit Suisse, International as consideration for its services in connection with the Series B Notes, in the amount of 145,985 shares of Common Stock (the “Fee Shares”), which shares have a value of approximately $1,000,000. TWW also granted Credit Suisse, International certain registration rights pursuant to the Registration Rights Agreement dated January 5, 2007 in connection with the Common Stock underlying the Series B Notes and the Fee Shares, including the right to have such shares registered with the Securities and Exchange Commission (the “SEC”).

     The Series A Notes are subordinated to the Falcon Notes (as defined below) in the manner and to the extent set forth in the Subordination and Intercreditor Agreement dated as of January 5, 2007, among TWW, the subsidiary guarantors names therein, FMP Agency Services, LLC, as the senior agent to the senior creditors named therein, and Credit Suisse, Cayman Islands Branch, as subordinated agent and subordinated creditor (the “Series A Subordination Agreement”). The Series B Notes are subordinated to the Falcon Notes in the manner and to the extent set forth in the Subordination and Intercreditor Agreement dated as of January 5, 2007, among TWW, the subsidiary guarantors names therein, FMP Agency Services, LLC, as the senior agent to the senior creditors named therein, and the Bank of New York Trust Company, N.A. as subordinated agent to Credit Suisse, International, the subordinated creditor (the “Series B Subordination Agreement,” and collectively with the Series A Subordination Agreement, the “Subordination Agreements”).

     On January 5, 2007, TWW also entered into a capital lease facility commitment letter with Credit Suisse for lease financing in the amount of up to $13,250,000 (the “Lease Financing Commitment”) for certain specified

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properties. In connection with the Lease Financing Commitment, TWW is required to commence accruing a commitment fee of 550 basis points based on the available portion under the Lease Financing Commitment beginning on Janaury 5, 2007, in addition to the other terms and conditions described in the Lease Financing Commitment. If TWW elects any early buy-out option of the contemplated lease financings contemplated by the Lease Financing Commitment (as defined below), TWW is required to offer to repurchase the Series A Notes at an offer price in cash equal to 100% of the principal amount of thereof plus acrrued and unpaid interest as described in the Purchase Agreement.

     In connection with and consideration for the consent of the holders of the Falcon Notes to TWW’s issuance of the Series A Notes, Series B Notes and Lease Financing Commitment, on January 5, 2007, TWW entered into an Amendment, Consent and Waiver (the “Falcon Amendment”) that provides for certain amendments, consents and waivers to the terms of the Purchase Agreement dated December 31, 2004 among TWW, as issuer, the guarantors named therein, FMP Agency Services, LLC, as agent, and the purchasers named therein (collectively, the “Falcon Purchasers”) specifically the terms relating to the $30 million aggregate principal amount of TWW’s Senior Secured Notes due 2009 (the “Falcon Notes”). The Falcon Amendment provides for: (i) a reduction in the call premium from 7.5% to 5.0% immediately instead of on June 30, 2007 and (ii) an immediate 1.0% increase in the accrued interest rate followed by additional 0.25% quarterly interest rate increase for each quarter during the four (4) quarters beginning July 1, 2007; provided however, that in the event the Falcon Notes are redeemed prior to the first anniversary of the Falcon Amendment, a minimum of $300,000 in additional interest shall be required to be paid on the Falcon Notes in connection with any such early redemption.

     The foregoing summary of the Purchase Agreement, the Series A Notes, the Series B Notes, the Security Agreement, the Falcon Amendment, the Indenture, the Registration Rights Agreement, the Subordination Agreements and the Lease Financing Commitment is not complete and is qualified in its entirety by reference to the agreements, which are attached hereto as Exhibits 10.39 through 10.48 and incorporated herein by reference. A copy of the press release issued by TWW on January 8, 2007, is filed herewith as Exhibit 99.1 and is incorporated herein by reference.

Item 2.03 Creation of Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.

     See Item 1.01 above.

Item 3.02 Unregistered Sales of Equity Securities.

     See Item 1.01 above. The Common Stock underlying the Series B Notes and the Fee Shares were issued in transactions exempt from registration with the SEC in reliance upon Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), SEC Rule 144/A, and/or Regulation D of the Securities Act.

Item 7.01 Regulation FD Disclosure

     On January 8, 2007, TWW issued a press release announcing TWW’s issuance of the Series A, Series B Notes and Lease Financing Commitment described above. A copy of such press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.

     The information in this Item 7.01 of Form 8-K and the Exhibit attached hereto shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933 or the Exchange Act, except as expressly set forth by specific reference in such a filing.

Item 9.01 Financial Statements and Exhibits.

     (a) Financial Statements of Businesses Acquired

     Not applicable.

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     (b) Pro Forma Financial Information

     Not applicable.

     (c) Shell Company Transactions

     Not applicable.

     (d) Exhibits

Exhibit
No.		Document
	10.39	Purchase Agreement dated as of January 5, 2007, by and among Terremark Worldwide, Inc., as issuer, the guarantors named therein, the agent named therein, and each of the purchasers named therein.
	10.40	Security Agreement dated as of January 5, 2007, by and among Terremark Worldwide, Inc., as issuer, the guarantors named therein and the agents named therein.
	10.41	Registration Rights Agreement dated as of January 5, 2007 by and among Terremark Worldwide, Inc. and Credit Suisse International.
	10.42	Indenture dated as of January 5, 2007 by Terremark Worldwide, Inc. and Bank of New York Trust Company, N.A., as trustee.
	10.43	Amendment, Waiver and Consent dated January 5, 2007 to the Purchase Agreement dated as of December 31, 2004, by and among Terremark Worldwide, Inc., as Issuer, the guarantors named therein, FMP Agency Services, LLC, as agent, and each of the purchasers named therein.
	10.44	Subordination and Intercreditor Agreement dated as of January 5, 2007, by and among Terremark Worldwide, Inc., the subsidiary guarantors names therein, FMP Agency Services, LLC, as the senior creditors named therein, and Credit Suisse, Cayman Islands Branch, as subordinated agent to the subordinated creditors named therein.
	10.45	Subordination and Intercreditor Agreement dated as of January 5, 2007, by and among TWW, the subsidiary guarantors names therein, FMP Agency Services, LLC, as the senior agent to the creditors named therein, and Credit Suisse, International, as subordinated agent and the subordinated agent named therein.
	10.46	Capital Lease Facility Commitment Letter by and between TWW and Credit Suisse Securities (USA) LLC and Credit Suisse, Cayman Islands Branch dated January 5, 2007.
	10.47	Form of Note of Terremark Worldwide, Inc. issued to the Credit Suisse, Cayman Islands Branch.
	10.48	Form of Note of Terremark Worldwide, Inc. issued to Credit Suisse, International.
	99.1	Press Release issued January 8, 2007

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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: January 11, 2007	By:	/s/ Jose Segrera
		Name:	Jose Segrera
		Title:	Chief Financial Officer

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EX-10.39

Exhibit 10.39

EXECUTION VERSION

PURCHASE AGREEMENT

among

TERREMARK WORLDWIDE, INC., as Issuer,

The Guarantors named herein,

The Agent named herein

and

The Purchasers named herein

Dated as of January 5, 2007

Relating to:

$10,000,000 Aggregate Principal Amount of
Senior Subordinated Secured Notes due 2009

$4,000,000 Aggregate Principal Amount of
Subordinated Convertible Notes due 2009

EXECUTION VERSION

TABLE OF CONTENTS

	Page
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Definitions		2
SECTION 1.02. Computation of Time Periods		24
SECTION 1.03. Accounting Terms		24
SECTION 2 AUTHORIZATION, ISSUANCE AND SALE OF SECURITIES
SECTION 2.01. Authorization of Issue		24
SECTION 2.02. Sale		24
SECTION 2.03. Closing		24
SECTION 3 CONDITIONS TO CLOSING
SECTION 3.01. Representations and Warranties		25
SECTION 3.02. Performance; No Default Under Other Agreements		25
SECTION 3.03. Compliance Certificates		25
SECTION 3.04. Opinions of Counsel		26
SECTION 3.05. Changes in Corporate Structure		26
SECTION 3.06. No Adverse Events		26
SECTION 3.07. Financial Information; Capital Structure		26
SECTION 3.08. Proceedings and Documents		26
SECTION 3.09. Purchase Permitted by Applicable Law, etc.		27
SECTION 3.10. Basic Documents in Force and Effect; Information		27
SECTION 3.11. No Violation; No Legal Constraints; Consents, Authorizations and Filings, etc.		27
SECTION 3.12. Consummation of the Transactions		28
SECTION 3.13. Fees		28
SECTION 3.14. CUSIP Numbers		28
SECTION 3.15. Simultaneous Purchase		28
SECTION 3.16. Delivery of Documents		28
SECTION 3.17. Personal Property Requirements		28
SECTION 3.18. Financing Commitment		29
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
SECTION 4.01. Due Incorporation; Power and Authority		29
SECTION 4.02. Capitalization		30
SECTION 4.03. Equity Interests and Subsidiaries		30
SECTION 4.04. Due Authorization, Execution and Delivery		31
SECTION 4.05. Non-Contravention; Authorizations and Approvals		32
SECTION 4.06. Company Financial Statements; Company Reports		32
SECTION 4.07. Absence of Undisclosed Liabilities or Events		33
SECTION 4.08. No Actions or Proceedings		34

	Page
SECTION 4.09. Properties		34
SECTION 4.10. Intellectual Property		35
SECTION 4.11. Taxes		36
SECTION 4.12. Employee Benefit Plans		37
SECTION 4.13. Private Offering; No Integration or General Solicitation		38
SECTION 4.14. Eligibility for Resale Under Rule 144A		38
SECTION 4.15. Status Under Certain Statutes		38
SECTION 4.16. Insurance		39
SECTION 4.17. Use of Proceeds; Margin Regulations		39
SECTION 4.18. Existing Indebtedness; Future Liens		39
SECTION 4.19. Compliance with Laws; Permits; Environmental Matters		39
SECTION 4.20. Solvency		40
SECTION 4.21. Affiliate Transactions		40
SECTION 4.22. Material Contracts		40
SECTION 4.23. No Changes to Applicable Law		41
SECTION 4.24. Indebtedness		41
SECTION 4.25. Fees		41
SECTION 4.26. Brokerage Fees		41
SECTION 4.27. Documents and Procedures		41
SECTION 4.28. Absence of Labor Dispute		41
SECTION 4.29. No Unrelated Liabilities		41
SECTION 4.30. Full Disclosure		41
SECTION 4.31. Assets Control Regulations and Anti-Money Laundering		42
SECTION 4.32. Certain Other Representations and Warranties; Consummation of Transactions		42
SECTION 4.33. Security Documents		43
SECTION 4.34. Real Property Holding Corporation		44
SECTION 4.35. Activities of Certain Subsidiaries		44
SECTION 5 REPRESENTATIONS OF THE PURCHASERS
SECTION 5.01. Purchase for Investment		44
SECTION 6 COVENANTS TO PROVIDE INFORMATION
SECTION 6.01. Future Reports to Series A Noteholders		45
SECTION 7 OTHER AFFIRMATIVE COVENANTS
SECTION 7.01. Payment of Principal, Premium and Interest		50
SECTION 7.02. Preservation of Corporate Existence and Franchises		50
SECTION 7.03. Maintenance of Properties		50
SECTION 7.04. Taxes.		51
SECTION 7.05. Books, Records and Access		51
SECTION 7.06. Compliance with Law		52
SECTION 7.07. Insurance		52
SECTION 7.08. Offer to Repurchase upon Change of Control		53

	Page
SECTION 7.09. Offer to Purchase by Application of Excess Proceeds		55
SECTION 7.10. Affirmative Covenants with Respect to Leases		56
SECTION 7.11. Further Assurances		56
SECTION 7.12. Additional Collateral; Additional Guarantors.		56
SECTION 7.13. Security Interests; Further Assurances		58
SECTION 7.14. Information Regarding Collateral		58
SECTION 7.15. Designations of Unrestricted Subsidiaries		59
SECTION 7.16. Casualty Event		60
SECTION 7.17. Offer to Repurchase under Contemplated Lease Financings		60
SECTION 8 NEGATIVE COVENANTS
SECTION 8.01. Stay, Extension and Usury Laws		62
SECTION 8.02. Restricted Payments		62
SECTION 8.03. Dividend and Other Payment Restrictions Affecting Subsidiaries		63
SECTION 8.04. Incurrence of Indebtedness and Issuance of Preferred Stock		64
SECTION 8.05. Asset Sales		66
SECTION 8.06. Transactions with Affiliates		67
SECTION 8.07. Limitation on Liens		68
SECTION 8.08. Limitation on Issuances and Sales of Capital Stock of Subsidiaries		71
SECTION 8.09. Payments for Consents		71
SECTION 8.10. Merger, Consolidation, or Sale of Assets		71
SECTION 8.11. Conduct of Business		72
SECTION 8.12. Limitation on Tax Consolidation		72
SECTION 8.13. Public Disclosures		72
SECTION 8.14. Limitation on Repurchases and other Repayments of Series A Notes		73
SECTION 8.15. Limitation on Activities		73
SECTION 8.16. Limitation on Accounting Changes		73
SECTION 8.17. Fiscal Year		73
SECTION 8.18. Amendments or Waivers of Certain Documents		73
SECTION 8.19. Amendments to Charter Documents		74
SECTION 8.20. No Integration		74
SECTION 9 THE NOTES
SECTION 9.01. Form and Execution		74
SECTION 9.02. Terms of the Notes		74
SECTION 9.03. Denominations		74
SECTION 9.04. Form of Legend for the Notes		74
SECTION 9.05. Payments and Computations		75
SECTION 9.06. Registration; Registration of Transfer and Exchange		76
SECTION 9.07. Transfer Restrictions		77
SECTION 9.08. Mutilated, Destroyed, Lost and Stolen Notes		78
SECTION 9.09. Persons Deemed Owners		79
SECTION 9.10. Cancellation		79
SECTION 9.11. Home Office Payment		79

	Page
SECTION 10 EVENTS OF DEFAULT
SECTION 10.01. Events of Default		79
SECTION 10.02. Remedies		82
SECTION 10.03. Waiver of Past Defaults		83
SECTION 11 REDEMPTION
SECTION 11.01. Right of Redemption		84
SECTION 11.02. Partial Redemptions		84
SECTION 11.03. Notice of Redemption		84
SECTION 11.04. Notes Payable on Redemption Date		84
SECTION 11.05. Notes Redeemed in Part		85
SECTION 12 SUBSIDIARY GUARANTEES
SECTION 12.01. Subsidiary Guarantees		85
SECTION 12.02. Execution and Delivery of Subsidiary Guarantees		86
SECTION 12.03. Guarantors May Consolidate, Etc. on Certain Terms		86
SECTION 12.04. Releases of Subsidiary Guarantees		87
SECTION 12.05. Limitation on Guarantor Liability		88
SECTION 13 EXPENSES, INDEMNIFICATION AND CONTRIBUTION, AND TERMINATION
SECTION 13.01. Expenses		88
SECTION 13.02. Indemnification		88
SECTION 13.03. Contribution		90
SECTION 13.04. Survival		91
SECTION 13.05. Termination		91
SECTION 14 AGENT
SECTION 14.01. Appointment		91
SECTION 14.02. Nature of Duties		92
SECTION 14.03. Rights, Exculpation, Etc.		92
SECTION 14.04. Reliance		93
SECTION 14.05. Indemnification.		93
SECTION 14.06. Credit Suisse, Cayman Islands Branch Individually		94
SECTION 14.07. Successor Agent		94
SECTION 14.08. Collateral Matters		94
SECTION 14.09. Agency for Perfection		95
SECTION 14.10. Notice of Default		95
SECTION 14.11. Series A Noteholder Actions Against Collateral		96
SECTION 14.12. Setoff and Sharing of Payments		96
SECTION 14.13. Withholding		96

	Page
SECTION 15 MISCELLANEOUS
SECTION 15.01. Notices		97
SECTION 15.02. Benefit of Agreement; Assignments and Participations		97
SECTION 15.03. No Waiver; Remedies Cumulative		98
SECTION 15.04. Amendments, Waivers and Consents		98
SECTION 15.05. Counterparts		99
SECTION 15.06. Reproduction		99
SECTION 15.07. Headings		99
SECTION 15.08. Governing Law; Submission to Jurisdiction; Venue		99
SECTION 15.09. Severability		100
SECTION 15.10. Entirety		100
SECTION 15.11. Survival of Representations and Warranties		101
SECTION 15.12. Incorporation		101
SECTION 15.13. Certain Rights and Obligations Among Noteholders		101

EXHIBITS

Exhibit A	–	Form of Class A Note
Exhibit B	–	Form of Subsidiary Guarantee
Exhibit C	–	Form of Supplemental Agreement
Exhibit D	–	Form of Subordination and Intercreditor Agreement
Exhibit E	–	Form of Indenture
Exhibit F	–	Form of Registration Rights
Exhibit G	–	Form of Compliance Certificate
Exhibit H	–	Form of Landlord Access Agreement
Exhibit I	–	Form of Mortgage
Exhibit J–1	–	Form of Perfection Certificate
Exhibit J–2	–	Form of Perfection Certificate Supplement
Exhibit K	–	Form of Security Agreement
Exhibit L	–	Form of Confidentiality Agreement
Exhibit M	–	Form of Series B Subordination Agreement
Exhibit 3.03(a)	–	Form of Officers’ Certificate
Exhibit 3.03(b)	–	Form of Secretary’s Certificate
Exhibit 3.04(a)(i)	–	Form of Company Counsel Opinion
SCHEDULES
Schedule A	–	Information Relating to Purchasers
Schedule B	–	Assets to be Transferred to NAP Madrid
Schedule C	–	List of Certain Property
Schedule 3.04	–	Local Counsel
Schedule 3.06	–	Adverse Events
Schedule 4.02	–	Capitalization
Schedule 4.03(a)	–	Equity Interests
Schedule 4.03(b)	–	Consents
Schedule 4.05	–	Authorizations and Approvals
Schedule 4.06	–	Financial Statements
Schedule 4.07(a)	–	Liabilities
Schedule 4.07(b)	–	Changes in Business
Schedule 4.08	–	Legal and Governmental Actions
Schedule 4.09(c)	–	Special Flood Hazards
Schedule 4.10(a)	–	Intellectual Property — Claims
Schedule 4.10(c)	–	Intellectual Property — Violations
Schedule 4.11	–	Taxes
Schedule 4.12	–	Retiree Health and Life Benefits
Schedule 4.18	–	Indebtedness
Schedule 4.19	–	Compliance with Laws; Permits; Environmental Matters
Schedule 4.21(a)	–	Affiliate Transactions
Schedule 4.22	–	Material Contracts
Schedule 4.25	–	Transaction Fees
Schedule 4.26	–	Brokerage Fees

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Schedule 4.27	–	Documents and Procedures
Schedule 4.28	–	Labor Disputes
Schedule 8.07(c)	–	Liens

EXECUTION VERSION

PURCHASE AGREEMENT

          PURCHASE AGREEMENT, dated as of January 5, 2007, by and among TERREMARK WORLDWIDE, INC., a Delaware corporation (the “Company”), the guarantors listed on the signature pages hereto (each a “Guarantor” and, collectively, the “Guarantors,” and together with the Company, the “Issuers”), the Agent (defined below) and each of the purchasers listed on Schedule A hereto (each a “Purchaser” and, collectively, the “Purchasers”).

RECITALS

          WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, the Company has agreed to sell to the Purchasers, and the Purchasers, acting severally and not jointly, have agreed to purchase from the Company, an aggregate of (i) $10.0 million aggregate principal amount of the Company’s Senior Subordinated Secured Notes due 2009 in the form of Exhibit A hereto (the “Series A Notes”) and (ii) $4.0 million aggregate principal amount of the Company’s Subordinated Convertible Notes due 2009 in the form attached to the Indenture (defined below) (the “Series B Notes,” together with the Series A Notes, the “Notes”);

          WHEREAS the obligations of the Company under this Agreement pertaining to the Series A Notes and the Series A Notes will be guaranteed (the “Subsidiary Guarantees”) by the Guarantors, such Subsidiary Guarantees to be in the form of Exhibit B hereto;

          WHEREAS the Company desires to secure all of its obligations under the Basic Documents (as hereinafter defined) by granting to the Agent, for the benefit of the Agent and the Series A Noteholders, a security interest in and lien upon substantially all of its personal and real property (including a pledge of all of the Capital Stock (as hereinafter defined) of its Subsidiaries (as hereinafter defined)) other than the Excluded Property (as defined in the Security Agreement);

          WHEREAS each of the Guarantors (which excludes the SPV) is willing to grant to the Agent, for the benefit of the Agent and the Series A Noteholders, a security interest in and lien upon substantially all of its personal and real property to secure such guaranty other than the Excluded Property (as defined in the Security Agreement);

          WHEREAS the Issuers have duly authorized the creation and issuance of the Notes and the Subsidiary Guarantees, and the execution and delivery of this Agreement and the other Basic Documents; and

          WHEREAS all things necessary to make this Agreement, the Notes (when issued and delivered hereunder), the Subsidiary Guarantees (when validly endorsed on the Series A Notes), and each other Basic Document valid and binding obligations of each applicable Issuer in accordance with their respective terms have been done;

          NOW, THEREFORE, the parties hereto agree as follows:

SECTION 1

DEFINITIONS AND ACCOUNTING TERMS

          SECTION 1.01. Definitions. As used herein, the following terms shall have the meanings specified herein unless the context otherwise requires:

          “Accredited Investor” means any Person that is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act.

          “Acquired Indebtedness” means Indebtedness of a Person (i) assumed in connection with an Asset Acquisition from such Person or (ii) existing at the time such Person becomes a Subsidiary of any other Person (other than any Indebtedness incurred in connection with, or in contemplation of, such Asset Acquisition or such Person becoming such a Subsidiary). Acquired Indebtedness shall be deemed to be incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary, as the case may be.

          “Affiliate” means with respect to any specified Person: (i) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person; (ii) any other Person that owns, directly or indirectly, 5% or more of such specified Person’s Capital Stock or any officer or director of any such specified Person or other Person or, with respect to any natural Person, any person having a relationship with such Person by blood, marriage or adoption no more remote than first cousin; or (iii) any other Person 5% or more of the Voting Stock of which is beneficially owned or held directly or indirectly by such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

          “Agent” means Credit Suisse, Cayman Islands Branch. in its capacity as Agent for the Series A Noteholders or its successor appointed pursuant to Section 14.07.

          “Agreement” is defined in Section 15.04.

          “Applicable Law” means all applicable laws, statutes, treaties, rules, codes (including building codes), ordinances, regulations, certificates, orders and licenses of, and interpretations by, any Governmental Authority and judgments, decrees, injunctions, writs, permits, orders or like governmental action of any Governmental Authority (including any Environmental Law and any laws pertaining to health or safety) applicable to the Company, any of its Subsidiaries or any of their property or operations.

          “Applicable Rate” is defined in Exhibit A.

          “Asset Acquisition” means (i) an Investment by the Company or any Subsidiary in any other Person pursuant to which such Person will become a Subsidiary or will be merged or consolidated with or into the Company or any Subsidiary or (ii) the acquisition by the Company or any Subsidiary of the assets of any Person which constitute substantially all of the

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assets of such Person, or any division or line of business of such Person, or which is otherwise outside of the ordinary course of business.

          “Asset Sale” means any sale, issuance, conveyance, transfer, lease or other disposition (including, without limitation, by way of merger, consolidation or Sale and Leaseback Transaction) (collectively, a “transfer”), directly or indirectly, in one or a series of related transactions, of: (i) any Capital Stock of any Subsidiary; (ii) all or substantially all of the properties and assets of any division or line of business of the Company or its Subsidiaries; or (iii) any other properties or assets of the Company or any Subsidiary other than in the ordinary course of business. For the purposes of this definition, the term “Asset Sale” shall not include any transfer of properties and assets (a) that is governed by the provisions described under Section 8.10; provided, however, that any transaction consummated in compliance with Section 8.10 involving a transfer of less than all of the properties or assets of the Company shall be deemed to be an Asset Sale with respect to the properties or assets of the Company that are not so transferred in such transaction, (b) that is by the Company to any Wholly Owned Subsidiary that is a Guarantor, or by any Subsidiary to the Company or any Wholly Owned Subsidiary that is a Guarantor in accordance with the terms of this Agreement, (c) that is of obsolete equipment in the ordinary course of business, (d) the Fair Market Value of which in the aggregate does not exceed $1,000,000 or (e) that is Excluded Real Property.

          “Asset Sale Offer” is defined in Section 7.09(a).

          “Asset Sale Offer Payment Date” is defined in Section 7.09(b).

          “Audit Date” is defined in Section 4.06(b).

          “Average Life to Stated Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the then outstanding aggregate principal amount of such Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment.

          “Bailee Letter” shall have the meaning assigned thereto in the Security Agreement.

          “Bankruptcy Law” means Title 11 of the United States Code or any similar federal, state or foreign bankruptcy, insolvency, reorganization or other law for the relief of debtors.

          “Basic Documents” means, collectively, this Agreement, the Notes, the Guarantees, the Security Documents, the Subordination Agreement, the Registration Rights Agreement, the Indenture, the Post-Closing Letter, the Series B Subordination Agreement and all certificates, instruments, financial and other statements and other documents made or delivered in connection herewith and therewith.

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          “Board of Directors” means the Board of Directors of the Company or a Subsidiary of the Company, as the case may be, or any authorized committee of such Board of Directors.

          “Business Day” means any day other than a Legal Holiday.

          “Buy-Out Offer” is defined in Section 7.17(a).

          “Buy-Out Payment” is defined in Section 7.17(a).

          “Buy-Out Offer Payment Date” is defined in Section 7.17(b)(ii).

          “Capital Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of common stock and preferred stock of such Person; (ii) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person; and (iii) any rights, warrants or options exchangeable for or convertible into any of the foregoing.

          “Capitalized Lease Obligation” means any obligation under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed) that is required to be classified and accounted for as a capital lease obligation under GAAP, and, for the purpose of this Agreement, the amount of such obligation at any date shall be the capitalized amount thereof at such date, determined in accordance with GAAP consistently applied.

          “Cash Equivalents” means, at any time, (i) any evidence of Indebtedness with a maturity of not more than one year issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof); (ii) certificates of deposit or acceptances with a maturity of not more than one year of any financial institution that is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500,000,000; (iii) commercial paper with a maturity of not more than one year issued by a corporation that is not an Affiliate of the Company organized under the laws of any state of the United States or the District of Columbia and rated at least A1 by Standard & Poor’s Corporation or at least P1 by Moody’s Investors Service, Inc.; and (iv) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (i) and (ii) above entered into with any financial institution meeting the qualifications specified in clause (ii) above.

          “Casualty Event” shall mean any loss of title or any loss of or damage to or destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of the Company or any of its Subsidiaries. “Casualty Event” shall include but not be limited to any taking of all or any part of any Real Property of any person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Requirement of Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.

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          “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time, 42 U.S.C. § 9601 et seq.

          “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

          “Change of Control” means the occurrence of any of the following events (whether or not approved by the Board of Directors of the Company): (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the “beneficial owner” (as defined in Rules 13d3 and 13d5 under the Exchange Act), directly or indirectly, of 331/3% or more of the total voting or economic power of the Voting Stock of the Company; (ii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Company (together with any new directors whose election to such board or whose nomination for election by the stockholders of the Company was approved by a vote of 662/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of such Board of Directors then in office; (iii) the Company consolidates with or merges with or into any Person or sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any Person, or any corporation consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is changed into or exchanged for cash, securities or other property, other than any such transaction where the outstanding Voting Stock of the Company is not changed or exchanged at all (except to the extent necessary solely to reflect a change in the jurisdiction of incorporation of the Company or where (A) no “person” or “group,” other than Permitted Holders, owns immediately after such transaction, directly or indirectly, 331/3% or more of the total voting or economic power of the Voting Stock of the surviving corporation and (B) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the total voting and economic power of the Voting Stock of the surviving or transferee corporation immediately after such transaction); or (iv) any order, judgment or decree shall be entered against the Company decreeing the dissolution or split up of the Company and such order shall remain undischarged or unstayed for a period in excess of sixty days.

          “Change of Control Offer” is defined in Section 7.08(a).

          “Change of Control Payment” is defined in Section 7.08(a).

          “Change of Control Payment Date” is defined in Section 7.08(b)(ii).

          “Closing Time” is defined in Section 2.03.

          “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

          “Collateral” shall mean, collectively, all of the Security Agreement Collateral, the Mortgaged Property and all other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Security Document.

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          “Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this Agreement such Commission is not existing and performing the duties now assigned to it under the Exchange Act, the body performing such duties at such time.

          “Common Stock” has the meaning specified in the third recital to this Agreement.

          “Company” shall have the meaning assigned to such term in the preamble to this Agreement and its successors and permitted assigns.

          “Company Filings” means any filings or reports, including exhibits, annexes and any amendments thereto, filed by the Company or any of its Subsidiaries with the Commission.

          “Company Financial Statements” is defined in Section 4.06(a).

          “Company Party” is defined in Section 4.04(c).

          “Company Reports” is defined in Section 4.06(b).

          “Compliance Certificate” is defined in Section 6.01(f).

          “Consolidated” or “consolidated” (including the correlative term “consolidating”) or on a “consolidated basis,” when used with reference to any financial term in this Agreement (but not when used with respect to any Tax Return or Tax liability), means the aggregate for two or more Persons of the amounts signified by such term for all such Persons, with intercompany items eliminated and, with respect to net income or earnings, after eliminating the portion of net income or earnings properly attributable to minority interests, if any, in the capital stock of any such Person or attributable to shares of preferred stock of any such Person not owned by any other such Person, in accordance with GAAP.

          “Consolidated EBITDA” means, for any period, (i) the sum of, without duplication, the amounts for such period, taken as a single accounting period, of (a) Consolidated Net Income, (b) to the extent reducing Consolidated Net Income, Consolidated Noncash Charges, (c) to the extent reducing Consolidated Net Income, Consolidated Interest Expense, and (d) to the extent reducing Consolidated Net Income, Consolidated Income Tax Expense less (ii) other non-cash items increasing Consolidated Net Income for such period.

          “Consolidated Income Tax Expense” means, for any period, the provision for federal, state, local and foreign income taxes payable by the Company and the Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.

          “Consolidated Interest Expense” means, for any period, without duplication, the sum of (a) the interest expense of the Company and the Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP, including, without limitation, (i) any amortization of debt discount attributable to such period, (ii) the net cost under or otherwise associated with Hedging Obligations (in each case, including any amortization of discounts), (iii) the interest portion of any deferred payment obligation, (iv) all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and (v)

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all capitalized interest and all accrued interest, and (b) all but the principal component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by the Company and the Subsidiaries during such period and as determined on a consolidated basis. Consolidated Interest Expense shall be calculated on a Pro forma Basis to give effect to any Indebtedness incurred, assumed or permanently repaid or extinguished during the relevant Test Period in connection with any Asset Acquisitions and Asset Sales as if such incurrence, assumption, repayment or extinguishing had been effected on the first day of such period.

          “Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the Company and its Subsidiaries for such period on a consolidated basis, adjusted, to the extent included in calculating such net income (or loss), by excluding, without duplication, (i) all extraordinary gains or losses (net of all fees and expenses relating thereto), (ii) the portion of net income (or loss) of the Company and its Subsidiaries on a consolidated basis allocable to minority interests in unconsolidated Persons, except to the extent that cash dividends or distributions are actually received by the Company or a Subsidiary, (iii) income of the Company and the Subsidiaries derived from or in respect of Investments in Persons other than Subsidiaries, except to the extent that cash dividends or distributions are actually received by the Company or a Subsidiary, (iv) net income (or loss) of any Person combined with the Company or any of the Subsidiaries on a “pooling of interests” basis attributable to any period prior to the date of combination, (v) any gain or loss realized upon the termination of any employee pension benefit plan, (vi) gains (but not losses), net of all fees and expenses relating thereto, in respect of any Asset Sales by the Company or a Subsidiary, (vii) the net income of any Subsidiary to the extent that the declaration of dividends or similar distributions by that Subsidiary of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary or its stockholders, (viii) any restoration to income of any contingency reserve except to the extent provision for such reserve was made out of income accrued at any time following the Closing Time, (ix) any gain, arising from the acquisition of any securities, or the extinguishment, under GAAP, of any Indebtedness of the Company and (x) the net gain resulting from any prepayment or redemption premiums incurred with respect to Indebtedness repaid with the proceeds of the issuance of the Notes in accordance with this Agreement.

          “Contemplated Lease Financing” means, with respect to each of Property 1 and Property 2, respectively, the capital lease transaction entered into in connection with the financing of the acquisition of such respective property in accordance with the terms of the commitment letter delivered pursuant to Section 3.18; and “Contemplated Lease Financings” shall be a collective reference to both such financing transactions together.

          “Contested Collateral Lien Conditions” shall mean, with respect to any Permitted Lien of the type described in clauses (a), (b), (e) and (f) of Section 8.07, the following conditions:

        (a) the Company shall cause any proceeding instituted contesting such Lien to stay the sale or forfeiture of any portion of the Collateral on account of such Lien;

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        (b) at the option and at the request of the Agent or the Required Series A Noteholders, to the extent such Lien is in an amount in excess of $500,000, the appropriate Issuer shall maintain cash reserves in an amount sufficient to pay and discharge such Lien or obtain a bond over such Lien and, in either case, the Issuer’s reasonable estimate of all interest and penalties related thereto; and

        (c) such Lien shall in all respects be subject and subordinate in priority to the Lien and security interest created and evidenced by the Security Documents, except if and to the extent that the Requirement of Law creating, permitting or authorizing such Lien provides that such Lien is or must be superior to the Lien and security interest created and evidenced by the Security Documents.

          “Contract” is defined in Section 4.05.

          “Controlling Person” is defined in Section 13.02(a).

          “Custodian” is defined in Section 10.01.

          “Default” means any event, act or condition that is, or with the giving of notice, lapse of time or both would constitute an Event of Default.

          “Designation” has the meaning assigned to such term in Section 7.15.

          “Designation Amount” has the meaning assigned to such term in Section 7.15.

          “Disclosure Schedule” means all numbered Schedules to this Agreement.

          “Disinterested Director” means, with respect to any transaction or series of related transactions, a member of the Board of Directors of the Company who does not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions.

          “Enforceability Exceptions” means, with respect to any specified obligation, any limitations on the enforceability of such obligation due to bankruptcy, insolvency, reorganization, moratorium, and other similar laws of general applicability relating to or affecting creditors’ rights or general equity principles (other than, in any such case, any Federal or state laws relating to fraudulent transfers).

          “Environment” shall mean ambient air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources, the workplace or as otherwise defined in any Environmental Law.

          “Environmental Action” means (a) any action, suit, written demand, written claim, written notice of noncompliance or violation, written notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating to any Environmental Law, any Permit or Hazardous Material, including, without limitation, (i) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (ii) by any Governmental Authority or third party for damages, contribution,

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indemnification, cost recovery, compensation or injunctive relief and (b) any investigation, monitoring, removal or remediation activities undertaken by or on behalf of the Company or any of its Subsidiaries, whether or not such activities are carried out voluntarily.

          “Environmental Law” means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction, decree or judicial or written agency interpretation, policy or guidance that has the force and effect of law relating to pollution or protection of the environment, public health and safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials, including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. § 1801 et seq.; and the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.

          “ERISA” is defined in Section 4.12(a).

          “ERISA Affiliate” is defined in Section 4.12(b).

          “Eurocurrency Reserve Requirements” is defined in Exhibit A.

          “Eurodollar Base Rate” is defined in Exhibit A.

          “Eurodollar Rate” is defined in Exhibit A.

          “Event of Default” is defined in Section 10.01.

          “Excess Proceeds” is defined in Section 8.05(b).

          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.

          “Excluded Properties” means both Property 1 and Property 2, to the extent (but only to the extent) the acquisition of such respective property was financed with the proceeds of a Contemplated Lease Financing.

          “Existing Lien” is defined in Section 8.07(c).

          “Facility” means the 750,000 square foot telecommunications building in which NAP of the Americas, Inc., a Wholly Owned Subsidiary, is housed as one of the tenants in Miami, Florida.

          “Fair Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length transaction, for cash, between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to

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buy. Fair Market Value shall be determined by the Board of Directors of the Company or the applicable Subsidiary of the Company acting in good faith evidenced by a board resolution thereof delivered to the Noteholders.

          “Falcon Purchase Agreement” means the purchase agreement, dated as of December 31, 2004, by and among the Company, the guarantors named therein, the agent named therein and the purchasers named therein, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, modified, restated, renewed, refunded, replaced or refinanced from time to time.

          “Fiscal Year” means the Fiscal Year of the Company and its Subsidiaries ending on March 31 of each calendar year, except with respect to NAP Madrid and Terremark Latin America (Brasil) Ltda., for which “Fiscal Year” means the Fiscal Year ending on December 31 of each calendar year unless and until such Subsidiary adopts March 31 of each calendar year as its Fiscal Year.

          “Foreign Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof.

          “GAAP” means, at any date of determination, generally accepted accounting principles in effect in the United States which are applicable at the date of determination and which are consistently applied for all applicable periods.

          “Governmental Authority” means (a) the government of the United States or any State or other political subdivision thereof, (b) any government or political subdivision of any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary or (c) any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to, any such government.

          “guarantee” means, as applied to any obligation, (i) a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner, of any part or all of such obligation and (ii) an agreement, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of nonperformance) of all or any part of such obligation, including, without limiting the foregoing, the payment of amounts drawn down by letters of credit. A guarantee shall include, without limitation, any agreement to maintain or preserve any other Person’s financial condition or to cause any other Person to achieve certain levels of operating results.

          “Guarantors” means the Subsidiaries listed on the signature pages hereto as guarantors to this Agreement and any other Subsidiary which is a guarantor of the Series A Notes, including any Person that executes or is required after the Closing Time to execute a guarantee of the Series A Notes pursuant to the covenant described under Section 7.12 until a successor replaces such party pursuant to the applicable provisions of this Agreement and, thereafter, shall mean such successor.

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          “Hazardous Materials” means (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or is reasonably expected to become friable, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority under Environmental Laws.

          “Hedging Obligations” means, with respect to any Person, the net payment obligations of such Person under (a) Interest Rate Agreements and (b) other agreements or arrangements entered into in order to protect such Person against fluctuations in commodity prices, interest rates or currency exchange rates.

          “incur” is defined in Section 8.04(a).

          “Indebtedness” means, with respect to any Person, without duplication, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, excluding any trade payables and other accrued current liabilities incurred or arising in the ordinary course of business, but including, without limitation, all obligations, contingent or otherwise, of such Person in connection with any letters of credit, bankers acceptance or other similar credit transaction and in connection with any agreement to purchase, redeem, exchange, convert or otherwise acquire for value any Capital Stock of such Person, or any warrants, rights or options to acquire such Capital Stock, now or hereafter outstanding, (ii) all obligations of such Person evidenced by bonds, notes, debentures or other similar instruments, (iii) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even if the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), but excluding trade payables arising in the ordinary course of business, (iv) all Capitalized Lease Obligations of such Person, (v) all Indebtedness referred to in clauses (i) through (iv) above of other Persons and all dividends of other Persons, the payment of which is secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or with respect to property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, (vi) all guarantees of Indebtedness by such Person, (vii) all Redeemable Capital Stock issued by such Person (valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends), (viii) all Hedging obligations of such Person, and (ix) any amendment, supplement, modification, deferral, renewal, extension, refunding or refinancing of any liability of the types referred to in clauses (i) through (viii) above. For purposes hereof, the “maximum fixed repurchase price” of any Redeemable Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the Fair Market Value of such Redeemable Capital Stock, such Fair Market Value to be determined in good faith by the Board of Directors of the issuer of such Redeemable Capital Stock.

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          “Indenture” means the Indenture between the Company and The Bank of New York, as trustee, dated as of the date hereof relating to the Series B Notes.

          “Independent Financial Advisor” means an accounting, appraisal or investment banking firm which is nationally recognized within the United States of America (i) which does not, and whose directors, officers and employees or Affiliates do not, have a direct or indirect financial interest in the Company or any of its Subsidiaries or Affiliates and (ii) which, in the judgment of the Board of Directors of the Company, is otherwise independent and qualified to perform the task for which it is to be engaged.

          “Institutional Investor” means (a) any original Purchaser of a Note and any transferee that is an Affiliate of any original Purchaser, (b) any holder of a Note holding more than 25% of the aggregate principal amount of the Notes then outstanding, and (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company or investment fund, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form organized under the laws of the United States or a State thereof, with capital and surplus in excess of $50,000,000.

          “Insurance Policies” means the insurance policies and coverages required to be maintained by each Issuer which is an owner of Mortgaged Property with respect to the applicable Mortgaged Property pursuant to Section 7.07 and all renewals and extensions thereof.

          “Insurance Requirements” means, collectively, all provisions of the Insurance Policies, all requirements of the issuer of any of the Insurance Policies and all orders, rules, regulations and any other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) binding upon each Issuer which is an owner of Mortgaged Property and applicable to the Mortgaged Property or any use or condition thereof.

          “Intellectual Property” means (a) all inventions and discoveries (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, trade names and corporate names, together with all translations, adaptations, derivations and combinations thereof and including all goodwill associated therewith, (c) all copyrightable works, all copyrights and all applications, registrations and renewals in connection therewith, (d) all broadcast rights, (e) all mask works and all applications, registrations and renewals in connection therewith, (f) all know-how, trade secrets and confidential business information, whether patentable or unpatentable and whether or not reduced to practice (including ideas, research and development, know-how, formulas, compositions and manufacturing and production process and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals), (g) all computer software (including data and related documentation), (h) all other proprietary rights, (i) all copies and tangible embodiments thereof (in whatever form or medium) and (j) all licenses and agreements in connection therewith.

          “Interest Payment Date” is defined in Exhibit A.

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          “Interest Period” is defined in Exhibit A.

          “Interest Rate Agreements” means one or more of the following agreements which shall be entered into by one or more financial institutions: obligations of any Person pursuant to any arrangement with any other Person whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such Person calculated by applying a fixed or a floating rate of interest on the same notional amount or any other arrangement involving payments by or to such Person based upon fluctuations in interest rates (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or other types of interest rate hedging agreements from time to time.

          “Investment” means, with respect to any Person, any direct or indirect advance, loan or other extension of credit (including by means of a guarantee) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others or otherwise), or any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by any other Person and all other items that would be classified as investments on a balance sheet prepared in accordance with GAAP. Investments shall exclude extensions of trade credit on commercially reasonable terms in accordance with normal trade practices. In addition to the foregoing, any Hedging Obligation or similar agreement shall constitute an Investment. If the Company or any Subsidiary of the Company sells or otherwise disposes of any Capital Stock of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition, the Company no longer owns, directly or indirectly, 100% of the outstanding Capital Stock of such Subsidiary, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Capital Stock of such Subsidiary not sold or disposed of.

          “Issuers” shall have the meaning assigned to such term in the preamble of this Agreement and their successors and assigns.

          “Landlord Access Agreement” shall mean a Landlord Access Agreement, substantially in the form of Exhibit I, or such other form as may reasonably be acceptable to the Agent and the Required Series A Noteholders.

          “Leases” shall mean any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements and any other agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any Real Property.

          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in The City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed. If any payment date in respect of the Notes is a Legal

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Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.

          “Lien” means any mortgage or deed of trust, charge, pledge, lien (statutory or other), privilege, security interest, hypothecation, cessation and transfer, lease of real property, assignment for security, claim, deposit arrangement, or preference or priority or other encumbrance upon or with respect to any property of any kind (including any conditional sale, capital lease or other title retention agreement, any leases in the nature thereof, and any agreement to give any security interest), whether real, personal or mixed, movable or immovable, now owned or hereafter acquired. A Person shall be deemed to own subject to a Lien any property which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement.

          “Material Adverse Effect” means a material adverse effect on (a) the business, management, operations, affairs, condition (financial or otherwise), assets, property, prospects or results of operations of the Company and its Subsidiaries taken as a whole, (b) the ability of the Company or any Subsidiary to perform any of its material obligations under any of the Basic Documents, or (c) the validity or enforceability of any Basic Document.

          “Material Contracts” means any agreements, contracts or arrangements between the Company or its Subsidiaries, on the one hand, and any third parties, on the other, that are included in any of the Company Filings.

          “Maturity,” when used with respect to any Note, means the date on which the principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise (including in connection with any offer to purchase that this Agreement requires the Company to make).

          “Maturity Date Extension Option” is defined in Exhibit A.

          “Mortgage” shall mean an agreement, including, but not limited to, a mortgage, deed of trust or any other document, creating and evidencing a Lien on a Mortgaged Property, which shall be substantially in the form of Exhibit I or other form reasonably satisfactory to the Agent and the Required Series A Noteholders, in each case, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under applicable local or foreign law.

          “Mortgaged Property” shall mean (a) each Real Property identified as a Mortgaged Property on Schedule 8(a) to the Perfection Certificate dated the Closing Time to the extent that such landlord consents to such Mortgage and (b) each Real Property, if any, which shall be subject to a Mortgage delivered after the Closing Time pursuant to Section 7.12(c) and the Post-Closing Letter.

          “Multiemployer Plan” means a “multiemployer plan” within the meaning of Section 3(37) of ERISA.

          “NAP Madrid” means NAP de las Americas Madrid S.A.

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               “Net Cash Proceeds” means

        (a) with respect to any Asset Sale by any Person, the proceeds thereof (without duplication in respect of all Asset Sales) in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents (except to the extent that such obligations are financed or sold with recourse to the Company or any Subsidiary) net of (i) brokerage commissions and other reasonable fees and expenses (including fees and expenses of legal counsel and investment bankers) related to such Asset Sale, (ii) provisions for all taxes payable as a result of such Asset Sale, (iii) payments made to retire Indebtedness where payment of such Indebtedness is secured by the assets or properties the subject of such Asset Sale, (iv) amounts required to be paid to any Person (other than the Company or any Subsidiary) owning a beneficial interest in or having a Lien on the assets subject to the Asset Sale and (v) appropriate amounts to be provided by the Company or any Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Company or any Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale (provided that the amount of any such reserves shall be deemed to constitute Net Cash Proceeds at the time such reserves shall have been released or are not otherwise required to be retained as a reserve); and

        (b) with respect to any Casualty Event, the cash insurance proceeds, condemnation awards and other compensation received in respect thereof, net of all reasonable costs, expenses and taxes incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event.

               “Noteholder” means a Person in whose name a Note is registered on the Note Register from time to time.

               “Note Register” has the meaning given to such term in Section 9.06(a).

               “Notes” has the meaning specified in the recitals to this Agreement.

               “NPL” means the National Priorities List under CERCLA.

               “Obligations” means (i) any principal, premium and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Series A Notes, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Company and the other Issuers under this Agreement and the other Basic Documents pertaining to the Series A Notes, Subsidiary Guarantees or Security Documents and other

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documents related thereto executed in connection therewith and (iii) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Company and the other Issuers under or pursuant to this Agreement and the other Basic Documents pertaining to the Series A Notes, Subsidiary Guarantees or Security Documents and other documents related thereto executed in connection therewith.

          “Offer Amount” is defined in Section 7.09(b)(ii).

          “Officer” means, with respect to any Person, the President, Chief Executive Officer or the Chief Financial Officer of such Person.

          “Officers’ Certificate” means, with respect to any Person, a certificate signed by two Officers of such Person; provided, however, that every Officers’ Certificate with respect to compliance with a covenant or condition provided for in this Agreement shall include (i) a statement that the Officers making or giving such Officers’ Certificate have read such condition and any definitions or other provisions contained in this Agreement relating thereto and (ii) a statement at to whether, in the opinion of the signers, such condition has been complied with.

          “Operating Lease” means all leases other than Capitalized Lease Obligations.

          “outstanding,” when used with respect to the Series A Notes, means, as of the date of determination, all Series A Notes theretofore executed and delivered under this Agreement, except:

       (i) Series A Notes theretofore cancelled by the Company or delivered to the Company for cancellation;

       (ii) Series A Notes for whose payment or redemption money in the necessary amount has been theretofore set aside by the Company with a third party in trust for the holders of such Series A Notes; provided that if such Series A Notes are to be redeemed, notice of such redemption has been duly given as provided in this Agreement; and

       (iii) Series A Notes which have been paid pursuant to Section 9.08 or in exchange for or in lieu of which other Series A Notes have been executed and delivered pursuant to this Agreement, other than any such Series A Notes in respect of which there shall have been presented to the Company proof satisfactory to it that such Series A Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company;

provided, however, that in determining whether the Noteholders of the requisite principal amount of the outstanding Series A Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Series A Notes owned by the Company or any other obligor upon the Series A Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding. Series A Notes so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Required Series A Noteholders the pledgee’s right so to act with respect to such Series A Notes and that the pledgee is not the Company or any other obligor upon the Series A Notes or any Affiliate of the Company or of such other obligor.

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          “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 10756, as amended.

          “Payment Default” is defined in Section 10.01(f).

          “Pension Plan” is defined in Section 4.12(b).

          “Perfection Certificate” shall mean a certificate in the form of Exhibit J-1 or any other form approved by the Agent and the Required Series A Noteholders, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

          “Perfection Certificate Supplement” shall mean a certificate supplement in the form of Exhibit J-2 or any other form approved by the Agent and the Required Series A Noteholders.

          “Permits” means all licenses, permits, certificates of need, approvals and authorizations from all Governmental Authorities required to lawfully conduct a business as presently conducted.

          “Permitted Collateral Liens” means (i) Contested Liens (as defined in the Security Agreement), (ii) the Liens described in clauses (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) and (r) of Section 8.07 and (iii) in the case of Mortgaged Property, “Permitted Collateral Liens” shall mean the Liens described in clauses (a), (b), (d), (e), (g), (l) and (q) of Section 8.07; provided, however, on the Closing Time or upon the date of delivery of each additional Mortgage under Section 7.12 or 7.13, Permitted Collateral Liens shall mean only those Liens set forth in Schedule B to the applicable Mortgage.

          “Permitted Holder” means (i) Manuel D. Medina, (ii) Francis Lee and (iii) any “controlled” (as such term is defined in the definition of Affiliate) Affiliate of Manuel D. Medina and/or Francis Lee.

          “Permitted Indebtedness” is defined in Section 8.04.

          “Permitted Investments” means (a) any Investment by the Company or any Subsidiary of the Company in the Company, a Wholly Owned Subsidiary that is a Guarantor or, to the extent no Default or Event of Default shall have occurred and be continuing at such time and after giving effect to such Investment, Terremark Latin America (Brasil) Ltda. or any future Wholly Owned Subsidiary that is a Foreign Subsidiary; (b) any Investment in cash and Cash Equivalents; (c) subject to the proviso in clause (a) above, any Investment by the Company or any Subsidiary of the Company in a Person, if as a result of such Investment (i) such Person becomes a Wholly Owned Subsidiary and a Guarantor or (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Company or a Wholly Owned Subsidiary that is a Guarantor; (d) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the provisions of Section 8.05 hereof; (e) other Investments in any Person (other than a Wholly Owned Subsidiary that is a Guarantor or, to the extent no Default or Event of Default shall have occurred and be continuing at such time

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and after giving effect to such Investment, Terremark Latin America (Brasil) Ltda. or any future Wholly Owned Subsidiary that is a Foreign Subsidiary) having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (e) that are at the time outstanding, not to exceed $10.0 million excluding the Fair Market Value of any Common Stock used as consideration for such Investments; provided that to the extent such Investments are made in a non-Wholly Owned Subsidiary or Unrestricted Subsidiary of the Company, the Capital Stock of such non-Wholly Owned Subsidiary or Unrestricted Subsidiary owned directly or indirectly by the Company shall become Collateral contemporaneously with the Investment in accordance with the requirements of Section 7.12(b) to the extent required by Section 7.12(b); (f) investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers; (g) Investments represented by Hedging Obligations; provided that such Hedging Obligations are otherwise incurred in compliance with the terms of this Agreement; (h) Investments existing at the Closing Time after giving effect to the Transaction and (i) the transfer by TerraNAP Data Centers, Inc. of the assets listed on Schedule B to NAP Madrid in exchange for Preferred Stock of NAP Madrid.

          “Permitted Liens” is defined in Section 8.07.

          “Permitted Payment” is defined in Section 8.02(b).

          “Person” means any individual, corporation, limited liability company, partnership, joint venture, association, jointstock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

          “Plan” is defined in Section 4.12(a).

          “Post-Closing Letter” means the Post-Closing Letter to be executed by the Issuer as it may be amended, supplemented or otherwise modified from time to time.

          “Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note.

          “Preferred Stock” means, with respect to any Person, Capital Stock of any class or classes (however designated) of such Person which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over Capital Stock of any other class of such Person.

          “principal amount” means, when used with respect to any particular Note, the principal amount of such Note at its Stated Maturity.

          “Pro forma Basis” shall mean on a basis in accordance with GAAP and Regulation SX.

          “Property 1” means the parcel of real property described on Schedule C.

          “Property 2” means the parcel of real property described on Schedule C.

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          “Pro Rata Share” means with respect to all payments, computations and other matters, (i) for purposes of the Series A Notes, the percentage obtained by dividing (a) the aggregate principal amount of the Series A Notes held by that Series A Noteholder by (b) the aggregate outstanding principal amount of all Series A Notes held by the Series A Noteholders and (ii) for purposes of the Series B Notes, the percentage obtained by dividing (a) the aggregate principal amount of the Series B Notes held by that Series B Noteholder by (b) the aggregate outstanding principal amount of all Series B Notes held by the Series B Noteholders.

          “property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

          “Property Material Adverse Effect” shall have the meaning assigned thereto in the Mortgage.

          “Purchase Money Obligation” means Indebtedness of a Person incurred in the normal course of business of such Person for the purpose of financing all or any part of the purchase price, or the cost of installation, construction or improvement of any property.

          “Purchase Price” is defined in Section 2.02.

          “Purchased Security” means, individually, any of the Notes and the Subsidiary Guarantees; “Purchased Securities” means, collectively, the Notes and the Subsidiary Guarantees.

          “Purchaser Indemnified Person” is defined in Section 13.02(a).

          “Purchasers” is defined in the preamble to this Agreement.

          “Qualified Capital Stock” of any Person means any and all Capital Stock of such Person other than Redeemable Capital Stock.

          “Qualified Institutional Buyer” means any Person that is a “qualified institutional buyer” within the meaning of Rule 144A.

          “Real Property” shall mean, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or operated by any person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

          “Redeemable Capital Stock” means any class or series of Capital Stock to the extent that, either by its terms, by the terms of any security into which it is convertible or exchangeable, or by contract or otherwise, is or upon the happening of an event or passage of time would be, required to be redeemed prior to any Stated Maturity of the principal of the Notes or is redeemable at the option of the holder thereof at any time prior to such Stated Maturity, or is convertible into or exchangeable for debt securities at any time prior to such Stated Maturity.

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          “Redemption Date,” when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Agreement.

          “Redemption Price,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Agreement.

          “refinancing” is defined in Section 8.04(a)(xiii).

          “Registration Rights Agreement” means the Registration Rights Agreement dated as of the date hereof by and between the Issuer and Credit Suisse, International.

          “Regular Record Date” is defined in Section 9.05.

          “Regulation S” means Regulation S under the Securities Act (or any successor provision), as it may be amended from time to time.

          “Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into or through the Environment.

          “Required Series A Noteholders” means the Series A Noteholders holding more than 50% of the aggregate principal amount of outstanding Series A Notes at any time.

          “Requirements of Law” shall mean, collectively, any and all requirements of any Governmental Authority including any and all laws, judgments, orders, decrees, ordinances, rules, regulations, statutes or case law.

          “Restricted Payments” is defined in Section 8.02(a).

          “Revocation” has the meaning assigned to such term in Section 7.15.

          “Rule 144” means Rule 144 under the Securities Act (or any successor provision), as it may be amended from time to time.

          “Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.

          “sale” is defined in Section 9.07(a).

          “Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Company or any Restricted Subsidiary of the Company of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person in contemplation of such leasing.

          “Secured Obligations” shall mean the Obligations for the Series A Notes.

          “Secured Parties” shall mean, collectively, the Agent and the Series A Noteholders.

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          “Securities Act” mean the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder.

          “Securities Collateral” shall have the meaning assigned to such term in the Security Agreement.

          “Security Agreement” shall mean a Security Agreement substantially in the form of Exhibit K among the Issuers and Agent for the benefit of the Secured Parties.

          “Security Agreement Collateral” shall mean all property pledged or granted as collateral pursuant to the Security Agreement delivered (a) on the Closing Time or (b) thereafter pursuant to Section 7.12.

          “Security Documents” shall mean the Security Agreement, the Mortgages and each other security document or pledge agreement delivered in accordance with applicable local or foreign law to grant a valid, perfected security interest in any property as collateral for the Secured Obligations, and all UCC or other financing statements or instruments of perfection required by this Agreement, the Security Agreement, any Mortgage or any other such security document or pledge agreement to be filed with respect to the security interests in property and fixtures created pursuant to the Security Agreement or any Mortgage and any other document or instrument utilized to pledge or grant or purport to pledge or grant a security interest or lien on any property as collateral for the Secured Obligations.

          “Senior Indebtedness” has the meaning given to such term in the Subordination Agreement.

          “Series A Noteholders” means the holders from time to time of the Series A Notes.

          “Series B Noteholders” means the holders from time to time of the Series B Notes.

          “Series A Notes” has the meaning specified in the first recital to this Agreement.

          “Series B Notes” has the meaning specified in the first recital to this Agreement.

          “Series B Subordination Agreement” means the Subordination Agreement dated as of the date hereof by and between the Senior Creditors named therein, FMP Agency Services, LLC, the Issuers and the Purchaser of the Series B Notes.

          “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 102 of Regulation SX, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof.

          “Solvent” means, with respect to any Person as of the date of any determination, that on such date (a) the fair value of such Person’s assets is greater than the amount of its liabilities (including contingent and unliquidated liabilities), (b) the present fair saleable value of such Person’s assets is not less than the amount that will be required to pay the probable liability

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on such Person’s debts as they become absolute and matured, (c) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to current and anticipated future capital requirements and current and anticipated future business conduct and the prevailing practice in the industry in which such Person is engaged. In computing the amount of contingent liabilities at any time, such liabilities shall be computed as the amount which, in light of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

          “SPV” means Technology Center of the Americas, LLC.

          “SPV Financing Agreement” means the financing agreement, dated as of December 31, 2004, by and among Technology Center of the Americas, LLC, as borrower, Citigroup Global Markets Realty Corp. (“Citigroup”), as administrative agent for the lenders named therein and the lenders named therein, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, modified, restated, renewed, refunded, replaced or refinanced from time to time.

          “Standard Rate” is defined in Exhibit A.

          “Stated Maturity” means, with respect to any Series A Note or any installment of interest thereon, the dates specified in such Series A Note as the fixed date on which the principal of such Series A Note or such installment of interest is due and payable, and when used with respect to any other Indebtedness, means the date specified in the instrument governing such Indebtedness as the fixed date on which the principal of such Indebtedness or any installment of interest is due and payable.

          “Subordinated Indebtedness” means, with respect to the Company, Indebtedness of the Company which is expressly subordinated in right of payment to the Series A Notes or, with respect to any Guarantor, Indebtedness of such Guarantor which is expressly subordinated in right of payment to the Subsidiary Guarantee of such Guarantor and which is subject to a subordination agreement which contains subordination provisions substantially similar to those contained in the Subordination Agreement.

          “Subordination Agreement” means the Subordination and Intercreditor Agreement dated as of the date hereof by and between the Senior Creditors named therein, FMP Agency Services, LLC, the Issuers, the Purchaser of the Series A Notes and the Agent.

          “Subsidiary” means, with respect to any Person, (a) any corporation of which the outstanding shares of Voting Stock having at least a majority of the votes entitled to be cast in the election of directors shall at the time be owned, directly or indirectly, by such Person, or (b) any other Person of which at least a majority of the shares of Voting Stock are at the time, directly or indirectly, owned by such first named Person. For purposes of this Agreement, an

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“Unrestricted Subsidiary” of the Company shall be deemed not to be a “Subsidiary” of the Company.

          “Subsidiary Guarantees” is defined in the fourth recital to this Agreement.

          “Survey” shall mean a survey of any Mortgaged Property (and all improvements thereon) which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to the date of delivery thereof unless there shall have occurred within six months prior to such date of delivery any exterior construction on the site of such Mortgaged Property or any easement, right of way or other interest in the Mortgaged Property has been granted or become effective through operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction or if such construction shall not have been completed as of such date of delivery, not earlier than 20 days prior to such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in the Mortgaged Property, (iii) certified by the surveyor (in a manner reasonably acceptable to the Agent) to the Agent and the Title Company, (iv) complying in all respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of such survey and (v) sufficient for the Title Company to remove all standard survey exceptions from the title insurance policy (or commitment) relating to such Mortgaged Property and issue the endorsements of the type required by Section 3.19(c) or (b) otherwise acceptable to the Agent.

          “Tax Returns” means all original, amended and estimated reports, returns, information statements and related documentation required to be filed with respect to the Taxes of the Company or its Subsidiaries including, without limitation, consolidated federal income tax returns of the Company and its Subsidiaries.

          “Taxes” means (i) all federal, state, local or foreign income, gross receipts, windfall profits, severance, property, production, sales, use, license, excise, franchise, employment, withholding, estimated or other taxes imposed on the income, properties or operations of the Company and its Subsidiaries, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties and (ii) all transferee, successor, joint and several (including pursuant to Treasury Regulation Section 1.15026 or any similar provision of state, local or foreign law), contractual or other liability for any item described in clause (i) above.

          “Title Company” shall mean any title insurance company as shall be retained by the Company and reasonably acceptable to the Agent and the Required Series A Noteholders.

          “Title Policy” shall have the meaning assigned to such term in the Post-Closing Letter.

          “Transactions” means the transactions provided for in, or contemplated by, the Basic Documents.

          “United States” shall have the meaning assigned to such term in Regulation S.

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          “Unrestricted Subsidiary” means each Subsidiary of the Company designated as such pursuant to and in compliance with Section 7.15. Any such designation may be revoked by a resolution of the Board of Directors of the Company delivered to the Series A Noteholders, subject to the provisions of such Section 7.15.

          “Voting Stock” means any class or classes of Capital Stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors, managers or trustees of any Person (irrespective of whether or not, at the time, stock of any other class or classes shall have, or might have, voting power by reason of the happening of any contingency).

          “Wholly Owned Subsidiary” means any Subsidiary of which 100% of the outstanding Capital Stock is owned by the Company and/or another Wholly Owned Subsidiary. For purposes of this definition, any directors’ qualifying shares shall be disregarded in determining the ownership of a Subsidiary.

          SECTION 1.02. Computation of Time Periods. For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”

          SECTION 1.03. Accounting Terms. Accounting terms used but not otherwise defined herein shall have the meanings provided by, and be construed in accordance with, GAAP.

SECTION 2

AUTHORIZATION, ISSUANCE AND SALE OF SECURITIES

          SECTION 2.01. Authorization of Issue. The Company has authorized the issue and sale of (i) $10.0 million aggregate principal amount of Series A Notes, each such Note to be in the form of Exhibit A hereto, (ii) $4.0 million aggregate principal amount of Series B Notes to be issued under the Indenture, each such Note to be in the form attached to the Indenture. Each Guarantor has authorized the issue of its Subsidiary Guarantee of the Series A Notes, each such Subsidiary Guarantee to be in the form of Exhibit B hereto.

          SECTION 2.02. Sale. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Purchaser, and each Purchaser, acting severally and not jointly, agrees to purchase from the Company, the aggregate principal amount of Series A Notes and the Series B Notes, as applicable, as set forth in Schedule A opposite the name of such Purchaser at 100% of the principal amount thereof in the case of the Notes, (the “Purchase Price”). Unless otherwise required by Applicable Law, the parties shall not take any position inconsistent with the foregoing allocation for any income tax purposes.

          SECTION 2.03. Closing. The purchase and sale of the Purchased Securities pursuant to this Agreement shall occur at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, NY, at 9:00 a.m., New York City time, on January 5, 2007, or such other

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time as shall be agreed upon by the Purchasers and the Company (such time and date of payment and delivery being herein called the “Closing Time”). At the Closing Time, the Company will deliver to each Purchaser certificates for the Purchased Securities to be purchased by such Purchaser at the Closing Time, in such denominations (in the case of the Notes any integral multiple of $1,000 principal amount) as such Purchaser may request at least two Business Days prior to the Closing Time, dated the Closing Time and registered in such Purchaser’s name, against payment by such Purchaser to the Company or to its order by wire transfer of immediately available funds in the amount of the Purchase Price to be paid by such Purchaser therefor to such bank account or accounts as the Company may request in writing at least two Business Days prior to the Closing Time.

SECTION 3

CONDITIONS TO CLOSING

          Each Purchaser’s several obligation to purchase and pay for the Purchased Securities to be purchased by it at the Closing Time is subject to the satisfaction or waiver by each Purchaser prior to or at the Closing Time of each of the conditions specified below in this Section 3:

          SECTION 3.01. Representations and Warranties. Each of the representations and warranties of the Issuers in this Agreement and in each of the other Basic Documents shall be true and correct in all material respects (except that any representations and warranties that are qualified as to “materiality” or “Material Adverse Effect” shall be true and correct) when made and at and as of the Closing Time as if made at and as of the Closing Time (unless expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that any representations and warranties that are qualified as to “materiality” or “Material Adverse Effect” shall be true and correct) as of such earlier date).

          SECTION 3.02. Performance; No Default Under Other Agreements. The Issuers and each of their respective Subsidiaries, to the extent parties hereto or thereto, shall have performed and complied in all material respects with all agreements and conditions contained in this Agreement and each of the other Basic Documents required to be performed or complied with by any of them prior to or at the Closing Time and, after giving effect to the issue and sale of the Purchased Securities and the other Transactions (and the application of the proceeds thereof as contemplated by Section 4.17 hereof and the other Basic Documents), no Default or Event of Default shall have occurred and be continuing and no default or event of default shall have occurred and be continuing under any of the other Basic Documents.

          SECTION 3.03. Compliance Certificates.

          (a) Officers’ Certificate. Each of the Issuers shall have delivered to the Purchasers an Officers’ Certificate, dated the Closing Time, in the form of Exhibit 3.03(a) hereto, certifying that the conditions specified in Sections 3.01, 3.02, 3.05, 3.06 and 3.07 have been fulfilled.

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          (b) Secretary’s Certificate. Each of the Issuers shall have delivered to the Purchasers a certificate in the form of Exhibit 3.03(b) hereto certifying as to such Issuer’s certificate of incorporation, bylaws and resolutions attached thereto, the incumbency and signatures of certain officers of such Issuer, and other corporate proceedings of such Issuer relating to the authorization, execution and delivery of the Purchased Securities, as applicable to such Issuer, this Agreement and the other Basic Documents to which such Issuer is a party.

          SECTION 3.04. Opinions of Counsel. Such Purchaser shall have received the favorable opinions in form and substance satisfactory to it, dated the Closing Time, from Greenberg Traurig LLP, counsel for the Issuers, substantially in the form set forth in Exhibit 3.04(a)(i) and as to such other matters as such Purchaser may reasonably request.

          SECTION 3.05. Changes in Corporate Structure. None of the Issuers nor any of their respective Subsidiaries shall have changed their respective jurisdiction of incorporation or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other Person at any time following the Audit Date and there shall have occurred no event which constitutes a Change of Control of the Company and the Company shall not have entered into any agreement or understanding which, if consummated, would constitute a Change of Control of the Company.

          SECTION 3.06. No Adverse Events. (i) None of the Issuers nor any of their respective Subsidiaries shall have sustained since the Audit Date any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and (ii) except as set forth in the Company Reports or in Schedule 3.06, since the Audit Date there shall not have been any change in the capital stock or long-term debt of any Issuer or any of their Subsidiaries or any change, or any development involving a prospective change, in or affecting the business, management, operations, affairs, condition (financial or otherwise), assets, property, prospects or results of operations of the Company and its Subsidiaries, in the case of clauses (i) and (ii) above, which, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.

          SECTION 3.07. Financial Information; Capital Structure. Such Purchaser shall have received (i) a pro forma consolidated balance sheet for the Company and its Subsidiaries as of the Closing Time after giving effect to the Transactions, including the issuance of the Purchased Securities and the use of the proceeds thereof, which have been certified by the Chief Financial Officer of the Company and which are in form and substance satisfactory to such Purchaser and (ii) each of the consolidated financial projections (including an operating budget and a cash flow budget) of the Company pursuant to Section 4.06, each of which is in form and substance satisfactory to such Purchaser. The pro forma consolidated capital structure of the Company, after giving effect to the Transactions (including all adjustments permitted by Regulation SX under the Securities Act), shall be consistent in all material respects with the projections provided to such Purchaser prior to the Closing Time and the capital structure contemplated herein.

          SECTION 3.08. Proceedings and Documents. All corporate and other proceedings in connection with the Transactions and the other transactions contemplated by this

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Agreement and the other Basic Documents, and all documents and instruments incident to such transactions and the terms thereof, shall be reasonably satisfactory to such Purchaser and the Purchaser’s special counsel, and such Purchaser and the Purchaser’s special counsel shall have received all such counterpart originals or certified or other copies of such documents (other than those that are not required to be delivered by the Closing Time pursuant to the Post-Closing Letter) as it or they may reasonably request.

          SECTION 3.09. Purchase Permitted by Applicable Law, etc. At the Closing Time, such Purchaser’s purchase of the Purchased Securities shall (a) be permitted by the laws and regulations of each jurisdiction to which it is subject, (b) not violate any Applicable Law (including, without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any Applicable Law, which Applicable Law was not in effect on the date hereof.

          SECTION 3.10. Basic Documents in Force and Effect; Information.

          (a) Basic Documents. The Purchasers shall have received true and correct copies of all Basic Documents (other than those that are not required to be delivered by the Closing Time pursuant to the Post-Closing Letter) and (i) such documents (A) shall have been duly executed and delivered by the parties thereto, (B) shall be in form and substance reasonably satisfactory to the Purchasers and (C) shall be valid and legally binding obligations of the parties thereto enforceable against each of them in accordance with its respective terms, subject to the Enforceability Exceptions, and (ii) there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.

          (b) Accuracy of Information. All written information (other than projections) furnished by the Issuers and their respective representatives to the Purchasers on or prior to the Closing Time with respect to the business, management, operations, affairs, condition (financial or otherwise), assets, property, prospects or results of operations of the Issuers and their respective Subsidiaries shall be accurate and complete in all material respects.

          SECTION 3.11. No Violation; No Legal Constraints; Consents, Authorizations and Filings, etc.

          (a) The consummation by the Issuers and their respective Subsidiaries of the Transactions shall not contravene, violate or conflict with any Applicable Law, except for violations which, individually or in the aggregate, do not and would not have a Material Adverse Effect.

          (b) All consents, authorizations and filings, if any, required in connection with the execution, delivery and performance by each of the Issuers and their respective Subsidiaries of the Basic Documents (other than those that are not required to be delivered by the Closing Time pursuant to the Post-Closing Letter) to which it is a party shall have been obtained or made and shall be in full force and effect, except for such consents, authorizations and filings the failure of which to obtain or make, individually or in the aggregate, does not and would not have a Material Adverse Effect.

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          (c) There shall be no inquiry, injunction, restraining order, action, suit or proceeding pending or entered or any statute or rule proposed, enacted or promulgated by any Governmental Authority or any other Person which, in the opinion of the Purchasers, (i) individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect or which seeks to enjoin or seek damages against any Issuer or any of its Subsidiaries or any of the Purchasers as a result of the Transactions, including the issuance of the Notes, or (ii) relates to any of the Transactions and has or will have a material adverse effect on any Purchaser or (iii) alleges liability on the part of any Purchaser in connection with this Agreement, any other Basic Documents or the Transactions or any of the other transactions contemplated hereby or thereby or (iv) would bar the issuance of the Purchased Securities or the use of the proceeds thereof in accordance with the terms of this Agreement and the other Basic Documents.

          SECTION 3.12. Consummation of the Transactions.

          The Transactions shall be consummated concurrently with the issuance and sale by the Company of the Purchased Securities hereunder, in each case in accordance with the terms of the applicable Basic Documents (without any amendment thereto or waiver thereunder unless consented to by each Purchaser).

          SECTION 3.13. Fees. The Company shall have paid all fees, costs and expenses (including, without limitation, legal fees and expenses and the fees and expenses of appraisers, consultants and other advisors) and other compensation due and payable to each Purchaser at the Closing Time, including, but not limited to, the delivery on or prior to the Closing Time of the share certificates representing 145,985 shares of Common Stock of the Company.

          SECTION 3.14. CUSIP Numbers. At or prior to the Closing Time, the Company shall have requested and received from S&P a CUSIP number for each of the Notes.

          SECTION 3.15. Simultaneous Purchase. Each of the Purchasers shall have simultaneously purchased the Purchased Securities to be purchased by such Purchaser.

          SECTION 3.16. Delivery of Documents. The Company shall have delivered to each Purchaser such other certificates, documents and agreements as the Purchasers may reasonably request.

          SECTION 3.17. Personal Property Requirements. The Agent shall have received:

     (a) all certificates, agreements or instruments representing or evidencing the Securities Collateral (other than those that are not required to be delivered by the Closing Time pursuant to the Post-Closing Letter) accompanied by instruments of transfer and stock powers undated and endorsed in blank, such certificates, agreements or instruments to be held by the agent under the Falcon Purchase Agreement as bailee for the Agent pursuant to and in accordance with the terms of the Subordination Agreement;

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     (b) all other certificates, agreements, including control agreements, or instruments necessary to perfect the Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of each Issuer (as each such term is defined in the Security Agreement and to the extent required by the Security Agreement) such certificates, agreements or instruments to be held by the agent under the Falcon Purchase Agreement as bailee for the Agent pursuant to and in accordance with the terms of the Subordination Agreement;

     (c) UCC financing statements in appropriate form for filing under the UCC, filings in appropriate form for filing with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each jurisdiction as may be necessary or appropriate or, in the opinion of the Agent, desirable to perfect the Liens created, or purported to be created, by the Security Documents (other than those that are not required to be delivered by the Closing Time pursuant to the Post-Closing Letter);

     (d) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Issuer as debtor and that are filed in those state and county jurisdictions in which any property of any Issuer is located and the state and county jurisdictions in which any Issuer is organized or maintains its principal place of business and such other searches that the Agent or the Required Series A Noteholders deem necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Permitted Collateral Liens or any other Liens acceptable to the Agent); and

     (e) evidence acceptable to the Agent of payment or arrangements for payment by the Issuers of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents (other than those that are not required to be delivered by the Closing Time pursuant to the Post-Closing Letter).

          SECTION 3.18. Financing Commitment. The Company shall have received a commitment providing for the financing of the acquisition of each of the Excluded Properties on terms and conditions satisfactory to the Purchasers, and such commitment shall have been accepted in writing by the Company.

SECTION 4

REPRESENTATIONS AND WARRANTIES OF THE ISSUERS

          Each Issuer, acting jointly and severally, represents and warrants to each Purchaser as of the date hereof and as of the Closing Time that:

          SECTION 4.01. Due Incorporation; Power and Authority. Each of the Company and each of its Subsidiaries (a) is a corporation or limited liability company duly

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incorporated or formed, validly existing and in good standing under the laws of its jurisdiction of incorporation, (b) is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, other than any failures to so qualify or to be in good standing which, individually or in the aggregate, have not had and would not have a Material Adverse Effect, (c) has all requisite corporate power and authority to own, lease and operate its properties and to conduct its businesses as they are currently conducted, and (d) has all requisite corporate power and authority to enter into and perform its obligations under each of the Basic Documents to which it is a party.

          SECTION 4.02. Capitalization. As of the date of this Agreement the authorized Capital Stock of the Company consists solely of 100,000,000 shares of its Common Stock, of which 44,658,162 shares were issued and outstanding and 323 shares of its Series I Preferred Stock, all of which were issued and outstanding. Except as provided on Schedule 4.02, no shares of the Common Stock of the Company were held by the Company in its treasury or by the Company’s Subsidiaries. Except as set forth on Schedule 4.02, since the Audit Date, the Company (i) has not issued any shares of any class of its Capital Stock and (ii) has not split, combined or reclassified any of its shares of any class of its Capital Stock. All the issued and outstanding shares of Common Stock have been duly authorized and are validly issued, fully paid and nonassessable and are free of preemptive rights. Except as set forth in the Company Filings, there are no securities of the Company or any of its Subsidiaries that are convertible into or exchangeable for shares of any Capital Stock of the Company or any of its Subsidiaries, and no options, warrants, calls, subscriptions, convertible securities, or other rights, agreements or commitments which obligate the Company or any of its Subsidiaries to issue, transfer or sell any shares of Capital Stock of, or other interests in, the Company or any of its Subsidiaries. Except as set forth in the Company Filings, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Capital Stock of the Company or any of its Subsidiaries and neither the Company nor any of its Subsidiaries has any awards or options outstanding under any stock option plans or agreements or any other outstanding stock-related awards. Except as set forth in the Company Filings, after the Closing Time, neither the Company nor any of its Subsidiaries will have any obligation to issue, transfer or sell any shares of Capital Stock of the Company or its Subsidiaries. Except as set forth on Schedule 4.02, there are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the holding, voting or disposing of Capital Stock of the Company or any of its Subsidiaries. Except as set forth on Schedule 4.02, as of the date hereof, neither the Company nor any of its Subsidiaries has any outstanding bonds, debentures, notes or other obligations or other securities (other than the Common Stock) that entitle the holders thereof to vote with the stockholders of the Company or any of its Subsidiaries on any matter or which are convertible into or exercisable for securities having such a right to vote.

          SECTION 4.03. Equity Interests and Subsidiaries.

          (a) Equity Interests. Schedules 1(a) and 10(a) to the Perfection Certificate dated the Closing Time set forth a list of (i) all the Subsidiaries of the Company and their jurisdictions of organization as of the Closing Time and (ii) the number of each class of its Capital Stock authorized, and the number outstanding, at the Closing Time and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar

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rights at the Closing Time. Except as set forth on Schedule 4.03(a), all outstanding shares of Capital Stock of each Subsidiary of the Company are duly and validly issued and are fully paid and nonassessable, and are owned by the Company, directly or indirectly through Wholly Owned Subsidiaries. Except as set forth on Schedule 4.03(a), each Issuer is the record and beneficial owner of, and has good and marketable title to, the Capital Stock pledged by it under the Security Agreement, free of any and all Liens, rights or claims of other persons, except the security interest created by the Security Agreement, and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any such Capital Stock.

          (b) No Consent of Third Parties Required. Except as set forth on Schedule 4.03(b), no consent of any person including any other general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary (from the perspective of a secured party) in connection with the creation, perfection or second priority status of the security interest of the Agent in any Capital Stock pledged to the Agent for the benefit of the Secured Parties under the Security Agreement or the exercise by the Agent of the voting or other rights provided for in the Security Agreement or the exercise of remedies in respect thereof.

          SECTION 4.04. Due Authorization, Execution and Delivery.

          (a) Agreement. This Agreement has been duly authorized, executed and delivered by each Issuer and constitutes a valid and legally binding obligation of each Issuer, enforceable against such Issuer in accordance with its terms, subject to the Enforceability Exceptions.

          (b) Notes and Subsidiary Guarantees. The Notes to be purchased by the Purchasers from the Company are in the form contemplated by this Agreement, have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered by the Company at the Closing Time as provided herein, will have been duly executed, issued and delivered by the Company, and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions. The Subsidiary Guarantees endorsed on the Series A Notes are in the form contemplated by this Agreement, have each been duly authorized for issuance pursuant to this Agreement by each of the Guarantors and, when the Series A Notes are executed by the Company, and delivered to the Purchasers as provided for herein, will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, subject to the Enforceability Exceptions.

          (c) Other Basic Documents. Each Basic Document (other than those referred to in paragraphs (a) and (b) of this Section 4.04 and other than those that are not required to be delivered by the Closing Time pursuant to the Post-Closing Letter) to which any Issuer or any of its respective Subsidiaries is a party (each such party, a “Company Party”) (i) has been duly authorized, executed and delivered by each Company Party and (ii) constitutes a valid and

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legally binding obligation of each Company Party, enforceable against such Company Party in accordance with its terms, subject to the Enforceability Exceptions.

          SECTION 4.05. Non-Contravention; Authorizations and Approvals. Except as set forth on Schedule 4.05, neither the Company nor any of its Subsidiaries is (i) in violation of its certificate of incorporation or bylaws (or comparable constituent or governing documents) or (ii) in default (or, with the giving of notice, lapse of time or both, would be in default) under any note, bond, mortgage, indenture, deed of trust, loan or credit agreement, license, franchise, Permit, lease, contract or other agreement, instrument, commitment or obligation to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of its properties or assets is bound (including, without limitation, the SPV Financing Agreement), or under which the Company or any of its Subsidiaries or any of its properties or assets is entitled to a benefit (each, a “Contract”), except for any such defaults that, individually or in the aggregate, have not had and would not have a Material Adverse Effect. Except as set forth on Schedule 4.05, none of (a) the execution and delivery by the Company or any of its Subsidiaries of any of the Basic Documents to which it is a party, (b) the performance by any of them of their respective obligations thereunder, (c) the consummation of the transactions contemplated thereby or (d) the issuance and delivery of the Purchased Securities hereunder will: (i) violate, conflict with or result in a breach of any provisions of the certificate of incorporation or bylaws (or comparable constituent or governing documents) of the Company or any of its Subsidiaries; (ii) violate, conflict with, result in a breach of any provision of, constitute a default (or an event which, with notice, lapse of time or both, would constitute a default) under, result in the termination or in a right of termination of, accelerate the performance required by or benefit obtainable under, result in the triggering of any payment or other obligations (including any repurchase or repayment obligations) pursuant to, result in the creation of any Lien upon any of the properties of the Company or any of its Subsidiaries under, or result in their being declared void, voidable, subject to withdrawal, or without further binding effect, any of the terms, conditions or provisions of any Contract, except for any such violations, conflicts, breaches, defaults, accelerations, terminations or other matters which, individually or in the aggregate, have not had and would not have a Material Adverse Effect; (iii) require any consent, approval or authorization of, or declaration, filing or registration with, any Governmental Authority, except for those consents, approvals, authorizations, declarations, filings or registrations which have been obtained or made or the failure of which to obtain or make, individually or in the aggregate, have not had and would not have a Material Adverse Effect; or (iv) violate any Applicable Laws applicable to the Company, any of its Subsidiaries or any of their respective properties or assets, except for violations which, individually or in the aggregate, have not had and would not have a Material Adverse Effect.

          SECTION 4.06. Company Financial Statements; Company Reports.

          (a) Company Financial Statements. The Company has delivered to the Purchasers (collectively, the “Company Financial Statements”) (i) complete and correct copies of the audited consolidated balance sheets of the Company and its Subsidiaries as of March 31, 2005, 2004 and 2003 and the related audited consolidated statements of operations, stockholders’ equity and cash flows for the years then ended, including the footnotes thereto, certified by the Company’s independent certified public accountants and (ii) complete and correct copies of the unaudited consolidated balance sheets of the Company and its Subsidiaries as of June 30, 2005

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and September 30, 2005 and the related unaudited consolidated statements of operations, stockholders’ equity and cash flows for the quarter then ended. Each of the consolidated balance sheets contained in the Company Financial Statements fairly presents the consolidated financial position of the Company and its Subsidiaries as of its date and each of the consolidated statements of operations, stockholders’ equity and cash flows included in the Company Financial Statements fairly presents the consolidated results of operations and income, retained earnings and stockholders’ equity or cash flows, as the case may be, of the Company and its Subsidiaries for the periods to which they relate (subject, in the case of any unaudited interim financial statements, to normal yearend adjustments that will not be material in amount or effect), in each case in accordance with GAAP applied on a consistent basis during the periods involved, except as noted therein. All projections provided by the Company to the Purchasers in connection with the Transactions have been prepared in good faith based on assumptions believed by management of the Company to be reasonable and subject to the reservations stated therein. Attached hereto as Schedule 4.06 are true, correct and complete copies of the Company Financial Statements and all projections delivered to the Purchasers at or prior to the Closing Time.

          (b) Company Reports. The Company has made available (including being made available on EDGAR) to the Purchasers each registration statement, report or information statement prepared by the Company since March 31, 2006 (the “Audit Date”), including (i) the Company’s Annual Report on Form 10K for the year ended March 31, 2006, and (ii) the Company’s Quarterly Reports on Form 10Q for the quarters ended June 30, 2006 and September 30, 2006, each in the form (including exhibits, annexes and any amendments thereto) filed with the Commission (collectively, including any such reports filed subsequent to the date hereof and as amended, the “Company Reports”). As of their respective dates (or, if amended, as of the date of such amendment) the Company Reports did not, and any Company Reports filed with the Commission subsequent to the date hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents, or will fairly present, the consolidated financial position of the Company and its Subsidiaries as of its date and each of the consolidated statements of operations, stockholders’ equity or cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or will fairly present, the results of operations and income, retained earnings and stockholders’ equity or cash flows, as the case may be, of the Company and its Subsidiaries for the periods to which they relate (subject, in the case of unaudited statements, to normal yearend audit adjustments that will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein.

          SECTION 4.07. Absence of Undisclosed Liabilities or Events.

          (a) Except as set forth in Schedule 4.07(a), neither the Company nor any of its Subsidiaries has any liabilities or obligations, whether accrued, contingent or otherwise, except for (i) liabilities and obligations in the respective amounts reflected or reserved against in the consolidated balance sheet as of the Audit Date included in the Company Financial Statements or liabilities and obligations not required to be disclosed in the consolidated balance sheet in

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accordance with GAAP, or (ii) liabilities and obligations incurred in the ordinary course of business since the Audit Date which, individually or in the aggregate, have not had and would not have a Material Adverse Effect.

          (b) Except as set forth in Schedule 4.07(b), (i) since the Audit Date there has been no change in the business, management, operations, affairs, condition (financial or otherwise), assets, property, prospects or results of operations of the Company or its Subsidiaries except for changes that, individually or in the aggregate, have not had or would not have a Material Adverse Effect and (ii) there are no facts known to the Company that have had or would have a Material Adverse Effect that have not been set forth herein or in the Disclosure Schedule.

          SECTION 4.08. No Actions or Proceedings. Except as set forth in Schedule 4.08, there are no legal or governmental actions, suits or proceedings pending or, to the best of each Issuer’s knowledge, threatened against or affecting the Company, any of its Subsidiaries, any of their respective directors or officers (in their capacities as such) or any of their respective properties or assets which, individually or in the aggregate, have had or would have a Material Adverse Effect or prohibit, delay or materially restrict the consummation of any of the Transactions or the other transactions contemplated by this Agreement and the other Basic Documents. To the knowledge of each Issuer, no Governmental Authority has notified the Company or any of its Subsidiaries of an intention to conduct any audit, investigation or other review with respect to the Company or any of its Subsidiaries, except for those investigations or reviews which, individually or in the aggregate, have not had or would not have a Material Adverse Effect.

          SECTION 4.09. Properties.

          (a) Generally. Each of the Company and its Subsidiaries has good title to, or valid leasehold interests in, all its property material to its business, free and clear of all Liens except for, in the case of Collateral, Permitted Collateral Liens and, in the case of all other material property, Permitted Liens and minor irregularities or deficiencies in title that, individually or in the aggregate, do not interfere with its ability to conduct its business as currently conducted or to utilize such property for its intended purpose. The property of the Company and its Subsidiaries, taken as a whole, (i) is in good operating order, condition and repair (ordinary wear and tear excepted) and (ii) constitutes all the property which is required for the business and operations of the Company and its Subsidiaries as presently conducted.

          (b) Real Property. Schedules 8(a) and 8(b) to the Perfection Certificate dated the Closing Time contain a true and complete list of each interest in Real Property (i) owned by the Company or any of its Subsidiaries (except the SPV) as of the date hereof and describe the type of interest therein held by the Company or such Subsidiary and whether owned Real Property is leased and if leased whether the underlying Lease contains any option to purchase all or any portion of such Real Property or any interest therein or contains any right of first refusal relating to any sale of such Real Property or any portion thereof or interest therein and (ii) leased, subleased or otherwise occupied or utilized by the Company or such Subsidiary, as lessee, sublessee, franchisee or licensee, as of the date hereof and describe the type of interest therein held by the Company or such Subsidiary and whether any Lease requires the consent of the landlord or tenant thereunder, or other party thereto, to the Transactions.

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          (c) No Casualty Event. Neither the Company nor any of its Subsidiaries has received any notice of, nor has any knowledge of, the occurrence or pendency or contemplation of any Casualty Event affecting all or any portion of its property. Except as noted on Schedule 4.09(c), no Mortgage encumbers improved Real Property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act has been obtained in accordance with Section 7.07.

          (d) Collateral. The Company and each of its Subsidiaries owns or has rights to use all of the Collateral and all rights with respect to any of the foregoing used in, necessary for or material to the Company’s or such Subsidiary’s business as currently conducted. The use by the Company and each of its Subsidiaries of such Collateral and all such rights with respect to the foregoing do not infringe on the rights of any Person other than such infringement which could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No claim has been made and remains outstanding that the Company’s or any Subsidiary’s use of any Collateral does or may violate the rights of any third party that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

          SECTION 4.10. Intellectual Property.

          (a) Ownership/No Claims. Each of the Company and its Subsidiaries owns, or is licensed to use the Intellectual Property necessary for the conduct of its business as currently conducted, except for those the failure to own or license which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Except as set forth on Schedule 4.10(a), no claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does the Company or any of the other Issuers know of any valid basis for any such claim. The use of such Intellectual Property by the Company or any of its Subsidiaries does not to the knowledge of the Company and its Subsidiaries infringe the rights of any Person, except for such claims and infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

          (b) Registrations. Except pursuant to licenses and other user agreements entered into by the Company or any of its Subsidiaries in the ordinary course of business that are listed in Schedule 12(a) or 12(b) to the Perfection Certificate, on and as of the date hereof (i) each of the Company and its Subsidiaries owns and possesses the right to use, and has done nothing to authorize or enable any other person to use, any copyright, patent or trademark (as such terms are defined in the Security Agreement) listed in Schedule 12(a) or 12(b) to the Perfection Certificate and (ii) all registrations listed in Schedule 12(a) or 12(b) to the Perfection Certificate are valid and in full force and effect.

          (c) No Violations or Proceedings. To each of the Issuers’ knowledge, on and as of the date hereof, there is no material violation by others of any right of the Company or any of its Subsidiaries with respect to any copyright, patent or trademark listed in Schedule 12(a) or 12(b) to the Perfection Certificate, pledged by it under the name of such Issuer except as may be set forth on Schedule 4.10(c).

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          SECTION 4.11. Taxes. Except as set forth in Schedule 4.11:

     (a) all Tax Returns that are required to be filed at or before the Closing Time by or with respect to the Company or any of its Subsidiaries, have been or will be timely filed at or before the Closing Time (taking into account all permitted extensions), and all such Tax Returns are or will be true and complete in all material respects;

     (b) all Taxes shown to be due on the Tax Returns referred to in clause (a) and all other material Taxes due and payable through the Closing Time have been or will be timely paid in full;

     (c) adequate provision has been made (or prior to the Closing Time will be made) for the payment of Taxes for which the Company or any of its Subsidiaries may be liable that are due and payable after the Closing Time and which relate to periods (or portions thereof) ending prior to the Closing Time;

     (d) no examination or audit of any Tax Return is ongoing. No legal proceeding relating to such Tax Returns is pending or, to the knowledge of the Company, is being threatened by any relevant taxing authority against the Company or any Subsidiary in respect of any material Tax. There are no material unsatisfied liabilities for Taxes with respect to any notice of deficiency or similar document received by the Company or any Subsidiary with respect to any material Tax (other than liabilities for Taxes asserted under any such notice of deficiency or similar documents which are being contested in good faith and with respect to which adequate reserves for payment have been established in accordance with GAAP);

     (e) no waivers of statutes of limitation have been given by or requested with respect to any Taxes of the Company or any of its Subsidiaries;

     (f) none of the Company or any of its Subsidiaries will be required, as a result of (i) a change in accounting method to include any adjustment under Section 481 of the Code (or any similar provision of state, local or foreign law) in taxable income for any Tax period ending at or after the Closing Time, (ii) any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Tax law) or (iii) any installment sale, receipt of prepaid income or open transaction, to include any item of income in or exclude any item of deduction from any Tax period ending at or after the Closing Time;

     (g) there are no Liens on any of the assets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax;

     (h) neither the Company nor any of its Subsidiaries has ever been a member of an affiliated, combined, consolidated or unitary Tax group for purposes of filing any Tax Return, other than a group of which the Company or one of its Subsidiaries is or was the common parent;

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     (i) no closing agreements, private letter rulings, technical advance memoranda or similar agreement or rulings have been entered into or issued by any taxing authority with respect to the Company or any of its Subsidiaries;

     (j) neither the Company nor any of its Subsidiaries or any predecessors to any of such entities has made any consent under Section 341(f) of the Code with respect to such Issuer or any such Subsidiary;

     (k) the Company and each of its Subsidiaries has complied in all material respects with its withholding obligations in respect of Taxes; and

     (l) neither the Company nor any of its Subsidiaries has participated in any “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4 (or any predecessor regulation) or any “confidential corporate tax shelter” within the meaning of Treasury Regulation Section 301.6111-2 (or any predecessor regulation).

          SECTION 4.12. Employee Benefit Plans. Except as set forth on Schedule 4.12,

     (a) there has been no failure by any employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), which is maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes (each a “Plan”) to comply with the applicable requirements of ERISA and the Code other than any such failures that, individually or in the aggregate, have not had and would not have a Material Adverse Effect. There is no material pending or, to the knowledge of any Issuer threatened, litigation relating to the Plans. Neither the Company nor any of its Subsidiaries has engaged in a transaction with respect to any Plan that, assuming the taxable period of such transaction expired as of the date hereof, could subject the Company or any of its Subsidiaries to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA other than those that, individually or in the aggregate, have not had and would not have a Material Adverse Effect;

     (b) no liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the Company or any of its Subsidiaries with respect to any ongoing, frozen or terminated “single-employer plan,” within the meaning of Section 4001 (a)(15) of ERISA, currently or formerly maintained by any of them, or the single-employer plan of any entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code (an “ERISA Affiliate”). Neither the Company, any of its Subsidiaries nor an ERISA Affiliate has contributed to a Multiemployer Plan, at any time on or after September 26, 1980. No notice of a “reportable event,” within the meaning of Section 4043 of ERISA for which the 30-day reporting requirement has not been waived, has been required to be filed for any Plan which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (“Pension Plan”) or by any ERISA Affiliate within the 12-month period ending on the date hereof;

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     (c) neither any Pension Plan nor any single-employer plan of an ERISA Affiliate has an “accumulated funding deficiency” (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA and no ERISA Affiliate has an outstanding funding waiver. Neither the Company nor any of its Subsidiaries has provided, or is required to provide, security to any Pension Plan or to any single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29) of the Code;

     (d) under each Pension Plan which is a single-employer plan, as of the last day of the most recent plan year ended prior to the date hereof, the actuarially determined present value of all “benefit liabilities,” within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in the Plan’s most recent actuarial valuation), did not exceed the then current value of the assets of such Plan, and there has been no material change in the financial condition of such Plan since the last day of the most recent plan year; and

     (e) neither the Company nor any of its Subsidiaries has any obligations for retiree health and life benefits under any Plan, except as required by applicable law. The Company or the Subsidiaries, as applicable, may amend or terminate any such Plan at any time without incurring any liability thereunder.

          SECTION 4.13. Private Offering; No Integration or General Solicitation.

          (a) Subject to compliance by the Purchasers with the representations and warranties set forth in Section 5 hereof, it is not necessary in connection with the offer, sale and delivery of the Purchased Securities to the Purchasers in the manner contemplated by this Agreement to register the Purchased Securities under the Securities Act.

          (b) No Issuer has, directly or indirectly, offered, sold or solicited any offer to buy, and no Issuer will, directly or indirectly, offer, sell or solicit any offer to buy, any security of a type or in a manner which would be integrated with the sale of the Purchased Securities and require the Purchased Securities to be registered under the Securities Act. None of the Company, its Affiliates or any person acting on its or any of their behalf (other than the Purchasers, as to whom the Issuers make no representation or warranty) has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Rule 502(c) under the Securities Act) in connection with the offering of the Purchased Securities.

          SECTION 4.14. Eligibility for Resale Under Rule 144A. The Notes are eligible for resale pursuant to Rule 144A and will not, at the Closing Time, be of the same class as securities listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted on a U.S. automated interdealer quotation system.

          SECTION 4.15. Status Under Certain Statutes. Neither the Company nor any of its Subsidiaries is or, after receipt of payment for the Purchased Securities and the consummation of the other transactions contemplated by the Basic Documents, will be (a) subject to regulation under the Federal Power Act or the Interstate Commerce Act, as amended or (b) an “investment company” registered or required to be registered under the Investment Company Act of 1940, as amended, or controlled by such a company.

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          SECTION 4.16. Insurance. Each of the Company and its Subsidiaries is insured by financially sound institutions with policies in such amounts and with such deductibles and covering such risks as are generally deemed adequate for their businesses including, but not limited to, policies covering real and personal property owned or leased by the Company and its Subsidiaries against theft, damage, destruction and acts of vandalism.

          SECTION 4.17. Use of Proceeds; Margin Regulations. The Company will apply the proceeds from the sale of the Purchased Securities to pay for (i) certain infrastructure and equipment-related capital expenditures, (ii) fees and expenses incurred in connection with the Transactions and (iii) development expenses, including architects’ fees and permitting expenses and certain marketing activities. No part of the proceeds from the sale of the Purchased Securities hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U, or for the purpose of buying or carrying or trading in any securities. Margin stock does not constitute more than 5% of the value of the consolidated assets of the Company and its Subsidiaries and the Company has no present intention that margin stock will constitute more than 5% of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in Regulation U.

          SECTION 4.18. Existing Indebtedness; Future Liens. Schedule 4.18 sets forth a complete and correct list of all Indebtedness of the Company and its Subsidiaries that will be outstanding immediately after the consummation of the Transactions except for any such Indebtedness not so scheduled which, in the aggregate, does not exceed $50,000. Neither the Company nor any Subsidiary of the Company is in default, and no waiver of default is currently in effect, in the payment of the principal of or interest on any Indebtedness of the Company or such Subsidiary and no event or condition exists with respect to any Indebtedness of the Company or any Subsidiary of the Company that would permit (or that with notice, lapse of time or both, would permit) any Person to cause such Indebtedness to become due and payable before its Stated Maturity or before its regularly scheduled dates of payment. Neither the Company nor any of its Subsidiaries has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property or assets, whether now owned or hereafter acquired, to be subject to a Lien that would be prohibited by this Agreement if incurred after the first issuance of Notes.

          SECTION 4.19. Compliance with Laws; Permits; Environmental Matters. Except as provided in Schedule 4.19, (a) each of the Company and each of its Subsidiaries has complied, and is in compliance, in all material respects with all Applicable Laws and has all Permits material to, and necessary in, the conduct of its business as currently conducted and all such Permits are in full force and effect, (b) no violations have been recorded in respect of any such Permits, and no proceeding is pending or, to the best knowledge of the Issuers, threatened to revoke or limit any Permit, except for violations and proceedings which, individually or in the aggregate, have not and would not have a Material Adverse Effect, (c) all past Environmental Actions against the Company or any of its Subsidiaries or any of their properties have been resolved without ongoing obligations or costs, and no circumstances exist that could (i) form the basis of an Environmental Action against the Company or any of its Subsidiaries or any of their properties or (ii) cause any such properties to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law, (d) (i) none of the properties

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currently or, to the knowledge of the Issuers without inquiry, formerly owned or operated by the Company or any of its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property, (ii) there are no and, to the knowledge of the Issuers without inquiry, never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed of on any property currently owned or operated by the Company or any of its Subsidiaries or, to the best knowledge of the Issuers without inquiry, on any property formerly owned or operated by the Company or any of its Subsidiaries, (iii) to the best knowledge of the Issuers without inquiry, there is no asbestos or asbestos-containing material on any property currently owned or operated by the Company or any of its Subsidiaries, and (iv) Hazardous Materials have not been released, discharged or disposed of on any property currently or, to the best knowledge of the Issuers without inquiry, formerly owned or operated by the Company or any of its Subsidiaries, and (e) all Hazardous Materials transported to or from any property currently or, to the best knowledge of the Issuers without inquiry, formerly owned or operated by the Company or any of its Subsidiaries have been disposed of in a manner not expected to result in any liability to the Company or any of its Subsidiaries. Schedule 4.19 sets forth a list of all such Permits and the expiration dates thereof.

          SECTION 4.20. Solvency. The Company and its Subsidiaries are, and after giving effect to the Transactions will be, Solvent.

          SECTION 4.21. Affiliate Transactions. Except as disclosed in Schedule 4.21(a) or, with respect to transactions occurring at or after the Closing Time, as permitted by Section 8.06 hereof: (a) there is no Indebtedness between the Company or any of its Subsidiaries, on the one hand, and any officer, stockholder, director or Affiliate (other than the Company or any of its Subsidiaries) of the Company, on the other, (b) no such officer, stockholder, director or Affiliate provides or causes to be provided any assets, services or facilities to the Company or any of its Subsidiaries which, individually or in the aggregate, are material to the business, management, operations, affairs, condition (financial or otherwise), assets, property, prospects or results of operations of the Company and its Subsidiaries, (c) neither the Company nor any of its Subsidiaries provides or causes to be provided any assets, services, or facilities to any such officer, stockholder, director or Affiliate which, individually or in the aggregate, are material to the business, management, operations, affairs, condition (financial or otherwise), assets, property, prospects or results of operations of the Company and its Subsidiaries, (d) neither the Company nor any Subsidiary beneficially owns, directly or indirectly, any investment in or issued by any such officer, director or Affiliate, and (e) no such officer, stockholder, director or Affiliate has any direct or indirect ownership interest in any Person with which the Company or any of its Subsidiaries competes or has a business relationship.

          SECTION 4.22. Material Contracts. Schedule 4.22 contains a true, correct and complete list of all Material Contracts in effect at the Closing Time. Except as described on Schedule 4.22, as of the Closing Time (a) each Material Contract is in full force and effect and no material defaults enforceable against the Company or any of its Subsidiaries currently exist thereunder and (b) neither the Company nor any of its Subsidiaries has received any written notice or other communication regarding any actual or possible violation or breach of, or default under, any Material Contract. To the best knowledge of the Company and its Subsidiaries, no

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party to any Material Contract is currently in default under, or intends to terminate, such Material Contract.

          SECTION 4.23. No Changes to Applicable Law. To the best knowledge of the Issuers, no changes to Applicable Law affecting the Company or any of its Subsidiaries have occurred since the Audit Date or are currently pending or threatened, in each case other than those which have not had and would not reasonably be expected to have a Material Adverse Effect and other than the currently proposed changes to GAAP for accounting of employee stock option consideration.

          SECTION 4.24. Indebtedness. At the Closing Time, after consummation of the Transactions, the consolidated Indebtedness of the Company and its Subsidiaries will not exceed $187.0 million.

          SECTION 4.25. Fees. All fees and other expenses payable in connection with the consummation of the Transactions by the Company or any of its Subsidiaries are disclosed in Schedule 4.25.

          SECTION 4.26. Brokerage Fees. Except as disclosed in Schedule 4.26, neither the Company nor any of its Subsidiaries has paid, or is obligated to pay, to any Person any brokerage or finder’s fees in connection with the transactions contemplated hereby or by any other Basic Documents.

          SECTION 4.27. Documents and Procedures. Except as disclosed on Schedule 4.27, the agreements, instruments and documents used and the procedures followed by the Company and its Subsidiaries in the conduct of their business are sufficient to effect the transactions purported to be effected by such agreements, instruments and documents and to perfect the Liens or security interests purported to be created by such agreements, instruments and documents, except for failures to effect such transactions or perfect such security interests which, individually or in the aggregate, would not have a Material Adverse Effect.

          SECTION 4.28. Absence of Labor Dispute. Except as disclosed on Schedule 4.28, no labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the best knowledge of the Issuers, is imminent, and no Issuer is aware of any existing or imminent labor disturbance by the employees, principal suppliers, manufacturers, customers or contractors of the Company or any of its Subsidiaries, which, in any case, would have a Material Adverse Effect.

          SECTION 4.29. No Unrelated Liabilities. As of the Closing Time, neither the Company nor any of its Subsidiaries will have any liability unrelated to the business or operations conducted by the Company and its Subsidiaries which could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has made, or will prior to the Closing Time make, any payment with respect to any such liability.

          SECTION 4.30. Full Disclosure. Each Issuer has disclosed to the Purchasers all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate, could result in a Material Adverse Effect. None of the representations or warranties made by any Issuer or any of its Affiliates in

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any Basic Document, and none of the statements contained in each exhibit, report, statement, certificate or other information furnished by or on behalf of any Issuer or any of its Affiliates to the Purchasers in connection with the purchase by the Purchasers of the Purchased Securities (including, without limitation, any offering and disclosure materials delivered by or on behalf of any Issuer to any Purchaser prior to the Closing Time) or delivered hereunder (as modified or supplemented by other information so furnished) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. From and after the date of effective delivery of written notice from the Agent in accordance with the provisions of Section 15.01, to the effect that the Purchasers have elected to not receive material nonpublic information regarding one or more of the Issuers , no Issuer shall disclose to any Noteholder material nonpublic information regarding any Issuer.

          SECTION 4.31. Assets Control Regulations and Anti-Money Laundering.

          (a) OFAC. None of the Company or any of its Subsidiaries (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (iii) is a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.

          (b) Patriot Act; Foreign Corrupt Practices Act. The Company and each of its Subsidiaries is in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Notes will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

          SECTION 4.32. Certain Other Representations and Warranties; Consummation of Transactions.

          (a) (i) Each of the representations and warranties contained in each of the other Basic Documents made by the Issuers and their respective Affiliates is true and correct in all material respects (except that any representations and warranties that are qualified as to “materiality” or “Material Adverse Effect” shall be true and correct) when made and at and as of the Closing Time as if made at and as of the Closing Time (unless expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that any representations and warranties that are qualified as to “materiality” or “Material Adverse Effect” shall be true and correct) as of such earlier date) and (ii) to the knowledge of the Issuers without obligation for inquiry, each of the representations and warranties contained in the other Transaction Agreements made by Persons other than the Issuers and their Affiliates is true and correct in all material respects (except that any representations and

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warranties that are qualified as to “materiality” or “Material Adverse Effect” shall be true and correct). The Issuers agree that, by this reference, such representations and warranties contained in the other Basic Documents delivered by any Issuer, without limiting any of the representations and warranties otherwise contained herein, hereby are incorporated herein, mutatis mutandis, for the benefit of the Purchasers.

          (b) All conditions precedent to the other Basic Documents other than those that are not required to be delivered by the Closing Time pursuant to the Post-Closing Letter (other than conditions related to this Agreement) have been fulfilled or (with the prior written consent of the Purchasers) waived, the other Basic Documents have not been amended or otherwise modified from the executed copies (or latest drafts received by the Purchasers in the case of draft documents), and there has been no breach of any material term or condition of the other Basic Documents.

          SECTION 4.33. Security Documents. (a) Security Agreement. The Security Agreement is effective to create in favor of the Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Security Agreement Collateral and, when (i) financing statements and other filings in appropriate form are filed in the offices specified on Schedule 7 to the Perfection Certificate and (ii) upon the taking of possession or control by the Agent of the Security Agreement Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the agent under the Falcon Purchase Agreement as bailee for the Agent pursuant to and in accordance with the terms of the Subordination Agreement), the Liens created by the Security Agreement shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in the Security Agreement Collateral (other than such Security Agreement Collateral in which a security interest cannot be perfected under the UCC as in effect at the relevant time in the relevant jurisdiction), in each case subject to no Liens other than Permitted Collateral Liens.

          (b) Copyright Office Filing. When the Security Agreement or a short form thereof is filed in the United States Copyright Office, the Liens created by such Security Agreement shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in the Registered Copyrights and Registered Copyright Licenses (each as defined in such Security Agreement), in each case subject to no Liens other than Permitted Collateral Liens.

          (c) Valid Liens. Each Security Document delivered pursuant to Sections 7.12 and 7.13 will, upon execution and delivery thereof, be effective to create in favor of the Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Issuers’ right, title and interest in and to the Collateral thereunder, and when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable law, such Security Document will constitute fully perfected Liens on, and security interests in, all right, title and interest of the Issuers in such Collateral, in each case subject to no Liens other than the applicable Permitted Collateral Liens.

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          SECTION 4.34. Real Property Holding Corporation. The Company is not and after giving effect to the application of the proceeds from the sale of the Purchased Securities and the Transactions will not be a United States Real Property Holding Corporation (a “USRPHC”) within the meaning of Section 897(c)(2) the Code, and does not currently expect to become a USRPHC for the foreseeable future.

          SECTION 4.35. Activities of Certain Subsidiaries. None of Terremark Asia Company, Ltd., Terremark Latin America de Mexico or Terremark Latin America de Argentina, SA is engaged in any business or business activity other than the activities related to its existence. None of Terremark Asia Company, Ltd., Terremark Latin America de Mexico or Terremark Latin America de Argentina, SA has any assets, liabilities or obligations (other than the liabilities imposed by law, including Tax and other liabilities related to its existence).

SECTION 5

REPRESENTATIONS OF THE PURCHASERS

          Each Purchaser severally and not jointly represents and warrants to the Issuers as of the date hereof and as of the Closing Time as follows:

          SECTION 5.01. Purchase for Investment.

          (a) Such Purchaser is acquiring the Purchased Securities for its own account, for investment and not with a view to any distribution thereof within the meaning of the Securities Act.

          (b) Such Purchaser understands that (i) the Purchased Securities have not been registered under the Securities Act and are being issued by the Company in transactions exempt from the registration requirements of the Securities Act and (ii) the Purchased Securities may not be offered or sold except pursuant to an effective registration statement under the Securities Act or pursuant to an applicable exemption from registration under the Securities Act.

          (c) Such Purchaser further understands that the exemption from registration afforded by Rule 144 promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts.

          (d) Such Purchaser did not employ any broker or finder in connection with the transactions contemplated in this Agreement.

          (e) Such Purchaser is an Accredited Investor and Qualified Institutional Buyer.

          (f) Such Purchaser has been given the opportunity to ask questions of and receive answers from the Company concerning the terms and conditions of the Purchased Securities, and has been given the opportunity to obtain additional information necessary to

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verify the accuracy of the information contained in the Company Reports or such other information as it desired in order to evaluate its investment.

SECTION 6

COVENANTS TO PROVIDE INFORMATION

          Each Issuer covenants and agrees with each Series A Noteholder that until the principal amount of (and premium, if any, on) all the Series A Notes, and all interest and other obligations hereunder in respect thereof, shall have been paid in full:

          SECTION 6.01. Future Reports to Series A Noteholders. (a) Monthly Statements. As soon as available but in any event within thirty (30) days after the end of each month (except for any month that ends a quarter, in which case, the Company will have forty-five (45) days after the end of such month), the Company shall deliver to each Series A Noteholder (unless such Series A Noteholder has requested that it not receive) duplicate copies of:

     (i) consolidated and consolidating balance sheets of the Company and its Subsidiaries as at the end of such month, and

     (ii) consolidated and consolidating statement of income, consolidated statements of stockholders’ equity and cash flows and consolidating schedule of investment activities for purchases of property and equipment of the Company and its Subsidiaries for such month and for the portion of the Fiscal Year ending with such month,

in each case setting forth in comparative form the figures for the corresponding periods in the prior Fiscal Year and the corresponding figures for the consolidated plan and financial forecast to the current Fiscal Year delivered pursuant to Section 6.01(d), all in reasonable detail, prepared in accordance with GAAP (except with respect to the related footnotes), and fairly presenting, in all material respects, the financial position of the Persons being reported on and their results of operations and cash flows, subject to changes resulting from normal yearend adjustments that will not be material in amount or effect, and accompanied by a certificate of the Chief Financial Officer of the Company to the foregoing effect.

          (b) Quarterly Statements. As soon as available, but in any event within forty-five (45) days after the end of each quarter, the Company shall deliver to each Series A Noteholder duplicate copies of:

     (i) consolidated and consolidating balance sheets of the Company and its Subsidiaries as at the end of such quarter, and

     (ii) consolidated and consolidating statement of income, consolidated statements of stockholders’ equity and cash flows and consolidating schedule of investment activities for purchases of property and equipment of the Company and its

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Subsidiaries, for such quarter and for the portion of the Fiscal Year ending with such quarter,

in each case setting forth in comparative form the figures for the corresponding periods in the prior Fiscal Year and the corresponding figures for the consolidated plan and financial forecast for the current Fiscal Year delivered pursuant to Section 6.01(d), all in reasonable detail, prepared in accordance with GAAP applicable to periodic financial statements generally, and fairly presenting, in all material respects, the financial position of the Persons being reported on and their results of operations and cash flows, subject to changes resulting from normal yearend adjustments that will not be material in amount or effect, and accompanied by (x) a certificate of the Chief Financial Officer of the Company to the foregoing effect and (y) a narrative report (in the form of management’s discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act with respect to management’s discussion and analysis set forth in quarterly reports on Form 10Q) describing in reasonable detail the operations, cash flows and financial condition of the Company and its Subsidiaries prepared for such quarter and for the period from the beginning of the then current Fiscal Year to the end of such quarter; provided, however, that if the Company is then subject to the reporting requirements under Section 13 or Section 15(d) of the Exchange Act, the delivery by the Company to each Series A Noteholder of a Quarterly Report on Form 10Q or any successor form within the time periods above described shall satisfy the requirements of this Section 6.01(b). The consolidating balance sheet and statements of income, stockholders’ equity and cash flows and consolidating schedule of investment activities for purchases of property and equipment required by this paragraph may be in the form contained in the notes to the financial statements included in the Company’s Form 10Q.

          (c) Annual Statements. As soon as available, but in any event within ninety (90) days after the end of each Fiscal Year of the Company, the Company shall deliver to each Series A Noteholder duplicate copies of:

     (i) consolidated and consolidating balance sheets of the Company and its Subsidiaries as at the end of such year, and

     (ii) consolidated and consolidating statement of income, consolidated statements of stockholders’ equity and cash flows and consolidating schedule of investment activities for purchases of property and equipment of the Company and its Subsidiaries for such year,

in each case setting forth in comparative form the figures for the prior Fiscal Year and, commencing with Fiscal Year 2007, the corresponding figures from the consolidated plan and financial forecast for the current Fiscal Year delivered pursuant to Section 6.01(d), all in reasonable detail, prepared in accordance with GAAP, fairly presenting, in all material respects, the financial position of the Persons being reported on and their results of operations and cash flows, and accompanied by:

     (A) an opinion thereon of independent certified public accountants of recognized national standing, which opinion (i) shall state that such financial statements (other than consolidating statements) present fairly, in all material respects, the financial

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position of the Persons being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements (other than consolidating statements) has been made in accordance with generally accepted auditing standards in the United States, and that such audit provides a reasonable basis for such opinion in the circumstances, and (ii) shall not at any time following the second anniversary of the Closing Time contain a “going concern” or like qualification, or any exception or other qualification arising out of the scope of the audit,

     (B) a certificate of the Chief Financial Officer of the Company stating that such financial statements have been prepared in accordance with GAAP applicable to periodic financial statements generally and fairly present, in all material respects, the financial position of the Persons being reported on and their results of operations and cash flows, and

     (C) a narrative report (in the form of management’s discussion and analysis of such operations which would comply with the disclosure requirements of the Exchange Act with respect to management’s discussion and analysis set forth in quarterly reports on Form 10Q) describing in reasonable detail the operations, cash flows and financial condition of the Company and its Subsidiaries prepared for such Fiscal Year,

provided, however, that if the Company is then subject to the reporting requirements under Section 13 or Section 15(d) of the Exchange Act, the delivery by the Company to such Series A Noteholder of an Annual Report on Form 10K or any successor form within the time periods above described shall satisfy the requirements of this Section 6.01(c). The consolidating balance sheet and statements of income, stockholders’ equity and cash flows and consolidating schedule of investment activities for purchases of property and equipment required by this paragraph may be in the form contained in the notes to the financial statements included in Company’s Form 10K.

          If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by clauses (b) and (c) above will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company; provided however that it is expressly understood that in order to comply with the requirements of this paragraph the Company need only provide a supplemental schedule to such Series A Noteholder with this information and need not actually include such information in any form filed with the Commission.

          (d) Forecasts. As soon as practicable but in any event no later than the last day of each Fiscal Year the Company shall prepare a forecast for each of the next succeeding twelve months of the consolidated balance sheet and the consolidated statements of income, cash flows and stockholders’ equity of the Company and its Subsidiaries and the consolidating balance sheet and the consolidating statements of income and cash flows of each of the Company

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and its Subsidiaries, together with an outline of the major assumptions upon which the forecast is based.

          (e) Telephonic Conference. Within five Business Days after the delivery of the financial statements referred to in paragraphs (a), (b), (c) and (d) above, the Chief Financial Officer of the Company shall participate in a telephonic conference with the Series A Noteholders upon the request of the Series A Noteholders holding not less than 25% of the then outstanding Series A Notes.

          (f) Chief Financial Officer Certificates. Concurrently with the delivery of the financial statements referred to in subsections (a) through (c) of this Section 6.01, the Company shall deliver to each Series A Noteholder a compliance certificate (“Compliance Certificate”) in the form of Exhibit G hereto and signed by the Chief Financial Officer of the Company stating that, to the best of such Chief Financial Officer’s knowledge after due inquiry, each of the Company and its Subsidiaries has observed or performed all of its covenants and other agreements, satisfied every condition, contained in this Agreement and the other Basic Documents to be observed, performed or satisfied by it, and that such Chief Financial Officer has obtained no knowledge of any Default or Event of Default except as specified in such Compliance Certificate.

          (g) Auditors’ Reports. Promptly upon receipt thereof, the Company shall deliver to each Series A Noteholder copies of all final reports submitted to the Company or to any of its Subsidiaries by independent certified public accountants in connection with each annual, interim or special audit of the books of the Company or any of its Subsidiaries made by such accountants, including, without limitation, any final comment letter submitted by such accountants to management in connection with their annual audit.

          (h) Other Information. Promptly upon their becoming available, the Company shall deliver or make available to each Series A Noteholder (including by being made available on EDGAR; provided that the Company gives prompt notice of such filing with EDGAR to each such Series A Noteholders) copies of all financial statements, reports, notices and proxy statements sent to its securityholders or made available generally by the Company or any of its Subsidiaries and all regular and periodic reports and all registration statements and final prospectuses, if any, filed by the Company or any of its Subsidiaries with any securities exchange or with the Commission or any Governmental Authority succeeding to any of its functions and, promptly upon request, such additional financial and other information as any Series A Noteholder may from time to time reasonably request. For the benefit of the Series A Noteholders and beneficial owners from time to time of any Series A Note, the Issuers shall, upon the request of any such Series A Noteholder, furnish, at the Issuers’ expense, to Series A Noteholders and beneficial owners of any Series A Note and prospective purchasers of such securities information satisfying the requirements of subsection (d)(4) of Rule 144A under the Securities Act.

          (i) Notice of Default or Event of Default. Promptly, but in any event within three (3) Business Days, after any officer of the Company becomes aware of the existence of any Default or Event of Default or that any Person has given any notice or taken any other action with respect to a claimed Default or Event of Default, the Company shall deliver a written notice

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thereof to the Series A Noteholders specifying the nature and existence thereof and what action the Company is taking or proposes to take with respect thereto.

          (j) Additional Information to Series A Noteholders of Other Indebtedness. Simultaneously with the furnishing of such information to any other holder of Indebtedness of the Company or any of its Subsidiaries, the Company shall deliver to each Series A Noteholder (i) copies of all other financial statements, reports or projections with respect to the Company or its Subsidiaries which are broader in scope or on a more frequent basis than the Company is required to provide under this Agreement and (ii) copies of all studies, reviews, reports or assessments relating to environmental matters that reveal circumstances, events or other matters that would reasonably be expected to have a Material Adverse Effect.

          (k) Changes to Indebtedness. At least 10 days prior thereto, written notice to the Series A Noteholders of any proposed extension, renewal, refinancing or modification of any indebtedness exceeding $500,000 of the Company or any of its Subsidiaries.

          (l) ERISA Matters. (a) As soon as possible and in any event within ten (10) days after any Issuer or any ERISA Affiliate thereof knows or has reason to know that (A) any Reportable Event with respect to any Employee Plan has occurred, (B) any other termination event with respect to any Employee Plan has occurred, or (C) an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Code with respect to an Employee Plan, an Officers’ Certificate of the Company setting forth the details of such occurrence and the action, if any, which such Issuer or such ERISA Affiliate proposes to take with respect thereto, (b) promptly and in any event within three (3) Business Days after receipt thereof by any Issuer or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Issuer or any ERISA Affiliate thereof of the PBGC’s intention to terminate any Plan or to have a trustee appointed to administer any Plan, (c) promptly and in any event within 10 days after any Issuer or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Code has not been made when due with respect to an Employee Benefit Plan, (d) promptly and in any event within three (3) Business Days after receipt thereof by any Issuer or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Issuer or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (e) promptly and in any event within 10 days after any Issuer sends notice of a plant closing or mass layoff (as defined in WARN) to employees, copies of each such notice sent by such Issuer.

          (m) Management Report. Promptly upon receipt thereof, each Issuer shall deliver to each Series A Noteholder copies of all detailed financial and management reports submitted to the Company or any of its Subsidiaries by independent auditors in connection with each annual or interim audit made by such auditors of the books of the Company or such Subsidiary.

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          (n) Litigation and Other Material Events. Promptly after the commencement thereof, the Company shall deliver to each Series A Noteholder notice of (i) all actions, suits, investigations, litigation, arbitrations and proceedings known to the Issuers against or affecting the Company or any of its Subsidiaries or any of the property or assets thereof in any court or before any arbitrator or by or before any Governmental Authority or court of any kind not previously disclosed by the Company or any of its Subsidiaries that either individually or in the aggregate, would have a Material Adverse Effect, (ii) the occurrence of a Casualty Event; and (iii) (x) the incurrence of any material Lien (other than Permitted Collateral Liens) on, or claim asserted against any of the Collateral or (y) the occurrence of any other event which could materially affect the value of the Collateral.

SECTION 7

OTHER AFFIRMATIVE COVENANTS

          Each Issuer further covenants and agrees with each Series A Noteholder that until the principal amount of (and premium, if any, on) all the Series A Notes, and all interest and other obligations (other than contingent indemnification obligations to the extent no claim has been asserted) hereunder in respect thereof, shall have been paid in full:

          SECTION 7.01. Payment of Principal, Premium and Interest. The Company shall duly and punctually pay the principal of (and premium, if any, on) and all interest on the Series A Notes in accordance with the terms of the Series A Notes and this Agreement.

          The Company shall pay interest on overdue principal (including post-petition interest on a proceeding under any Bankruptcy Law), and interest on overdue interest, to the extent lawful, at the rate specified in the Series A Notes.

          SECTION 7.02. Preservation of Corporate Existence and Franchises. Subject to Section 8.05 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (a) its corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary and (b) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries if (i) the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and (ii) the loss thereof would not result in a Material Adverse Effect.

          SECTION 7.03. Maintenance of Properties. The Company shall cause all properties used or useful in the conduct of its business or the business of any of its Subsidiaries to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously

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conducted at all times; provided, however, that the foregoing shall not prevent the Company from discontinuing the operation or maintenance of any of such properties if (i) the Board of Directors determines that such discontinuance is desirable in the conduct of its business or the business of any Subsidiary and (ii) such discontinuance would not result in a Material Adverse Effect and would not be adverse in any material respect to any Series A Noteholder.

          SECTION 7.04. Taxes.

          (a) Payment of Taxes. The Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Company or any of its Subsidiaries or upon the income, profits or property of the Company or any of its Subsidiaries, and (ii) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any of its Subsidiaries; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings provided that appropriate reserves therefor are established in the Company’s consolidated financial statements in accordance with GAAP.

          (b) Tax Returns. The Company and its Subsidiaries shall timely file or cause to be filed when due all Tax Returns that are required to be filed by or with respect to the Company for taxable years ending after the Closing Time and shall pay any Taxes due in respect of such Tax Returns.

          (c) Contest Provisions. The Company shall promptly notify the Series A Noteholders in writing upon receipt by the Company or any of its Subsidiaries or any of their Affiliates of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments which may materially affect the tax liabilities of the Company.

          SECTION 7.05. Books, Records and Access. The Company, both with respect to itself and with respect to the Company and its Subsidiaries on a consolidated basis, and each Subsidiary shall keep complete and accurate books and records of their transactions in accordance with good accounting practices on the basis of GAAP applied on a consistent basis (including the establishment and maintenance of appropriate reserves); provided that with respect to any Foreign Subsidiary, the immediately preceding reference to GAAP shall be deemed to be to generally accepted accounting principles in effect in such Foreign Subsidiary’s jurisdiction. To the extent reasonably required in connection with any resale of any of the Purchased Securities and upon reasonable notice, the Company shall, and shall cause its Subsidiaries to, subject to compliance with Applicable Laws, execute, and each Series A Noteholder seeking to sell or transfer the Purchased Securities shall execute a confidentiality agreement substantially in the form set forth in Exhibit L or as otherwise mutually acceptable to the Company and the Agent. The Company and each of its Subsidiaries shall provide each Series A Noteholder that is not a competitor of the Company or any of its Subsidiaries in any material respect (and, in each case, any sales or placement agent or underwriter participating in such resale) and their authorized representatives reasonable access during normal business hours to all contracts, books, records, personnel, offices and other facilities and properties of the

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Company and its Subsidiaries and their legal advisors, accountants and, to the extent available to the Company after the Company uses reasonable efforts to obtain them, the accountants’ work papers, permit each Series A Noteholder (and any such sales or placement agent or underwriter) to make such copies and inspections thereof as such Series A Noteholder may reasonably request and furnish such Series A Noteholder (and any such sales or placement agent or underwriter) with such financial and operating data and other information with respect to the business and properties of the Company and its Subsidiaries as such Series A Noteholder (and any such sales or placement agent or underwriter) may from time to time reasonably request. Any such visits will be at the expense of such Series A Noteholder.

          SECTION 7.06. Compliance with Law. The Company shall, and shall cause each of its Subsidiaries to, comply with all Applicable Laws and shall obtain and maintain, and shall cause each of its Subsidiaries to obtain and maintain, all Permits necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that any such noncompliance with Applicable Law or any failure to obtain or maintain such Permits, individually or in the aggregate, would not have a Material Adverse Effect.

          SECTION 7.07. Insurance.

          (a) Generally. The Company shall, and shall cause its Subsidiaries to, keep its insurable property adequately insured at all times by financially sound and reputable insurers; maintain such other insurance, to such extent and against such risks as is customary with companies in the same or similar businesses operating in the same or similar locations, including insurance with respect to Mortgaged Properties and other properties material to the business of the Company and its Subsidiaries against such casualties and contingencies and of such types and in such amounts with such deductibles as is customary in the case of similar businesses operating in the same or similar locations, including (i) physical hazard insurance on an “all risk” basis, (ii) commercial general liability against claims for bodily injury, death or property damage covering any and all insurable claims, (iii) explosion insurance in respect of any boilers, machinery or similar apparatus constituting Collateral, (iv) business interruption insurance, (v) worker’s compensation insurance and such other insurance as may be required by any Requirement of Law and (vi) such other insurance against risks as the Series A Noteholders may from time to time require (such policies to be in such form and amounts and having such coverage as may be reasonably satisfactory to the Required Series A Noteholders and the Agent); provided that with respect to physical hazard insurance, neither the Agent nor the Company or such Subsidiary shall agree to the adjustment of any claim thereunder without the consent of the other (such consent not to be unreasonably withheld or delayed); provided, further, that no consent of the Company or any Subsidiary shall be required during an Event of Default.

          (b) Requirements of Insurance. On or prior to the expiration of the time period set forth in the Post-Closing Letter, all such insurance in the name of any Issuer shall (i) provide that no cancellation, material reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by the Agent of written notice thereof, (ii) name the Agent as mortgagee (in the case of property insurance for Mortgaged Property) or additional insured on behalf of the Secured Parties (in the case of liability insurance) or loss payee (in the case of property insurance for Mortgaged Property), as applicable, (iii) if

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reasonably requested by the Agent, include a breach of warranty clause and (iv) be reasonably satisfactory in all other respects to the Agent.

          (c) Notice to Agent. The Company shall notify the Series A Noteholders and the Agent immediately whenever any separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Section 7.07 is taken out by the Company or any of its subsidiaries; and promptly deliver to the Series A Noteholders and the Agent a duplicate original copy of such policy or policies.

          (d) Flood Insurance. The Company shall, and shall cause its Subsidiaries to, with respect to each Mortgaged Property, obtain flood insurance in such total amount as the Required Series A Noteholders may from time to time require, if at any time the area in which any improvements located on any Mortgaged Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time.

          (e) Broker’s Report. The Company shall deliver to the Agent and the Series A Noteholders a report of a reputable insurance broker with respect to such insurance and such supplemental reports with respect thereto as the Required Series A Noteholders or the Agent may from time to time reasonably request.

          (f) Mortgaged Properties. No Issuer that is an owner of Mortgaged Property shall take any action that is reasonably likely to be the basis for termination, revocation or denial of any insurance coverage required to be maintained under such Issuer’s respective Mortgage or that could be the basis for a defense to any claim under any Insurance Policy maintained in respect of the Premises, and each Issuer shall otherwise comply in all material respects with all Insurance Requirements in respect of the Premises; provided, however, that each Issuer may, at its own expense and after written notice to the Series A Noteholders, (i) contest the applicability or enforceability of any such Insurance Requirements by appropriate legal proceedings, the prosecution of which does not constitute a basis for cancellation or revocation of any insurance coverage required under this Section 7.07 or (ii) cause the Insurance Policy containing any such Insurance Requirement to be replaced by a new policy complying with the provisions of this Section 7.07.

          SECTION 7.08. Offer to Repurchase upon Change of Control.

          (a) Subject to compliance with the Subordination Agreement, upon the occurrence of a Change of Control, the Company shall make an offer (a “Change of Control Offer”) to each Series A Noteholder to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Series A Noteholder’s Series A Notes at an offer price in cash equal to 100% of the principal amount thereof as of the Change of Control Payment Date plus accrued and unpaid interest, if any, thereon to the Change of Control Payment Date (the “Change of Control Payment”). The Company shall comply with the requirements of Rule 14e1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Series A Notes as a result

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of a Change of Control, and the Company shall not be in violation of this Agreement by reason of any act required by such rule or other Applicable Law.

          (b) Within five (5) Business Days following any Change of Control, the Company shall send, by first-class mail, a notice to each Series A Noteholder stating:

     (i) that the Change of Control Offer is being made pursuant to this Section 7.08 and that all Series A Notes tendered will be accepted for payment;

     (ii) the purchase price and the purchase date, the latter of which shall be at least 30 but no more than 45 days from the date on which the Company mails notice of the Change of Control (the “Change of Control Payment Date”);

     (iii) that any Series A Notes not tendered will continue to accrue interest;

     (iv) that, unless the Company defaults in the payment of the Change of Control Payment, all Series A Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;

     (v) that Series A Noteholders electing to have any Series A Notes purchased pursuant to a Change of Control Offer shall be required to surrender the Series A Notes, with the form entitled “Option of Noteholder to Elect Purchase” on the reverse of the Series A Notes completed, to the Company or its designated agent for such purpose at the address specified in the notice prior to 5:00 p.m. Eastern Time on the third Business Day preceding the Change of Control Payment Date;

     (vi) that Series A Noteholders will be entitled to withdraw their election if the Company or its designated agent for such purpose receives, not later than 5:00 p.m. Eastern Time on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Series A Noteholder, the principal amount of Series A Notes delivered for purchase, and a statement that such Series A Noteholder is withdrawing his election to have the Series A Notes purchased; and

     (vii) that Series A Noteholders whose Series A Notes are being purchased only in part will be issued new Series A Notes equal in principal amount to the unpurchased portion of the Series A Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof.

          (c) On the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept for payment all Series A Notes or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) mail to each Series A Noteholder so tendered the Change of Control Payment for such Series A Notes plus all accrued and unpaid interest to the Change of Control Payment Date, and (iii) execute and mail to each Series A Noteholder a new Series A Note equal in principal amount to any unpurchased portion of the Series A Notes surrendered, if any; provided, however, that each such new Series A Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall inform the Series A Noteholders in

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writing of the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

          SECTION 7.09. Offer to Purchase by Application of Excess Proceeds. (a) Subject to compliance with the Subordination Agreement, in the event that, pursuant to Section 8.05 hereof, the Company shall be required to commence an offer to all Series A Noteholders to purchase Series A Notes (an “Asset Sale Offer”), it shall follow the procedures specified in this Section 7.09. The Company shall comply with the requirements of Rule 14e1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Series A Notes pursuant to an Asset Sale Offer, and the Company shall not be in violation of this Agreement by reason of any act required by such rule or other Applicable Law.

          (b) Within five (5) Business Days following each date on which the Company’s obligation to make an Asset Sale Offer is triggered, the Company shall send, by first-class mail, a notice to each Series A Noteholder stating:

     (i) that the Asset Sale Offer is being made pursuant to this Section 7.09 and Section 8.05;

     (ii) that the Company shall purchase the principal amount of Series A Notes required to be purchased pursuant to Section 8.05 (the “Offer Amount”), the purchase price per Series A Note and the purchase date, which shall be at least 30 but no more than 45 days from the date on which the Company mails notice of the Asset Sale Offer (the “Asset Sale Offer Payment Date”);

     (iii) that any Series A Notes not tendered will continue to accrue interest;

     (iv) that, unless the Company defaults in payment of the Offer Amount on the Asset Sale Offer Payment Date, all Series A Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer Payment Date;

     (v) that Series A Noteholders electing to have any Series A Notes purchased pursuant to an Asset Sale Offer shall be required to surrender the Series A Notes, with the form entitled “Option of Noteholder to Elect Purchase” on the reverse of the Series A Notes completed, to the Company or its designated agent for such purpose at the address specified in the notice prior to 5:00 p.m. Eastern Time on the third Business Day preceding the Asset Sale Offer Payment Date;

     (vi) that Series A Noteholders will be entitled to withdraw their election if the Company or its designated agent for such purpose receives, not later than 5:00 p.m. Eastern Time on the second Business Day preceding the Asset Sale Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Series A Noteholder, the principal amount of Series A Notes delivered for purchase, and a statement that such Series A Noteholder is withdrawing his election to have the Series A Notes purchased;

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     (vii) that, if the aggregate principal amount of Series A Notes surrendered by Series A Noteholders exceeds the Offer Amount, the Company shall select the Series A Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Series A Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and

     (viii) that Series A Noteholders whose Series A Notes are being purchased only in part will be issued new Series A Notes equal in principal amount to the unpurchased portion of the Series A Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof.

          On the Asset Sale Offer Payment Date, the Company shall, to the extent lawful, (i) accept for payment, on a pro rata basis to the extent necessary, all Series A Notes or portions thereof properly tendered pursuant to the Asset Sale Offer up to the principal amount of Series A Notes equal to the Offer Amount, or, if less than the Offer Amount has been tendered, all Series A Notes tendered, (ii) mail to each holder of a Series A Note so tendered the purchase price for such Series A Notes, plus all accrued and unpaid interest to the Asset Sale Offer Payment Date, (iii) execute and mail to each Series A Noteholder a new Series A Note equal in principal amount to any unpurchased portion of the Series A Notes surrendered, if any, and (iv) deliver to the Series A Noteholders an Officers’ Certificate stating that such Series A Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 7.09. The Company shall inform the Series A Noteholders in writing of the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Offer Payment Date.

          SECTION 7.10. Affirmative Covenants with Respect to Leases. With respect to each Lease entered into by an Issuer relating to Real Property owned in fee by such Issuer, the respective Issuer shall perform all the obligations imposed upon the landlord under such Lease and enforce all of the tenant’s obligations thereunder, except where the failure to so perform or enforce could not reasonably be expected to result in a Property Material Adverse Effect.

          SECTION 7.11. Further Assurances. The Company shall, upon the request of any Series A Noteholder, execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the provisions of this Agreement.

          SECTION 7.12. Additional Collateral; Additional Guarantors.

          (a) Subject to this Section 7.12 and the Post-Closing Letter, with respect to any property acquired after the Closing Time by any Issuer that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, such Issuer shall promptly (and in any event within 30 Business Days after the acquisition thereof) (i) execute and deliver to the Series A Noteholders and the Agent such amendments or supplements to the relevant Security Documents or such other documents as the Required Series A Noteholders or the Agent shall deem necessary or advisable to grant to the Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Collateral Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law,

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including the filing of financing statements in such jurisdictions as may be reasonably requested by the Required Series A Noteholders. Borrower shall otherwise take such actions and execute and/or deliver to the Agent such documents as the Required Series A Noteholders or the Agent shall require to confirm the validity, perfection and priority of the Lien of the Security Documents against such after-acquired properties.

          (b) With respect to any person that is or becomes a Wholly Owned Subsidiary after the Closing Time (and in any event within 30 Business Days after such person becomes a Wholly Owned Subsidiary), the Company shall and shall cause its Subsidiaries to promptly deliver to the agent under the Falcon Purchase Agreement, as bailee for the Agent pursuant to and in accordance with the terms of the Subordination Agreement, the certificates, if any, representing all of the Capital Stock of such Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Capital Stock, and all intercompany notes owing from such Subsidiary to any Issuer together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Issuer and (ii) cause such new Subsidiary (A) to execute and deliver to the Series A Noteholders a Subsidiary Guarantee of the Series A Notes in the form of Exhibit B hereto and a supplemental agreement substantially in the form of Exhibit C hereto pursuant to which such Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Series A Notes on the terms set forth in such supplemental agreement and a joinder agreement to the applicable Security Agreement, substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Agent and (B) to take all actions necessary or advisable in the opinion of the Required Series A Noteholders or the Agent to cause the Lien created by the applicable Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Required Series A Noteholders or the Agent; provided, however, that the obligation of the Company to deliver or to cause any Subsidiary to comply with the requirements of this Section 7.12(b) shall be limited to the same extent that the Company and such Subsidiary are required to comply with provisions analogous to this Section 7.12(b) contained in the Falcon Purchase Agreement.

          (c) Each Issuer shall use its commercially reasonable efforts to promptly grant to the Agent, within 60 days of the acquisition thereof, a security interest in and Mortgage on (i) each Real Property owned in fee by such Issuer as is acquired by such Issuer after the Closing Time and that, together with any improvements thereon, individually has a fair market value based on the good faith estimate of the Company of at least $500,000, and (ii) unless the Required Series A Noteholders otherwise consent, each leased Real Property of such Issuer which lease individually has a fair market value based on the good faith estimate of the Company of at least $500,000, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted by Section 8.07). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Required Series A Noteholders and the Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens or other Liens acceptable to the Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect

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the Liens in favor of the Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Issuer shall otherwise use its commercially reasonable efforts to take such actions and execute and/or deliver to the Agent such documents as the Required Series A Noteholders or the Agent shall require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Required Series A Noteholders and the Agent) in respect of such Mortgage).

          SECTION 7.13. Security Interests; Further Assurances. Promptly, upon the reasonable request of the Agent or any Required Series A Noteholders, at the Company’s expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, any document or instrument supplemental to or confirmatory of the Security Documents or otherwise deemed by the Required Series A Noteholders or the Agent reasonably necessary or desirable for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Security Document, or obtain any consents or waivers as may be necessary or appropriate in connection therewith. Deliver or cause to be delivered to the Series A Noteholders and the Agent from time to time such other documentation, consents, authorizations, approvals and orders in form and substance reasonably satisfactory to the Required Series A Noteholders and the Agent as the Required Series A Noteholders and the Agent shall reasonably deem necessary to perfect or maintain the Liens on the Collateral pursuant to the Security Documents. Upon the exercise by the Agent or any Series A Noteholder of any power, right, privilege or remedy pursuant to any Basic Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority execute and deliver all applications, certifications, instruments and other documents and papers that the Agent or such Series A Noteholder may require. If the Agent or the Required Series A Noteholders determine that they are required by a Requirement of Law to have appraisals prepared in respect of the Real Property of any Issuer constituting Collateral, the Company shall provide to the Agent appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and substance satisfactory to the Required Series A Noteholders and the Agent.

          SECTION 7.14. Information Regarding Collateral.

          (a) The Company shall not and shall not permit any of its Subsidiaries to effect any change (i) in any Issuer’s legal name, (ii) in the location of any Issuer’s chief executive office, (iii) in any Issuer’s identity or organizational structure, (iv) in any Issuer’s Federal Taxpayer Identification Number or organizational identification number, if any, or (v) in any Issuer’s jurisdiction of organization (in each case, including by merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), until (A) it shall have given the Agent and the Series A Noteholders not less than 30 days’ prior written notice (in the form of an Officers’ Certificate), or such lesser notice period agreed to by the Agent, of its intention so to do, clearly describing such change and providing such other information in connection therewith as the Agent or the Required Series A Noteholders may reasonably request and (B) it shall have taken all action reasonably satisfactory

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to the Agent to maintain the perfection and priority of the security interest of the Agent for the benefit of the Secured Parties in the Collateral, if applicable. Each Issuer agrees to promptly provide the Agent with certified Organizational Documents reflecting any of the changes described in the preceding sentence. Each Issuer also agrees to promptly notify the Agent of any change in the location of any office in which it maintains books or records relating to Collateral owned by it or any office or facility at which Collateral is located (including the establishment of any such new office or facility), other than changes in location to a Mortgaged Property or a leased property subject to a Landlord Access Agreement.

          (b) Concurrently with the delivery of financial statements pursuant to Section 6.01(c), deliver to the Series A Noteholders and the Agent a Perfection Certificate Supplement.

          SECTION 7.15. Designations of Unrestricted Subsidiaries. The Company may designate after the Closing Time any Subsidiary created or acquired after the Closing Time (other than a Guarantor) as an “Unrestricted Subsidiary” under this Agreement (a “Designation”) only if

     (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation; and

     (ii) the Company would be permitted to make an Investment at the time of Designation (assuming the effectiveness of such Designation) pursuant to clause (e) of the definition of “Permitted Investments” in an amount (the “Designation Amount”) equal to the Fair Market Value of the Company’s interest in such Subsidiary on such date.

          The Company shall not, and shall not cause or permit any Subsidiary to, at any time (x) provide credit support (other than any such support which is Subordinated Indebtedness and not prohibited under the terms of this Agreement (including without limitation Section 8.04(a)(iii))) for or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary). All Subsidiaries of Unrestricted Subsidiaries shall automatically be deemed to be Unrestricted Subsidiaries.

          The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) if

     (iii) no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Revocation;

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     (iv) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if incurred at such time, have been permitted to be incurred for all purposes of this Agreement; and

     (v) any transaction (or series of related transactions) between such Subsidiary and any of its Affiliates that is still outstanding, or otherwise could have a future adverse effect on such Subsidiary, at the time of Revocation, would be permitted by Section 8.06 hereof as if such transaction (or series of related transactions) had occurred at the time of such Revocation.

          All Designations and Revocations must be evidenced by resolutions of the Board of Directors of the Company delivered to each Series A Noteholder certifying compliance with the foregoing provisions.

          Notwithstanding anything to the contrary herein, the Company may not designate any given Subsidiary as an Unrestricted Subsidiary more than once.

          SECTION 7.16. Casualty Event. Upon receipt by the Company or any of its Subsidiaries of any Net Cash Proceeds from a Casualty Event, the Company or such Subsidiary shall apply such Net Cash Proceeds as if they were Net Cash Proceeds from an Asset Sale in accordance with Section 8.05(b); provided however, that Net Cash Proceeds from a Casualty Event in respect of either of the Excluded Properties shall not be so applied to the extent such Net Cash Proceeds are used to permanently reduce Indebtedness in respect of the Contemplated Lease Financing pertaining to such respective Excluded Property.

          SECTION 7.17. Offer to Repurchase under Contemplated Lease Financings.

          (a) Upon the occurrence under either of the Contemplated Lease Financings of the exercise by the lessee thereunder of any early buy-out option granted in connection therewith, the Company shall make an offer (a “Buy-Out Offer”) to each Series A Noteholder to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Series A Noteholder’s Series A Notes at an offer price in cash equal to 100% of the principal amount thereof as of the Buy-Out Offer Payment Date (defined below) plus accrued and unpaid interest, if any, thereon to the Buy-Out Offer Payment Date (the “Buy-Out Payment”). The Company shall comply with the requirements of Rule 14e1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Series A Notes as a result of a Buy-Out Offer, and the Company shall not be in violation of this Agreement by reason of any act required by such rule or other Applicable Law.

     (b) Within five (5) Business Days following the exercise of any early buy-out option under either of the Contemplated Lease Financings, the Company shall send, by first-class mail, a notice to each Series A Noteholder stating:

     (i) that the Buy-Out Offer is being made pursuant to this Section 7.17 and that all Series A Notes tendered will be accepted for payment;

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     (ii) the purchase price and the purchase date, the latter of which shall be at least 30 but no more than 45 days from the date on which the Company mails notice of the Buy-Out Offer (the “Buy-Out Offer Payment Date”);

     (iii) that any Series A Notes not tendered will continue to accrue interest;

     (iv) that, unless the Company defaults in the payment of the Buy-Out Payment, all Series A Notes accepted for payment pursuant to the Buy-Out Offer shall cease to accrue interest after the Buy-Out Offer Payment Date;

     (v) that Series A Noteholders electing to have any Series A Notes purchased pursuant to a Buy-Out Offer shall be required to surrender the Series A Notes, with the form entitled “Option of Noteholder to Elect Purchase” on the reverse of the Series A Notes completed, to the Company or its designated agent for such purpose at the address specified in the notice prior to 5:00 p.m. Eastern Time on the third Business Day preceding the Buy-Out Offer Payment Date;

     (vi) that Series A Noteholders will be entitled to withdraw their election if the Company or its designated agent for such purpose receives, not later than 5:00 p.m. Eastern Time on the second Business Day preceding the Buy-Out Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Series A Noteholder, the principal amount of Series A Notes delivered for purchase, and a statement that such Series A Noteholder is withdrawing his election to have the Series A Notes purchased; and

     (vii) that Series A Noteholders whose Series A Notes are being purchased only in part will be issued new Series A Notes equal in principal amount to the unpurchased portion of the Series A Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof.

          (c) On the Buy-Out Offer Payment Date, the Company shall, to the extent lawful, (i) accept for payment all Series A Notes or portions thereof properly tendered pursuant to the Buy-Out Offer, (ii) mail to each Series A Noteholder so tendered the Buy-Out Payment for such Series A Notes plus all accrued and unpaid interest to the Buy-Out Offer Payment Date, and (iii) execute and mail to each Series A Noteholder a new Series A Note equal in principal amount to any unpurchased portion of the Series A Notes surrendered, if any; provided, however, that each such new Series A Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall inform the Series A Noteholders in writing of the results of the Buy-Out Offer on or as soon as practicable after the Buy-Out Offer Payment Date.

SECTION 8

NEGATIVE COVENANTS

          Each Issuer hereby covenants and agrees with each Series A Noteholder that until the principal amount of (and premium, if any, on) all the Series A Notes, and all interest and

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other obligations (other than contingent indemnification obligations to the extent no claim has been asserted) hereunder in respect thereof, shall have been paid in full:

          SECTION 8.01. Stay, Extension and Usury Laws. Each Issuer covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of its obligations under the Series A Notes, the Subsidiary Guarantees or this Agreement, and each Issuer hereby expressly waives all benefit or advantage of any such law and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Series A Noteholders, but shall suffer and permit the execution of every such power as though no such law has been enacted.

          SECTION 8.02. Restricted Payments.

          (a) The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or indirectly:

     (i) declare or pay any dividend or make any other distribution or payment on or in respect of Capital Stock of the Company or any payment to the direct or indirect holders (in their capacities as such) of Capital Stock of the Company (other than dividends or distributions payable solely in shares of Qualified Capital Stock of the Company or in options, warrants or other rights to acquire shares of such Qualified Capital Stock);

     (ii) purchase, redeem, defease or otherwise acquire or retire for value, directly or indirectly, the Company’s Capital Stock or any Capital Stock of any Affiliate of the Company (other than any such Capital Stock owned by the Company or any Guarantor or as otherwise required by the organizational documents of NAP Madrid) or options, warrants or other rights to acquire such Capital Stock;

     (iii) make any payment or prepayment of principal, premium, if any, interest, or fees on, or purchase, repurchase, redeem, defease, retire or otherwise acquire for value, any Subordinated Indebtedness (other than any Subordinated Indebtedness owed to and held by the Company or a Guarantor); or

     (iv) make any Investment (other than any Permitted Investments) in any Person

(any of the foregoing actions described in clauses (i) through (iv), collectively, “Restricted Payments”).

          (b) Notwithstanding the foregoing, and, so long as no Default or Event of Default shall have occurred and be continuing or would arise therefrom, the foregoing provisions shall not prohibit dividend payments in cash on the Series I Preferred Stock of the Company, so long as the aggregate of such cash dividends, together with outstanding Investments permitted by clause (e) of the definition of Permitted Investments, does not exceed $12.0 million (a “Permitted Payment”).

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          (c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value (evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Series A Noteholders) on the date of the Restricted Payment of the asset(s) proposed to be transferred by the Company or such Subsidiary or on the date the obligation to pay such Restricted Payment was incurred, as the case may be, pursuant to the Restricted Payment. Not later than the date of making any Restricted Payment, the Company shall deliver to the Series A Noteholders an Officers’ Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 8.02 were computed, which calculations may, to the extent applicable, be based upon the Company’s latest available financial statements.

          SECTION 8.03. Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective or enter into any agreement with any Person that would cause to become effective, any consensual encumbrance or restriction of any kind, on the ability of any Subsidiary of the Company to (a)(i) pay dividends, in cash or otherwise, or make any other distributions to the Company or any of its Subsidiaries (A) on or in respect of its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Subsidiaries, (b) make any Investment in the Company or any of its Subsidiaries or (c) transfer any of its properties or assets to the Company or any of its Subsidiaries, except for such encumbrances or restrictions existing under or by reason of (i) any encumbrance or restriction existing under any agreement in effect on the date of this Agreement, (ii) the SPV Financing Agreement as in effect as of the date of this Agreement, and any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings thereof; provided, however, that such amendments, modifications, restatements, renewals, supplements, refundings, replacement or refinancings are no more restrictive with respect to such dividend and other payment restrictions than those contained in the SPV Financing Agreement as in effect on the date of this Agreement, (iii) the Falcon Purchase Agreement as in effect as of the date of this Agreement, and any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings thereof; provided, however, that such amendments, modifications, restatements, renewals, supplements, refundings, replacement or refinancings are no more restrictive with respect to such dividend and other payment restrictions than those contained in the Falcon Purchase Agreement as in effect on the date of this Agreement (iv) this Agreement, the Indenture, the Notes and the Subsidiary Guarantees, (v) customary nonassignment provisions in leases, licenses and other agreements entered into in the ordinary course of business and consistent with past practices, (vi) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (c) above on the property so acquired, (vii) any encumbrance or restriction, with respect to a Subsidiary that is not a Subsidiary of the Company on the date of this Agreement, in existence at the time such Person becomes a Subsidiary of the Company and not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary; provided, however, that such encumbrances and restrictions are not applicable to the Company or any other Subsidiary, or the properties or assets of the Company or any other Subsidiary, (viii) customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary; provided, however, that any such restriction relates only to the Capital

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Stock or assets being sold pursuant to such agreement, (ix) the definitive documentation entered into in connection with the Contemplated Lease Financings and (x) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (ix), or in this clause (x), provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive than those under or pursuant to the agreement so extended, renewed, refinanced or replaced.

          SECTION 8.04. Incurrence of Indebtedness and Issuance of Preferred Stock.

          (a) The Company shall not, and shall not cause or permit any of the Subsidiaries to, directly or indirectly, create, incur, assume, issue, guarantee or in any manner become liable for or with respect to, contingently or otherwise (in each case, to “incur”), the payment of, any Indebtedness (including any Acquired Indebtedness) or issue any Preferred Stock, provided, however, that the Company and, to the extent specifically set forth below, the Guarantors and the Subsidiaries may incur each and all of the following (collectively, “Permitted Indebtedness”):

     (i) Indebtedness of the Company or the SPV under the SPV Financing Agreement in an aggregate principal amount at any one time outstanding not to exceed $58.8 million, less (x) any mandatory prepayment made thereunder or scheduled payments made thereunder and (y) the amount of any such Indebtedness repaid with the Net Cash Proceeds of any Asset Sale or Casualty Event;

     (ii) Senior Indebtedness;

     (iii) Subordinated Indebtedness or Preferred Stock of the Company or any Guarantor in an aggregate principal amount or liquidation value at any one time outstanding not to exceed $12.0 million;

     (iv) Indebtedness of (i) the Company pursuant to the Series A Notes and Indebtedness of any Guarantor pursuant to a Subsidiary Guarantee of the Series A Notes and (ii) the Company pursuant to the Series B Notes;

     (v) Indebtedness of the Company or any Subsidiary outstanding at the Closing Time;

     (vi) Indebtedness of the Company owing to a Wholly Owned Subsidiary for so long as such Indebtedness is owing to a Wholly Owned Subsidiary; provided that any Indebtedness of the Company to any Wholly Owned Subsidiary is Subordinated Indebtedness, pursuant to a written agreement, to the Company’s obligations under this Agreement and the Series A Notes; provided, further, that disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Wholly Owned Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company not permitted by this clause (vi);

     (vii) Indebtedness of a Wholly Owned Subsidiary owing to and held by the Company or another Wholly Owned Subsidiary which is unsecured; provided that (a) any

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disposition, pledge or transfer of any such Indebtedness to a Person (other than the Company or a Wholly Owned Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vii), and (b) any transaction pursuant to which any Wholly Owned Subsidiary, which has Indebtedness owing to the Company or any other Wholly Owned Subsidiary, ceases to be a Wholly Owned Subsidiary shall be deemed to be the incurrence of Indebtedness by such Wholly Owned Subsidiary that is not permitted by this clause (vii); provided, further, that if such Indebtedness is incurred by a non-Guarantor (other than Terremark Latin America (Brasil) Ltda. or any future Wholly Owned Subsidiary that is a Foreign Subsidiary) then such incurrence must also comply with clause (e) of the definition of “Permitted Investments”;

     (viii) the incurrence by the Company or any Subsidiary of the Company of Hedging Obligations that are incurred in the ordinary course of business of the Company or such Subsidiary or the SPV Financing Agreement as in effect on the date hereof and not for speculative purposes; provided that, in the case of any Hedging Obligation that relates to (i) interest rate risk, the notional principal amount of such Hedging Obligation does not exceed the principal amount of the Indebtedness to which such Hedging Obligation related and (ii) currency risk, such Hedging Obligation does not increase the Indebtedness of the Company and its Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;

     (ix) Indebtedness of the Company or any Subsidiary represented by Capitalized Lease Obligations or Purchase Money Obligations or other Indebtedness incurred or assumed in connection with the acquisition or development of real or personal movable or immovable property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Subsidiary, in an aggregate principal amount pursuant to this clause (ix) not to exceed $24.0 million at any one time outstanding; provided that no more than $3.0 million of such Indebtedness may be at any one time outstanding at Subsidiaries that are not Guarantors; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company or such Subsidiary in good faith, of the property to which it relates; provided, further, that any such Indebtedness permitted under this clause (ix) is either (A) Subordinated Indebtedness or (B) with respect to any real or personal property other than the specific property being financed or refinanced, secured by a Lien which is junior to the Liens granted pursuant to the Security Documents;

     (x) letters of credit to support workers compensation obligations and bankers acceptances and performance bonds, surety bonds and performance guarantees of the Company or any Guarantor, in each case, in the ordinary course of business consistent with past practice, not to exceed $3.0 million in the aggregate at any time outstanding;

     (xi) Preferred Stock of NAP Madrid issued to the Company or any Guarantor in consideration for the transfer of assets; provided that all shares of such Preferred Stock

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that are required to be pledged pursuant to Section 7.12(b) shall have been pledged as Collateral;

     (xii) the Company’s guarantee, in an amount not to exceed €570,000, of the lease to be transferred by TerreNAP Data Centers, Inc. to NAP Madrid; and

     (xiii) any renewals, extensions, substitutions, refundings, refinancings or replacements (collectively, a “refinancing”) of any Indebtedness described in clauses (i), (ii), (iii), (iv) and (v) above, including any successive refinancings so long as the aggregate principal amount of Indebtedness represented thereby is not increased by such refinancing plus the lesser of (I) the stated amount of any premium or other payment required to be paid in connection with such a refinancing pursuant to the terms of the Indebtedness being refinanced or (II) the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus, in either case, the amount of expenses of the Company or a Subsidiary of the Company incurred in connection with such refinancing and (A) in the case of any refinancing of Indebtedness that is Subordinated Indebtedness, such new Indebtedness is subordinated to the Series A Notes at least to the same extent as the Indebtedness being refinanced and (B) such refinancing does not reduce the Average Life to Stated Maturity or the Stated Maturity of such Indebtedness.

          (b) For purposes of determining compliance with this Section 8.04, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (i) through (xi) of the immediately preceding paragraph (a), the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 8.04 and will only be required to include the amount and type of such Indebtedness in one of such clauses. Accrual of interest, accretion of accreted value and the payment of interest through the issuance of securities paid-in-kind shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 8.04.

          SECTION 8.05. Asset Sales.

          (a) The Company shall not, and shall not cause or permit any Subsidiary of the Company to, directly or indirectly, consummate an Asset Sale; unless (i) at least 85% of the consideration from such Asset Sale is received in cash and (ii) the Company or such Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the shares or assets subject to such Asset Sale; provided, however, that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet) of the Company or any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Series A Notes or any Guarantee thereof) that are assumed by the transferee of any such assets pursuant to any arrangement releasing the Company or such Subsidiary from further liability and (y) any notes or other obligations received by the Company or any such Subsidiary from such transferee that are immediately converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision.

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          (b) Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company may apply such Net Cash Proceeds (i) in the case of any Asset Sale of property or assets of the SPV only, to permanently reduce Indebtedness under the SPV Financing Agreement (and to correspondingly reduce commitments with respect thereto) or any Senior Indebtedness, (ii) to fund the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long term assets, in each case, in the same or a similar, related or ancillary line of business as the Company was engaged in on the date of this Agreement or (iii) in the case of any Asset Sale involving either of the Excluded Properties, to permanently reduce Indebtedness in respect of the Contemplated Lease Financing pertaining to such respective Excluded Property. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute “Excess Proceeds.” Only in the event that there are no amounts outstanding under the Falcon Purchase Agreement, and any permitted refinancings thereof, or as otherwise consented to, at the request of the Company, by “Required Holders” in accordance with and as defined in the Falcon Purchase Agreement, when the aggregate amount of Excess Proceeds exceeds $500,000, the Company shall make an Asset Sale Offer pursuant to Section 7.09 hereof to purchase the maximum principal amount of Series A Notes, that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date of purchase, in accordance with the procedures set forth in Section 7.09 hereof. To the extent that the aggregate principal amount of Series A Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. Subject to the terms of the Subordination Agreement, any Net Cash Proceeds from an Asset Sale involving Collateral shall, pending their application in accordance with the terms hereof, be deposited in a collateral account with the Agent in which the Agent shall be granted a perfected second priority security interest, and the terms of which shall be satisfactory to the Agent and the Required Series A Noteholders. Any property or assets acquired with the Net Cash Proceeds of an Asset Sale involving Collateral shall constitute Collateral under this Agreement and the Security Documents. If the aggregate principal amount of Series A Notes surrendered by Series A Noteholders thereof exceeds the amount of Excess Proceeds, the Company shall select the Series A Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.

          SECTION 8.06. Transactions with Affiliates         . The Company shall not, and shall not cause or permit any of its Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with, or for the benefit of, any Affiliate of the Company or of a Subsidiary (other than the Company or a Wholly Owned Subsidiary) or any beneficial holder of 10% or more of any class of Capital Stock of the Company or any officer, director or employee of the Company or any Subsidiary unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be available in a comparable transaction in arm’s-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $1.2 million, the Company delivers to each Series A Noteholder an Officers’ Certificate describing such transaction or transactions, certifying that such transaction or transactions have been approved by a majority of the Board of

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Directors of the Company as well as a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, and certifying that such transaction or transactions complies with clause (a) above and (c) with respect to any transaction or series of related transactions involving aggregate payments in excess of $6.0 million, the Company delivers to each Series A Noteholder a written opinion of an Independent Financial Advisor stating that the transaction or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to (i) any transaction with an officer or director of the Company (acting in such capacity) entered into in the ordinary course of business (including compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans); provided that such transaction has been approved in the manner described in clause (b) above, and (ii) any Permitted Payment otherwise permitted by the terms of this Agreement and (iii) indemnification agreements for the benefit of officers, directors and employees entered into in the ordinary course of business.

          SECTION 8.07. Limitation on Liens. The Company shall not, and shall not cause or permit any Subsidiary of the Company to create, incur, assume or permit to exist, directly or indirectly, any Lien on any property now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, the “Permitted Liens”):

     (a) inchoate Liens for taxes, assessments or governmental charges or levies not yet due and payable or delinquent and Liens for taxes, assessments or governmental charges or levies, which (i) are being contested in good faith by appropriate proceedings which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien (and for which adequate reserves have been established in accordance with GAAP), or (ii) in the case of any such charge or claim which has or may become a Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions;

     (b) Liens in respect of property of the Company or any of its Subsidiaries imposed by Requirements of Law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, and (i) which do not in the aggregate materially detract from the value of the property of the Company and its Subsidiaries, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Company and its Subsidiaries, taken as a whole, (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien, and (iii) in the case of any such Lien which has or may become a Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions;

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     (c) any Lien in existence on the Closing Time and set forth on Schedule 8.07(c) and any Lien granted as a replacement or substitute therefor; provided that any such replacement or substitute Lien (i) does not secure an aggregate amount of Indebtedness, if any, greater than that secured on the Closing Time and (ii) does not encumber any property other than the property subject thereto on the Closing Time (any such Lien, an “Existing Lien”);

     (d) easements, rights-of-way, restrictions (including zoning restrictions), covenants, licenses, encroachments, protrusions and other similar charges or encumbrances, and minor title deficiencies on or with respect to any Real Property, in each case whether now or hereafter in existence, not (i) securing Indebtedness, (ii) individually or in the aggregate materially impairing the value or marketability of such Real Property or (iii) individually or in the aggregate materially interfering with the ordinary conduct of the business of the Company and its Subsidiaries at such Real Property;

     (e) Liens arising out of judgments, attachments or awards not resulting in a Default and in respect of which the Company or such Subsidiary shall in good faith be prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings and, in the case of any such Lien which has or may become a Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions;

     (f) Liens (other than any Lien imposed by ERISA) (x) imposed by Requirements of Law or deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security legislation, (y) incurred in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or (z) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; provided that (i) with respect to clauses (x), (y) and (z) of this paragraph (f), such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings for orders entered in connection with such proceedings have the effect of preventing the forfeiture or sale of the property subject to any such Lien, (ii) to the extent such Liens are not imposed by Requirements of Law, such Liens shall in no event encumber any property other than cash and Cash Equivalents, (iii) in the case of any such Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions and (iv) the aggregate amount of deposits at any time pursuant to clause (y) and clause (z) of this paragraph (f) shall not exceed $300,000 in the aggregate;

     (g) Leases of the properties of the Company or any of its Subsidiaries, in each case entered into in the ordinary course of the Company’s or such Subsidiary’s business

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and do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of the Company or any of its Subsidiaries, or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;

     (h) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business;

     (i) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Company or any of its Subsidiaries, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that, unless such Liens are nonconsensual and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;

     (j) Liens on property of a person existing at the time such person is acquired or merged with or into or consolidated with the Company or any of its Subsidiaries to the extent permitted hereunder (and not created in anticipation or contemplation thereof); provided that such Liens do not extend to property not subject to such Liens at the time of acquisition (other than improvements thereon) and are no more favorable to the lienholders than such existing Lien;

     (k) Liens granted pursuant to the Security Documents to secure the Secured Obligations;

     (l) licenses of Intellectual Property granted by the Company or any of its Subsidiaries in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Company or any of its Subsidiaries;

     (m) the filing of UCC financing statements solely as a precautionary measure in connection with operating leases or consignment of goods;

     (n) Liens on property of the SPV or agreed to by Agent pursuant to the Subordination Agreement granted to secure the obligations under the SPV Financing Agreement as contemplated therein; provided, there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement without the prior written consent of the Agent; provided, further, that any increase in the scope of the collateral to which the Liens attach will be deemed material;

     (o) Liens securing Subordinated Indebtedness permitted by Section 8.04(a)(iii), so long as such Liens are junior to the Liens granted pursuant to the Security Documents;

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     (p) Liens securing Indebtedness not to exceed €570,000 and permitted by Section 8.04(a)(xii);

     (q) Liens securing Indebtedness incurred in accordance with Section 8.04(a)(ix), so long as such Liens, to the extent covering any Collateral other than the specific property being financed or refinanced, are junior to the Liens granted pursuant to the Security Documents; and

     (r) Liens granted pursuant to the Falcon Purchase Agreement and in connection with any permitted refinancings thereof;

provided, however, that no consensual Liens shall be permitted to exist, directly or indirectly, on any Securities Collateral, other than Liens granted pursuant to the Security Documents, the Falcon Purchase Agreement and Liens granted pursuant to the SPV Financing Agreement at the Closing Time.

          SECTION 8.08. Limitation on Issuances and Sales of Capital Stock of Subsidiaries. The Company (a) shall not, and shall not cause or permit any Subsidiary of the Company to, transfer, convey, sell, lease, pledge or otherwise dispose of any Capital Stock of any Subsidiary of the Company to any Person (other than the Company or a Wholly Owned Subsidiary), unless (i) such transfer, conveyance, sale, lease, pledge or other disposition is of all the Capital Stock of such Subsidiary and (ii) the Net Cash Proceeds from such transfer, conveyance, sale, lease, pledge or other disposition are applied in accordance with the provisions of Section 8.05 hereof; provided, however, that this clause (a) shall not apply to the pledge of Capital Stock of the SPV securing Indebtedness under the SPV Financing Agreement, and (b) shall not cause or permit any Subsidiary of the Company to issue any of its Capital Stock (other than, if necessary, shares of its Capital Stock constituting directors’ qualifying shares to the extent required by applicable law) to any Person other than to the Company or a Wholly Owned Subsidiary.

          SECTION 8.09. Payments for Consents. Neither the Company nor any of its Subsidiaries shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Series A Noteholder in consideration for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Agreement or the Series A Notes unless such consideration is concurrently offered to be paid or is concurrently paid to all Series A Noteholders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

          SECTION 8.10. Merger, Consolidation, or Sale of Assets. The Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of the Company or any of its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding), whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any

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Person or any division or line of business of any Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of the Company’s or any of its Subsidiaries’ business) except:

     (i) any Subsidiary of the Company may be merged with or into the Company or any wholly owned Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Company or any wholly owned Guarantor; provided that (i) in the case of such a merger, the Company or such wholly owned Guarantor shall be the continuing or surviving Person and (ii) in the case of such a liquidation, winding-up or dissolution, all of the assets of such wholly owned Guarantor are transferred to the Company or a Guarantor that is wholly owned, directly or indirectly, by the Company or as otherwise expressly permitted under this Agreement;

     (ii) the Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in an amount at least equal to the Fair Market Value thereof;

     (iii) the Company and its Subsidiaries may consummate one or more Asset Sales; provided that the Company or the applicable Subsidiary complies with the other applicable provisions of this Agreement; and

     (iv) the Company and its Subsidiaries may make Permitted Investments.

          SECTION 8.11. Conduct of Business. The Company and its Subsidiaries shall not engage in any businesses which are not the same, similar, related or ancillary to the businesses in which the Company and its Subsidiaries are engaged in at the Closing Time after giving effect to the Transactions.

          SECTION 8.12. Limitation on Tax Consolidation. The Company shall not and shall not permit any of its Subsidiaries to become a party to a consolidated Federal income tax return with any Person other than the Company and its Subsidiaries if as a result thereof, as of any date, the aggregate amount of Federal income taxes which the Company and its Subsidiaries have then or theretofore paid or become obligated to pay (determined on a cumulative basis, taking into account net benefits received by the Company and its Subsidiaries and also giving effect to amounts payable under any applicable indemnity agreement from any other party to such consolidated returns) or will become obligated to pay in the future exceeds (or will exceed) the amount which the Company and its Subsidiaries would have been required to pay pursuant to a consolidated tax return solely of the Company and its Subsidiaries.

          SECTION 8.13. Public Disclosures. The Company shall not, and shall not permit any of its Subsidiaries to, disclose the name or identity of any Series A Noteholder as an investor in the Company in any press release or other public announcement or in any document or material filed with any governmental entity, unless such disclosure is required by Applicable Law or governmental regulations or by order of a court of competent jurisdiction, in which case prior to making such disclosure the Company shall give written notice to such Series A

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Noteholder describing in reasonable detail the proposed content of such disclosure and shall permit such Series A Noteholder to review and comment upon the form and substance of such disclosure; provided, however, that each Series A Noteholder hereby expressly agrees to the filing of any Basic Document as an exhibit to the Company’s filings with the Commission and any description of the terms thereof in any such filings.

          SECTION 8.14. Limitation on Repurchases and other Repayments of Series A Notes. The Company shall not, and shall not permit any of its Subsidiaries to, prepay, repurchase, redeem or otherwise acquire or retire in whole or in part, directly or indirectly, any Series A Notes held by any Series A Noteholder unless the Company or such Subsidiary shall have offered to prepay, repurchase, redeem or otherwise acquire or retire, as the case may be, the same proportion of the aggregate principal amount of the Series A Notes held by each other Series A Noteholder at the time outstanding upon the same terms and conditions.

          SECTION 8.15. Limitation on Activities.

          (a) The SPV will not engage in any business or business activity other than the activities related to the ownership and operation of the Facility and its existence. The SPV will not own or acquire any assets (other than the Facility) or incur any liabilities or obligations (other than the liabilities imposed by law, including Tax and other liabilities related to its existence) or issue any Capital Stock other than to the Company or a Wholly Owned Subsidiary that is a Guarantor.

          (b) If at any time after the Closing Time any of Terremark Asia Company, Ltd., Terremark Latin America de Mexico or Terremark Latin America de Argentina, SA (i) engages in any business or business activity other than the activities related to its existence or (ii) owns or acquires any assets or incurs any liabilities or obligations (other than the liabilities imposed by law, including Tax and other liabilities related to its existence) or issues any Capital Stock other than to the Company or a Wholly Owned Subsidiary that is a Guarantor, such entity shall comply with the requirements of Section 7.12(b).

          SECTION 8.16. Limitation on Accounting Changes. The Company shall not and shall not permit any of its Subsidiaries to make any change in financial or Tax accounting policies or reporting practices, without the consent of the Required Series A Noteholders which consent shall not be unreasonably withheld, except changes that are required by GAAP or applicable Tax laws.

          SECTION 8.17. Fiscal Year. The Company shall not and shall not permit any of its Subsidiaries to change its Fiscal Yearend to a date other than March 31.

          SECTION 8.18. Amendments or Waivers of Certain Documents. The Company shall not, and shall not cause or permit any of its Subsidiaries to, amend or otherwise modify, or waive any rights, or suffer to occur any amendment or other modification or waiver, under (i) any Basic Document or (ii) any provisions of any agreement, instrument or document evidencing or securing any Subordinated Indebtedness, in each case, other than amendments, modifications and waivers not materially adverse to the interests of the Series A Noteholders as determined by the Required Series A Noteholders in their reasonable judgment.

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          SECTION 8.19. Amendments to Charter Documents. The Company shall not, nor shall it cause or permit any of its Subsidiaries to, amend its certificate of incorporation or bylaws in any respect which could be materially adverse to the interests of the Series A Noteholders.

          SECTION 8.20. No Integration. The Company shall not and (to the extent within its control) it shall cause its Affiliates not to make any offer or sale of securities of any class of the Company if, as a result of the doctrine of “integration” referred to in Rule 502 under the Securities Act, such offer or sale would render invalid (for the purpose of the sale of the Series A Notes by the Company to the Purchasers) any applicable exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof or by Rule 144A or Regulation S thereunder or otherwise.

SECTION 9

THE NOTES

          SECTION 9.01. Form and Execution. The Series A Notes shall be in the form of Exhibit A hereto and the Series B Notes shall be in the form attached in the Indenture. The Series A Notes shall be executed on behalf of the Company by its President or one of its Vice Presidents, under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Series A Notes may be manual or facsimile.

          Series A Notes bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Series A Notes or did not hold such offices at the date of such Notes.

          SECTION 9.02. Terms of the Notes. The terms of the Series A shall be as set forth in Exhibit A. Without limiting the foregoing:

     (a) Stated Maturity. The Stated Maturity of the principal of Series A Notes shall be as provided in Exhibit A.

     (b) Interest. The Series A Notes will bear interest on their principal amount and overdue interest as provided in Exhibit A.

          SECTION 9.03. Denominations. The Series A Notes shall be issuable only in registered form without coupons and only in denominations of U.S.$1,000 and any integral multiple thereof.

          SECTION 9.04. Form of Legend for the Notes(a) . Unless otherwise permitted by Section 9.07, every Series A Note issued and delivered hereunder shall bear a legend in substantially the following form:

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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 JANUARY 5, 2007 (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.

THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE COMPANY AGREES TO PROVIDE PROMPTLY TO HOLDERS OF NOTES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE NOTES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT THE FOLLOWING ADDRESS: 2601 S. BAYSHORE DRIVE, 9^TH FLOOR, MIAMI, FLORIDA 33133.

THE SECURITY REPRESENTED BY THIS CERTIFICATE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATED IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT (THE “SUBORDINATION AGREEMENT”) DATED AS OF JANUARY 5, 2007 AMONG TERREMARK WORLDWIDE, INC. AS THE ISSUER, THE SUBSIDIARY GUARANTORS NAMED THEREIN, FMP AGENCY SERVICES, LLC, AS THE SENIOR AGENT TO THE SENIOR CREDITORS NAMED THEREIN, CREDIT SUISSE, CAYMAN BRANCH, S THE SUBORDINATED AGENT TO THE SUBORDINATED CREDITORS NAMED THEREIN AND EACH HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.

          SECTION 9.05. Payments and Computations. All payments of interest on the Series A Notes shall be paid to the persons in whose names such Series A Notes are registered on the Note Register at the close of business on the date fifteen calendar days prior to the related Interest Payment Date (the “Regular Record Date”) and all payments of principal on the Series A Notes shall be paid to the persons in whose names such Series A Notes are registered on the applicable Redemption Date or at Maturity, as applicable. Notwithstanding the foregoing, if a

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Series A Note is issued after a Regular Record Date and prior to an Interest Payment Date, the record date for such Interest Payment Date shall be the original issue date. Principal and premium on any Series A Note shall be payable only against surrender therefor, while payments of interest on Series A Notes shall be made, in accordance with this 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 Note Register or, by wire transfer to such account as any Series A 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 Series A Noteholder otherwise notifies the Company or such Series A Noteholder no longer is the registered owner of such Series A Note.

          SECTION 9.06. Registration; Registration of Transfer and Exchange.

          (a) Note Register. The Company shall maintain a register (the “Note Register”) for the registration or transfer of the Series A Notes. The name and address of the Series A Noteholder of each Series A Note, records of any transfers of the Series A Notes and the name and address of any transferee of a Series A Note shall be entered in the Note Register and the Company shall, promptly upon receipt thereof, update the Note Register to reflect all information received from a Series A Noteholder. There shall be no more than one Series A Noteholder for each Series A Note, including all beneficial interests therein.

          (b) Registration of Transfer. Upon surrender for registration of transfer of any Series A Note properly endorsed for transfer at the office or agency of the Company, the Company shall execute and deliver, in the name of the designated transferee or transferees, one or more new Series A Notes, of any authorized denominations and like aggregate principal amount.

          (c) Exchange. At the option of the Series A Noteholder, Series A Notes may be exchanged for other Series A Notes, of any authorized denominations and of like aggregate principal amount, upon surrender of the Series A Notes to be exchanged at such office or agency. Whenever any Series A Notes are so surrendered for exchange, the Company shall execute and deliver the Series A Notes which the Series A Noteholder making the exchange is entitled to receive.

          (d) Effect of Registration of Transfer or Exchange. All Series A Notes issued upon any registration of transfer or exchange of Series A Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Agreement, as the Series A Notes surrendered upon such registration of transfer or exchange.

          (e) Requirements; Charges. Every Series A Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company duly executed, by the Series A Noteholder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Series A Notes, but the Company may require payment of a sum sufficient to cover any Tax or other governmental

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charge that may be imposed in connection with any registration of transfer or exchange of Series A Notes, other than exchanges pursuant to Section 8.10 not involving any transfer.

          (f) Certain Limitations. If the Series A Notes are to be redeemed in part, the Company shall not be required (i) to issue, register the transfer of or exchange any Series A Note during a period beginning at the opening of business 15 Business Days before the day of the mailing of a notice of redemption of any such Series A Notes selected for redemption under Section 11.02 and ending at the close of business on the Business Day of such mailing, or (ii) to register the transfer of or exchange any Series A Note so selected for redemption in whole or in part, except the unredeemed portion of any Series A Note being redeemed in part.

          SECTION 9.07. Transfer Restrictions.

          (a) No Series A Note may be sold, transferred or otherwise disposed of (any such sale, transfer or other disposition is herein referred to as a “sale”), except in compliance with this Section 9.07.

          (b) A Series A Noteholder may sell Series A Notes to a transferee that is an Accredited Investor or a Qualified Institutional Buyer; provided, however, that each of the following conditions is satisfied:

     (i) such Series A Noteholder or transferee represents that it is acquiring the Series A Note or Series A Notes for its own account and that it is not acquiring such Series A Note or Series A Notes with a view to, or for offer or sale in connection with, any distribution thereof (within the meaning of the Securities Act) that would be in violation of the securities laws of the United States or any state thereof, but subject, nevertheless, to the disposition of its property being at all times within its control; and

     (ii) such transferee agrees to be bound by the provisions of this Section 9.07 with respect to any resale of the Series A Notes.

          (c) A Series A Noteholder may sell its Series A Notes to a transferee in accordance with Regulation S under the Securities Act; provided, however, that each of the following conditions is satisfied:

     (i) the offer of Series A Notes is not made to a person in the United States;

     (ii) either:

     (A) at the time the buy order is originated, the transferee is outside the United States or the Series A Noteholder and any person acting on its behalf reasonably believes that the transferee is outside the United States, or

     (B) the transaction is executed in, on or through the facilities of a designated offshore securities market and neither the Series A Noteholder nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

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     (iii) no directed selling efforts are made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S under the Securities Act, as applicable; and

     (iv) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

          (d) In the event of a proposed exercise or sale that does not qualify under either Section 9.07(b) or 9.07(c) above, a Series A Noteholder may sell its Series A Notes only if:

     (i) such Series A Noteholder gives written notice to the Company of its intention to exercise or effect such sale, which notice (A) shall describe the manner and circumstances of the proposed transaction in reasonable detail and (B) shall designate the counsel for such Series A Noteholder, which counsel shall be reasonably satisfactory to the Company;

     (ii) counsel for the Series A Noteholder shall render an opinion to the effect that such proposed sale may be effected without registration under the Securities Act; and

     (iii) such Series A Noteholder or transferee complies with Sections 9.07(b)(i) and 9.07(b)(ii).

          SECTION 9.08. Mutilated, Destroyed, Lost and Stolen Notes. If any mutilated Series A Note is surrendered to the Company, the Company shall execute and deliver in exchange therefor a new Series A Note of the same principal amount and bearing a number not contemporaneously outstanding.

          If there shall be delivered to the Company (a) evidence to its satisfaction of the destruction, loss or theft of any Series A Note and (b) such security or indemnity as may be required by the Company to save each of it and any agent harmless, then, in the absence of notice that such Series A Note has been acquired by a bona fide purchaser, the Company shall execute and deliver, in lieu of any such destroyed, lost or stolen Series A Note, a new Series A Note of a like principal amount and bearing a number not contemporaneously outstanding.

          In case any such mutilated, destroyed, lost or stolen Series A Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Series A Note, pay such Series A Note.

          Upon the issuance of any new Series A Note pursuant to this Section, the Company may require the payment of a sum sufficient to cover any Tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith.

          Every new Series A Note issued pursuant to this Section in lieu of any destroyed, lost or stolen Series A Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Series A Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Series A Notes duly issued hereunder.

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          The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Series A Notes.

          SECTION 9.09. Persons Deemed Owners. Prior to due presentment of a Series A Note for registration of transfer, the Company and any agent of the Company shall treat the Person in whose name such Series A Note is registered as the owner of such Series A Note for the purpose of receiving payment of principal of and interest on such Series A Note and for all other purposes whatsoever, whether or not such Series A Note be overdue and neither the Company nor any agent of the Company shall be affected by notice to the contrary.

          SECTION 9.10. Cancellation. All Series A Notes surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Company, be delivered to the Company and shall be promptly canceled by it. The Company shall cancel any Series A Notes previously issued and delivered hereunder which the Company may have reacquired.

          SECTION 9.11. Home Office Payment. So long as any Purchaser or its nominee shall be the holder of any Series A Note, and notwithstanding anything contained in this Agreement or such Series A Note to the contrary, the Company will pay all sums becoming due on such Series A Note for principal, premium, if any, and interest by such method and at such address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Series A Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Series A Note, such Purchaser shall surrender such Series A Note for cancellation reasonably promptly after any such request, to the Company at its principal executive office. Prior to any sale or other disposition of any Series A Note held by such Purchaser or its nominee such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Series A Note to the Company in exchange for a new Series A Note pursuant to Section 9.06. The Company will afford the benefits of this Section 9.11 to any Institutional Investor that is the direct or indirect transferee of any Series A Note purchased by such Purchaser under this Agreement and that has made the same agreement relating to such Series A Note as such Purchaser made in this Section 9.11.

SECTION 10

EVENTS OF DEFAULT

          SECTION 10.01. Events of Default. An Event of Default shall exist upon the occurrence of any of the following specified events with respect to the Series A Notes (and not, directly or indirectly, the Series B Notes) (each an “Event of Default”):

     (a) the Company defaults in the payment when due of interest on the Series A Notes and such default continues for a period of 30 days;

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     (b) the Company defaults in the payment when due of principal of or premium, if any, on the Series A Notes when the same becomes due and payable at its Maturity;

     (c) the Company or any Subsidiary fails to comply with any of the provisions of Section 7.08, 7.09, 8.02, 8.04, 8.05, 8.06, 8.08, 8.10, 8.11, 8.12, 8.13, 8.14 or 8.15 and such failure is not remedied or waived within 30 days of the receipt by the Company of notice from the Required Series A Noteholders of such failure, which notice must specify the failure, demand that it be remedied and state that the notice is a “Notice of Default”;

     (d) the Company or any Subsidiary fails to observe or perform any other covenant, or other agreement in this Agreement, the Series A Notes or the Guarantees or any other Basic Document and such failure continues for a period of 60 days after the earlier of (x) the Company becoming aware of such failure and (y) the Company receiving a notice of such failure from any Series A Noteholder, which notice must specify the failure, demand that it be remedied and state that the notice is a “Notice of Default”;

     (e) any representation, warranty, certification or statement made or deemed to have been made by or on behalf of any Issuer or by any officer of any Issuer in respect of any Basic Document or in any statement or certificate at any time given by or on behalf of any Issuer or by any officer of any Issuer in writing pursuant hereto or in connection herewith or therewith shall be false in any material respect on the date as of which made;

     (f) a default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its Subsidiaries (or payment of which is guaranteed by the Company or any of its Subsidiaries), whether such Indebtedness or guarantee now exists or is created after the date of this Agreement, or a default or early termination or other similar event occurs under a lease agreement entered into in connection with a Contemplated Lease Financing, which default (i) constitutes a failure to pay any portion of the principal of or premium, if any, or interest on such Indebtedness when due and payable after the expiration of any applicable grace period provided in such Indebtedness on the date of such default (a “Payment Default”) or (ii) shall have resulted in such Indebtedness being accelerated or otherwise becoming or being declared due and payable prior to its stated maturity and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $2,000,000 or more;

     (g) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any of its Subsidiaries and such judgment or judgments remain unpaid and undischarged for a period (during which execution shall not be effectively stayed) of 90 days, provided that the aggregate of all such undischarged judgments exceeds $2,000,000;

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     (h) the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:

     (i) commences a voluntary case or proceeding,

     (ii) consents to the entry of a decree or order for relief against it in an involuntary case or proceeding or to the commencement of any case or proceeding against it,

     (iii) consents to the filing of a petition or to the appointment of or taking possession by a Custodian of it or for all or any substantial part of its property,

     (iv) makes or consents to the making of a general assignment for the benefit of its creditors or

     (v) generally is not paying, or admits in writing that it is not able to pay, its debts as they become due;

     (i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

     (A) is for relief against the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in an involuntary case or proceeding;

     (B) appoints a Custodian of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, or for all or any substantial part of the property of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, or approves as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any of the foregoing; or

     (C) orders the winding up or liquidation of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, or adjudges any of them a bankrupt or insolvent;

and any such order or decree remains unstayed and in effect for 90 consecutive days;

     (j) any Subsidiary Guarantee of a Significant Subsidiary ceases to be in full force and effect or any Subsidiary Guarantee of a Subsidiary is declared to be null and void and unenforceable or any Subsidiary Guarantee of a Subsidiary is found to be invalid or any Guarantor denies its liability under its Subsidiary Guarantee (other than by reason of release of a Guarantor in accordance with the terms of this Agreement);

     (k) any security interest and Lien purported to be created by any Security Document shall cease to be in full force and effect, or shall cease to give the Agent, for

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the benefit of the Secured Parties, the Liens, rights, powers and privileges purported to be created and granted under such Security Document (including a perfected second priority security interest in and Lien on all of the Collateral thereunder (except as otherwise expressly provided in this Agreement or such Security Document)) in favor of the Agent, or shall be asserted by Company or any other Issuer not to be a valid, perfected, second priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in or Lien on the Collateral covered thereby and such defect in such security interest or Lien continues for a period of 30 days after the earlier of (x) the Company becoming aware of such failure and (y) the Company receiving a notice of such defect from the Agent or any Series A Noteholder, which notice must specify the defect, demand that it be remedied and state that the notice is a “Notice of Default”;

     (l) any Basic Document or any material provisions thereof shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, or a proceeding shall be commenced by any Issuer or any other person, or by any Governmental Authority, seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or any Issuer shall repudiate or deny any portion of its liability or obligation for the Obligations; or

     (m) any agent or lender under the SPV Financing Agreement shall at any time seek to enforce the guaranty of the Company provided under the SPV Financing Agreement or the guaranty agreement between the Company and Citigroup dated the date hereof unless the Company shall cause a proceeding instituted contesting such enforcement to stay the enforcement of such guaranty.

          The term “Custodian” means any custodian, receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.

          SECTION 10.02. Remedies. If an Event of Default (other than an Event of Default specified in Section 10.01(h) or 10.01(i)) occurs and is continuing, then and in every such case, subject to the terms of the Subordination Agreement, the Series A Noteholders of 25% or more in principal amount of the then outstanding Series A Notes may declare the principal amount of all the Series A Notes to be due and payable immediately, by a notice in writing to the Company, and upon any such declaration such principal amount and any accrued interest shall become immediately due and payable. For the avoidance of doubt, if any Payment Default or acceleration that constitutes an Event of Default under Section 10.01(f) shall have occurred and prior to any acceleration under this Section 10.02 such Payment Default shall have been cured or waived or such acceleration shall have been rescinded, then from and after such cure, waiver or rescission, such Event of Default shall no longer be deemed to be continuing. If an Event of Default specified in Section 10.01(h) or 10.01(i) occurs and is continuing, the principal amount of and any accrued interest on the outstanding Series A Notes shall automatically, and without any declaration or other action on the part of any Series A Noteholder, become immediately due and payable. Notwithstanding the foregoing, the right of any Series A Noteholder to receive payment of principal of, premium, if any, or interest of any Series A Note held by such Series A Noteholder on or after the respective dates expressed in such Series A Note, or to bring suit for the enforcement of any such repayment on or after such respective date, is absolute and

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unconditional and shall not be impaired or affected without the consent of such Series A Noteholder.

          At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained, the Required Series A Noteholders, by written notice to the Company, may rescind and annul such declaration and its consequences if:

          (a) the Company has paid a sum sufficient to pay:

     (i) all overdue interest on all Series A Notes;

     (ii) the principal of (and premium, if any, on) any Series A Notes which have become due otherwise than by such declaration of acceleration (including any Series A Notes required to have been purchased pursuant to an offer to purchase that the Company is required to make hereunder) and any interest thereon at the rate borne by the Series A Notes; and

     (iii) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate provided therefor in the Series A Notes; and

     (b) all Events of Default, other than the nonpayment of the principal amount of Series A Notes and interest thereon which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 10.03.

          SECTION 10.03. Waiver of Past Defaults. The Required Series A Noteholders may on behalf of the Series A Noteholders waive any past default hereunder and its consequences, except a default:

     (a) in the payment of the principal (or premium, if any) or interest on any Series A Note (including any Series A Note which is required to have been purchased pursuant to an offer to purchase that the Company is required to make hereunder), or

     (b) in respect of a covenant or provision hereof which under Section 15.04 cannot be modified or amended without the consent of the Series A Noteholder of each outstanding Series A Note affected.

          Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Agreement; provided, however, no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

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SECTION 11

REDEMPTION

          SECTION 11.01. Right of Redemption. Subject to the terms of the Subordination Agreement and the Series B Subordination Agreement, as applicable, the Notes may be redeemed at the election of the Company at any time prior to the Stated Maturity as specified in the form of Series A Note attached as Exhibit A hereto and Series B Note attached as an exhibit to the Indenture.

          SECTION 11.02. Partial Redemptions. In case the Company elects to redeem less than all of the Series A Notes, the Company shall redeem the Series A Notes pro rata from each Series A Noteholder. For all purposes of this Agreement, unless the context otherwise requires, all provisions relating to the redemption of Series A Notes shall relate, in the case of any Series A Note redeemed or to be redeemed only in part, to the portion of the principal amount of such Series A Note which has been or is to be redeemed.

          SECTION 11.03. Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 20 nor more than 60 days prior to the Redemption Date, to each Series A Noteholder to be redeemed, at its address appearing in the Note Register.

          All notices of redemption shall state:

     (a) the Redemption Date,

     (b) the Redemption Price,

     (c) if less than all the outstanding Series A Notes are to be redeemed, the portion of each Note to be redeemed,

     (d) that on the Redemption Date the Redemption Price will become due and payable upon each such Series A Note to be redeemed and that interest thereon will cease to accrue on and after said date, and

     (e) the place or places where such Series A Notes are to be surrendered for payment of the Redemption Price.

          Notice of redemption of Series A Notes to be redeemed at the election of the Company shall be given by the Company and at the expense of the Company.

          SECTION 11.04. Notes Payable on Redemption Date. If notice of redemption shall have been given as provided above, the Series A Notes to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and any applicable accrued interest) such Series A Notes shall not bear interest. Upon surrender of any such Series A Note for redemption in accordance with said notice, such Series A Note shall be paid by the Company at the Redemption Price, together with any applicable accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Series A Noteholders of such Series A Notes, or one or more Predecessor Notes, registered as such at the close of

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business on the relevant Record Dates according to their terms and the provisions of this Agreement.

          If any Series A Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate provided by the Series A Note.

          SECTION 11.05. Notes Redeemed in Part. Any Series A Note which is to be redeemed only in part shall be surrendered at the principal offices of the Company (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company duly executed by, the Series A Noteholder thereof or his attorney duly authorized in writing), and the Company shall execute and deliver to the Series A Noteholder of such Series A Note without service charge, a new Series A Note or Series A Notes, of any authorized denomination as requested by such Series A Noteholder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Series A Note so surrendered.

SECTION 12

SUBSIDIARY GUARANTEES

          SECTION 12.01. Subsidiary Guarantees. Each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Series A Noteholder, irrespective of the validity and enforceability of this Agreement, the Series A Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium and interest on the Series A Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of (and any premium) and interest on the Series A Notes, if any, if lawful, and all other obligations of the Company to the Series A Noteholders hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Series A Notes or any of such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Series A Notes or this Agreement, the absence of any action to enforce the same, any waiver or consent by any Series A Noteholder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Series A Notes and this Agreement.

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          If any Series A Noteholder is required by any court or otherwise to return to the Company or Guarantors, or any Custodian, trustee, liquidator or other similar official acting in relation to either the Company or Guarantors, any amount paid by such Series A Noteholder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Series A Noteholders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Series A Noteholders, on the other hand, (a) the Maturity of the obligations guaranteed hereby may be accelerated as provided in Section 10 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (b) in the event of any declaration of acceleration of such obligations as provided in Section 10, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Series A Noteholders under the Subsidiary Guarantees.

          SECTION 12.02. Execution and Delivery of Subsidiary Guarantees. To evidence its Subsidiary Guarantee set forth in Section 12.01, each Guarantor hereby agrees that this Agreement and a Subsidiary Guarantee in the form of Exhibit B hereto shall be executed on behalf of such Guarantor by its President or one of its Vice Presidents and, to the extent not a party to this Agreement on the date hereof, each Guarantor shall execute and deliver to the Series A Noteholders a Subsidiary Guarantee in the form of Exhibit B hereto and a supplemental agreement substantially in the form of Exhibit C hereto, pursuant to which such Subsidiary shall become a Guarantor under this Section 12 and shall guarantee the Obligations of the Company under this Agreement and the Series A Notes. Concurrently with the execution and delivery of such Subsidiary Guarantee and such supplemental agreement, such Guarantor shall deliver to the Series A Noteholders an opinion of counsel reasonably acceptable to the Purchasers that the foregoing have been duly authorized, executed and delivered by such Guarantor and that such Guarantor’s Subsidiary Guarantee is a valid and legally binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms.

          If an officer whose signature is on this Agreement or on a Subsidiary Guarantee no longer holds that office at the time the Company executes and delivers the Series A Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless. The execution and delivery of any Series A Note by the Company shall constitute due delivery of the Subsidiary Guarantee set forth in this Agreement on behalf of the Guarantors. Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 12.01 shall remain in full force and effect notwithstanding any failure to endorse on each Series A Note a notation of such Subsidiary Guarantee.

          SECTION 12.03. Guarantors May Consolidate, Etc. on Certain Terms. No Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another corporation, Person or entity (other than the Company or another Guarantor) unless:

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     (a) subject to the provisions of Section 12.04 hereof, the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) unconditionally assumes all the obligations of such Guarantor under the Series A Notes and this Agreement pursuant to a supplemental agreement, in the form of Exhibit C hereto; and

     (b) immediately after giving effect to such transaction, no Default or Event of Default exists.

          Notwithstanding the foregoing, no Guarantor shall be permitted to consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another corporation, Person or entity pursuant to the preceding sentence if such consolidation or merger would not be permitted by Section 8.10 hereof.

          In case of any such consolidation or merger and upon the assumption by the successor corporation, by supplemental agreement, executed and delivered to the Series A Noteholders and satisfactory in form to the Series A Noteholders, of the Subsidiary Guarantee endorsed upon the Series A Notes and the due and punctual performance of all of the covenants and conditions of this Agreement to be performed by the Guarantor, such successor corporation shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor corporation thereupon may cause to be signed any or all of the Subsidiary Guarantees to be endorsed upon all of the Series A Notes issuable hereunder which theretofore shall not have been signed by the Company. All the Subsidiary Guarantees so issued shall in all respects have the same legal rank and benefit under this Agreement as the Subsidiary Guarantees theretofore and thereafter issued in accordance with the terms of this Agreement as though all of such Subsidiary Guarantees had been issued at the date of the execution hereof.

          Except as set forth in Section 8 hereof, nothing contained in this Agreement or in any of the Series A Notes shall prevent any consolidation or merger of a Guarantor with or into the Company, or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company.

          SECTION 12.04. Releases of Subsidiary Guarantees. In the event of (i) a sale or other disposition of all of the assets of any Guarantor, by way of merger, consolidation or otherwise or (ii) a sale or other disposition of all of the Capital Stock of any Guarantor, such Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation, distribution or otherwise, of all of the Capital Stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all of the assets of such Guarantor) will be released and relieved of any obligations under its Subsidiary Guarantee; provided that the net proceeds of such sale or other disposition shall be applied in accordance with the provisions of Section 8.05 hereof. Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of and interest on the Series A Notes and for the other obligations of any Guarantor under this Agreement as provided in this Section 12.

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          SECTION 12.05. Limitation on Guarantor Liability. Each Guarantor, and by its acceptance of the Series A Notes, each Series A Noteholder, hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Guarantor 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 federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Series A Noteholders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor under its Subsidiary Guarantee and this Section 12 shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Section 12, result in the obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.

SECTION 13

EXPENSES, INDEMNIFICATION AND CONTRIBUTION, AND TERMINATION

          SECTION 13.01. Expenses. Whether or not the transactions contemplated hereby are consummated, the Issuers will pay all costs and expenses (including reasonable attorneys’, accountants’, advisors’, appraisers’ and consultants’ fees and disbursements) incurred by the Purchasers, the Agent or any Noteholder in connection with the Transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement, the other Basic Documents or the Purchased Securities (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the Purchasers’ reasonable out-of-pocket expenses in connection with the Purchasers’ examinations and appraisals of the Issuers’ properties, books and records, (b) the Purchasers’ reasonable out-of-pocket expenses in connection with the preparation, review, negotiation, execution and delivery of the Basic Documents and the consummation of the Transactions, (c) the costs and expenses incurred in enforcing, defending or declaring (or determining whether or how to enforce, defend or declare) any rights or remedies under this Agreement, the Basic Documents or the Purchased Securities or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement, the other Basic Documents or the Purchased Securities, or by reason of being a holder of any Purchased Securities, and (d) the costs and expenses, including reasonable and documented consultants’ and advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or any Subsidiary of the Company or in connection with any workout or restructuring of the transactions contemplated hereby, by the other Basic Documents or by the Purchased Securities; provided however that compliance with the limitations on payment thereof imposed by Section 2.2 of the Subordination Agreement or Section 2.2 of the Series B Subordination Agreement, as the case may be, shall be deemed to not constitute a Default. The Company will pay, and will save the Purchasers, the Agent and each other holder of a Purchased Security harmless from, all claims in respect of any fees, costs or expenses if any, of brokers and finders in relation to the Transactions.

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          SECTION 13.02. Indemnification.

          (a) Indemnification by the Issuers. Each Issuer, jointly and severally, agrees to indemnify and hold harmless (i) each Purchaser, (ii) each Agent, (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Person referred to in clause (i) (any of the Persons referred to in this clause (iii) being referred to herein as a “Controlling Person”) and (iv) the respective officers, directors, managing directors, stockholders, partners, employees, representatives, trustees, fiduciaries, and agents of any Person referred to in clause (i) or any such Controlling Person (any such Person referred to in clause (i), (ii), (iii) or (iv), a “Purchaser Indemnified Person”) against any losses, claims, damages or liabilities, joint or several, to which such Purchaser Indemnified Person may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) in whole or in part upon any inaccuracy in any of the representations and warranties of the Issuers contained herein, (ii) in whole or in part upon any failure of any Issuer to perform its obligations hereunder or under Applicable Law, or (iii) any change in the financial condition, operations, business, properties or prospects of the Company and its Subsidiaries during the period from the Audit Date to the Closing Time, inclusive, that, individually or in the aggregate, has had or would have a Material Adverse Effect that has not been disclosed in writing to the Purchasers, and will reimburse each such Purchaser Indemnified Person for any legal and other expenses incurred by such Purchaser Indemnified Person in connection with investigating or defending any such action or claims as such expenses are incurred. The indemnity agreement set forth in this Section 13.02(a) shall be in addition to any liabilities that the Issuers may otherwise have.

          (b) Notifications and Other Indemnification Procedures. Promptly after receipt by a Purchaser Indemnified Person of notice of the commencement of any action, such Purchaser Indemnified Person shall, if a claim in respect thereof is to be made against an indemnifying party under Section 13.02(a), notify such indemnifying party in writing of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any Purchaser Indemnified Person otherwise than under Section 13.02(a), or to the extent it is not materially prejudiced as a proximate result of such failure. In case any such action is brought against any Purchaser Indemnified Person and it shall notify an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it shall elect within 30 days after receiving any such notification, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such Purchaser Indemnified Person, and, after notice from the indemnifying party to such Purchaser Indemnified Person of its election so to assume the defense thereof, the indemnifying party shall not be liable to such Purchaser Indemnified Person under such paragraph for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Purchaser Indemnified Person, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, any Purchaser Indemnified Person shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnified Person unless (i) the Purchaser Indemnified Person shall have been advised by counsel that representation of the Purchaser Indemnified Person by counsel provided by the indemnifying party would be inappropriate due to actual or potential conflicting interests between the indemnifying party and the Purchaser Indemnified Person, including situations in which there are one or more legal defenses available to the Purchaser Indemnified Person that are different from or additional to those available to the indemnifying party, (ii) the

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indemnifying party shall have authorized in writing the employment of counsel for the Purchaser Indemnified Person at the expense of the indemnifying party or (iii) the indemnifying party shall have failed to assume the defense or retain counsel reasonably satisfactory to the Purchaser Indemnified Person; provided, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Purchaser Indemnified Persons, except to the extent that local counsel, in addition to their regular counsel, is required in order to effectively defend against such action or proceeding. No indemnifying party shall, without the written consent of the Purchaser Indemnified Person, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Purchaser Indemnified Person is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Purchaser Indemnified Person from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Purchaser Indemnified Person.

          SECTION 13.03. Contribution. If the indemnification provided for in Section 13.02 is unavailable to or insufficient to hold harmless a Purchaser Indemnified Person under paragraph (a) or (b) of Section 13.02 in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such Purchaser Indemnified Person as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the (i) relative benefits received by the Issuers on the one hand and the Purchasers on the other hand from the issuance and sale of the Purchased Securities; or (ii) if the allocation provided in clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the related benefits referred to in clause (i) above but also the relative fault of the indemnifying party on the one hand and the Purchaser Indemnified Person on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Issuers on the one hand and the Purchasers on the other hand in connection with the sale of the Purchased Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Purchased Securities pursuant to this Agreement (before deducting expenses) received by the Issuers and the total fees received by the Purchasers, bear to the aggregate initial sale price of the Purchased Securities. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the Purchaser Indemnified Person on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contributions pursuant to this Section 13.03 were determined by pro rata allocation (even if the Purchaser Indemnified Persons were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 13.03.

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          The obligations of the Issuers under this Section 13.03 shall be in addition to any liability which the Issuers may otherwise have.

          SECTION 13.04. Survival. The obligations of the Issuers under this Section 13 will survive the payment or transfer of any Purchased Security, the enforcement, amendment or waiver of any provision of this Agreement and the termination of this Agreement.

          SECTION 13.05. Termination.

          (a) The Purchasers may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has been, since the time of execution of this Agreement or since the Audit Date, any material adverse change in the business, management, operations, affairs, condition (financial or otherwise) assets, property, prospects or results of operations of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions which, in each case, in the judgment of the Purchasers, could reasonably be expected to materially and adversely affect or impair the ability to sell or place securities such as the Purchased Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the American Stock Exchange, or if trading generally on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or (iv) if a banking moratorium has been declared by either Federal or New York authorities.

          (b) Liabilities. If this Agreement is terminated pursuant to this Section 13.05, such termination shall be without liability of any party to any other party except as provided in Section 13.01 hereof, provided that Sections 1, 13.02, 13.03, 13.04, 14.08 and 14.12 shall survive such termination and remain in full force and effect.

SECTION 14

AGENT

          SECTION 14.01. Appointment. Each Series A Noteholder hereby designates and appoints Credit Suisse, Cayman Islands Branch as its agent (“the Agent”) under this Agreement, the Security Agreement and the other Basic Documents to which such Series A Noteholder is a party, and each Series A Noteholder hereby irrevocably authorizes the Agent to execute and deliver the Security Documents, the Subordination Agreement, any post-closing agreements and all other intercreditor agreements as the Agent deems appropriate and to take such action or to refrain from taking such action on its behalf under the provisions of such agreements, this Agreement and the other Basic Documents and to exercise such powers as are

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set forth herein or therein, together with such other powers as are reasonably incidental thereto. Each Series A Noteholder agrees to be bound by the terms and conditions of each Basic Document entered into by the Agent on behalf of such Series A Noteholder. The Agent is authorized and empowered to amend, modify or waive any provisions of this Agreement or the other Basic Documents on behalf of the Series A Noteholders subject to the requirement that certain of the Series A Noteholders’ consent be obtained in certain instances as provided in this Section 14.01 and Section 15.04. The provisions of this Section 14.01(a) are solely for the benefit of Agent and the Series A Noteholders and neither the Company nor any other Issuer shall have any rights as a third-party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, the Agent shall act solely as agent of the Series A Noteholders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for the Company or any other Issuer. The Agent may perform any of its duties hereunder, or under the Basic Documents, by or through its agents or employees.

          SECTION 14.02. Nature of Duties. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Series A Noteholder. Nothing in this Agreement or any of the Basic Documents, express or implied, is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the Basic Documents except as expressly set forth herein or therein. Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Series A Noteholder with any credit or other information with respect to the Issuers (other than as expressly required herein). If Agent seeks the consent or approval of any Series A Noteholders to the taking or refraining from taking of any action hereunder, then Agent shall send notice thereof to each Series A Noteholder. Agent shall promptly notify each Series A Noteholder any time that the Required Series A Noteholders have instructed Agent to act or refrain from acting pursuant hereto.

          SECTION 14.03. Rights, Exculpation, Etc. Neither Agent nor any of its officers, directors, employees or agents shall be liable to any Series A Noteholder for any action taken or omitted by it hereunder or under any of the Basic Documents, or in connection herewith or therewith, except that Agent shall be liable to the extent of its own gross negligence or willful misconduct as determined by a final nonappealable order by a court of competent jurisdiction. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Series A Noteholder to whom payment was due but not made shall be to recover from other Series A Noteholders any payment in excess of the amount to which they are determined to be entitled (and such other Series A Noteholders hereby agree to return to such Series A Noteholder any such erroneous payments received by them). In no event shall Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, Agent shall exercise the same care which it would in dealing with transactions for its own account, but neither Agent nor any of its agents or representatives shall be responsible to any Series A Noteholder for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Agreement or any of the Basic Documents or the transactions contemplated thereby, or for the financial condition of any Issuer. Agent shall not be required to make any inquiry concerning either the performance or observance

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of any of the terms, provisions or conditions of this Agreement or any of the Basic Documents or the financial condition of any Issuer, or the existence or possible existence of any Default or Event of Default. Agent may at any time request instructions from the Required Series A Noteholders or all affected Series A Noteholders with respect to any actions or approvals which by the terms of this Agreement or of any of the Basic Documents Agent is permitted or required to take or to grant. If such instructions are promptly requested, Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Basic Documents until it shall have received such instructions from the Required Series A Noteholders or such other portion of the Series A Noteholders as shall be prescribed by this Agreement. Without limiting the foregoing, no Series A Noteholder shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement or any of the other Basic Documents in accordance with the instructions of the Required Series A Noteholders or all affected Series A Noteholders, as applicable; and, notwithstanding the instructions of Required Series A Noteholders or all affected Series A Noteholders, as applicable, Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal by Agent or exposes Agent to any liability for which it has not received satisfactory indemnification in accordance with Section 14.05.

          SECTION 14.04. Reliance. Agent shall be entitled to rely, and shall be fully protected in relying, upon any written or oral notices, statements, certificates, orders or other documents or any telephone message or other communication (including any writing, telex, fax or telegram) believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the Basic Documents and its duties hereunder or thereunder, Agent shall be entitled to rely upon the advice of legal counsel, independent accountants and other experts selected by Agent in its sole discretion.

          SECTION 14.05. Indemnification. The Series A Noteholders will reimburse and indemnify Agent for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, attorneys’ fees and expenses), advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Agent in any way relating to or arising out of this Agreement or any of the Basic Documents or any action taken or omitted by Agent under this Agreement or any of the Basic Documents, in proportion to each Series A Noteholder’s Pro Rata Share, but only to the extent that any of the foregoing is not reimbursed by the Company; provided, however, that no Series A Noteholder shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements to the extent resulting from Agent’s gross negligence or willful misconduct as determined by a final nonappealable order by a court of competent jurisdiction. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against even if so directed by the Required Series A Noteholders or such other portion of the Series A Noteholders as shall be prescribed by this Agreement until such additional indemnity is furnished. The obligations of the Series A Noteholders under this Section 14.05 shall survive the payment in full of the Obligations and the termination of this Agreement.

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          SECTION 14.06. Credit Suisse, Cayman Islands Branch Individually. With respect to its purchase of the Purchased Securities hereunder, Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Series A Noteholder. The terms “Series A Noteholders,” “Required Series A Noteholders” or any similar terms shall, unless the context clearly otherwise indicates, include Credit Suisse, Cayman Islands Branch in its individual capacity as a Series A Noteholder or one of the Required Series A Noteholders. Agent, either directly or through strategic affiliations, may lend money to, acquire equity or other ownership interests in, provide advisory services to and generally engage in any kind of banking, trust or other business with any Issuer as if it were not acting as Agent pursuant hereto and without any duty to account therefor to Series A Noteholders. Agent, either directly or through strategic affiliations, may accept fees and other consideration from any Issuer for services in connection with this Agreement or otherwise without having to account for the same to Series A Noteholders.

          SECTION 14.07. Successor Agent.

          (a) Resignation. Agent may resign from the performance of all its agency functions and duties hereunder at any time by giving at least thirty (30) Business Days’ prior written notice to the Company and the Series A Noteholders. Such resignation shall take effect upon the acceptance by a successor agent of appointment pursuant to clause (ii) below or as otherwise provided in clause (ii) below.

          (b) Appointment of Successor. Upon any such notice of resignation pursuant to clause (a) above, the Required Series A Noteholders shall appoint a successor agent which, unless an Event of Default has occurred and is continuing, shall be reasonably acceptable to the Company. If a successor agent shall not have been so appointed within the thirty (30) Business Day period referred to in clause (a) above, the retiring agent, upon notice to the Company, shall then appoint a successor agent who shall serve as agent until such time, if any, as the Required Series A Noteholders appoint a successor agent as provided above.

          (c) Successor Agent. Upon the acceptance of any appointment as agent under the Basic Documents by a successor agent, such successor agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring agent, and the retiring agent shall be discharged from its duties and obligations under the Basic Documents. After any retiring agent’s resignation as agent, the provisions of this Section 14 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it in its capacity as agent.

          SECTION 14.08. Collateral Matters.

          (a) Release of Collateral. The Series A Noteholders hereby irrevocably authorize Agent, at its option and in its discretion, to release any Lien granted to or held by Agent upon any Collateral (x) upon payment and satisfaction of all Obligations (other than contingent indemnification obligations to the extent no claims giving rise thereto have been asserted), or (y) constituting property being sold or disposed of if the Company certifies to Agent that the sale or disposition is made in compliance with the provisions of this Agreement (and Agent may rely in good faith conclusively on any such certificate, without further inquiry).

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          (b) Confirmation of Authority; Execution of Releases. Without in any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Series A Noteholders (as set forth in Section 14.08(a)), each Series A Noteholder agrees to confirm in writing, upon request by Agent or the Company, the authority to release any Collateral conferred upon Agent under clauses (x), (y) and (z) of Section 14.08(a). Upon receipt by Agent of any required confirmation from the Required Series A Noteholders of its authority to release any particular item or types of Collateral, and upon at least ten (10) Business Days’ prior written request by the Company, Agent shall (and is hereby irrevocably authorized by the Series A Noteholders to) execute such documents as may be necessary to evidence the release of the Liens granted to Agent upon such Collateral; provided, however, that (x) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of any Issuer in respect of) all interests retained by any Issuer, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.

          (c) Absence of Duty. Agent shall have no obligation whatsoever to any Series A Noteholder or any other Person to assure that the property covered by the Security Documents exists or is owned by the Company or any other Issuer or is cared for, protected or insured or has been encumbered or that the Liens granted to Agent have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent in this Section 14.08(c) or in any of the Basic Documents, it being understood and agreed that in respect of the property covered by the Security Documents or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in property covered by the Security Documents as one of the Series A Noteholders and that Agent shall have no duty or liability whatsoever to any of the other Series A Noteholders, provided that Agent shall exercise the same care which it would in dealing with loans for its own account.

          SECTION 14.09. Agency for Perfection. Agent and each Series A Noteholder hereby appoint each other Series A Noteholder as agent for the purpose of perfecting Agent’s security interest in assets which, in accordance with the Code in any applicable jurisdiction, can be perfected by possession or control. Should any Series A Noteholder (other than Agent) obtain possession or control of any such assets, such Series A Noteholder shall notify Agent thereof, and, promptly upon Agent’s request therefor, shall deliver such assets to Agent or in accordance with Agent’s instructions or transfer control to Agent in accordance with Agent’s instructions. Each Series A Noteholder agrees that it will not have any right individually to enforce or seek to enforce any Security Document or to realize upon any collateral security for the Notes and the Guarantees unless instructed to do so by Agent in writing, it being understood and agreed that such rights and remedies may be exercised only by Agent.

          SECTION 14.10. Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default except with respect to defaults in the payment of principal, interest and Fees required to be paid to Agent for the

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account of the Series A Noteholders, unless Agent shall have received written notice from a Series A Noteholder or the Company referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “Notice of Default.” Agent will use reasonable efforts to notify each Series A Noteholder of its receipt of any such notice, unless such notice is with respect to defaults in the payment of principal, interest and fees, in which case Agent will notify each Series A Noteholder of its receipt of such notice. Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required Series A Noteholders in accordance with Section 10. Unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interests of Series A Noteholders.

          SECTION 14.11. Series A Noteholder Actions Against Collateral. Each Series A Noteholder agrees that it will not take any action, nor institute any actions or proceedings, with respect to the Notes and the Guarantees, against the Company or any Issuer hereunder or under the other Basic Documents or against any of the Real Property encumbered by Mortgages without the consent of the Required Series A Noteholders. With respect to any action by Agent to enforce the rights and remedies of Agent and the Series A Noteholders under this Agreement and the other Basic Documents, each Series A Noteholder hereby consents to the jurisdiction of the court in which such action is maintained, and agrees to deliver its Notes to Agent to the extent necessary to enforce the rights and remedies of Agent for the benefit of the Series A Noteholders under the Mortgages in accordance with the provisions hereof.

          SECTION 14.12. Setoff and Sharing of Payments. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, during the continuance of any Event of Default, each Series A Noteholder is hereby authorized by the Company at any time or from time to time, with reasonably prompt subsequent notice to the Company (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (A) balances held by such Series A Noteholder at any of its offices for the account of the Company or any of its Subsidiaries (regardless of whether such balances are then due to the Company or its Subsidiaries), and (B) other property at any time held or owing by such Series A Noteholder to or for the credit or for the account of the Company or any of its Subsidiaries, against and on account of any of the Obligations; except that no Series A Noteholder shall exercise any such right without the prior written consent of Agent. Any Series A Noteholder exercising a right to set off shall purchase for cash (and the other Series A Noteholders shall sell) interests in each of such other Series A Noteholder’s Pro Rata Share of the Obligations as would be necessary to cause all Series A Noteholders to share the amount so set off with each other Series A Noteholder in accordance with their respective Pro Rata Shares. The Company agrees, to the fullest extent permitted by law, that any Series A Noteholder may exercise its right to set off with respect to amounts in excess of its Pro Rata Share of the Obligations and upon doing so shall deliver such amount so set off to the Agent for the benefit of all Series A Noteholders in accordance with their Pro Rata Shares.

          SECTION 14.13. Withholding. Any Series A Noteholder that is entitled to an exemption from or reduction of United States backup withholding tax or withholding tax shall deliver to the Issuer (with a copy to the Agent), at least 30 days prior to the Stated Maturity of the Series A Notes, such properly completed and executed documentation prescribed by

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applicable law as will permit such payments to be made without such withholding or at a reduced rate of withholding (which documentation in the case of a Series A Noteholder that is a United States person will generally be an IRS Form W-9, and in the case of a Series A Noteholder that is not a United States person, will generally be the applicable IRS Form W-8, together with any required supporting documentation); provided that such Series A Noteholder is legally entitled to complete, execute and deliver such documentation and in such Series A Noteholder’s judgment such completion, execution or delivery would not materially prejudice the legal position of such Series A Noteholder.

SECTION 15

MISCELLANEOUS

          SECTION 15.01. Notices. Except as otherwise expressly provided herein, all notices and other communications shall have been duly given and shall be effective (a) when delivered, (b) when transmitted via telecopy (or other facsimile device) to the number set out below if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), (c) the Business Day following the day on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case to the respective parties at the address set forth below, or at such other address as such party may specify by written notice to the other party hereto:

     (i) if to a Purchaser or its nominee, to the Purchaser or its nominee at the address specified for such communications in Schedule A, or at such other address as the Purchaser or its nominee shall have specified to the Company in writing;

     (ii) if to any other Noteholder, to such Noteholder at the address of such Noteholder appearing in the Note Register or such other address as such other Noteholder shall have specified to the Company in writing;

     (iii) if the Agent, to the Agent at Eleven Madison Avenue, New York, NY 10010-3629, attention: Matthew Carter, RD Loan Servicing Group, or at such other address as the Agent shall have specified to the Company in writing;

     (iv) if to an Issuer, to the Company at 2601 S. Bayshore Drive, Miami, FL 33133, Attention: Chief Financial Officer, with a copy to: Greenberg Traurig at 1221 Brickell Avenue, 22^nd Floor, Miami, FL 33133, Attention: Barbara Oikle, or at such other address as the Company shall have specified to such Noteholder in writing.

          SECTION 15.02. Benefit of Agreement; Assignments and Participations. Except as otherwise expressly provided herein, all covenants, agreements and other provisions contained in this Agreement by or on behalf of any of the parties hereto shall bind, inure to the benefit of and be enforceable by their respective successors and registered assigns (including, without limitation, any subsequent holder of a Purchased Security) whether so expressed or not; provided, however, that the Company may not assign and transfer any of its rights or obligations without the prior written consent of the other parties hereto and each such holder.

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          Nothing in this Agreement or in the Purchased Securities, express or implied, shall give to any Person other than the parties hereto, their successors and assigns and the holders from time to time of the Purchased Securities any benefit or any legal or equitable right, remedy or claim under this Agreement.

          SECTION 15.03. No Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto or any Noteholder in exercising any right, power or privilege hereunder or under the Purchased Securities and no course of dealing between any Issuer and any other party or Noteholder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under the Purchased Securities preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights and remedies provided herein and in the Purchased Securities are cumulative and not exclusive of any rights or remedies which the parties or Noteholders would otherwise have. No notice to or demand on any Issuer in any case shall entitle any Issuer to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the other parties hereto or the Noteholders to any other or further action in any circumstances without notice or demand.

          SECTION 15.04. Amendments, Waivers and Consents. This Agreement may be amended, and the observance of any term hereof may be waived (either retroactively or prospectively) with (and only with) the written consent of the Company and the Required Series A Noteholders (or, if prior to the Closing Time, Purchasers who have agreed to purchase a majority in aggregate principal amount of the Series A Notes); provided, however, that no such amendment or waiver may, without the prior written consent of each Series A Noteholder affected thereby (or each Purchaser if prior to the Closing Time) (i) subject any Series A Noteholder to any additional obligation, (ii) reduce the principal of (or premium, if any) or rate of interest on any Series A Note, (iii) postpone the date fixed for any payment of principal of (or premium, if any) or interest on any Series A Note, (iv) change the percentage of the aggregate principal amount of the Series A Notes the Series A Noteholders of which shall be required to consent or take any other action under this Section 15.04 or any other provision of this Agreement, (v) amend or waive the provisions of (a) Section 7.08 following the occurrence of a Change of Control or (b) Sections 7.09 or 8.05 following the maturity at the Company’s obligation to make an Asset Sale Offer and in the case of each of clauses (a) and (b), any of the definitions used in such Sections, (vi) change the time at which any Series A Note may be redeemed, (vii) impair the right of any Series A Noteholder to receive payment of principal, premium, if any, and interest on such Series A Noteholder’s Series A Notes on or after the due dates therefore or to institute suit for the enforcement of any payment on or with respect to such Series A Noteholder’s Series A Notes, (viii) adversely affect the ranking of the Series A Notes, (ix) change the currency in which amounts due under the Series A Notes are payable, (x) release any Guarantor from its Guarantee of the Series A Notes other than in accordance with the terms of this Agreement or (xi) except to the extent permitted or required by the terms of the Subordination Agreement, release all or a substantial portion of the Collateral from the Liens of the Security Documents or alter the relative priorities of the Secured Obligations entitled to the Liens of the Security Documents, in each case without the written consent of each Series A Noteholder. No amendment or waiver of this Agreement will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or thereby impair any right consequent thereon. Without the consent of any other person, the applicable

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Issuer or Issuers and the Agent may (in its or their respective sole discretion, or shall, to the extent required by any Basic Document) enter into any amendment or waiver of any Basic Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable Requirements of Law. As used herein, the term this “Agreement” and references thereto shall mean this Agreement as it may from time to time be amended or supplemented.

          SECTION 15.05. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

          SECTION 15.06. Reproduction. This Agreement, the other Basic Documents and all documents relating, hereto and thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by the Purchasers at the Closing Time (except the Purchased Securities themselves), and (c) financial statements, certificates and other information previously or hereafter furnished in connection herewith, may be reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other similar process and any original document so reproduced may be destroyed. Each Issuer agrees and stipulates that, to the extent permitted by Applicable Law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 14.06 shall not prohibit any Issuer, any other party hereto or any Noteholder from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.

          SECTION 15.07. Headings. The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

          SECTION 15.08. Governing Law; Submission to Jurisdiction; Venue.

          (a) THIS AGREEMENT AND THE SECURITIES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

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          (b) If any action, proceeding or litigation shall be brought by any Purchaser or any Noteholder in order to enforce any right or remedy under this Agreement or any of the Purchased Securities, the Issuers hereby consent and will submit, and will cause each of their Subsidiaries to submit, to the jurisdiction of any state or federal court of competent jurisdiction sitting within the area comprising the Southern District of New York on the date of this Agreement. The Issuers hereby irrevocably waive any objection, including, but not limited to, any objection to the laying of venue or based on the grounds of forum non conveniens, which they may now or hereafter have to the bringing of any such action, proceeding or litigation in such jurisdiction. The Issuers further agree that they shall not, and shall cause their Subsidiaries not to, bring any action, proceeding or litigation arising out of this Agreement, the Purchased Securities, the Subsidiary Guarantees or any other Basic Document in any state or federal court other than any state or federal court of competent jurisdiction sitting within the area comprising the Southern District of New York on the date of this Agreement.

          (c) The Issuers hereby irrevocably designate CT Corporation System at an address in New York City designated at the Closing Time as the designee, appointee and agent of the Issuers to receive, for and on behalf of the Issuers, service of process in such jurisdiction in any action, proceeding or litigation with respect to this Agreement, the Purchased Securities, the Subsidiary Guarantees or any of the other Basic Documents. It is understood that a copy of such process served on such agent will be promptly forwarded by mail to the applicable Issuers at its address set forth opposite its signature below, but the failure of the applicable Issuers to have received such copy shall not affect in any way the service of such process. The applicable Issuers further irrevocably consent to the service of process of any of the aforementioned courts in any such action, proceeding or litigation by the mailing of copies thereof by registered or certified mail, postage prepaid, to the Company at its said address, such service to become effective thirty (30) days after such mailing.

          (d) Nothing herein shall affect the right of any Noteholder to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against the Issuers in any other jurisdiction. If service of process is made on a designated agent it should be made by either (i) personal delivery or (ii) mailing a copy of summons and complaint to the agent via registered or certified mail, return receipt requested.

          (e) THE ISSUERS HEREBY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT, ANY OF THE SECURITIES OR THE SUBSIDIARY GUARANTEES.

          SECTION 15.09. Severability. If any provision of this Agreement is determined to be illegal, invalid or unenforceable, such provision shall be fully severable to the extent of such illegality, invalidity or unenforceability and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions.

          SECTION 15.10. Entirety. This Agreement together with the other Basic Documents represents the entire agreement of the parties hereto and thereto, and supersedes all

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prior agreements and understandings, oral or written, if any, relating to the Basic Documents or the transactions contemplated herein or therein.

          SECTION 15.11. Survival of Representations and Warranties. All representations and warranties and covenants and indemnities made by the Issuers herein shall survive the execution and delivery of this Agreement, the issuance and transfer of all or any portion of the Purchased Securities and the payment of principal of the Notes and any other obligations hereunder, regardless of any investigation made at any time by or on behalf of the Purchasers or any other holder that is Affiliated with the Purchasers. All statements contained in any certificate delivered by or on behalf of any Issuers pursuant to this Agreement shall be deemed representations and warranties of the Issuers under this Agreement.

          SECTION 15.12. Incorporation. All Exhibits and Schedules attached hereto are incorporated as part of this Agreement as if fully set forth herein.

          SECTION 15.13. Certain Rights and Obligations Among Noteholders. If, at any time or times, a Series A Noteholder shall not have received a payment in respect of the Series A Notes when due, then it shall notify the other Series A Noteholders of such fact, the amount of such nonpayment, the date or period to which it relates and such other Series A Noteholders which have received such payments (whether by voluntary payment, setoff or otherwise) shall remit to the unpaid Series A Noteholder such amount as is necessary to allocate the aggregate amount of such payments among all Series A Noteholders in accordance with their Pro Rata Share. The amount of any such remittance shall be credited on the Series A Note of the Series A Noteholder to whom it is remitted, and shall not be credited on the Series A Note of the remitting Series A Noteholder. The provisions of this Section are solely for the benefit of the Series A Noteholders, and neither the Issuers nor any other Person other than a Series A Noteholder shall have any rights with respect to or be entitled to enforce this Section.

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          IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.

THE COMPANY: TERREMARK WORLDWIDE, INC.
By:	/s/ Jose A. Segrera
	Name:	Jose A. Segrera
	Title:	Chief Financial Officer

THE GUARANTORS: NAP OF THE AMERICAS, INC. NAP OF THE AMERICAS/WEST, INC. PARK WEST TELECOMMUNICATIONS INVESTORS, INC. SPECTRUM TELECOMMUNICATIONS CORP. TECOTA SERVICES CORP. TERREMARK EUROPE, INC. TERREMARK FINANCIAL SERVICES, INC. TERREMARK FORTUNE HOUSE #1, INC. TERREMARK LATIN AMERICA, INC. TERREMARK MANAGEMENT SERVICES, INC. TERREMARK REALTY, INC. TERREMARK TECHNOLOGY CONTRACTORS, INC. TERREMARK TRADEMARK HOLDINGS, INC. TERRENAP DATA CENTERS, INC. TERRENAP SERVICES, INC.
By:	/s/ Jose A. Segrera
	Name:	Jose A. Segrera
	Title:	Chief Financial Officer

OPTICAL COMMUNICATIONS, INC.
By:	/s/ Manuel D. Medina
	Name:	Manuel D. Medina
	Title:

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TERREMARK FEDERAL GROUP, INC.
By:	/s/ Nelson Fonseca
	Name:	Nelson Fonseca
	Title:	Treasurer & CFO

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AGENT: CREDIT SUISSE, CAYMAN ISLANDS BRANCH
By:	/s/ Julia P. Kingsbury
	Name:	Julia P. Kingsbury
	Title:	Director
By:	/s/ Pilarcita V. Naval
	Name:	Pilarcita V. Naval
	Title:	Assistant Vice President

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PURCHASER: CREDIT SUISSE, CAYMAN ISLANDS BRANCH
By:	/s/ Robert Nydegger
	Name:	Robert Nydegger
	Title:	Managing Director

By:	/s/ Damien Dwin
	Name:	Damien Dwin
	Title:	Director

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PURCHASER: CREDIT SUISSE, INTERNATIONAL
By:	/s/ Robert Nydegger
	Name:	Robert Nydegger
	Title:	Managing Director

By:	/s/ Damien Dwin
	Name:	Damien Dwin
	Title:	Director

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EXHIBIT A

[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 JANUARY 5, 2007 (THE “PURCHASE AGREEMENT”), AMONG TERREMARK WORLDWIDE, INC. (THE “COMPANY”), THE GUARANTORS NAMED THEREIN, THE AGENT AND THE PURCHASERS NAMED THEREIN. A COPY OF SUCH PURCHASE AGREEMENT IS AVAILABLE AT THE OFFICES OF THE COMPANY.

THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE COMPANY AGREES TO PROVIDE PROMPTLY TO HOLDERS OF NOTES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE NOTES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT THE FOLLOWING ADDRESS: 2601 S. BAYSHORE DRIVE, 9^TH FLOOR, MIAMI, FLORIDA 33133.

THE SECURITY REPRESENTED BY THIS CERTIFICATE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATED IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT (THE “SUBORDINATION AGREEMENT”) DATED AS OF JANUARY 5, 2007 AMONG TERREMARK WORLDWIDE, INC. AS THE ISSUER, THE SUBSIDIARY GUARANTORS NAMED THEREIN, FMP AGENCY SERVICES, LLC, AS THE SENIOR AGENT TO THE SENIOR CREDITORS NAMED THEREIN, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, THE SUBORDINATED AGENT TO THE SUBORDINATED CREDITORS NAMED THEREIN AND EACH HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.

Execution Copy

A-1

SENIOR SUBORDINATED SECURED NOTES DUE 2009

$                    

CUSIP: 881448 AD 6

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 June 30, 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.

          IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated: January  , 2007

TERREMARK WORLDWIDE, INC.
By:
	Name: Title:

A-2

[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 Subordinated Secured Notes due 2009 (herein called the “Notes”), limited in aggregate principal amount to the sum of (a) $10,000,000 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 January 5, 2007 (herein called the “Purchase Agreement”), among the Company, the Guarantors named therein, the Agent 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 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 the last Business Day of each March, June, September and December in each year commencing March 30, 2007 (each, an “Interest Payment Date”) and at Stated Maturity at the Applicable Rate, until the principal hereof is paid. On each such Interest Payment Date the Company shall pay such interest by adding the amount thereof to the principal amount of this Note on such Interest Payment Date, and shall within five (5) Business Days of each relevant Interest Payment Date deliver to the Noteholder of this Note written notice stating the amount of interest so added to the principal of this Note and the new principal amount of this Note.

          “Applicable Rate” means the Eurodollar Rate plus 8.00%, provided that from and after January 1, 2009 through the Stated Maturity Date, the Applicable Rate shall be equal to the Eurodollar Rate plus 9.00%.

          “Eurocurrency Reserve Requirements” means, for any day, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves under any regulations of the Board of Governors of the Federal Reserve System of the United States (or any successor) (the “Board”) or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the Federal Reserve System.

A-3

          “Eurodollar Base Rate” means, with respect to each day during each Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the commencement of such Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “Eurodollar Base Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period.

          “Eurodollar Rate” means, with respect to each day during each Interest Period, a rate per annum determined for such day in accordance with the following formula:

Eurodollar Base Rate

1.00 - Eurocurrency Reserve Requirements

          “Interest Payment Date” means the last day of each Interest Period.

          “Interest Period” means an interest period (i) initially, commencing on January 5, 2007 and ending on March 30, 2007; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires and ending on the immediately succeeding day that is the last Business Day of each March, June, September and December occurring thereafter.

          To the extent that the payment of such interest shall be legally enforceable, any principal of, or premium or installment of interest on, this Note which is overdue shall bear interest at the rate of 2% per annum in excess of the rate of interest then borne by the Notes (“default interest”) from the date such amounts are due until they are paid, and the entire amount of such default interest shall be payable in cash.

          Interest on this Note shall be computed on the basis of the actual number of days elapsed over a year of 360 days.

          All interest payable, on any Interest Payment Date will, as provided in the Purchase Agreement, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the “Regular Record Date” for such interest, which shall be the fifteenth calendar day (whether or not a Business Day) immediately preceding such Interest Payment Date. Notwithstanding the foregoing, if this Note is issued after a Regular Record Date and prior to an Interest Payment Date, the record date for such Interest Payment Date shall be the original issue date.

          3. Redemption. The Company may, at its option, redeem the Notes, in whole or in part at any time prior to the Stated Maturity, at the then outstanding balance of such Note (including interest that has accreted to principal) plus accrued but unaccreted interest.

A-4

          4. Procedures for Redemption. If less than all the Notes are to be redeemed, the Notes shall be redeemed pro rata from each Noteholder.

          In the event of redemption or purchase pursuant to an offer to purchase this Note in part only, a new Note or Notes for the unredeemed or unpurchased portion hereof will be issued in the name of the Noteholder hereof upon the cancellation hereof.

          5. Events of Default. If an Event of Default shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Purchase Agreement.

          6. Offers to Purchase Notes. The Purchase Agreement provides that, subject to certain conditions, if (i) certain Excess Proceeds are available to the Company as a result of Asset Sales, (ii) a Change of Control occurs, or (iii) if there is an exercise of an early buy-out option granted in connection with the Contemplated Lease Financings, the Company shall be required to make an offer to purchase all or a specified portion of the Notes as provided for in the Purchase Agreement.

          7. Amendments, Modifications and Waivers. The Purchase Agreement permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and certain rights of the Noteholders under the Purchase Agreement at any time by the Company with the consent of the holders of a majority in aggregate principal amount of the Notes at the time outstanding. The Purchase Agreement also contains provisions permitting the Noteholders of specified percentages in the aggregate principal amount of the Notes at the time outstanding, on behalf of the Noteholders of all the Notes, to waive compliance by the Company with certain provisions of the Agreement and certain past defaults under the Agreement and their consequences. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

          8. Registration of Transfer. As provided in the Purchase Agreement and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the principal offices of the Company, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company duly executed by, the holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          The Notes are issuable only in registered form without coupons in denominations authorized under the Purchase Agreement. As provided in the Purchase Agreement and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Noteholder surrendering the same.

A-5

          No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any Tax or other governmental charge payable in connection therewith.

          Prior to due presentment of this Note for registration of transfer, the Company and any agent of the Company may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.

          9. Subordination. The indebtedness evidenced by this Note is, to the extent provided in the Subordination Agreement, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Note is issued subject to the provisions of the Purchase Agreement and Subordination Agreement with respect thereto. Each Noteholder, by accepting the same, agrees to and shall be bound by such provisions.

          10. Miscellaneous. All terms used in this Note which are defined in the Purchase Agreement shall have the meanings assigned to them in the Purchase Agreement. The Company and the Noteholder agree that, unless otherwise required by law or the good faith resolution of an examination or audit by the Internal Revenue Service, they shall treat the Notes as not subject to the provisions of Treasury Regulations 1.1275.4.

          THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

A-6

OPTION OF HOLDER TO ELECT PURCHASE

          If you want to elect to have this Note purchased in its entirety by the Company pursuant to Section 7.08 or 7.09 of the Purchase Agreement, check the box:

o

          If you want to elect to have only a part of the principal amount of this Note purchased by the Company pursuant to Section 7.08 or 7.09 of the Purchase Agreement, state the portion of such amount: $                    .

Dated:	Your Signature:
	(Sign exactly as name appears on the other side of this Note)
Signature Guarantee:
	(Signature must be guaranteed by a financial institution that is a member of the Securities Transfer Agent Medallion Program (“STAMP”), the Stock Exchange Medallion Program (“SEMP”), the New York Stock Exchange, Inc. Medallion Signature Program (“MSP”) or such other signature guarantee program as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of 1934, as amended.)

A-7

EXHIBIT B

FORM OF SUBSIDIARY GUARANTEE

          THE OBLIGATIONS OF THE GUARANTORS TO THE HOLDERS OF NOTES PURSUANT TO THIS SUBSIDIARY GUARANTEE AND THE PURCHASE AGREEMENT, DATED AS OF JANUARY 5, 2007, AMONG TERREMARK WORLDWIDE, INC., THE AGENT THE GUARANTORS NAMED THEREIN AND THE PURCHASERS NAMED THEREIN (THE “PURCHASE AGREEMENT”) ARE EXPRESSLY SET FORTH IN SECTION 12 OF THE PURCHASE AGREEMENT, AND REFERENCE IS HEREBY MADE TO SUCH PURCHASE AGREEMENT FOR THE PRECISE TERMS OF THIS SUBSIDIARY GUARANTEE. THE TERMS OF SECTION 12 OF THE PURCHASE AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE.

          Subject to the terms and conditions of the Subordination Agreement, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Noteholder, irrespective of the validity and enforceability of the Purchase Agreement, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of (and any premium) and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Noteholders hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Purchase Agreement, the absence of any action to enforce the same, any waiver or consent by any Noteholder with respect to any provisions thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that, subject to Section 12 of the Purchase Agreement, this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Purchase Agreement.

          The obligations of each Guarantor under this Guarantee are junior and subordinated to the Senior Indebtedness of such Guarantor to the extent and in the manner provided for in the Subordination Agreement.

B-1

          If any Noteholder is required by any court or otherwise to return to the Company or Guarantors, or any Custodian, trustee, liquidator or other similar official acting in relation to either the Company or Guarantors, any amount paid by such Noteholder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Noteholders in respect of any obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Noteholders, on the other hand, (a) the Maturity of the obligations guaranteed hereby may be accelerated as provided in Section 10 of the Purchase Agreement for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed hereby and (b) in the event of any declaration of acceleration of such obligations as provided in Section 10 of the Purchase Agreement, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Noteholders under the Subsidiary Guarantees.

          Each Guarantor, and by its acceptance of Notes, each Noteholder, hereby confirms that it is the intention of all such parties that this Subsidiary Guarantee 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 federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Noteholders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor under this Subsidiary Guarantee and Section 12 of the Purchase Agreement shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Section 12 of the Purchase Agreement, result in the obligations of such Guarantor under this Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.

          This is a continuing Subsidiary Guarantee and shall remain in full force and effect and shall be binding upon each Guarantor and its respective successors and assigns to the extent set forth in the Purchase Agreement until full and final payment of all of the Company’s obligations under the Notes and the Purchase Agreement and shall inure to the benefit of the Noteholders and their successors and assigns and, in the event of any transfer or assignment of rights by any Noteholder, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof and of Section 12 of the Purchase Agreement. Notwithstanding the foregoing, any Guarantor that satisfies the provisions of Section 12.04 of the Purchase Agreement shall be released of its obligations hereunder.

          THIS SUBSIDIARY GUARANTEE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD

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REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

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          Capitalized terms used herein have the same meanings given in the Purchase Agreement unless otherwise indicated.

[GUARANTOR]
By:
	Name: Title:

B-4

EXHIBIT C

FORM OF SUPPLEMENTAL AGREEMENT

          SUPPLEMENTAL AGREEMENT (this “Supplemental Agreement”), dated as of [          ], by and between [          ] (the “New Guarantor”) and [          ] (the “Company”).

WITNESSETH:

          WHEREAS, the Company, the Guarantors named therein and the Purchasers named therein have each heretofore executed and delivered to each other a Purchase Agreement (the “Purchase Agreement”), dated as of January 5, 2007, providing for the issuance and sale by the Company to the Purchasers of an aggregate principal amount of up to $10.0 million of Senior Subordinated Secured Notes due 2009 (the “Notes”); and

          WHEREAS, Section 12.02 of the Purchase Agreement provides that under certain circumstances the Company is required to cause the New Guarantor to execute and deliver to the Holders a supplemental agreement pursuant to which the New Guarantor shall unconditionally guarantee all of the Company’s obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein;

          NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor covenants and agrees for the equal and ratable benefit of the Noteholders as follows:

          1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Purchase Agreement.

          2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all other Guarantors, to unconditionally guarantee the Company’s obligations under the Notes on the terms and subject to the conditions set forth in Section 12 of the Purchase Agreement and to be bound by all other applicable provisions of the Purchase Agreement.

          3. INTENDED THIRD-PARTY BENEFICIARIES. The Noteholders from time to time of the Notes are intended third-party beneficiaries of this Supplemental Agreement and the terms and provisions of this Supplemental Agreement may not be amended, modified exceptions provided for in the Purchase Agreement.

          4. EFFECTIVENESS. This Supplemental Agreement shall be effective upon execution by the parties hereto.

          5. GOVERNING LAW. THIS SUPPLEMENTAL AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT

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WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

          6. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Agreement. Each signed copy shall be an original, but all of them together represent the same agreement.

          7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

[NEW GUARANTOR]
By:
	Name: Title:

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EXHIBIT D

FORM OF SUBORDINATION AND INTERCREDITOR AGREEMENT

See attached

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EXHIBIT E

FORM OF INDENTURE

See attached.

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EXHIBIT F

FORM OF REGISTRATION RIGHTS

See attached.

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EXHIBIT G

FORM OF COMPLIANCE CERTIFICATE

          THE UNDERSIGNED HEREBY CERTIFY THAT:

          I AM THE DULY ELECTED [TITLE] OF TERREMARK WORLDWIDE, INC., A DELAWARE CORPORATION (THE “COMPANY”);

          I HAVE REVIEWED THE TERMS OF THAT CERTAIN PURCHASE AGREEMENT DATED AS OF JANUARY 5, 2007, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED TO THE DATE HEREOF (SAID PURCHASE AGREEMENT, AS SO AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED, BEING THE “PURCHASE AGREEMENT”, THE TERMS DEFINED THEREIN AND NOT OTHERWISE DEFINED IN THIS CERTIFICATE (INCLUDING ATTACHMENT NO. 1 ANNEXED HERETO AND MADE A PART HEREOF) BEING USED IN THIS CERTIFICATE AS THEREIN DEFINED), BY AND AMONG THE COMPANY, THE GUARANTORS LISTED THEREIN, THE AGENT AND THE PURCHASERS, AND THE TERMS OF THE OTHER BASIC DOCUMENTS;

          TO THE BEST OF MY KNOWLEDGE AFTER DUE INQUIRY, EACH OF THE COMPANY AND ITS RESPECTIVE SUBSIDIARIES HAS OBSERVED OR PERFORMED ALL OF ITS COVENANTS AND OTHER AGREEMENTS, AND SATISFIED EVERY CONDITION, CONTAINED IN THE PURCHASE AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO BE OBSERVED, PERFORMED OR SATISFIED BY IT;

          [TO THE BEST OF MY KNOWLEDGE, NO DEFAULT OR EVENT OF DEFAULT EXISTS ON THE DATE HEREOF, OTHER THAN:                                          [IF NONE, SO STATE];]¹ AND

TERREMARK WORLDWIDE, INC.
By:
	Name: Title:

¹ Only in connection with delivery of this certificate to Noteholders

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EXHIBIT H

FORM OF LANDLORD ACCESS AGREEMENT

See attached.

H-1

EXHIBIT I

FORM OF MORTGAGE

LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING

BY

NAP OF THE AMERICAS/WEST, INC.,

as Grantor,

TO

[          ]

as Trustee for the benefit of

[          ]

as Agent,

Beneficiary

Dated as of [          ], 200[          ]

Relating to Premises in:

Santa Clara County, California

This instrument was prepared in consultation with
counsel in the state in which the Trust Property is
located by the attorney named below and after
recording, please return to:

[          ]

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TABLE OF CONTENTS

	Page
Article 1 DEFINITIONS AND INTERPRETATION		6
Section 1.1 Definitions		6
Article 2 GRANTS AND SECURED OBLIGATIONS		9
Section 2.1 Grant of Trust Property		9
Section 2.2 Assignment of Leases and Rents		10
Section 2.3 Secured Obligations		11
Section 2.4 Future Advances		11
Section 2.5 Maximum Amount of Indebtedness		11
Section 2.6 Last Dollar Secured		12
Section 2.7 No Release		12
Article 3 REPRESENTATIONS AND WARRANTIES OF GRANTOR		12
Section 3.1 Incorporation of Purchase Agreement		12
Section 3.2 Warranty of Title		12
Section 3.3 Condition of Trust Property		13
Section 3.4 Charges		13
Article 4 CERTAIN COVENANTS OF GRANTOR		13
Section 4.1 Payment and Performance		13
Section 4.2 Title		13
Section 4.3 Inspection		14
Section 4.4 Limitation on Liens; Transfer Restrictions		14
Section 4.5 Insurance		15
Article 5 CONCERNING ASSIGNMENT OF LEASES AND RENTS		15
Section 5.1 Present Assignment; License to the Grantor		15
Section 5.2 Collection of Rents by the Beneficiary		16
Section 5.3 Irrevocable Interest		16
Article 6 TAXES AND CERTAIN STATUTORY LIENS		16
Section 6.1 Payment of Charges		16
Section 6.2 Stamp and Other Taxes		16
Section 6.3 Certain Tax Law Changes		17
Section 6.4 Proceeds of Tax Claim		17

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	Page
Article 7 CASUALTY EVENTS AND RESTORATION		17
Section 7.1 Casualty Event		17
Section 7.2 Condemnation		17
Section 7.3 Restoration		17
Article 8 EVENTS OF DEFAULT AND REMEDIES		18
Section 8.1 Remedies in Case of an Event of Default		18
Section 8.2 Sale of Trust Property if Event of Default Occurs; Proceeds of Sale		18
Section 8.3 Additional Remedies in Case of an Event of Default		20
Section 8.4 Legal Proceedings After an Event of Default		20
Section 8.5 Remedies Not Exclusive		21
Article 9 SECURITY AGREEMENT AND FIXTURE FILING		22
Section 9.1 Security Agreement		22
Section 9.2 Fixture Filing		22
Article 10 FURTHER ASSURANCES		23
Section 10.1 Recording Documentation To Assure Security		23
Section 10.2 Further Acts		23
Section 10.3 Additional Security		24
Article 11 MISCELLANEOUS		24
Section 11.1 No Merger		24
Section 11.2 Concerning Beneficiary		24
Section 11.3 Beneficiary May Perform; Beneficiary Appointed Attorney-in-Fact		25
Section 11.4 Continuing Security Interest; Assignment		26
Section 11.5 Termination; Release		26
Section 11.6 Modification in Writing		26
Section 11.7 Notices		26
Section 11.8 GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL		27
Section 11.9 Severability of Provisions		27
Section 11.10 Relationship		27
Section 11.11 No Credit for Payment of Taxes or Impositions		27
Section 11.12 No Claims Against the Beneficiary		28
Section 11.13 Beneficiary’s Right To Sever Indebtedness		28
Article 12 MORTGAGED LEASE		29
Section 12.1 Representations, Warranties and Covenants		29
Section 12.2 No Merger; Acquisition; Power of Attorney		30
Section 12.3 New Leases		30
Section 12.4 No Assignment		30

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	Page
Article 13 LEASES		31
Section 13.1 Grantor’s Affirmative Covenants with Respect to Leases		31
Article 14 LOCAL LAW PROVISIONS		31
Section 14.1 Principles of Construction		31
Section 14.2 Fixture Filing		31
Section 14.3 Rights and Remedies		31
Article 15 Trustee’s Powers and Liabilities		32
Section 15.1 Trustee’s Powers and Liabilities 32
SIGNATURE ACKNOWLEDGMENTS
SCHEDULE A Legal Description
SCHEDULE B Prior Liens

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LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING

     LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (the “Deed of Trust”), dated as of [     ], 200[  ], made by NAP OF THE AMERICAS/WEST, INC., a Florida corporation having an office at 2601 S Bayshore Drive, 9th Floor, Miami, FL 33133, as Grantor, assignor and debtor (in such capacities and together with any successors in such capacities, the “Grantor”), in favor of [     ], a [     ] having an office at [     ], as trustee under this Deed of Trust (together with any successors in such capacities, the “Trustee”) for the benefit of [], a [     ] having an office at [     ]as agent for Secured Parties (as hereinafter defined), as beneficiary, assignee and secured party (in such capacities and together with any successors in such capacities, the “Beneficiary”).

RECITALS:

     A. Pursuant to that certain purchase agreement, dated as of January 5, 2007 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”) among TERREMARK WORLDWIDE, INC., a Delaware corporation (the “Company”), the Grantor and the other Guarantors listed on the signature pages thereto (each a “Guarantor” and, collectively, the “Guarantors,” and together with the Company, the “Issuers”), the Agent and the Purchasers named therein, the Purchasers have agreed to purchase the Company’s senior subordinated secured notes due 2009 in the aggregate principal amount of $10,000,000 and the Company’s subordinated convertible notes due 2009 in the aggregate principal amount of $4,000,000 in accordance with the provisions thereof.

     B. The Company owns, directly or through its Subsidiaries, all of the issued and outstanding shares of the Grantor.

     C. The Grantor has, pursuant to Article XII of the Purchase Agreement and the Subsidiary Guarantee, among other things, guaranteed (the “Guarantee”) the obligations of the Company under the Purchase Agreement and the other Basic Documents.

     D. The Grantor will receive substantial benefits from the execution, delivery and performance of the Basic Documents and is, therefore, willing to enter into this Deed of Trust.

     E. It is a condition to (i) the obligations of the Purchasers to purchase the Purchased Securities under the Purchase Agreement and (ii) the performance of the obligations of the Secured Parties under the Basic Documents, if any, that the Grantor execute and deliver the applicable Basic Documents, including this Deed of Trust.

     F. This Deed of Trust is given by the Grantor in favor of the Beneficiary for its benefit and the benefit of the other Secured Parties to secure the payment and performance of all of the Secured Obligations.

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AGREEMENT:

     NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor hereby covenants and agrees with the Beneficiary as follows:

ARTICLE 1
DEFINITIONS AND INTERPRETATION

Section 1.1 Definitions.

          (a) Capitalized terms used but not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given to them in the Purchase Agreement, including the following:

     “Affiliate”; “Agent”; “Basic Documents”; “Event of Default”; “Governmental Authority”; “Guarantors”; “Holder”; “Issuer”; “Lien”; “Net Cash Proceeds”; “Notes”; “Person”; “Purchased Security”; “Purchasers”; “Secured Obligations”; “Secured Parties”; “Security Agreement”; “Security Documents”; “Shares”; “Subsidiary Guarantees”; and “Warrants”.

          (b) The following terms in this Deed of Trust shall have the following meanings:

     “Allocated Indebtedness” shall have the meaning assigned to such term in Section 11.13(i) hereof.

     “Allocation Notice” shall have the meaning assigned to such term in Section 11.13(i) hereof.

     “Beneficiary” shall have the meaning assigned to such term in the Preamble hereof.

     “Casualty Event” shall mean any loss of title or any loss of or damage to or destruction of, or any condemnation or other taking of the Trust Property (including but not limited to any taking of all or any part of the Trust Property in or by condemnation or other eminent domain proceedings pursuant to any law, or by reason of the temporary requisition of the use or occupancy of all or any part of the Trust Property by any Governmental Authority, civil or military, or any settlement in lieu thereof).

     “Charges” shall mean any and all real estate, property and other taxes, assessments and special assessments, levies, fees, all water and sewer rents and charges and all other governmental charges imposed upon or assessed against, and all claims (including, without limitation, claims for landlords’, carriers’, mechanics’, workmens’, repairmens’, laborers’, materialmens’, suppliers’ and warehousemens’ Liens and other claims arising by operation of law) judgments or demands against, all or any portion of the Trust Property or other amounts of any nature which, if unpaid, might result in or permit the creation of, a lien on the Trust Property or which might result in foreclosure of all or any portion of the Trust Property.

     “Collateral” shall have the meaning assigned to such term in Section 11.13(i) hereof.

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     “Contracts” shall mean, collectively, any and all right, title and interest of the Grantor in and to any and all contracts and other general intangibles relating to the Trust Property and all reserves, deferred payments, deposits, refunds and claims of every kind, nature or character relating thereto.

     “Deed of Trust” shall have the meaning assigned to such term in the Preamble hereof.

     “Default Rate” shall mean the rate of interest payable during a default with respect to overdue interest as set forth in Section 9.02(b) of the Purchase Agreement

     “Fixtures” shall mean all of Grantor’s interest in machinery, apparatus, equipment, fittings, fixtures, improvements and articles of personal property of every kind, description and nature whatsoever now or hereafter attached or affixed to the Land or any other Improvement used in connection with the use and enjoyment of the Land or any other Improvement or the maintenance or preservation thereof, which by the nature of their location thereon or attachment thereto are real property or fixtures under the UCC or any other applicable law including, without limitation, all HVAC equipment, boilers, electronic data processing, telecommunications or computer equipment, refrigeration, electronic monitoring, power, waste removal, elevators, maintenance or other systems or equipment, utility systems, fire sprinkler and security systems, drainage facilities, lighting facilities, all water, sanitary and storm sewer, drainage, electricity, steam, gas, telephone and other utility equipment and facilities, pipes, fittings and other items of every kind and description now or hereafter attached to or located on the Land.

     “Grantor” shall have the meaning assigned to such term in the Preamble hereof.

     “Grantor’s Interest” shall have the meaning assigned to such term in Section 2.2 hereof.

     “Improvements” shall mean all buildings, structures and other improvements of every kind or description and any and all alterations now or hereafter located,’ attached or erected on the Land, including, without limitation, (i) all Fixtures, (ii) all attachments, railroad tracks, foundations, sidewalks, drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer rights, parking areas, driveways, fences and walls and (iii) all materials now or hereafter located on the Land intended for the construction, reconstruction, repair, replacement, alteration, addition or improvement of or to such buildings, Fixtures, structures and improvements, all of which materials shall be deemed to be part of the Improvements immediately upon delivery thereof on the Land and to be part of the Improvements immediately upon their incorporation therein.

     “Insurance Policies” means the insurance policies and coverages required to be maintained by the Grantor with respect to the Trust Property pursuant to the Purchase.

     “Land” shall mean the real property which is the subject of the Mortgaged Lease, which real property is described in Schedule A annexed to this Deed of Trust created by the Mortgaged Lease, together with all of the fee owner of such real property’s reversionary rights, if any, in and to any and all easements, rights-of-way, strips and gores of land, waters, water courses, water rights, mineral, gas and oil rights and all power, air, light and other rights, estates, titles, interests, privileges, liberties, servitudes, licenses, tenements, hereditaments and appurtenances whatsoever, in any way belonging, relating or appertaining thereto, or any part thereof, or which

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hereafter shall in any way belong, relate or be appurtenant thereto and together with any greater or additional estate therein as may be acquired by Grantor.

     “Landlord” shall mean any landlord, lessor, franchisor, licensor or grantor, as applicable.

     “Leases” shall mean, collectively, any and all interests of the Grantor, as Landlord, in all leases and subleases of space, tenancies, franchise agreements, licenses, occupancy or concession agreements now existing or hereafter entered into, whether or not of record, relating in any manner to the Premises and any and all amendments, modifications, supplements, replacements, extensions and renewals of any thereof, whether now in effect or hereafter coming into effect.

     “Mortgaged Lease” means that Net Premises Lease, 3030 Corvin Drive, Santa Clara, California, dated September 13, 2000, pursuant to which Grantor leases all or a portion of the Land from Rainbow Property Management, LLC, a California limited liability company, a memorandum of which was recorded contemporaneously herewith, together with all assignments, modifications, extensions and renewals of the Mortgaged Lease and all credits, deposits, options, privileges and rights of Grantor as tenant under the Mortgaged Lease, including, but not limited to, rights of first refusal, if any, and the right, if any, to renew or extend the Mortgaged Lease for a succeeding term or terms.

     “Permit” shall mean any and all permits, certificates, approvals, authorizations, consents, licenses, variances, franchises or other instruments, however characterized, of any Governmental Authority (or any person acting on behalf of a Governmental Authority) now or hereafter acquired or held, together with all amendments, modifications, extensions, renewals and replacements of any thereof issued or in any way famished in connection with the Trust Property including, without limitation, building permits, certificates of occupancy, environmental certificates, industrial permits or licenses and certificates of operation.

     “Permitted Collateral Liens” shall mean the Liens described in clause (iii) of the definition of “Permitted Collateral Liens” contained in the Purchase Agreement.

     “Premises” shall mean, collectively, the Land and the Improvements.

     “Prior Liens” shall mean, collectively, the Liens identified in Schedule B annexed to this Deed of Trust.

     “Proceeds” shall mean, collectively, any and all cash proceeds and noncash proceeds and shall include all (i) proceeds of the conversion, voluntary or involuntary, of any of the Trust Property or any portion thereof into cash or liquidated claims, (ii) proceeds of any insurance, indemnity, warranty, guaranty or claim payable to the Beneficiary or to the Grantor from time to time with respect to any of the Trust Property, (iii) payments (in any form whatsoever) made or due and payable to the Grantor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any portion of the Trust Property by any Governmental Authority (or any person acting on behalf of a Governmental Authority), (iv) products of the Trust Property and (v) other amounts from time to time paid or payable under or in connection with any of the Trust Property including, without limitation, refunds of real estate taxes and assessments, including interest thereon.

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     “Property Material Adverse Effect” shall mean, as of any date of determination and whether individually or in the aggregate, any event, circumstance, occurrence or condition which has caused or resulted in (or would reasonably be expected to cause or result in) a material adverse effect on (a) the business or operations of the Grantor as presently conducted at the Trust Property; (b) the value or utility of the Trust Property; or (c) the legality, priority or enforceability of the Lien created by this Deed of Trust or the rights and remedies of the Beneficiary hereunder.

     “Prudent Operator” shall mean a prudent operator of property similar in use and configuration to the Premises and located in the locality where the Premises are located.

     “Purchase Agreement” shall have the meaning assigned to such term in Recital A hereof.

     “Records” shall mean, collectively, any and all right, title and interest of the Grantor in and to any and all drawings, plans, specifications, file materials, operating and maintenance records, catalogues, tenant lists, correspondence, advertising materials, operating manuals, warranties, guarantees, appraisals, studies and data relating to the Trust Property or the construction of any alteration relating to the Premises or the maintenance of any Permit.

     “Rents” shall mean, collectively, any and all rents, additional rents, royalties, cash, guaranties, letters of credit, bonds, sureties or securities deposited under any Lease to secure performance of the Tenant’s obligations thereunder, revenues, earnings, profits and income, advance rental payments, payments incident to assignment, sublease or surrender of a Lease, claims for forfeited deposits and claims for damages, now due or hereafter to become due, with respect to any Lease, any indemnification against, or reimbursement for, sums paid and costs and expenses incurred by the Grantor under any Lease or otherwise, and any award in the event of the bankruptcy of any Tenant under or guarantor of a Lease.

     “Requirements of Law” shall mean, collectively, any and all requirements of any Governmental Authority including, without limitation, any and all orders, decrees, determinations, laws, treaties, ordinances, rules, regulations or similar statutes or case law.

     “Tenant” shall mean any tenant, lessee, sublessee, franchisee, licensee, grantee or obligee, as applicable.

     “Trust Property” shall have the meaning assigned to such term in Section 2.1 hereof.

     “UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in the state in which the Premises are located; provided, however, that if the creation, perfection or enforcement of any security interest herein granted is governed by the laws of any other state as to the matter in question, “UCC” shall mean the Uniform Commercial Code in effect in such state.

ARTICLE 2
GRANTS AND SECURED OBLIGATIONS

     Section 2.1 Grant of Trust Property. The Grantor hereby pleads, grants, gives, transfers, bargains, sells, assigns, and conveys to Trustee, its successors and assigns, in trust,

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with power of sale, for the use and benefit of the Beneficiary, a security interest in and upon, all of the Grantor’s estate, right, title and interest in, to and under the following property, whether now owned or held or hereafter acquired from time to time (collectively, the “Trust Property”):

(i)	[Land and the ] Mortgaged Lease; Improvements;
(ii)	Leases;
(iii)	Rents;
(iv)	Permits;
(v)	Contracts;
(vi)	Records; and
(vii)	Proceeds;

          Notwithstanding the foregoing provisions of this Section 2.1, Trust Property shall not include a grant of any of the Grantor’s right, title or interest in any Contract or Permit (x) that validly prohibits the creation by the Grantor of a security interest therein and (y) to the extent, but only to the extent that, any Requirement of Law applicable thereto prohibits the creation of a security interest therein; provided, however, that the right to receive any payment of money or any other right referred to in Sections 9-406(d), 9-407(a) or 9-408(a) of the UCC to the extent that such Sections are effective to limit the prohibitions described in clauses (x) and (y) of this Section 2.1 shall constitute Trust Property hereunder and; provided, further, that at such time as any Contract or Permit described in clauses (x) and (y) of this Section 2.1 is no longer subject to such prohibition, such applicable Contract or Permit shall (without any act or delivery by any person) . constitute Trust Property hereunder;

          TO HAVE AND TO HOLD the Trust Property, IN TRUST FOREVER, with power of sale, together with all estate, right, title and interest of the Grantor and anyone claiming by, through or under the Grantor in and to the Trust Property and all rights and appurtenances relating thereto, unto the Beneficiary, its successors and assigns, for the benefit of the Beneficiary for the benefit of the Beneficiary for the benefit of the Secured Parties, for the purpose of securing the payment and performance in full of all the Secured Obligations.

     Section 2.2 Assignment of Leases and Rents. As additional security for the payment and performance in full of the Secured Obligations and subject to the provisions of Article V hereof, the Grantor absolutely, presently, unconditionally and irrevocably assigns, transfers and sets over to the Beneficiary, and grants to the Beneficiary, all of the Grantor’s estate, right, title, interest, claim and demand, as Landlord, under any and all of the Leases including, without limitation, the following (such assigned rights, the “Grantor’s Interest”):

          (i) the immediate and continuing right to receive and collect Rents payable by the Tenants pursuant to the Leases;

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          (ii) all claims, rights, powers, privileges and remedies of the Grantor, whether provided for in the Leases or arising by statute or at law or in equity or otherwise, consequent on any failure on the part of the Tenants to perform or comply with any term of the Leases;

          (iii) all rights to take all actions upon the happening of a default under the Leases as shall be permitted by the Leases or by law including, without limitation, the commencement, conduct and consummation of proceedings at law or in equity; and

          (iv) the full power and authority, in the name of the Grantor or otherwise, to enforce, collect, receive and receipt for any and all of the foregoing and to take all other actions whatsoever which the Grantor, as Landlord, is or may be entitled to take under the Leases.

          (v) Notwithstanding that this Agreement is an absolute assignment of the Rents and Leases and not merely the collateral assignment of, or the grant of a lien or security interest in the Rents and Leases, Beneficiary grants to Grantor a revocable license to collect and receive the Rents and to retain, use and enjoy such Rents and to otherwise have the rights and obligations with respect to the Leases as granted Grantor in this Section 2.2. Such license may only be revoked by Beneficiary upon the occurrence and during the continuance of any Event of Default.

     Section 2.3 Secured Obligations: This Deed of Trust secures, and the Trust Property is collateral security for, the payment and performance in full when due of the Secured Obligations.

     Section 2.4 Future Advances. This Deed of Trust shall secure all Secured Obligations including, without limitation, future advances whenever hereafter made with respect to or under the Purchase Agreement or the other Basic Documents and shall secure not only Secured Obligations with respect to presently existing indebtedness under the Purchase Agreement or the other Basic Documents, but also any and all other indebtedness which may hereafter be owing by the Grantor to the Secured Parties under the Purchase Agreement or the other Basic Documents, however incurred, whether interest, discount or otherwise, and whether the same shall be deferred, accrued or capitalized, including future advances and re-advances, pursuant to the Purchase Agreement or the other Basic Documents, whether such advances are obligatory or to be made at the option of the Secured Parties, or otherwise, and any extensions, refinancings, modifications or renewals of all such Secured Obligations whether or not Grantor executes any extension agreement or renewal instrument and, in each case, to the same extent as if such future advances were made on the date of the execution of this Deed of Trust.

     Section 2.5 Maximum Amount of Indebtedness. The maximum aggregate amount of all indebtedness that is, or under any contingency may be secured at the date hereof or at any time hereafter by this Deed of Trust is $10,000,000 (TEN MILLION DOLLARS) (the “Secured Amount”), plus, to the extent permitted by applicable law, collection costs, sums advanced for the payment of taxes, assessments, maintenance and repair charges, insurance premiums and any other costs incurred to protect the security encumbered hereby or the lien hereof, expenses incurred by the Beneficiary by reason of any default by the Grantor under the terms hereof, together with interest thereon, all of which amount shall be secured hereby.

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     Section 2.6 Last Dollar Secured. So long as the aggregate amount of the Secured Obligations exceeds the Secured Amount, any payments and repayments of the Secured Obligations shall not be deemed to be applied against or to reduce the Secured Amount.

     Section 2.7 No Release. Nothing set forth in this Deed of Trust shall relieve the Grantor from the performance of any term, covenant, condition or agreement on the Grantor’s part to be performed or observed under or in respect of any of the Trust Property or from any liability to any person under or in respect of any of the Trust Property or shall impose any obligation on the Beneficiary or any other Secured Party to perform or observe any such term, covenant, condition or agreement on the Grantor’s part to be so performed or observed or shall impose any liability on the Beneficiary or any other Secured Party for any act or omission on the part of the Grantor relating thereto or for any breach of any representation or warranty on the part of the Grantor contained in this Deed of Trust or any other Basic Document, or under or in respect of the Trust Property or made in connection herewith or therewith. The obligations of the Grantor contained in this Section 2.7 shall survive the termination hereof and the discharge of the Grantor’s other obligations under this Deed of Trust and the other Basic Documents.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF GRANTOR

     Section 3.1 Incorporation of Purchase Agreement. The Grantor represents, warrants, covenants and agrees that each of the representations, warranties, covenants and other agreements of the Grantor (as an Issuer) under and as contained in the Purchase Agreement are hereby incorporated herein in their entirety by this reference.

     Section 3.2 Warranty of Title. The Grantor represents and warrants that:

          (i) it has good title to the interest it purports to own or hold in and to all rights and appurtenances to or that constitute a portion of the Trust Property;

          (ii) it has good and marketable [fee simple] leasehold title to the Premises and the Landlord’s interest and estate under or in respect of the Leases and good title to the interest it purports to own or hold in and to each of the Permits, the Contracts and the Records, in each case subject to no Liens, except for (x) as of the date hereof, Prior Liens and Liens in favor of the Beneficiary pursuant to the Security Documents and (y) hereafter, Permitted Collateral Liens; and

          (iii) upon recordation in the official records in the county (or other applicable jurisdiction) in which the Premises are located this Deed of Trust will create and constitute a valid and enforceable first priority Lien on the Trust Property which constitutes real property in favor of the Agent for the benefit of the Secured Parties, and, to the extent any of the Trust Property shall consist of Fixtures, a first priority security interest in the Fixtures, which first priority Lien and first priority security interest are, as of the date hereof, subject only to Prior Liens and hereafter, subject only to Permitted Collateral Liens.

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     Section 3.3 Condition of Trust Property. The Grantor represents and warrants that:

          (i) the Premises and the present and contemplated use and occupancy thereof comply with all applicable zoning ordinances, building codes, land use and subdivision laws, setback or other development and use requirements of Governmental Authorities and with all private restrictions and agreements affecting the Trust Property whether or not recorded, except where the failure so to comply could not result in a Property Material Adverse Effect;

          (ii) as of the date hereof, Grantor has neither received any notice of nor has any knowledge of any disputes regarding possession of any portions of the Trust Property and has no knowledge of any state of facts that may exist which could give rise to any such claims;

          (iii) no portion of the Premises is located in an area identified by the Federal Emergency Management Agency or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts promulgated by the Federal Emergency Management Agency or any successor thereto or, if any portion of the Premises is located within such area as evidenced by the Federal Emergency Management Agency Standard Flood Hazard Determination provided to the Beneficiary by the Grantor pursuant to Section 3.18(i) of the Purchase Agreement, the Grantor has obtained the flood insurance prescribed in Section 7.07(d) of the Purchase Agreement hereof;

          (iv) the Premises are assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a portion of such lot or lots, and no other land or improvement is assessed and taxed together with the Premises or any portion thereof; and

          (v) there are no options or rights of first refusal to purchase or acquire all or any portion of the Trust Property from Grantor.

     Section 3.4 Charges. The Grantor represents and warrants that all Charges imposed upon or assessed against the Trust Property have been paid and discharged except to the extent such Charges constitute, as of the date hereof, a Prior Lien or hereafter, a Permitted Collateral Lien.

ARTICLE 4
CERTAIN COVENANTS OF GRANTOR

     Section 4.1 Payment and Performance. The Grantor shall pay and perform the Secured Obligations in full as and when the same shall become due under the Basic Documents and when they are required to be performed thereunder.

     Section 4.2 Title. The Grantor shall

          (i) (A) keep in effect all rights and appurtenances to or that constitute a part of the Trust Property except where the failure to keep in effect the same could not

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result in a Property Material Adverse Effect and (B) protect, preserve and defend its interest in the Trust Property and title thereto;

          (ii) (A) comply with each of the terms, conditions and provisions of any obligation of the Grantor which is secured by the Trust Property or the noncompliance with which may result in the imposition of a Lien on the Trust Property subject to Permitted Collateral Liens, (B) forever warrant and defend to the Trustee and Beneficiary the Lien and security interests created and evidenced hereby and the validity and priority hereof in any action or proceeding against the claims of any and all persons whomsoever affecting or purporting to affect the Trust Property or any of the rights of the Trustee and Beneficiary hereunder and (C) maintain this Deed of Trust and a valid and enforceable first priority Lien on the Trust Property and, to the extent any of the Trust Property shall consist of Fixtures, a first priority security interest in the Trust Property, which first priority Lien and security interest shall be subject only to Permitted Collateral Liens and all Prior Liens; and

          (iii) immediately upon obtaining knowledge of the pendency of any proceedings for the eviction of the Grantor from the Trust Property or any part thereof by paramount title or otherwise questioning the Grantor’s right, title and interest in, to and under the Trust Property as warranted in this Deed of Trust, or of any condition that could give rise to any such proceedings, notify the Beneficiary thereof. The Trustee and/or Beneficiary may participate in such proceedings and the Grantor will deliver or cause to be delivered to the Trustee and Beneficiary all instruments requested by the Beneficiary to permit such participation. In any such proceedings, the Trustee and Beneficiary may be represented by counsel satisfactory to the Trustee and Beneficiary at the reasonable expense of the Grantor. If, upon the resolution of such proceedings, the Grantor shall suffer a loss of the Trust Property or any part thereof or interest therein and title insurance proceeds shall be payable in connection therewith, such proceeds are hereby assigned to and shall be paid to the Beneficiary to be applied as Net Cash Proceeds to the payment of the Secured Obligations or otherwise in accordance with the provisions of Section 7.18 of the Purchase Agreement.

          (iv) The Grantor shall not initiate, join in or consent to any change in the zoning or any other permitted use classification of the Premises without the prior written consent of the Beneficiary.

     Section 4.3 Inspection. Grantor shall permit Beneficiary, and its agents, representative and employees, upon reasonable prior notice to Grantor, to inspect the Trust Property and all books and records located thereon provided, that (i) such inspections shall not materially interfere with the use and operation of the Trust Property and (ii) shall comply with the applicable provisions of the Purchase Agreement.

     Section 4.4 Limitation on Liens; Transfer Restrictions.

          (i) Except for the Permitted Collateral Liens, Prior Liens and the Lien of this Deed of Trust, the Grantor may not, without the prior written consent of the

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Beneficiary, permit to exist or grant any Lien on all or any part of the Trust Property or suffer or allow any of the foregoing to occur by operation of law or otherwise.

          (ii) Except to the extent permitted by the Purchase Agreement, the Grantor may not, without the prior written consent of the Beneficiary, sell, convey, assign, lease or otherwise transfer all or any part of the Trust Property.

     Section 4.5 Insurance. The Grantor shall obtain and keep in full force and effect the Insurance Policies required by the Purchase Agreement pursuant to the terms thereof.

ARTICLE 5
CONCERNING ASSIGNMENT OF LEASES AND RENTS

     Section 5.1 Present Assignment; License to the Grantor.

          (i) Section 2.2 of this Deed of Trust constitutes a present, absolute, effective, irrevocable and complete assignment by Grantor to Beneficiary of the Leases and Rents and the right, subject to applicable law, to collect all sums payable to Grantor thereunder and apply the same as Beneficiary may, in its sole discretion, determine to be appropriate to protect the security afforded by this Deed of Trust (including the payment of reasonable costs and expenses in connection with the maintenance, operation, improvement, insurance, taxes and upkeep of the Trust Property), which is not conditioned upon Beneficiary being in possession of the Premises. This assignment is an absolute assignment and not an assignment for additional security only. The Trustee and Beneficiary hereby grants to the Grantor, however, a license to collect and apply the Rents and to enforce the obligations of Tenants under the Leases. Immediately upon the occurrence of and during the continuance of any Event of Default, whether or not legal proceedings have commenced and without regard to waste, adequacy of security for the Secured Obligations or solvency of Grantor, the license granted in the immediately preceding sentence shall automatically cease and terminate without any notice by Beneficiary (such notice being hereby expressly waived by Grantor to the extent permitted by applicable law), or any action or proceeding or the intervention of a receiver appointed by a court.

          (ii) Grantor acknowledges that Beneficiary has taken all reasonable actions necessary to obtain, and that upon recordation of this Deed of Trust, Beneficiary shall have, to the extent permitted under applicable law, a valid and fully perfected, first priority, present assignment of the Rents arising out of the Leases and all security for such Leases subject to the Permitted Collateral Liens and in the case of security deposits, rights of depositors and requirements of law. Grantor acknowledges and agrees that upon recordation of this Deed of Trust, Beneficiary’s interest in the Rents shall be deemed to be fully perfected, “Choate” and enforced as to Grantor and all third parties, including, without limitation, any subsequently appointed trustee in any case under Title II of the United States Code (the “Bankruptcy Code”), without the necessity of commencing a foreclosure action with respect to this Deed of Trust, making formal demand for the Rents, obtaining the appointment of a receiver or taking any other affirmative action.

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          (iii) Without limitation of the absolute nature of the assignment of the Rents hereunder, Grantor and Beneficiary agree that (a) this Deed of Trust shall constitute a “security agreement” for purposes of Section 552(b) of the Bankruptcy Code, (b) the security interest created by this Deed of Trust extends to property of Grantor acquired before the commencement of a case in bankruptcy and to all amounts paid as Rents, and (c) such security interest shall extend to all rents acquired by the estate after the commencement of any case in bankruptcy.

     Section 5.2 Collection of Rents by the Beneficiary.

          (i) Upon the occurrence and during the continuance of an Event of Default, any Rents receivable by the Beneficiary hereunder, after payment of all proper costs and expenses as Beneficiary may, in its sole discretion, determine to be appropriate (including the payment of reasonable costs and expenses in connection with the maintenance, operation, improvement, insurance, taxes and upkeep of the Trust Property), shall be applied in accordance with the provisions of Section 8.2(ii) of this Deed of Trust. The Beneficiary shall be accountable to the Grantor only for Rents actually received by the Beneficiary. The collection of such Rents and the application thereof shall not cure or waive any Event of Default or waive, modify or affect notice of Event of Default or invalidate any act done pursuant to such notice.

          (ii) The Grantor hereby irrevocably authorizes and directs Tenant under each Lease to rely upon and comply with any and all notices or demands from the Beneficiary for payment of Rents to the Beneficiary and the Grantor shall have no claim against Tenant for Rents paid by Tenant to the Beneficiary pursuant to such notice or demand.

     Section 5.3 Irrevocable Interest. All rights, powers and privileges of the Trustee and Beneficiary herein set forth are coupled with an interest and are irrevocable, subject to the terms and conditions hereof, and the Grantor shall not take any action under the Leases or otherwise which is inconsistent with this Deed of Trust or any of the terms hereof and any such action inconsistent herewith or therewith shall be void.

ARTICLE 6
TAXES AND CERTAIN STATUTORY LIENS

     Section 6.1 Payment of Charges. Unless and to the extent contested by the Grantor in accordance with the provisions of the Purchase Agreement, the Grantor shall pay and discharge, or cause to be paid and discharged, from time to time prior to same becoming delinquent, all Charges. The Grantor shall, upon the Beneficiary’s request, deliver to the Beneficiary receipts evidencing the payment of all such Charges.

     Section 6.2 Stamp and Other Taxes. The Grantor shall pay any United States documentary stamp taxes, with interest and fines and penalties, and any mortgage recording taxes, with interest and fines and penalties, that may hereafter be levied, imposed or assessed under or upon or by reason hereof or the Secured Obligations or any instrument or transaction affecting or relating to either thereof and in default thereof the Beneficiary may advance the

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same and the amount so advanced shall be payable by the Grantor to the Beneficiary in accordance with the provisions of Section 13.01 of the Purchase Agreement hereof

     Section 6.3 Certain Tax Law Changes. In the event of the passage after the date hereof of any law deducting from the value of real property, for the purpose of taxation, amounts in respect of any Lien thereon or changing in any way the laws for the taxation of mortgages, deed of trust or debts secured by mortgages or deeds of trust for state or local purposes or the manner of the collection of any taxes, and imposing any taxes, either directly or indirectly, on this Deed of Trust or any other Basic Document, the Grantor shall promptly pay to the Beneficiary such amount or amounts as may be necessary from time to time to pay any such taxes, assessments or other charges resulting therefrom; provided, that if any such payment or reimbursement shall be unlawful or taxable to Beneficiary, or would constitute usury or render the indebtedness wholly or partially usurious under applicable law, the Grantor shall pay or reimburse Beneficiary for payment of the lawful and non-usurious portion thereof.

     Section 6.4 Proceeds of Tax Claim. In the event that the proceeds of any tax claim are paid after the Beneficiary has exercised its right to foreclose the Lien hereof, such proceeds shall be paid to the Beneficiary to satisfy any deficiency remaining after such foreclosure. The Beneficiary shall retain its interest in the proceeds of any tax claim during any redemption period. The amount of any such proceeds in excess of any deficiency claim of the Beneficiary shall in a reasonably prompt manner be released to the Grantor.

ARTICLE 7
CASUALTY EVENTS AND RESTORATION

     Section 7.1 Casualty Event. If there shall occur any Casualty Event (or, in the case of any condemnation, taking or other proceeding in the nature thereof, upon the occurrence thereof or notice of the commencement of any proceedings therefor), the Grantor shall promptly send to the Beneficiary a written notice setting forth the nature and extent thereof. The proceeds payable in respect of any such Casualty Event are hereby assigned and shall be paid to the Beneficiary or shall be used for the restoration of the Trust Property. The Net Cash Proceeds of each Casualty Event shall be applied, allocated and distributed in accordance with the provisions of Section 7.18 of the Purchase Agreement.

     Section 7.2 Condemnation. In the case of any taking, condemnation or other proceeding in the nature thereof, the Trustee and Beneficiary may, at their option, participate in any proceedings or negotiations which might result in any taking or condemnation and the Grantor shall deliver or cause to be delivered to the Trustee and Beneficiary all instruments reasonably requested by them to permit such participation. The Beneficiary may be represented by counsel satisfactory to it at the reasonable expense of the Grantor in connection with any such participation. The Grantor shall pay all reasonable fees, costs and expenses incurred by the Trustee and Beneficiary in connection therewith and in seeking and obtaining any award or payment on account thereof. The Grantor shall take all steps necessary to notify the condemning authority of such assignment.

     Section 7.3 Restoration. The Grantor shall complete such restoration in accordance with the provisions of the Purchase Agreement. If restoration of the Trust Property is not feasible

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so as to restore the Trust Property to the prior use thereof, the proceeds shall be applied as provided in the Purchase Agreement.

ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES

     Section 8.1 Remedies in Case of an Event of Default. If any Event of Default shall have occurred and be continuing, the Beneficiary may at its option, in addition to any other action permitted under this Deed of Trust or the Purchase Agreement or by law, statute or in equity, take one or more of the following actions to the greatest extent permitted by local law:

          (i) personally, or by its agents or attorneys, and where applicable law so requires, with the Trustee, (A) enter into and upon and take possession of all or any part of the Premises together with the books, records and accounts of the Grantor relating thereto and, exclude the Grantor, its agents and servants wholly therefrom, (B) use, operate, manage and control the Premises and conduct the business thereof, (C) maintain and restore the Premises, (D) make all necessary or proper repairs, renewals and replacements and such useful alterations thereto and thereon as the Beneficiary may deem advisable, (E) manage, lease and operate the Premises and carry on the business thereof and exercise all rights and powers of the Grantor with respect thereto either in the name of the Grantor or otherwise or (F) collect and receive all Rents. The Beneficiary shall be under no liability for or by reason of any such taking of possession, entry, removal or holding, operation or management except that any amounts so received by the Beneficiary shall be applied in accordance with the provisions of Section 13.01 of the Purchase Agreement.

          (ii) with or without entry, personally or by its agents or attorneys, or by the Trustee (as so required by applicable law) (A) sell the Trust Property and all estate, right, title and interest, claim and demand therein at one or more sales as permitted by the terms of the Mortgaged Lease or (B) institute and prosecute proceedings for the complete or partial foreclosure of the Lien and security interests created and evidenced hereby; or

          (iii) take such steps to protect and enforce its rights whether by action, suit or proceeding at law or in equity for the specific performance of any covenant, condition or agreement in the Purchase Agreement and the other Basic Documents, or in aid of the execution of any power granted in this Deed of Trust, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy or otherwise as the Beneficiary shall elect.

     Section 8.2 Sale of Trust Property if Event of Default Occurs; Proceeds of Sale.

          (i) If any Event of Default shall have occurred and be continuing, the Beneficiary and/or Trustee (as so required by applicable law) may institute an action to foreclose this Deed of Trust or take such other action as may be permitted and available to the Beneficiary at law or in equity for the enforcement of the Purchase Agreement and realization on the Trust Property and proceeds thereon through power of sale (if then

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available under applicable law) or to final judgment and execution thereof for the Secured Obligations, and in furtherance thereof the Beneficiary and/or Trustee (as so required by applicable law) may sell the Trust Property at one or more sales, to the extent and as provided under the terms of the Mortgaged Lease, at such time and place, upon such terms and after such notice thereof as may be required or permitted by law or statute or in equity. The Beneficiary and/or Trustee (as so required by applicable law) may execute and deliver to the purchaser at such sale a conveyance of the Trust Property in fee simple and an assignment or conveyance of all the Grantor’s Interest in the Leases and the Trust Property, each of which conveyances and assignments shall contain recitals as to the Event of Default upon which the execution of the power of sale herein granted depends, and the Grantor hereby constitutes and appoints the Beneficiary and/or Trustee (as so required by applicable law) the true and lawful attorney in fact of the Grantor to make any such recitals, sale, assignment and conveyance, and all of the acts of the Beneficiary as such attorney in fact are hereby ratified and confirmed. The Grantor agrees that such recitals shall be binding and conclusive upon the Grantor and that any assignment or conveyance to be made by the Beneficiary or Trustee shall divest the Grantor of all right, title, interest, equity and right of redemption, including any statutory redemption, in and to the Trust Property. The power and agency hereby granted are coupled with an interest and are irrevocable by death or dissolution, or otherwise, and are in addition to any and all other remedies which the Beneficiary and Trustee may have hereunder, at law or in equity. So long as the Secured Obligations, or any part thereof, remain unpaid, the Grantor agrees that possession of the Trust Property by the Grantor, or any person claiming under the Grantor, shall be as tenant, and, in case of a sale under power or upon foreclosure as provided in this Deed of Trust, the Grantor and any person in possession under the Grantor, as to whose interest such sale was not made subject, shall, at the option of the purchaser at such sale, then become and be tenants holding over, and shall forthwith deliver possession to such purchaser, or be summarily dispossessed in accordance with the laws applicable to tenants holding over. In case of any sale under this Deed of Trust by virtue of the exercise of the powers herein granted, or pursuant to any order in any judicial proceeding or otherwise, the Trust Property may be sold as an entirety or in separate parcels in such manner or order as the Beneficiary and Trustee in their sole discretion may elect. One or more exercises of powers herein granted shall not extinguish or exhaust such powers, until the entire Trust Property is sold or all amounts secured hereby are paid in full.

          (ii) The proceeds of any sale made under or by virtue of this Article VIII, together with any other sums which then may be held by the Beneficiary under this Deed of Trust, whether under the provisions of this Article VIII or otherwise, shall be applied in accordance with the provisions of the Purchase Agreement.

          (iii) The Beneficiary (on behalf of any Secured Party or on its own behalf) or any Holder or any of their respective Affiliates may bid for and acquire the Trust Property or any part thereof at any sale made under or by virtue of this Article VIII and, in lieu of paying cash therefor, may make settlement for the purchase price by crediting against the purchase price the unpaid amounts (whether or not then due) owing to the Beneficiary, or such Holder in respect of the Secured Obligations, after deducting from the sales price the expense of the sale and the reasonable costs of the action or

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proceedings and any other sums that the Beneficiary, Trustee or such Holder is authorized to deduct under this Deed of Trust.

          (iv) The Beneficiary and/or Trustee (as so required by applicable law) may adjourn from time to time any sale by it to be made under or by virtue hereof by announcement at the time and place appointed for such sale or for such adjourned sale or sales, and, the Beneficiary and/or Trustee (as so required by applicable law), without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.

          (v) If the Premises is comprised of more than one parcel of land, the Beneficiary and/or Trustee (as so required by applicable law) may take any of the actions authorized by this Section 8.2 in respect of any or a number of individual parcels.

     Section 8.3 Additional Remedies in Case of an Event of Default.

          (i) The Beneficiary shall be entitled to recover judgment as aforesaid either before, after or during the pendency of any proceedings for the enforcement of the provisions hereof and, to the extent permitted by applicable law, the right of the Beneficiary to recover such judgment shall not be affected by any entry or sale hereunder, or by the exercise of any other right, power or remedy for the enforcement of the provisions hereof, or the foreclosure of, or absolute conveyance pursuant to, this Deed of Trust. In case of proceedings against the Grantor in insolvency or bankruptcy or any proceedings for its reorganization or involving the liquidation of its assets, the Beneficiary shall be entitled to prove the whole amount of principal and interest and other payments, charges and costs due in respect of the Secured Obligations to the full amount thereof without deducting therefrom any proceeds obtained from the sale of the whole or any part of the Trust Property; provided, however, that in no case shall the Beneficiary receive a greater amount than the aggregate of such principal, interest and such other payments, charges and costs from the proceeds of the sale of the Trust Property and the distribution from the estate of the Grantor.

          (ii) Any recovery of any judgment by the Beneficiary and any levy of any execution under any judgment upon the Trust Property shall not affect in any manner or to any extent the Lien and security interests created and evidenced hereby upon the Trust Property or any part thereof, or any conveyances, powers, rights and remedies of the Beneficiary hereunder, but such conveyances, powers, rights and remedies shall continue unimpaired as before.

          (iii) Any monies collected by the Beneficiary under this Section 8.3 shall be applied in accordance with the provisions of Section 8.2(ii).

     Section 8.4 Legal Proceedings After an Event of Default.

          (i) After the occurrence of any Event of Default and immediately upon the commencement of any action, suit or legal proceedings to obtain judgment for the Secured Obligations or any part thereof, or of any proceedings to foreclose the Lien and security interest created and evidenced hereby or otherwise enforce the provisions

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hereof or of any other proceedings in aid of the enforcement hereof, the Grantor shall enter its voluntary appearance in such action, suit or proceeding.

          (ii) Upon the occurrence and during the continuance of an Event of Default, the Beneficiary and/or Trustee shall be entitled forthwith as a matter of right, concurrently or independently of any other right or remedy hereunder either before or after declaring the Secured Obligations or any part thereof to be due and payable, to the appointment of a receiver without giving notice to any party and without regard to the adequacy or inadequacy of any security for the Secured Obligations or the solvency or insolvency of any person or entity then legally or equitably liable for the Secured Obligations or any portion thereof. The Grantor hereby consents to the appointment of such receiver. Notwithstanding the appointment of any receiver, the Beneficiary shall be entitled as pledgee to the possession and control of any cash, deposits or instruments at the time held by or payable or deliverable under the terms of the Purchase Agreement to the Beneficiary.

          (iii) The Grantor shall not (A) at any time insist upon, or plead, or in any manner whatsoever claim or take any benefit or advantage of any stay or extension or moratorium law, any exemption from execution or sale of the Trust Property or any part thereof, wherever enacted, now or at any time hereafter in force, which may affect the covenants and terms of performance hereof, (B) claim, take or insist on any benefit or advantage of any law now or hereafter in force providing for the valuation or appraisal of the Trust Property, or any part thereof, prior to any sale or sales of the Trust Property which may be made pursuant to this Deed of Trust, or pursuant to any decree, judgment or order of any court of competent jurisdiction or (C) after any such sale or sales, claim or exercise any right under any statute heretofore or hereafter enacted to redeem the property so sold or any part thereof. To the extent permitted by applicable law, the Grantor hereby expressly (A) waives all benefit or advantage of any such law or laws, including, without limitation, any statute of limitations applicable to this Deed of Trust, (B) waives any and all rights to trial by jury in any action or proceeding related to the enforcement hereof, (C) waives any objection which it may now or hereafter have to the laying of venue of any action, suit or proceeding brought in connection with this Deed of Trust and further waives and agrees not to plead that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum and (D) covenants not to hinder, delay or impede the execution of any power granted or delegated to the Beneficiary and Trustee by this Deed of Trust but to suffer and permit the execution of every such power as though no such law or laws had been made or enacted. The Beneficiary shall not be liable for any incorrect or improper payment made pursuant to this Article VIII in the absence of gross negligence or willful misconduct.

     Section 8.5 Remedies Not Exclusive. No remedy conferred upon or reserved to the Beneficiary and/or Trustee by this Deed of Trust is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Deed of Trust or now or hereafter existing at law or in equity. Any delay or omission of the Beneficiary to exercise any right or power accruing on any Event of Default shall not impair any such right or power and shall not be construed to be a waiver of or acquiescence in any such Event of Default. Every power and remedy given by this

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Deed of Trust may be exercised from time to time concurrently or independently, when and as often as may be deemed expedient by the Beneficiary in such order and manner as the Beneficiary, in its sole discretion, may elect. If the Beneficiary accepts any monies required to be paid by the Grantor under this Deed of Trust after the same become due, such acceptance shall not constitute a waiver of the right either to require prompt payment, when due, of all other sums secured by this Deed of Trust or to declare an Event of Default with regard to subsequent defaults. If the Beneficiary accepts any monies required to be paid by the Grantor under this Deed of Trust in an amount less than the sum then due, such acceptance shall be deemed an acceptance on account only and on the condition that it shall not constitute a waiver of the obligation of the Grantor to pay the entire sum then due, and the Grantor’s failure to pay the entire sum then due shall be and continue to be a default hereunder notwithstanding acceptance of such amount on account.

ARTICLE 9
SECURITY AGREEMENT AND FIXTURE FILING

     Section 9.1 Security Agreement. To the extent that the Trust Property includes personal property or items of personal property which are or are to become fixtures under applicable law, this Deed of Trust shall also be construed as a security agreement under the UCC; and, upon and during the continuance of an Event of Default, the Beneficiary shall be entitled with respect to such personal property to exercise all remedies hereunder, all remedies available under the UCC with respect to fixtures and all other remedies available under applicable law. Without limiting the foregoing, such personal property may, at the Beneficiary’s option, (i) be sold hereunder together with any sale of any portion of the Trust Property or otherwise, (ii) be sold pursuant to the UCC, or (iii) be dealt with by the Beneficiary in any other manner permitted under applicable law. The Beneficiary may require the Grantor to assemble such personal property and make it available to the Beneficiary at a place to be designated by the Beneficiary. The Grantor acknowledges and agrees that a disposition of the personal property in accordance with the Beneficiary’s rights and remedies in respect to the Trust Property as heretofore provided is a commercially reasonable disposition thereof; provided, however, that the Beneficiary shall give the Grantor not less than ten (10) days’ prior notice of the time and place of any intended disposition.

     Section 9.2 Fixture Filing. To the extent that the Trust Property includes items of personal property which are or are to become fixtures under applicable law, and to the extent permitted under applicable law, the filing hereof in the real estate records of the county in which such Trust Property is located shall also operate from the time of filing as a fixture filing with respect to such Trust Property, and the following information is applicable for the purpose of such fixture filing, to wit:

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Name and Address of the debtor:	Name and Address of the secured party:
The Grantor having the address described in the Preamble hereof. The Grantor is a corporation organized under the laws of the State of Florida whose Organization Number is P00000041951, and whose Taxpayer Identification Number is 65-1005493.	The Beneficiary having the address described in the Preamble hereof, from which address information concerning the security interest may be obtained.

This Financing Statement covers the following types or items of property:

The Trust Property.

This instrument covers goods or items of personal property which are or are to become fixtures upon the property.

The name of the record owner of the Property on which such fixtures are or are to be located is the Grantor.

          In addition, Grantor authorizes the Beneficiary to file appropriate financing and continuation statements under the UCC in effect in the jurisdiction in which the Trust Property is located as may be required by law in order to establish, preserve and protect the liens and security interests intended to be granted to the Beneficiary pursuant to this Deed of Trust in the Trust Property.

ARTICLE 10
FURTHER ASSURANCES

     Section 10.1 Recording Documentation To Assure Security. The Grantor shall, forthwith after the execution and delivery hereof and thereafter, from time to time, cause this Deed of Trust and any financing statement, continuation statement or similar instrument relating to any thereof or to any property intended to be subject to the Lien hereof to be filed, registered and recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the validity and priority thereof or the Lien hereof purported to be created upon the Trust Property and the interest and rights of the Beneficiary therein. The Grantor shall pay or cause to be paid all taxes and fees incident to such filing, registration and recording, and all expenses incident to the preparation, execution and acknowledgment thereof, and of any instrument of further assurance, and all Federal or state stamp taxes or other taxes, duties and charges arising out of or in connection with the execution and delivery of such instruments.

     Section 10.2 Further Acts. The Grantor shall, at the sole cost and expense of the Grantor, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, mortgages, deeds of trust, assignments, notices of assignment, transfers, financing statements, continuation statements, instruments and assurances as the Beneficiary or Trustee shall from time to time reasonably request, which may be necessary in the judgment of the Beneficiary from time to time to assure, perfect, convey, assign, pledge, transfer and confirm unto the Beneficiary and Trustee, the property and rights hereby conveyed or assigned or which the Grantor may be or may hereafter become bound to convey or assign to the Beneficiary and Trustee or for carrying out the intention or facilitating the performance of the terms hereof or the

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filing, registering or recording hereof. Without limiting the generality of the foregoing, in the event that the Beneficiary or Trustee desires to exercise any remedies, consensual rights or attorney-in-fact powers set forth in this Deed of Trust and determines it necessary to obtain any approvals or consents of any Governmental Authority or any other person therefor, then, upon the reasonable request of the Beneficiary or Trustee, the Grantor agrees to use its best efforts to assist and aid the Beneficiary and/or Trustee to obtain as soon as practicable any necessary approvals or consents for the exercise of any such remedies, rights and powers. In the event the Grantor shall fail after demand to execute any instrument or take any action required to be executed or taken by the Grantor under this Section 10.2, the Beneficiary and/or Trustee may execute or take the same as the attorney-in-fact for the Grantor, such power of attorney being coupled with an interest and is irrevocable.

     Section 10.3 Additional Security. Without notice to or consent of the Grantor and without impairment of the Lien and rights created by this Deed of Trust, the Beneficiary and/or Trustee may accept (but the Grantor shall not be obligated to furnish) from the Grantor or from any other person, additional security for the Secured Obligations. Neither the giving hereof nor the acceptance of any such additional security shall prevent the Beneficiary or Trustee from resorting, first, to such additional security, and, second, to the security created by this Deed of Trust without affecting the Beneficiary’s and Trustee’s Lien and rights under this Deed of Trust.

ARTICLE 11
MISCELLANEOUS

     Section 11.1 No Merger. The rights and estate created by this Deed of Trust shall not, under any circumstances, be held to have merged into any other estate or interest now owned or hereafter acquired by the Beneficiary unless the Beneficiary shall have consented to such merger in writing.

Section 11.2 Concerning Beneficiary.

          (i) The Beneficiary has been appointed as Agent pursuant to the Purchase Agreement. The actions of the Beneficiary hereunder are subject to the provisions of the Purchase Agreement. The Beneficiary shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including, without limitation, the release or substitution of the Trust Property), in accordance with this Deed of Trust and the Purchase Agreement. The Beneficiary may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Beneficiary may resign and a successor Beneficiary may be appointed in the manner provided in the Purchase Agreement. Upon the acceptance of any appointment as the Beneficiary by a successor Beneficiary, that successor Beneficiary shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Beneficiary under this Deed of Trust, and the retiring Beneficiary shall thereupon be discharged from its duties and obligations under this Deed of Trust. After any retiring Beneficiary’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Deed of Trust while it was the Beneficiary.

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          (ii) The Beneficiary shall be deemed to have exercised reasonable care in the custody and preservation of the Trust Property in its possession if such Trust Property is accorded treatment substantially equivalent to that which the Beneficiary, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Beneficiary nor any of the Secured Parties shall have responsibility for taking any necessary steps to preserve rights against any person with respect to any Trust Property.

          (iii) The Beneficiary shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Deed of Trust and its duties hereunder, upon advice of counsel selected by it.

          (iv) With respect to any of its rights and obligations as a Holder, the Beneficiary shall have and may exercise the same rights and powers hereunder. The term “Holders,” “Holder” or any similar terms shall, unless the context clearly otherwise indicates, include the Beneficiary in its individual capacity as a Holder. The Beneficiary may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with the Grantor or any Affiliate of the Grantor to the same extent as if the Beneficiary were not acting as Agent.

          (v) If any portion of the Trust Property also constitutes collateral granted by any Issuer to the Beneficiary to secure the Secured Obligations under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the Beneficiary, in its sole discretion, shall select which provision or provisions shall control.

     Section 11.3 Beneficiary May Perform; Beneficiary Appointed Attorney-in-Fact. If the Grantor shall fail to perform any covenants contained in this Deed of Trust (including, without limitation, the Grantor’s covenants to (i) pay the premiums in respect of all required insurance policies hereunder or under the Purchase Agreement, (ii) pay Charges, (iii) make repairs, (iv) discharge Liens or (v) pay or perform any obligations of the Grantor under any Trust Property) or if any warranty on the part of the Grantor contained herein shall be breached, the Beneficiary may (but shall not be obligated to), after notice to Grantor, do the same or cause it to be done or remedy any such breach, and may expend funds for such purpose; provided, however, that the Beneficiary shall in no event be bound to inquire into the validity of any tax, lien, imposition or other obligation which the Grantor fails to pay or perform as and when required hereby and which the Grantor does not contest in accordance with the provisions of the Purchase Agreement. Any and all amounts so expended by the Beneficiary shall be paid by the Grantor in accordance with the provisions of Section 13.01 of the Purchase Agreement. Neither the provisions of this Section 11.3 nor any action taken by the Beneficiary pursuant to the provisions of this Section 11.3 shall prevent any such failure to observe any covenant contained in this Deed of Trust nor any breach of warranty from constituting an Event of Default. The Grantor hereby appoints the Beneficiary and Trustee its attorney-in-fact, with full authority in the place and

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stead of the Grantor and in the name of the Grantor, or otherwise, from time to time in the Beneficiary’s and Trustee’s discretion to take any action and to execute any instrument consistent with the terms hereof and the other Basic Documents which the Beneficiary and Trustee may deem necessary or advisable to accomplish the purposes hereof. The foregoing grant of authority is a power of attorney coupled with an interest and such appointment shall be irrevocable for the term hereof. The Grantor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof.

     Section 11.4 Continuing Security Interest; Assignment. This Deed of Trust shall create a continuing Lien on and security interest in the Trust Property and shall (i) be binding upon the Grantor, its successors and assigns, (ii) inure, together with the rights and remedies of the Beneficiary and Trustee hereunder, to the benefit of the Beneficiary for the benefit of the Secured Parties and each of their respective successors, transferees and assigns and (iii) in the event there is more than one Grantor party hereto, all undertakings hereunder shall be deemed joint and several. No other persons (including, without limitation, any other creditor of any Basic Party) shall have any interest herein or any right or benefit with respect hereto. Without limiting the generality of the foregoing clause (ii), any Holder may assign or otherwise transfer any indebtedness held by it secured by this Deed of Trust to any other person, and such other person shall thereupon become vested with all the benefits in respect thereof granted to such Holder, herein or otherwise, subject, however, to the provisions of the Purchase Agreement.

     Section 11.5 Termination; Release. This Deed of Trust shall terminate in accordance with the provisions of the Purchase Agreement. Upon termination hereof or any release of the Trust Property or any portion thereof in accordance with the provisions of the Purchase Agreement, the Beneficiary and/or Trustee (as so required by applicable law) shall, upon the request and at the sole cost and expense of the Grantor, forthwith assign, transfer and deliver to the Grantor, against receipt and without recourse to or warranty by the Beneficiary or Trustee, such of the Trust Property to be released (in the case of a release) as may be in possession of the Beneficiary or Trustee and as shall not have been sold or otherwise applied pursuant to the terms hereof, and, with respect to any other Trust Property, proper documents and instruments (including UCC-3 termination statements or releases) acknowledging the termination hereof or the release of such Trust Property, as the case may be.

     Section 11.6 Modification in Writing. No amendment, modification, supplement, termination or waiver of or to any provision hereof, nor consent to any departure by the Grantor therefrom, shall be effective unless the same shall be done in accordance with the terms of the Purchase Agreement and unless in writing and signed by the Beneficiary, and, if required by applicable law, the Trustee. Any amendment, modification or supplement of or to any provision hereof, any waiver of any provision hereof and any consent to any departure by the Grantor from the terms of any provision hereof shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Deed of Trust or any other Basic Document, no notice to or demand on the Grantor in any case shall entitle the Grantor to any other or further notice or demand in similar or other circumstances.

     Section 11.7 Notices. Unless otherwise provided herein or in the Purchase Agreement, any notice or other communication herein required or permitted to be given shall be given in the

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manner and become effective as set forth in the Purchase Agreement, if to the Grantor or the Beneficiary, addressed to it at the address set forth in the Purchase Agreement, or in each case at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 11.7.

     Section 11.8 GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. THIS DEED OF TRUST SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR ITEM OR TYPE OF TRUST PROPERTY ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. GRANTOR AGREES THAT SERVICE OF PROCESS IN ANY PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH IN THE PURCHASE AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE BENEFICIARY SHALL HAVE BEEN NOTIFIED PURSUANT THERETO. IF ANY AGENT APPOINTED BY GRANTOR REFUSES TO ACCEPT SERVICE, GRANTOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF BENEFICIARY TO BRING PROCEEDINGS AGAINST GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION. THE GRANTOR HEREBY IRREVOCABLY WANES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS DEED OF TRUST OR THE TRANSACTIONS CONTEMPLATED HEREBY.

     Section 11.9 Severability of Provisions. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

     Section 11.10 Relationship. The relationship of the Beneficiary to the Grantor hereunder is strictly and solely that of holder and issuer and grantor and beneficiary and nothing contained in the Purchase Agreement, this Deed of Trust or any other document or instrument now existing and delivered in connection therewith or otherwise in connection with the Secured Obligations is intended to create, or shall in any event or under any circumstance be construed as creating a partnership, joint venture, tenancy-in-common, joint tenancy or other relationship of any nature whatsoever between the Beneficiary and the Grantor other than as holder and issuer and grantor and beneficiary.

     Section 11.11 No Credit for Payment of Taxes or Impositions. The Grantor shall not be entitled to any credit against the principal, premium, if any, or interest payable under the Purchase Agreement, and the Grantor shall not be entitled to any credit against any other sums

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which may become payable under the terms thereof or hereof, by reason of the payment of any Charge on the Trust Property or any part thereof.

     Section 11.12 No Claims Against the Beneficiary. Nothing contained in this Deed of Trust shall constitute any consent or request by the Beneficiary, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Premises or any part thereof, nor as giving the Grantor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against the Beneficiary in respect thereof or any claim that any Lien based on the performance of such labor or services or the furnishing of any such materials or other property is prior to the Lien hereof.

     Section 11.13 Beneficiary’s Right To Sever Indebtedness.

          (i) The Grantor acknowledges that (A) the Trust Property does not constitute the sole source of security for the payment and performance of the Secured Obligations and that the Secured Obligations are also secured by property of the Grantor and its Affiliates in other jurisdictions (all such property, collectively, the “Collateral”), (B) the number of such jurisdictions and the nature of the transaction of which this instrument is a part are such that it would have been impracticable for the parties to allocate to each item of Collateral a specific principal amount of indebtedness evidenced by Purchased Securities and to execute in respect thereof a separate purchase agreement and (C) the Grantor intends that the Beneficiary have the same rights with respect to the Trust Property, in foreclosure or otherwise, that the Beneficiary would have had if each item of Collateral had been secured, mortgaged or pledged pursuant to a separate purchase agreement, deed of trust, mortgage or security instrument. In furtherance of such intent, the Grantor agrees that the Beneficiary may at any time by notice (an “Allocation Notice”) to the Grantor allocate a portion (the “Allocated Indebtedness”) of the Secured Obligations to the Trust Property and sever from the remaining Secured Obligations the Allocated Indebtedness. From and after the giving of an Allocation Notice with respect to the Trust Property, the Secured Obligations hereunder shall be limited to the extent set forth in the Allocation Notice and (as so limited) shall, for all purposes, be construed as separate obligation of the Grantor unrelated to the other transactions contemplated by the Purchase Agreement, any other Basic Document or any document related to any thereof. To the extent that the proceeds on any foreclosure of the Trust Property shall exceed the Allocated Indebtedness, such proceeds shall belong to the Grantor and shall not be available hereunder to satisfy any Secured Obligations of the Grantor other than the Allocated Indebtedness. In any action or proceeding to foreclose the Lien hereof or in connection with any power of sale, foreclosure or other remedy exercised under this Deed of Trust commenced after the giving by the Beneficiary of an Allocation Notice, the Allocation Notice shall be conclusive proof of the limits of the Secured Obligations hereby secured, and the Grantor may introduce, by way of defense or counterclaim, evidence thereof in any such action or proceeding. Notwithstanding any provision of this Section 11.13, the proceeds received by the Beneficiary pursuant to this Deed of Trust shall be applied by the Beneficiary in accordance with the provisions of Section 8.2(ii) hereof.

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     (ii) The Grantor hereby waives to the greatest extent permitted under law the right to a discharge of any of the Secured Obligations under any statute or rule of law now or hereafter in effect which provides that foreclosure of the Lien hereof or other remedy exercised under this Deed of Trust constitutes the exclusive means for satisfaction of the Secured Obligations or which makes unavailable a deficiency judgment or any subsequent remedy because the Beneficiary elected to proceed with a power of sale foreclosure or such other remedy or because of any failure by the Beneficiary to comply with laws that prescribe conditions to the entitlement to a deficiency judgment. In the event that, notwithstanding the foregoing waiver, any court shall for any reason hold that the Beneficiary is not entitled to a deficiency judgment, the Grantor shall not (A) introduce in any other jurisdiction such judgment as a defense to enforcement against the Grantor of any remedy in the Purchase Agreement or any other Basic Document or (B) seek to have such judgment recognized or entered in any other jurisdiction, and any such judgment shall in all events be limited in application only to the state or jurisdiction where rendered.

     (iii) In the event any instrument in addition to the Allocation Notice is necessary to effectuate the provisions of this Section 11.13, including, without limitation, any amendment to this Deed of Trust, any substitute promissory note or affidavit or certificate of any kind, the Beneficiary may execute, deliver or record such instrument as the attorney-in-fact of the Grantor. Such power of attorney is coupled with an interest and is irrevocable.

     (iv) Notwithstanding anything set forth herein to the contrary, the provisions of this Section 11.13 shall be effective only to the maximum extent permitted by law.

ARTICLE 12
MORTGAGED LEASE

     Section 12.1 Representations, Warranties and Covenants. Grantor represents and warrants to Beneficiary that (a) the Mortgaged Lease is unmodified and in full force and effect, (b) all rent and other charges therein have been paid to the extent they are payable to the date hereof, (c) Grantor enjoys the quiet and peaceful possession of the property demised thereby, (d) Grantor is not in default under any of the terms thereof and there are no circumstances which, with the passage of time or the giving of notice or both, would constitute an event of default thereunder, and (e) the lessor thereunder is not in default under any of the terms or provisions thereof on the part of the lessor to be observed or performed (but this statement is made for the benefit of and may only be relied upon by Beneficiary and Secured Parties). Grantor shall promptly pay, when due and payable, the rent and other charges payable pursuant to the Mortgaged Lease, and will timely perform and observe all of the other terms, covenants and conditions required to be performed and observed by Grantor as lessee under the Mortgaged Lease. Grantor shall notify Beneficiary in writing of any default by Grantor in the performance or observance of any terms, covenants or conditions on the part of Grantor to be performed or observed under the Mortgaged Lease within ten (10) days after Grantor knows of such default. Grantor shall, promptly following the receipt thereof, deliver a copy of any notice of default given to Grantor by the lessor pursuant to the Mortgaged Lease and promptly notify Beneficiary

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in writing of any default by the lessor in the performance or observance of any of the terms, covenants or conditions on the part of the lessor to be performed or observed thereunder. Unless required under the terms of the Mortgaged Lease, except as set forth in the Purchase Agreement, Grantor shall not, without the prior written consent of Beneficiary (which may be granted or withheld in Beneficiary’s sole and absolute discretion) (i) terminate, or surrender the Mortgaged Lease, or (ii) enter into any modification of the Mortgaged Lease which materially impairs the practical realization of the security interests granted by this Deed of Trust, and any such attempted termination, modification or surrender without Beneficiary’s written consent shall be void. Grantor shall, within thirty (30) days after written request from Beneficiary, use commercially reasonable efforts to obtain from the lessor and deliver to Beneficiary a certificate setting forth the name of the tenant thereunder and stating that the Mortgaged Lease is in full force and effect, is unmodified or, if the Mortgaged Lease has been modified, the date of each modification (together with copies of each such modification), that no notice of termination thereof has been served on Grantor, stating that to the best of lessor’s knowledge, no default or event which with notice or lapse of time (or both) would become a default is existing under the Mortgaged Lease, stating the date to which rent has been paid, and specifying the nature of any defaults, if any, and containing such other statements and representations as may be reasonably requested by Beneficiary.

     Section 12.2 No Merger; Acquisition; Power of Attorney. So long as any of the Secured Obligations remain unpaid or unperformed, the fee title to and the leasehold estate in the premises subject to each Mortgaged Lease shall not merge but shall always be kept separate and distinct notwithstanding the union of such estates in the lessor or Grantor, or in a third party, by purchase or otherwise. If Grantor acquires the fee title or any other estate, title or interest in the property demised by the Mortgaged Lease, or any part thereof, the lien of this Deed of Trust shall attach to, cover and be a lien upon such acquired estate, title or interest and the same shall thereupon be and become a part of the Trust Property with the same force and effect as if specifically encumbered herein. Grantor agrees to execute all instruments and documents that Beneficiary may reasonably require to ratify, confirm and further evidence the lien of this Deed of Trust on the acquired estate, title or interest. Furthermore, Grantor hereby appoints Beneficiary as its true and lawful attorney-in-fact to execute and deliver, following an Event of Default, all such instruments and documents in the name and on behalf of Grantor. This power, being coupled with an interest, shall be irrevocable as long as any portion of the Secured Obligations remains unpaid.

     Section 12.3 New Leases. If the Mortgaged Lease shall be terminated prior to the natural expiration of its term due to default by Grantor or any tenant thereunder, and if, pursuant to the provisions of the Mortgaged Lease, Beneficiary or its designee shall acquire from the lessor a new lease of the premises subject to the Mortgaged Lease, Grantor shall have no right, title or interest in or to such new lease or the leasehold estate created thereby, or renewal privileges therein contained.

     Section 12.4 No Assignment. Notwithstanding anything to the contrary contained herein, this Deed of Trust shall not constitute an assignment of any Mortgaged Lease within the meaning of any provision thereof prohibiting its assignment and Beneficiary shall have no liability or obligation thereunder by reason of its acceptance of this Deed of Trust. Beneficiary shall be liable for the obligations of the tenant arising out of any Mortgaged Lease for only that

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period of time for which Beneficiary is in possession of the premises demised thereunder or has acquired, by foreclosure or otherwise, and is holding all of Grantor’s right, title and interest therein.]

ARTICLE 13
LEASES

     Section 13.1 Grantor’s Affirmative Covenants with Respect to Leases. With respect to each Lease, the Grantor shall:

          (i) observe and perform in all material respects all the obligations imposed upon the Landlord under such Lease;

          (ii) promptly send copies to the Beneficiary of all notices of default which the Grantor shall send or receive thereunder; and

          (iii) enforce all of the material terms, covenants and conditions contained in such Lease upon the part of the Tenant thereunder to be observed or performed.

ARTICLE 14
LOCAL LAW PROVISIONS

     Section 14.1 Principles of Construction. In the event of any inconsistencies between the terms and conditions of this Article 14 and the other terms and conditions of this Deed of Trust, the terms and conditions of this Article 14 shall control and be binding.

     Section 14.2 Fixture Filing. Section 9.2 of the Deed of Trust is amended to add the following provision to the end of the existing Section 9.2:

     To the extent permitted by law, Grantor and Beneficiary agree that with respect to all items of Personal Property which are or will become fixtures on the Land, this Deed of Trust, upon recording or registration in the real estate records of the proper office, shall constitute a “fixture filing” within the meaning of Sections 9313 and 9402 of the UCC. Borrower is the record owner of the Land.

     Section 14.3 Rights and Remedies. Section 8.2 of the Deed of Trust is amended to add the following provisions to the end of the existing Section 8.2:

     Should Beneficiary elect to foreclose by exercise of the power of sale contained herein, Beneficiary shall notify Trustee and shall, if required, deposit with Trustee the Note, the original or a certified copy of this Deed of Trust, and such other documents, receipts and evidences of expenditures made and secured hereby as Trustee may require.

          (i) Upon receipt of such notice from Beneficiary, Trustee shall cause to be recorded and delivered to Grantor such notice of default as may then be required by law and by this Deed of Trust. Trustee shall, without demand on Grantor, after lapse of

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such time as may then be required by law and after delivery and recordation of such notice of default and after notice of sale has been given as required by law, sell the Trust Property at the time and place of sale fixed by it in said notice of sale, either as whole or in separate lots or parcels or items as Trustee shall deem expedient, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to the purchaser or purchasers at such sale its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof.

          (ii) Trustee may postpone the sale of all or any portion of the Trust Property from time to time in accordance with the laws of the State in which the Land is located.

ARTICLE 15
TRUSTEE’S POWERS AND LIABILITIES

     Section 15.1 Trustee’s Powers and Liabilities.

          (i) Trustee, by acceptance hereof, covenants faithfully to perform and fulfill the trusts herein created, being liable, however,, only for gross negligence, bad faith or willful misconduct, and hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by it in accordance with the terms thereof. All authorities, powers and discretions given in this Deed of Trust to Trustee and/or Beneficiary may be exercised by either, without the other, with the same effect as if exercised jointly;

          (ii) Trustee may resign at any time upon giving thirty (30) days’ notice in writing to Grantor and to Beneficiary;

          (iii) Beneficiary may remove Trustee at any time or from time to time and select a successor trustee. In the event of the death, removal, resignation, refusal to act, inability to act or absence of Trustee from the state in which the Premises are located, or in its sole discretion for any reason whatsoever. Beneficiary may, upon notice to the Grantor and without specifying the reason therefore and without applying to any court, select and appoint a successor trustee, and all powers, rights, duties and authority of the former trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond for the faithful performance of his duties unless required by Beneficiary. Such substitute trustee shall be appointed by written instrument duly recorded in the county where the Land is located. Grantor hereby ratifies and confirms any and all acts that the herein named Trustee, or his successor or successors in this trust, shall do lawfully by virtue hereof. Grantor hereby agrees, on behalf of itself and its heirs, executors, administrators and assigns, that the recitals contained in any deed or deeds executed in due form by any Trustee or substitute trustee, acting under the provisions of this instrument, shall be prima facie evidence of the facts recited, and that it shall not be necessary to prove in any court, otherwise than by such

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recitals, the existence of the facts essential to authorize the execution and delivery of such deed or deeds and the passing of title thereby;

          (iv) Trustee shall not be required to see that this Deed of Trust is recorded nor liable for its validity or its priority as a first deed of trust, or otherwise, nor shall Trustee be answerable or responsible for performance or observance of the covenants and agreements imposed upon Grantor or Beneficiary by this Deed of Trust or any other agreement. Trustee, as well as Beneficiary, shall have authority in their respective discretion to employ agents and attorneys in the execution of this trust and to protect the interest of the Beneficiary hereunder, and to the fullest extent permitted by law they shall be compensated and all expenses relating to the employment of such agents and/or attorneys, including expenses of litigation, shall be paid out of the proceeds of the sale of the Trust Property conveyed hereby should a sale be had, but if no such sale be had, all sums so paid out shall be recoverable to the fullest extent permitted by law by all remedies at law or in equity; and

          (v) At any time, or from time to time, without liability therefore and with ten (10) day’s prior written notice to Grantor, upon written request of Beneficiary and without affecting the effect of this Deed of Trust upon the remainder of the Trust Property, Trustee may (A) reconvey any part of the Trust Property, (B) consent in writing to the making of any map or plat thereof, so long as Grantor has consented thereto, (C) join in granting any easement thereon, so long as Grantor has consented thereto, or (D) join in any extension agreement or any agreement subordinating the lien or charge hereof.

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     IN WITNESS WHEREOF, the Grantor has caused this Deed of Trust to be duly executed and delivered under seal the day and year first above written.

NAP OF THE AMERICAS/WEST, INC.

By:

Name:

Title:

I-34

ACKNOWLEDGMENT

State of	)
County o f	)

     On March 31, 2005, before me,                                          [name of notary], in and for said county and state, personally appeared                                           ,                                            of NAP OF THE AMERICAS/WEST, INC., personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

WITNESS my hand and official seal

WITNESS my hand and official seal

Signature of Notary

I-35

Schedule A — Legal Description

(City of Santa Clara)

PARCEL ONE:

All of Parcel 2A, as shown upon that certain Parcel Map entitled, “Being a Portion of Tract No. 2791 (Lots 2 & 3) and a Portion of Lot 5 — Map of the Arques Subdivision in the City of Santa Clara, California”, which map was filed for record in the Office of the Recorder of the County of Santa Clara, State of California, on April 10, 1970 in Book 266 of Maps, Page 32.

PARCEL TWO:

An easement for light and air over and across the parcel of land hereinafter described to be used in common with the record owner (as such owner shall exit from time to time) of the land adjoining to the south a strip of land of a uniform 30.00 feet lying northerly of the following described line: Beginning at a point in the westerly line of Corvin Drive at the intersection thereof with the northerly line of the hereinbefore described Parcel 2A; running thence along said northerly line South 89° 29’ West 310 feet. Said easement are shall at all times to be unobstructed from ground to Sky by the construction, installation or maintenance of any building or structure.

Said above easement is created by Easement Agreement recorded March 30, 1988, Instrument 14115469, Santa Clara Records.

PARCEL THREE:

An easement for installation and maintenance of storm drainage facilities over and across the parcel of land hereinafter describe, to be used in common with the record owner (as such owner shall exist from time to time) of the land adjoining to the south a strip of land of a uniform width of 10.00 feet, the center line of which is described as follows: Beginning at a point in the northerly line of the hereinbefore described Parcel 2A; distance therein South 89° 29’ West 52.50 feet from the northeasterly corner thereof; running thence from said line North 45° East 14.14 feet; thence North 3000 feet and North 67° 31’ 24” East 46.41 feet to the westerly line of Corvin Drive.

Said above easement is created by Easement Agreement recorded March 30, 1988, Instrument 14115469, Santa Clara Records.

PARCEL FOUR:

An easement for the permanent, mutual ingress and egress over a common driveway to serve both parcels and as a common storm drainage area to serve both parcels, described as a strip of land 25 feet in width and 310 feet in length, the centerline of said strip being the line common to Parcel 4A of that parcel map filed for record July 9, 1970, in Book 270, Page 21 of Maps, Santa Clara County Records, and parcel 2A of that parcel map filed for record April 10, 1970 in Book 266, Page 32, of Maps, Santa Clara County Records.

I-36

Excepting thereon that portion lying within Parcel One above.

Assessor’s Parcel Number:  216-33-025

I-37

Schedule B

     Each of the liens and other encumbrances excepted as being prior to the Lien hereof as set forth in Schedule B to the Pro Forma Policy issued by Commonwealth Land Title Insurance Company, dated as of the date hereof and delivered to Collateral Agent on the date hereof, bearing Commonwealth Land Title Insurance Company reference number 05007173 relating to the real property described in Schedule A attached hereto.

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EXHIBIT J-1

FORM OF PERFECTION CERTIFICATE

PERFECTION CERTIFICATE

     Reference is hereby made to (i) that certain Security Agreement dated as of January 5, 2007 (the “Security Agreement”), between Terremark Worldwide, Inc., a Delaware corporation (“Terremark”), the Guarantors party thereto (collectively, the “Guarantors”) and the Agent (as hereinafter defined) and (ii) that certain Purchase Agreement dated as of January 5, 2007 (the “Purchase Agreement”) among the Company, the Guarantors, certain other parties thereto and Credit Suisse, Cayman Islands Branch, as Agent (in such capacity, the “Agent”). Capitalized terms used but not defined herein have the meanings assigned in the Purchase Agreement.

     As used herein, the term “Companies” means Terremark and each of its U.S. Subsidiaries.

     The undersigned hereby certify to the Agent as follows:

     1. Names. (a) The exact legal name of each Company, as such name appears in its respective certificate of incorporation or any other organizational document, is set forth in Schedule 1(a). Each Company is (i) the type of entity disclosed next to its name in Schedule 1(a) and (ii) a registered organization except to the extent disclosed in Schedule 1(a). Also set forth in Schedule 1(a) is the organizational identification number, if any, of each Company that is a registered organization, the Federal Taxpayer Identification Number of each Company and the jurisdiction of formation of each Company.

          (b) Set forth in Schedule 1(b) hereto is any other corporate or organizational names each Company has had in the past five years, together with the date of the relevant change.

          (c) Set forth in Schedule 1(c) is a list of all other names (including trade names or similar appellations) used by each Company, or any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time between December 29, 2001 and the date hereof. Also set forth in Schedule 1(c) is the information required by Section 1 of this certificate for any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time between December 29, 2001 and the date hereof. Except as set forth in Schedule 1(c), no Company has changed its jurisdiction of organization at any time during the past four months.

     2. Current Locations. (a) The chief executive office of each Company is located at the address set forth in Schedule 2(a) hereto.

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          (b) Set forth in Schedule 2(b) are all locations where each Company maintains any books or records relating to any Collateral.

          (c) Set forth in Schedule 2(c) hereto are all the other places of business of each Company.

          (d) Set forth in Schedule 2(d) hereto are all other locations where each Company maintains any of the Collateral consisting of inventory or equipment not identified above.

          (e) Set forth in Schedule 2(e) hereto are the names and addresses of all persons or entities other than each Company, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any of the Collateral consisting of instruments, chattel paper, inventory or equipment.

     3. Prior Locations. (a) Set forth in Schedule 3(a) is the information required by Schedule 2(a), Schedule 2(b) or Schedule 2(c) with respect to each location or place of business previously maintained by each Company at any time during the past four months.

          (b) Set forth in Schedule 3(b) is the information required by Schedule 2(d) or Schedule 2(e) with respect to each other location at which, or other person or entity with which, any of the Collateral consisting of inventory or equipment has been previously held at any time during the past twelve months.

     4. Extraordinary Transactions. Except for those purchases, acquisitions and other transactions described on Schedule 4 attached hereto, all of the Collateral has been originated by each Company in the ordinary course of business or consists of goods which have been acquired by such Company in the ordinary course of business from a person in the business of selling goods of that kind.

     5. File Search Reports. Attached hereto as Schedule 5 is a true and accurate summary of file search reports from (A) the Uniform Commercial Code filing offices (i) in each jurisdiction identified in Section 1(a), Section 2 or Section 3 with respect to each legal name set forth in Section 1 and (ii) in each jurisdiction described in Schedule 1(c) or Schedule 4 relating to any of the transactions described in Schedule 1(c) or Schedule 4 with respect to each legal name of the person or entity from which each Company purchased or otherwise acquired any of the Collateral and (B) each filing officer in each real estate recording office identified on Schedule 8 with respect to real estate on which Collateral consisting of fixtures is or is to be located. A true copy of each financing statement, including judgment and tax liens, bankruptcy and pending lawsuits or other filing identified in such file search reports has been delivered to the Agent.

     6. UCC Filings. The financing statements (duly authorized by each Company constituting the debtor therein), including the indications of the collateral, attached as Schedule

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6 relating to the Security Agreement or the applicable Mortgage, are in the appropriate forms for filing in the filing offices in the jurisdictions identified in Schedule 7 hereof.

     7. Schedule of Filings. Attached hereto as Schedule 7 is a schedule of (i) the appropriate filing offices for the financing statements attached hereto as Schedule 6 and (ii) the appropriate filing offices for the filings described in Schedule 15(c) and (iii) any other actions required to create, preserve, protect and perfect the security interests in the Pledged Collateral (as defined in the Security Agreement) granted to the Agent pursuant to the Security Documents. No other filings or actions are required to create, preserve, protect and perfect the security interests in the Pledged Collateral granted to the Agent pursuant to the Security Documents.

     8. Real Property. Attached hereto as Schedule 8(a) is a list of all real property owned or leased by each Company noting Mortgaged Property as of the Closing Date and filing offices for Mortgages as of the Closing Date. Except as described on Schedule 8(b) attached hereto, no Company has entered into any leases, subleases, tenancies, franchise agreements, licenses or other occupancy arrangements as owner, lessor, sublessor, licensor, franchisor or grantor with respect to any of the real property described on Schedule 8(a) and no Company has any Leases which require the consent of the landlord, tenant or other party thereto to the Transactions.

     9. Personal Property.

          (a) Tangible Personal Property in Possession of Warehousemen and Bailees. Except as set forth in Schedule 9(a), no persons (including warehousemen and bailees) other than the Company has possession of any material amount (fair market value of $10,000 or more) of tangible personal property of the Company.

          (b) Tangible Personal Property in Extended Article 9 Transition States and Former Article 9 Jurisdictions. Set forth in Schedule 9(b) are all the locations within the States of Alabama, Arizona, Florida or Mississippi or the Commonwealth of Puerto Rico where the Company currently maintains or has maintained any material amount (fair market value of $10,000 or more) of its tangible personal property (including goods, inventory and equipment) of such Company (whether or not in the possession of such Company) within the past five (5) years.

     10. Termination Statements. Attached hereto as Schedule 10(a) are the duly authorized termination statements in the appropriate form for filing in each applicable jurisdiction identified in Schedule 10(b) hereto with respect to each Lien described therein.

     11. Stock Ownership and Other Equity Interests. Attached hereto as Schedule 11(a) is a true and correct list of each of all of the authorized, and the issued and outstanding, stock, partnership interests, limited liability company membership interests or other equity interest of each Company and its Subsidiaries and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests. Also set forth on Schedule

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11(b) is each equity investment of each Company that represents 50% or less of the equity of the entity in which such investment was made.

     12. Instruments and Tangible Chattel Paper. Attached hereto as Schedule 12 is a true and correct list of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness held by each Company as of December 29, 2006, including all intercompany notes between or among any two or more Companies.

     13. Intellectual Property. (a) Except with respect to the trademarks “Luxury Condos at Hotel Rates” and “Fortune House”, attached hereto as Schedule 13(a) is a schedule setting forth all of each Company’s Patents, Patent applications, Patent Licenses, Trademarks, Trademark applications and Trademark Licenses (each as defined in the Security Agreement) registered with the United States Patent and Trademark Office, and all other Patents, Patent Licenses, Trademarks and Trademark Licenses, including the name of the registered owner and the registration number of each Patent, Patent License, Trademark and Trademark License owned by each Company. Attached hereto as Schedule 13(b) is a schedule setting forth all of each Company’s United States Copyrights, Copyright applications and Copyright Licenses (each as defined in the Security Agreement), and all other Copyrights and Copyright Licenses, including the name of the registered owner and the registration number of each Copyright or Copyright License owned by each Company.

          (b) Attached hereto as Schedule 13(b) in proper form for filing with the United States Patent and Trademark Office and United States Copyright Office are the filings necessary to preserve, protect and perfect the security interests in the United States Trademarks, Trademark Licenses, Patents, Patent Licenses, Copyrights and Copyright Licenses set forth on Schedule 13(a) and Schedule 13(b), including duly signed copies of each of the Patent Security Agreement, Trademark Security Agreement and the Copyright Security Agreement, as applicable.

     14. Commercial Tort Claims. Attached hereto as Schedule 14 is a true and correct list of all Commercial Tort Claims (as defined in the Security Agreement) held by each Company, including a brief description thereof.

     15. Deposit Accounts, Securities Accounts and Commodity Accounts. Attached hereto as Schedule 15 is a true and complete list of all Deposit Accounts, Securities Accounts and Commodity Accounts (each as defined in the Security Agreement) maintained by each Company, including the name of each institution where each such account is held, the name of each such account and the name of each entity that holds each account.

     16. Letter-of-Credit Rights. Attached hereto as Schedule 16 is a true and correct list of all Letters of Credit issued in favor of each Company, as beneficiary thereunder.

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     17. Motor Vehicles. Attached hereto as Schedule 17 is a true and correct list of all motor vehicles (covered by certificates of title or ownership) valued at over $50,000 and owned by each Company, and the owner and approximate value of such motor vehicles.

[The Remainder of this Page has been intentionally left blank]

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     IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate as of this th day of January, 2007.

TERREMARK WORLDWIDE, INC.
By:
	Name: Jose A. Segrera Title: Chief Financial Officer
GUARANTORS:
NAP OF THE AMERICAS, INC.
NAP OF THE AMERICAS/WEST, INC.
OPTICAL COMMUNICATIONS, INC.
PARK WEST TELECOMMUNICATIONS INVESTORS, INC.
SPECTRUM TELECOMMUNICATIONS CORP.
TECOTA SERVICES CORP.
TERREMARK EUROPE, INC.
TERREMARK FEDERAL GROUP, INC.
TERREMARK FINANCIAL SERVICES, INC.
TERREMARK FORTUNE HOUSE #1, INC.
TERREMARK LATIN AMERICA, INC.
TERREMARK MANAGEMENT SERVICES, INC.
TERREMARK REALTY, INC.
TERREMARK TECHNOLOGY CONTRACTORS, INC.
TERRREMARK TRADEMARK HOLDINGS, INC.
TERRENAP DATA CENTERS, INC.
TERRENAP SERVICES, INC.
By:
Name:	Jose A. Segrera
Title:	Chief Financial Officer

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Schedule 1(a)

Legal Names, Etc.

		Registered		Federal Taxpayer
		Organization	Organizational	Identification	State/Jurisdiction
Legal Name	Type of Entity	(Yes/No)	Number1	Number	of Formation

¹ If none, so state.

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Schedule 1(b)

Prior Organizational Names

		Date of
Company/Subsidiary	Prior Name	Change

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Schedule 1(c)

Changes in Corporate Identity; Other Names

					List of All Other
			Date		Names Used
	Corporate		of	State of	During Past Five
Company/Subsidiary	Name of Entity	Action	Action	Formation	Years

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Schedule 2(a)

Chief Executive Offices

Company/Subsidiary Address County State/Country

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Schedule 2(b)

Location of Books

Company/Subsidiary Address County State/Country

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Schedule 2(c)

Other Places of Business

Company/Subsidiary Address County State

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Schedule 2(d)

Additional Locations of Equipment and Inventory

Company/Subsidiary Address County State

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Schedule 2(e)

Locations of Collateral in Possession of Persons Other Than Company or Any Subsidiary

	Name of Entity in
	Possession of
	Collateral/Capacity of such	Address/Location of
Company/Subsidiary	Entity	Collateral	County	State

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Schedule 3(a)

Prior Locations Maintained by Company/Subsidiaries

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Schedule 3(b)

Prior Locations/Other Entities

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Schedule 4

Transactions Other Than in the Ordinary Course of Business

Company/Subsidiary Description of Transaction Including Parties Thereto Date of Transaction

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Schedule 5

File Search Reports

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Schedule 6

Copy of Financing Statements To Be Filed

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Schedule 7

Filings/Filing Offices

		Applicable Collateral Document
Type of Filing3	Entity	[Mortgage, Security Agreement or Other]	Jurisdictions

³ UCC-1 financing statement, fixture filing, mortgage, intellectual property filing or other necessary filing.

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Schedule 8(a)

Real Property

				Description of
		Owned or	Landlord/Owner	Lease
Entity of Record	Location Address	Leased	if Leased	Documents

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Schedule 8(b)

Leases, Subleases, Tenancies, Franchise agreements, Licenses or Other Occupancy Arrangements

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Schedule 9(a)

Tangible Personal Property in Possession of Warehousemen and Bailees

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Schedule 9(b)

Tangible Personal Property in Extended Article 9 Transition States and Former Article 9
Jurisdictions

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Schedule 10(a)

Attached hereto is a true copy of each termination statement filing duly acknowledged or otherwise identified by the filing officer.

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Schedule 10(b)

Termination Statement Filings

				UCC-1 File	UCC-1 File
Debtor	Jurisdiction	Secured Party	Type of Collateral	Date	Number

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Schedule 11 (a)

Equity Interests of Companies and Subsidiaries

Current Legal
Entities Owned Record Owner Certificate
No. No. Shares
/ Interest Percent
Pledged

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Schedule 11 (b)

Other Equity Interests

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Schedule 12

Instruments and Tangible Chattel Paper

1.      Promissory Notes:

Entity Principal Amount Date of Issuance Interest Rate Maturity Date

2.       Chattel Paper:

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Schedule 13(a)

Patents and Trademarks

UNITED STATES PATENTS:

Registrations:

	REGISTRATION
OWNER	NUMBER	DESCRIPTION

Applications:

	APPLICATION
OWNER	NUMBER	DESCRIPTION

Licenses:

		REGISTRATION/
		APPLICATION
LICENSEE	LICENSOR	NUMBER	DESCRIPTION

OTHER PATENTS:

Registrations:

	REGISTRATION
OWNER	NUMBER	COUNTRY/STATE	DESCRIPTION

Applications:

	APPLICATION
OWNER	NUMBER	COUNTRY/STATE	DESCRIPTION

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Licenses:

			REGISTRATION/
			APPLICATION
LICENSEE	LICENSOR	COUNTRY/STATE	NUMBER	DESCRIPTION

UNITED STATES TRADEMARKS:

Registrations:

OWNER REGISTRATION NUMBER TRADEMARK

Applications:

OWNER APPLICATION NUMBER TRADEMARK

Licenses:

		REGISTRATION/
		APPLICATION
LICENSEE	LICENSOR	NUMBER	TRADEMARK

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OTHER TRADEMARKS:

Registrations:

	REGISTRATION
OWNER	NUMBER	COUNTRY/STATE	DESCRIPTION

Applications:

	APPLICATION
OWNER	NUMBER	COUNTRY/STATE	DESCRIPTION

Licenses:

			REGISTRATION/
			APPLICATION
LICENSEE	LICENSOR	COUNTRY/STATE	NUMBER	DESCRIPTION

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Schedule 13(b)

Copyrights

UNITED STATES COPYRIGHTS

Registrations:

OWNER TITLE REGISTRATION NUMBER

Applications:

OWNER APPLICATION NUMBER

Licenses:

		REGISTRATION/
		APPLICATION
LICENSEE	LICENSOR	NUMBER	DESCRIPTION

OTHER COPYRIGHTS

Registrations:

OWNER COUNTRY/STATE TITLE REGISTRATION NUMBER

Applications:

OWNER COUNTRY/STATE APPLICATION NUMBER

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Licenses:

			REGISTRATION/
LICENSEE	LICENSOR	COUNTRY/STATE	APPLICATION NUMBER	DESCRIPTION

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Schedule 13(c)

Intellectual Property Filings

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Schedule 14

Commercial Tort Claims

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Schedule 15

Deposit Accounts, Securities Accounts and Commodity Accounts

	TYPE OF	BANK OR	ACCOUNT
OWNER	ACCOUNT	INTERMEDIARY	NUMBERS

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Schedule 16

Letter of Credit Rights

J- 1 -38

Schedule 17

Motor Vehicles

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EXHIBIT J-2

FORM OF PERFECTION CERTIFICATE SUPPLEMENT

PERFECTION CERTIFICATE SUPPLEMENT

          This Perfection Certificate Supplement, dated as of [ ], 200[ ] is delivered pursuant to Section 7.15(b) of that Certain Purchase Agreement dated as of January 5, 2007 (the “Purchase Agreement”) among Terremark Worldwide, Inc. (“Terremark”), the Guarantors, the Purchasers and Credit Suisse, Cayman Islands Branch, as Agent (in such capacity, the “Agent”). Capitalized terms used but not defined herein have the meanings assigned in the Purchase Agreement. As used herein, the term “Companies” means Terremark and each of its [U.S.] Subsidiaries.

          The undersigned, the [      ] of Terremark, hereby certify (in my capacity as [      ] and not in my individual capacity) to the Agent and each of the other Secured Parties that, as of the date hereof, there has been no change in the information described in the Perfection Certificate delivered on the Closing Date (as supplemented by any perfection certificate supplements delivered prior to the date hereof, the “Prior Perfection Certificate”), other than as follows:

          1. Names. (a) Except as listed on Schedule 1(a) attached hereto and made a part hereof, (x) Schedule 1(a) to the Prior Perfection Certificate sets forth the exact legal name of each Company, as such name appears in its respective certificate of incorporation or any other organizational document; (y) each Company is (i) the type of entity disclosed next to its name in Schedule 1(a) to the Prior Perfection Certificate and (ii) a registered organization except to the extent disclosed in Schedule 1(a) to the Prior Perfection Certificate and (z) set forth in Schedule 1(a) to the Prior Perfection Certificate is the organizational identification number, if any, of each Company that is a registered organization, the Federal Taxpayer Identification Number of each Company and the jurisdiction of formation of each Company.

     (b) Except as listed on Schedule 1(b) attached hereto and made a part hereof, set forth in Schedule 1(b) of the Prior Perfection Certificate is any other corporate or organizational names each Company has had in the past five years, together with the date of the relevant change.

     2. Current Locations. (a) Except as listed on Schedule 2(a) attached hereto and made a part hereof, the chief executive office of each Company is located at the address set forth in Schedule 2(a) of the Prior Perfection Certificate.

     (b) Except as listed on Schedule 2(b) attached hereto and made a part hereof, set forth in Schedule 2(b) of the Prior Perfection Certificate are all locations where each Company maintains any books or records relating to any Collateral.

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     (c) Except as listed on Schedule 2(c) attached hereto and made a part hereof, set forth in Schedule 2(c) of the Prior Perfection Certificate are all the other places of business of each Company.

     (d) Except as listed on Schedule 2(d) attached hereto and made a part hereof, set forth in Schedule 2(d) of the Prior Perfection Certificate are all other locations where each Company maintains any of the Collateral consisting of inventory or equipment not identified above.

     (e) Except as listed on Schedule 2(e) attached hereto and made a part hereof, set forth in Schedule 2(e) of the Prior Perfection Certificate are the names and addresses of all persons or entities other than each Company, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any of the Collateral consisting of instruments, chattel paper, inventory or equipment.

     3. [Intentionally omitted].

     4. Extraordinary Transactions. Except for those purchases, acquisitions and other transactions described on Schedule 4 attached hereto and on Schedule 4 to the Prior Perfection Certificate, all of the Collateral has been originated by each Company in the ordinary course of business or consists of goods which have been acquired by such Company in the ordinary course of business from a person in the business of selling goods of that kind.

     5. [Intentionally omitted].

     6. UCC Filings. Except as listed on Schedule 6 attached hereto and made a part hereof, the financing statements (duly authorized by each Company constituting the debtor therein), including the indications of the collateral relating to the Security Agreement or the applicable Mortgage, are set forth in Schedule 6 of the Prior Perfection Certificate and are in the appropriate forms for filing in the filing offices in the jurisdictions identified in Schedule 7 hereto and thereto.

     7. Schedule of Filings. Except as listed on Schedule 7 attached hereto and made a part hereof, attached to the Prior Perfection Certificate as Schedule 7 is a schedule of (i) the appropriate filing offices for the financing statements attached hereto and thereto as Schedule 6 and (ii) the appropriate filing offices for the filings described in Schedule 14(c) hereto and thereto and (iii) any other actions required to create, preserve, protect and perfect the security interests in the Pledged Collateral (as defined in the Security Agreement) granted to the Agent pursuant to the Security Documents. No other filings or actions are required to create, preserve, protect and perfect the security interests in the Pledged Collateral granted to the Agent pursuant to the Security Documents.

     8. Real Property. Except as listed on Schedule 8(a) attached hereto and made a part hereof, Schedule 8(a) to the Prior Perfection Certificate is a list of all real property owned or leased by each Company noting Mortgaged Property as of the Closing Date and filing offices for Mortgages as of the Closing Date. Except as described on Schedule 8(b) attached hereto, no

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Company has entered into any leases, subleases, tenancies, franchise agreements, licenses or other occupancy arrangements as owner, lessor, sublessor, licensor, franchisor or grantor with respect to any of the real property described on Schedule 8(a) or Schedule 8(a) of the Prior Perfection Certificate, other than those listed on Schedule 8(b) of the Prior Perfection Certificate, and no Company has any Leases which require the consent of the landlord, tenant or other party thereto to the Transactions.

     9. Personal Property.

          (a) Tangible Personal Property in Possession of Warehousemen and Bailees. Except as set forth in Schedule 9(a), no persons (including warehousemen and bailees) other than the Company has possession of any material amount (fair market value of $10,000 or more) of tangible personal property of the Company.

          (b) Tangible Personal Property in Extended Article 9 Transition States and Former Article 9 Jurisdictions. Set forth in Schedule 9(b) are all the locations within the States of Alabama, Arizona, Florida or Mississippi or the Commonwealth of Puerto Rico where the Company currently maintains or has maintained any material amount (fair market value of $10,000 or more) of its tangible personal property (including goods, inventory and equipment) of such Company (whether or not in the possession of such Company) within the past five (5) years.

          10. Termination Statements. Except as listed on Schedule 10(a) attached hereto and made a part hereof, Schedule 9(a) to the Prior Perfection Certificate sets forth the duly authorized termination statements in the appropriate form for filing in each applicable jurisdiction identified in Schedule 10(b) hereto and thereto with respect to each Lien described therein.

          11. Stock Ownership and Other Equity Interests. Except as listed on Schedule 11(a) attached hereto and made a part hereof, Schedule 11(a) to the Prior Perfection Certificate is a true and correct list of each of all of the authorized, and the issued and outstanding, stock, partnership interests, limited liability company membership interests or other equity interest of each Company and its Subsidiaries and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests. Except as set forth on Schedule 11(b) attached hereto and made a part hereof, Schedule 10(b) to the Prior Perfection Certificate sets forth each equity investment of each Company that represents 50% or less of the equity of the entity in which such investment was made.

          12. Instruments and Tangible Chattel Paper. Except as listed on Schedule 12 attached hereto and made a part hereof, Schedule 12 to the Prior Perfection Certificate is a true and correct list of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness held by each Company as of                                         , 200[ ], including all intercompany notes between or among any two or more Companies.

J-2-3

          13. Intellectual Property. (a) Except as listed on Schedule 13(a) attached hereto and made a part hereof, Schedule 13(a) to the Prior Perfection Certificate is a schedule setting forth all of each Company’s Patents, Patent Licenses, Trademarks and Trademark Licenses (each as defined in the Security Agreement) registered with the United States Patent and Trademark Office, and all other Patents, Patent Licenses, Trademarks and Trademark Licenses, including the name of the registered owner and the registration number of each Patent, Patent License, Trademark and Trademark License owned by each Company. Except as listed on Schedule 13(b) attached hereto and made a part hereof, Schedule 13(b) to the Prior Perfection Certificate is a schedule setting forth all of each Company’s United States Copyrights and Copyright Licenses (each as defined in the Security Agreement), and all other Copyrights and Copyright Licenses, including the name of the registered owner and the registration number of each Copyright or Copyright License owned by each Company.

     (b) Except as listed on Schedule 13(c) attached hereto and made a part hereof, attached to the Prior Perfection Certificate as Schedule 13(c) in proper form for filing with the United States Patent and Trademark Office and United States Copyright Office are the filings necessary to preserve, protect and perfect the security interests in the United States Trademarks, Trademark Licenses, Patents, Patent Licenses, Copyrights and Copyright Licenses set forth on Schedule 13(a) and Schedule 13(b) hereto and thereto, including duly signed copies of each of the Patent Security Agreement, Trademark Security Agreement and the Copyright Security Agreement, as applicable.

     14. Commercial Tort Claims. Except as listed on Schedule 14 attached hereto and made a part hereof, attached to the Prior Perfection Certificate as Schedule 14 is a true and correct list of all Commercial Tort Claims (as defined in the Security Agreement) held by each Company, including a brief description thereof.

     15. Deposit Accounts, Securities Accounts and Commodity Accounts. Except as listed on Schedule 15 attached hereto and made a part hereof, attached to the Prior Perfection Certificate as Schedule 15 is a true and complete list of all Deposit Accounts, Securities Accounts and Commodity Accounts (each as defined in the Security Agreement) maintained by each Company, including the name of each institution where each such account is held, the name of each such account and the name of each entity that holds each account.

     16. Letter-of-Credit Rights. Except as listed on Schedule 16 attached hereto and made a part hereof, attached to the Prior Perfection Certificate as Schedule 16 is a true and correct list of all Letters of Credit issued in favor of each Company, as beneficiary thereunder.

     17. Motor Vehicles. Except as listed on Schedule 17 attached hereto and made a part hereof, attached to the Prior Perfection Certificate as Schedule 17 is a true and correct list of all motor vehicles (covered by certificates of title or ownership) valued at over $50,000 and owned by each Company, and the owner and approximate value of such motor vehicles.

[The Remainder of this Page has been intentionally left blank]

J-2-4

     IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate as of this                      day of                                         , 200[ ].

TERREMARK WORLDWIDE, INC.
By:
	Name:
	Title:
[Each of the Guarantors]
By:
	Name:
	Title:

J-2-5

Schedule 1(a)

Legal Names, Etc.

		Registered Organization		Federal Taxpayer
Legal Name	Type of Entity	(Yes/No)	Organizational Number4	Identification Number	State of Formation

⁴ If none, so state.

J-2-6

Schedule 1(b)

Prior Organizational Names

Company/Subsidiary Prior Name Date of Change

J-2-7

Schedule 1(c)

Changes in Corporate Identity; Other Names

					List of All Other
	Corporate Name of				Names Used During
Company/Subsidiary	Entity	Action	Date of Action	State of Formation	Past Five Years

J-2-8

Schedule 2(a)

Chief Executive Offices

Company/Subsidiary Address County State

J-2-9

Schedule 2(b)

Location of Books

Company/Subsidiary Address County State

J-2-10

Schedule 2(c)

Other Places of Business

Company/Subsidiary Address County State

J-2-11

Schedule 2(d)

Additional Locations of Equipment and Inventory

Company/Subsidiary Address County State

J-2-12

Schedule 2(e)

Locations of Collateral in Possession of Persons Other Than Company or Any Subsidiary

	Name of Entity in
	Possession of
	Collateral/Capacity	Address/Location of
Company/Subsidiary	of such Entity	Collateral	County	State

J-2-13

Schedule 3(a)

Prior Locations Maintained by Company/Subsidiaries

J-2-14

Schedule 3(b)

Prior Locations/Other Entities

J-2-15

Schedule 4

Transactions Other Than in the Ordinary Course of Business

	Description of
	Transaction Including
Company/Subsidiary	Parties Thereto	Date of Transaction

J-2-16

Schedule 5

File Search Reports

J-2-17

Schedule 6

Copy of Financing Statements To Be Filed

J-2-18

Schedule 7

Filings/Filing Offices

		Applicable
		Collateral Document
		[Mortgage, Security
Type of Filing5	Entity	Agreement or Other]	Jurisdictions

⁵ UCC-1 financing statement, fixture filing, mortgage, intellectual property filing or other necessary filing.

J-2-19

Schedule 8(a)

Real Property

			Landlord/Owner if	Description of
Entity of Record	Location Address	Owned or Leased	Leased	Lease Documents

J-2-20

Schedule 8(b)

Leases, Subleases, Tenancies, Franchise agreements, Licenses or Other Occupancy Arrangements

J-2-21

Schedule 9(a)

Tangible Personal Property in Possession of Warehousemen and Bailees

J-2-22

Schedule 9(b)

Tangible Personal Property in Extended Article 9 Transition States and Former Article 9
Jurisdictions

J-2-23

Schedule 10(a)

Attached hereto is a true copy of each termination statement filing duly acknowledged or otherwise identified by the filing officer.

J-2-24

Schedule 10(b)

Termination Statement Filings

Debtor Jurisdiction Secured Party Type of Collateral UCC-1 File Date UCC-1 File Number

J-2-25

Schedule 11(a)

Equity Interests of Companies and Subsidiaries

Current Legal
Entities Owned	Record Owner	Certificate No.	No. Shares/Interest	Percent Pledged

J-2-26

Schedule 11(b)

Other Equity Interests

J-2-27

Schedule 12

Instruments and Tangible Chattel Paper

1. Promissory Notes:

Entity Principal Amount Date of Issuance Interest Rate Maturity Date

2. Chattel Paper:

J-2-28

Schedule 13(a)

Patents and Trademarks

UNITED STATES PATENTS:

Registrations:

OWNER REGISTRATION NUMBER DESCRIPTION

Applications:

OWNER APPLICATION NUMBER DESCRIPTION

Licenses:

		REGISTRATION/
		APPLICATION
LICENSEE	LICENSOR	NUMBER	DESCRIPTION

OTHER PATENTS:

Registrations:

OWNER REGISTRATION NUMBER COUNTRY/STATE DESCRIPTION

Applications:

OWNER APPLICATION NUMBER COUNTRY/STATE DESCRIPTION

J-2-29

Licenses:

			REGISTRATION/
LICENSEE	LICENSOR	COUNTRY/STATE	APPLICATION NUMBER	DESCRIPTION

UNITED STATES TRADEMARKS:

Registrations:

OWNER REGISTRATION NUMBER TRADEMARK

Applications:

OWNER APPLICATION NUMBER TRADEMARK

Licenses:

		REGISTRATION/
		APPLICATION
LICENSEE	LICENSOR	NUMBER	TRADEMARK

OTHER TRADEMARKS:

Registrations:

OWNER REGISTRATION NUMBER COUNTRY/STATE TRADEMARK

J-2-30

Applications:

OWNER APPLICATION NUMBER COUNTRY/STATE TRADEMARK

Licenses:

			REGISTRATION/
			APPLICATION
LICENSEE	LICENSOR	COUNTRY/STATE	NUMBER	TRADEMARK

J-2-31

Schedule 13(b)

Copyrights

UNITED STATES COPYRIGHTS

Registrations:

OWNER TITLE REGISTRATION NUMBER

Applications:

OWNER APPLICATION NUMBER

Licenses:

		REGISTRATION/
		APPLICATION
LICENSEE	LICENSOR	NUMBER	DESCRIPTION

OTHER COPYRIGHTS

Registrations:

OWNER COUNTRY/STATE TITLE REGISTRATION NUMBER

Applications:

OWNER COUNTRY/STATE APPLICATION NUMBER

J-2-32

Licenses:

			REGISTRATION/
LICENSEE	LICENSOR	COUNTRY/STATE	APPLICATION NUMBER	DESCRIPTION

J-2-33

Schedule 13(c)

Intellectual Property Filings

J-2-34

Schedule 14

Commercial Tort Claims

J-2-35

Schedule 15

Deposit Accounts, Securities Accounts and Commodity Accounts

OWNER TYPE OF ACCOUNT BANK OR INTERMEDIARY ACCOUNT NUMBERS

J-2-36

Schedule 16

Letter of Credit Rights

J-2-37

Schedule 17

Motor Vehicles

J-2-38

EXHIBIT K

FORM OF SECURITY AGREEMENT

See attached.

K-1

EXHIBIT L

FORM OF CONFIDENTIALITY AGREEMENT

THIS AGREEMENT is made effective as of                     , 200 (the “Effective Date”) by and between Terremark Worldwide, Inc., a Florida corporation acting on behalf of itself and its Affiliates, with offices at 2601 South Bayshore Drive, Suite #900, Miami, FL and                                         , a corporation acting on behalf of itself and its Affiliates (as defined below) with offices                                          (each individually a “Party” and collectively the “Parties”).

WITNESSETH:

     WHEREAS, in connection with exploring and evaluating a possible business relationship (the “Relationship”) and for the purposes of the ongoing Relationship, the Parties recognize the need to disclose to one another certain of the Confidential Information (as defined below); and

     WHEREAS, the Parties wish to provide the terms and conditions upon which such Confidential Information will be disclosed by one Party to the other Party hereunder;

     NOW, THEREFORE In consideration of the other party’s disclosure of Confidential Information and the covenants and promises contained herein, the Parties agree as follows:

1. “Confidential Information” means information in whatever form disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) before, on or after the Effective Date hereof which relates to a Disclosing Party’s business or the Relationship, including without limitation business, financial, operational, human resource and technical materials and information, or which although not directly related to the Relationship, is nevertheless disclosed as a result of or in connection with the Parties’ discussions of the Relationship.

2. The Receiving Party shall use the Disclosing Party’s Confidential Information only for the purpose of evaluating the Relationship and for the purposes of the ongoing Relationship, and shall protect such Confidential Information from disclosure to third parties, using the same degree of care used to protect its own proprietary and confidential information of like importance, but in any case using no less than a reasonable degree of care. The Parties understand that disclosure of Confidential Information could result in violation of the federal securities laws as well as other laws. The Receiving Party agrees not to trade in the securities of Disclosing Party while in possession of material Confidential Information or any other information of a material, non-public nature relating to the Disclosing Party. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its Affiliates, its employees and its consultants, in each case if such Affiliates, employees, and consultants have a need to know, and provided such Affiliates, employees and consultants (i) use the Confidential Information for the purposes of the Relationship only, and (ii) are bound to protect the Confidential Information as required hereunder. The Parties shall each be responsible for any breach of the terms of this Agreement by them or their respective Affiliates or representatives and agree, at their sole expense, to take all reasonable measures (including but not limited to court proceedings) to restrain their respective Affiliates or representatives from prohibited or unauthorized disclosure or use of the Confidential Information.

3. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (a) the Receiving Party can demonstrate is in the possession or control of such

L-1

Party at the time of its disclosure hereunder; (b) is or becomes publicly known, through no wrongful act of the Receiving Party; (c) the Receiving Party can demonstrate was received by such Party from a third party free to disclose it without obligation (whether contractual, legal, fiduciary or otherwise) to the Disclosing Party; (d) the Receiving Party can demonstrate was developed independently by such Party without reference to the Confidential Information; or (e) is lawfully required to be disclosed..

4. Confidential Information disclosed under this Agreement shall be and remain the property of the Disclosing Party. Upon the written request of the Disclosing Party at any time, shall promptly return or destroy all such tangible Confidential Information of the Disclosing Party in its possession, and no such Confidential Information shall thereafter be retained in any form by the Receiving Party except that the Receiving Party may retain a copy of the Disclosing Party’s Confidential Information in the possession of outside counsel of its own choosing for use solely in the event a dispute arises hereunder and only in connection with such dispute or as otherwise required by law. The Receiving Party shall be fully responsible for the return or destruction of all Confidential Information disclosed to its Affiliates, its employees and its consultants.

5. Without the prior written consent of the other Party, neither Party will disclose to any third party any Confidential Information, including without limitation any of the terms or conditions relating to the Relationship being discussed by the Parties, or the existence of this Agreement.

6. This Agreement shall become effective on the date first set forth above and shall continue for a period of three (3) years, or until a further agreement is entered into by and between the Parties, whichever shall occur first.

7. The term “Affiliate” means any person or entity controlling controlled by or under common control with a Party.

8. This Agreement: (a) is the complete Agreement of the Parties concerning the subject matter hereof and supersedes any and all prior Agreements, understandings or discussions with respect to the subject matter hereof; (b) shall not be construed to create any obligation on the part of either Party to create the Relationship or to compensate the other Party in any manner; (c) may not be amended or and any manner codified except in a writing signed by the Parties; and (d) shall be governed and construed in accordance with the laws of the State of Florida except with regard to conflict of laws rules. Each party hereby consents to the jurisdiction of the Circuit Court of the State of Florida in Miami-Dade County, Florida and the United States District Court for the Southern District of Florida. Each party acknowledges that such Confidential Information is unique and valuable to the Disclosing Party. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provisions shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the Parties as expressed herein. Without prejudice to the rights and remedies otherwise available to the Parties, each Party recognizes and agrees that the Disclosing Party would not have an adequate remedy at law if the Receiving Party were to violate the covenants and agreements set forth herein and acknowledges that a breach of the covenants and agreements set forth herein would cause irreparable harm and damage to the Disclosing Party and that money damages would not be a sufficient remedy for any breach of this Agreement by either Party or their respective Affiliates and representatives and, accordingly, that either Party shall be entitled to equitable relief, including injunctive and specific performance, if either Party or any of their respective Affiliates or representatives breaches or threatens to breach any of the provisions of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which shall constitute the same Agreement.

L-2

9. Each Party understands and acknowledges that neither Party makes any representations or warranty, express of implied, as to the accuracy or completeness of Confidential Information disclosed hereunder. Neither the disclosing party nor any of the officers, directors, employees, agents, advisors, legal counsel or other representatives or Affiliates thereof, shall be subject to any liability or responsibility for errors or omissions in, or any decisions made by the Receiving Party in reliance on, any Confidential Information disclosed under this Agreement.

10. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without prior written consent of the other party, which consent shall not be unreasonably withheld.

IN WITNESS WHEREOF, each of the Parties hereto has caused the Agreement to be executed by its duly authorized representative.

Terremark Worldwide, Inc.
By:
Name: Suzanne Chebat
Title: Director of Contract Management
Tel:	(305) 860-7821
	A.
	B.

(Company name)

By:

Name:

Title:

Tel:

Fax:

Address:

L-3

EXHIBIT M

FORM OF SERIES B SUBORDINATION AGREEMENT

M-1

EXHIBIT 3.03(A)

FORM OF OFFICER’S CERTIFICATE

OFFICER’S CERTIFICATE

     This Officer’s Certificate is being delivered to the Purchasers (defined below) pursuant to Section 3.03(a) of that certain Purchase Agreement dated as of January 5, 2007 (the “Purchase Agreement”), between Terremark Worldwide, Inc. (the “Company”), the guarantors listed on the signature pages thereto (the “Guarantors”, and together with the Company, the “Issuers”), [ ] (the “Agent”) and each of the purchasers listed on Schedule A thereto (the “Purchasers”). Capitalized terms used but not defined herein shall have the meanings given such terms in the Purchase Agreement.

     The undersigned executive officer of each of the Issuers hereby certifies on behalf of each of the applicable Issuers that the conditions specified in Sections 3.01, 3.02, 3.05, 3.06 and 3.07 of the Purchase Agreement have been fulfilled.

     IN WITNESS WHEREOF, each of the undersigned has executed this Officer’s Certificate as of this ___day of January, 2007.

ISSUERS:

NAP OF THE AMERICAS, INC.
NAP OF THE AMERICAS/WEST, INC.
PARK WEST TELECOMMUNICATIONS INVESTORS, INC.
SPECTRUM TELECOMMUNICATIONS CORP.
TECOTA SERVICES CORP.
TERREMARK EUROPE, INC.
TERREMARK FINANCIAL SERVICES, INC.
TERREMARK FORTUNE HOUSE #1, INC.
TERREMARK LATIN AMERICA, INC.
TERREMARK MANAGEMENT SERVICES, INC.
TERREMARK REALTY, INC.
TERREMARK TECHNOLOGY CONTRACTORS, INC.
TERRREMARK TRADEMARK HOLDINGS, INC.
TERREMARK WORLDWIDE, INC.
TERRENAP DATA CENTERS, INC.
TERRENAP SERVICES, INC.

By:
	Name: Jose A. Segrera
	Title: Chief Financial Officer

3.03(a)-1

OPTICAL COMMUNICATIONS, INC.
By:
	Name: [Nelson Fonseca]
	Title: [Treasurer and Chief Financial Officer]
TERREMARK FEDERAL GROUP, INC.
By:
	Name: [Manual D. Medina]
	Title: [Chief Executive Officer]

3.03(a)-2

EXHIBIT 3.03(B)

FORM OF SECRETARY’S CERTIFICATE

TERREMARK WORLDWIDE, INC.

SECRETARY CERTIFICATE

     This Certificate is delivered pursuant to Section 3.03(b) of the Purchase Agreement dated as of January ___, 2007 (the “Purchase Agreement”) between Terremark Worldwide, Inc. (the “Company”), the guarantors listed on the signature pages thereto (the “Guarantors”, and together with the Company, the “Issuers”), Credit Suisse, Cayman Islands Branch (the “Agent”) and each of the purchasers listed on Schedule A thereto (the “Purchasers”). Capitalized terms used but not defined herein shall have the meanings given such terms in the Purchase Agreement.

     1. Attached hereto as Exhibit “A” is a true, complete and correct copy of the Certificate of Incorporation of Terremark Worldwide, Inc. as amended and in effect on the date hereof.

     2. Attached hereto as Exhibit “B” is a true, complete and correct copy of the By-laws of Terremark Worldwide, Inc. as amended and in effect on the date hereof.

     3. Attached hereto as Exhibit “C” is a true, complete and correct copy of the incumbency certificate of Terremark Worldwide, Inc. in effect on the date hereof.

     4. Attached hereto as Exhibit “D” are true, complete and correct copies of resolutions adopted by the Board of Directors of Terremark Worldwide, Inc. and said resolutions have not been altered, abridged or amended.

     5. Attached hereto as Exhibit “E” is a true, complete and correct copy of the good standing certificate of Terremark Worldwide, Inc. in effect on the date hereof.

Dated: January __, 2007	TERREMARK WORLDWIDE, INC.
	By:
		Name:	Adam Smith
		Title:	Secretary

3.03(b)-1

EXHIBIT A

CERTIFICATE OF INCORPORATION

3.03(b)-2

EXHIBIT B

BY-LAWS

3.03(b)-3

EXHIBIT C

INCUMBENCY CERTIFICATE

     The undersigned, the Secretary of Terremark Worldwide, Inc. (the “Company”), hereby certifies that the person named below is an officer of the Company, and the signature set forth opposite such person’s name is genuine:

Name	Title	Specimen Signature
Jose A. Segrera	Chief Financial Officer

     IN WITNESS WHEREOF, I have hereunto ascribed my name, this ___day of January, 2007.

By:
	Name: Adam Smith
	Title: Secretary

3.03(b)-4

EXHIBIT D

RESOLUTIONS

3.03(b)-5

EXHIBIT E

GOOD STANDING CERTIFICATE

3.03(b)-6

NAP OF THE AMERICAS, INC.

SECRETARY CERTIFICATE

     This Certificate is delivered pursuant to Section 3.03(b) of the Purchase Agreement dated as of January ___, 2007 (the “Purchase Agreement”) between Terremark Worldwide, Inc. (the “Company”), the guarantors listed on the signature pages thereto (the “Guarantors”, and together with the Company, the “Issuers”), Credit Suisse, Cayman Islands Branch (the “Agents”) and each of the purchasers listed on Schedule A thereto (the “Purchasers”). Capitalized terms used but not defined herein shall have the meanings given such terms in the Purchase Agreement.

     1. Attached hereto as Exhibit “A” is a true, complete and correct copy of the Articles of Incorporation of NAP of the Americas, Inc. as amended and in effect on the date hereof.

     2. Attached hereto as Exhibit “B” is a true, complete and correct copy of the By-laws of NAP of the Americas, Inc. as amended and in effect on the date hereof.

     3. Attached hereto as Exhibit “C” is a true, complete and correct copy of the incumbency certificate of NAP of the Americas, Inc. in effect on the date hereof.

     4. Attached hereto as Exhibit “D” are true, complete and correct copies of resolutions adopted by the Board of Directors of NAP of the Americas, Inc. and said resolutions have not been altered, abridged or amended.

     5. Attached hereto as Exhibit “E” is a true, complete and correct copy of the good standing certificate of NAP of the Americas, Inc. in effect on the date hereof.

Dated: January __, 2007	NAP OF THE AMERICAS, INC.
	By:
		Name:	Adam Smith
		Title:	Secretary

3.03(b)-7

EXHIBIT A

ARTICLES OF INCORPORATION

3.03(b)-8

EXHIBIT B

BY-LAWS

3.03(b)-9

EXHIBIT C

INCUMBENCY CERTIFICATE

     The undersigned, the Secretary of NAP of the Americas, Inc. (the “Company”), hereby certifies that the person named below is an officer of the Company, and the signature set forth opposite such person’s name is genuine:

Name	Title	Specimen Signature
Jose A. Segrera	Chief Financial Officer

     IN WITNESS WHEREOF, I have hereunto ascribed my name, this ___ day of January, 2007.

By:
	Name: Adam Smith
	Title: Secretary

3.03(b)-10

EXHIBIT D

RESOLUTIONS

3.03(b)-11

EXHIBIT E

GOOD STANDING CERTIFICATE

3.03(b)-12

EXHIBIT 3.04(A)(i)

FORM OF COMPANY COUNSEL OPINION

See attached.

3.04(a)(ii)-1

EX-10.40

Exhibit 10.40

EXECUTION VERSION

SECURITY AGREEMENT

By

TERREMARK WORLDWIDE, INC.,
as Issuer

and

THE GUARANTORS PARTY HERETO

and

CREDIT SUISSE, CAYMAN ISLANDS BRANCH
as Agent

Dated as of January 5, 2007

TABLE OF CONTENTS

	Page
PREAMBLE		1
RECITALS		1
AGREEMENT		2
ARTICLE I DEFINITIONS AND INTERPRETATION		2
SECTION 1.1. Definitions		2
SECTION 1.2. Interpretation		9
SECTION 1.3. Resolution of Drafting Ambiguities		9
SECTION 1.4. Perfection Certificate		9
ARTICLE II GRANT OF SECURITY AND SECURED OBLIGATIONS		9
SECTION 2.1. Grant of Security Interest		9
SECTION 2.2. Excluded Collateral; Senior Liens		10
SECTION 2.3. Filings		11
ARTICLE III PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES; USE OF PLEDGED COLLATERAL		12
SECTION 3.1. Delivery of Certificated Securities Collateral		12
SECTION 3.2. Perfection of Uncertificated Securities Collateral		12
SECTION 3.3. Financing Statements and Other Filings; Maintenance of Perfected Security Interest		13
SECTION 3.4. Other Actions		13
SECTION 3.5. Joinder of Additional Guarantors		16
SECTION 3.6. Supplements; Further Assurances		16
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS		17
SECTION 4.1. Title		17
SECTION 4.2. Validity of Security Interest		17
SECTION 4.3. Defense of Claims; Transferability of Pledged Collateral		18
SECTION 4.4. Other Financing Statements		18
SECTION 4.5. Chief Executive Office; Change of Name; Jurisdiction of Organization		18
SECTION 4.6. Location of Inventory and Equipment		18
SECTION 4.7. Due Authorization and Issuance		19
SECTION 4.8. Consents, etc.		19
SECTION 4.9. Pledged Collateral		19
SECTION 4.10. Insurance		19
SECTION 4.11. Payment of Taxes; Compliance with Laws; Contesting Liens; Claims		19
SECTION 4.12. Access to Pledged Collateral, Books and Records; Other Information		20

  i

	Page
ARTICLE V CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL		20
SECTION 5.1. Pledge of Additional Securities Collateral		20
SECTION 5.2. Voting Rights; Distributions; etc.		20
SECTION 5.3. Defaults, etc.		22
SECTION 5.4. Certain Agreements of Pledgors As Issuers and Holders of Equity Interests		22
ARTICLE VI CERTAIN PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL		22
SECTION 6.1. Grant of License		22
SECTION 6.2. Protection of Agent’s Security		22
SECTION 6.3. After Acquired Property		23
SECTION 6.4. Litigation		24
ARTICLE VII CERTAIN PROVISIONS CONCERNING ACCOUNTS		24
SECTION 7.1. Maintenance of Records		24
SECTION 7.2. Legend		25
SECTION 7.3. Modification of Terms, etc.		25
SECTION 7.4. Collection		25
ARTICLE VIII TRANSFERS		25
SECTION 8.1. Transfers of Pledged Collateral		25
ARTICLE IX REMEDIES		25
SECTION 9.1. Remedies		25
SECTION 9.2. Notice of Sale		27
SECTION 9.3. Waiver of Notice and Claims		27
SECTION 9.4. Certain Sales of Pledged Collateral		28
SECTION 9.5. No Waiver; Cumulative Remedies		29
SECTION 9.6. Certain Additional Actions Regarding Intellectual Property		29
ARTICLE X PROCEEDS OF CASUALTY EVENTS AND COLLATERAL DISPOSITIONS; APPLICATION OF PROCEEDS		30
SECTION 10.1. Proceeds of Casualty Events and Collateral Dispositions		30
SECTION 10.2. Application of Proceeds		30
ARTICLE XI MISCELLANEOUS		30
SECTION 11.1. Concerning Agent		30
SECTION 11.2. Agent May Perform; Agent Appointed Attorney in Fact		31
SECTION 11.3. Continuing Security Interest; Assignment		31
SECTION 11.4. Termination; Release		32
SECTION 11.5. Modification in Writing		32
SECTION 11.6. Notices		32
SECTION 11.7. Governing Law, Consent to Jurisdiction and Service of Process; Waiver of Jury Trial		32
SECTION 11.8. Severability of Provisions		32

  ii

SECTION 11.9. Execution in Counterparts	33
SECTION 11.10. Business Days	33
SECTION 11.11. No Credit for Payment of Taxes or Imposition	33
SECTION 11.12. No Claims Against Agent	33
SECTION 11.13. No Release	33
SECTION 11.14. Obligations Absolute	33
SIGNATURES	S-1

EXHIBIT 1	Form of Issuer’s Acknowledgment
EXHIBIT 2	Form of Securities Pledge Amendment
EXHIBIT 3	Form of Joinder Agreement
EXHIBIT 4	Form of Copyright Security Agreement
EXHIBIT 5	Form of Patent Security Agreement
EXHIBIT 6	Form of Trademark Security Agreement

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SECURITY AGREEMENT

     SECURITY AGREEMENT dated as of January 5, 2007 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions hereof, the “Agreement”) made by TERREMARK WORLDWIDE, INC., a Delaware corporation (the “Issuer”) and THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO (the “Original Guarantors”) OR FROM TIME TO TIME PARTY HERETO BY EXECUTION OF A JOINDER AGREEMENT (the “Additional Guarantors,” and together with the Original Guarantors, the “Guarantors”), as pledgors, assignors and debtors (the Issuer, together with the Guarantors, in such capacities and together with any successors in such capacities, the “Pledgors,” and each, a “Pledgor”), in favor of CREDIT SUISSE, CAYMAN ISLANDS BRANCH, in its capacity as collateral agent for the Secured Parties (as hereinafter defined), as pledgee, assignee and secured party (in such capacities and together with any successors in such capacities, the “Agent”).

R E C I T A L S :

     A. Pursuant to that certain Purchase Agreement dated as of the date hereof by and among the purchasers listed on Schedule A thereto (each individually as a “Purchaser” and collectively as the “Purchasers”), the Pledgors and the Agent (including all annexes, exhibits and schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Purchase Agreement”), the Purchasers have agreed to purchase the Purchased Securities (as defined in the Purchase Agreement).

     B. Each Original Guarantor has, pursuant to the Purchase Agreement, unconditionally guaranteed the Obligations.

     C. The Issuer and each Original Guarantor will receive substantial benefits from the execution, delivery and performance of the obligations under the Purchase Agreement and the other Basic Documents and each is, therefore, willing to enter into this Agreement.

     D. This Agreement is given by each Pledgor in favor of the Agent for the benefit of the Secured Parties (as hereinafter defined) to secure the payment and performance of all of the Obligations.

     F. It is a condition to the obligations of the Purchaser to purchase the Purchased Securities that each Pledgor execute and deliver the applicable Basic Documents, including this Agreement.

A G R E E M E N T :

     NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Pledgor and the Agent hereby agree as follows:

ARTICLE I
DEFINITIONS AND INTERPRETATION

Definitions.

     (a) Unless otherwise defined herein or in the Purchase Agreement, capitalized terms used herein that are defined in the UCC shall have the meanings assigned to them in the UCC.

     (b) Terms used but not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given to them in the Purchase Agreement.

     (c) The following terms shall have the following meanings:

     “Additional Guarantors” shall have the meaning assigned to such term in the Preamble hereof.

     “Additional Pledged Interests” shall mean, collectively, with respect to each Pledgor, (i) all options, warrants, rights, agreements, additional membership, partnership or other equity interests of whatever class of any issuer of Initial Pledged Interests or any interest in any such issuer, together with all rights, privileges, authority and powers of such Pledgor relating to such interests in each such issuer or under any Organizational Document of any such issuer pertaining to such membership, partnership or other equity interests, and the certificates, instruments and agreements representing such membership, partnership or other interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such membership, partnership or other equity interests from time to time acquired by such Pledgor in any manner and (ii) all membership, partnership or other equity interests, as applicable, of each limited liability company, partnership or other entity (other than a corporation) hereafter acquired or formed by such Pledgor and all options, warrants, rights, agreements, additional membership, partnership or other equity interests of whatever class of such limited liability company, partnership or other entity, together with all rights, privileges, authority and powers of such Pledgor relating to such interests or under any Organizational Document of any such issuer pertaining to such membership, partnership or other equity interests, and the certificates, instruments and agreements representing such membership, partnership or other equity interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such membership, partnership or other interests, from time to time acquired by such Pledgor in any manner.

     “Additional Pledged Shares” shall mean, collectively, with respect to each Pledgor, (i) all options, warrants, rights, agreements, additional shares of capital stock of whatever class of any issuer of the Initial Pledged Shares or any other equity interest in any such issuer, together with all rights, privileges, authority and powers of such Pledgor relating to such interests issued by any such issuer under any Organizational Document of any such issuer pertaining to such interests, and the certificates, instruments and agreements representing such interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such interests, from time to time acquired by such Pledgor in any manner and (ii) all the issued and outstanding shares of capital stock of each corporation hereafter acquired or formed by such Pledgor and all options, warrants, rights, agreements or additional shares of capital stock of

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whatever class of such corporation, together with all rights, privileges, authority and powers of such Pledgor relating to such shares or under any Organizational Document of such corporation pertaining to such interests, and the certificates, instruments and agreements representing such shares and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such shares, from time to time acquired by such Pledgor in any manner.

     “Agent” shall have the meaning assigned to such term in the Preamble hereof.

     “Agreement” shall have the meaning assigned to such term in the Preamble hereof.

     “Claims” shall mean any and all property and other taxes, assessments and special assessments, levies, fees and all governmental charges imposed upon or assessed against, and landlords’, carriers’, mechanics’, workmen’s, repairmen’s, laborers’, materialmen’s, suppliers’ and warehousemen’s Liens and other claims arising by operation of law against, all or any portion of the Pledged Collateral.

     “Contested Liens” shall mean, collectively, any Liens incurred in respect of any Claims to the extent that the amounts owing in respect thereof are not yet delinquent or are being contested and otherwise comply with the provisions of Section 4.11 hereof; provided, however, that such Liens shall in all respects be subject and subordinate in priority to the Lien and security interest created by this Agreement, except if and to the extent that the law or regulation creating, permitting or authorizing such Lien provides that such Lien must be superior to the Lien and security interest created and evidenced hereby.

     “Contracts” shall mean, collectively, with respect to each Pledgor, all sale, service, performance, equipment or property lease contracts, agreements and grants and all other contracts, agreements or grants (in each case, whether written or oral, or third party or intercompany), between such Pledgor and third parties, and all assignments, amendments, restatements, supplements, extensions, renewals, replacements or modifications thereof.

     “Copyrights” shall mean, collectively, with respect to each Pledgor, all copyrights (whether statutory or common law, whether established or registered in the United States or any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished) and all copyright registrations and applications made by such Pledgor, in each case, whether now owned or hereafter created or acquired by or assigned to such Pledgor, together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s use of such copyrights, (ii) reissues, renewals, continuations and extensions thereof, (iii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect thereto, including damages and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof.

     “Copyright Security Agreement” shall mean an agreement substantially in the form annexed hereto as Exhibit 4.

     “Distributions” shall mean, collectively, with respect to each Pledgor, all dividends, cash, options, warrants, rights, instruments, distributions, returns of capital or principal, income,

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interest, profits and other property, interests (debt or equity) or proceeds, including as a result of a split, revision, reclassification or other like change of the Pledged Securities, from time to time received, receivable or otherwise distributed to such Pledgor in respect of or in exchange for any or all of the Pledged Securities or Intercompany Notes.

     “Excluded Property” shall mean (a) all personal property and fixtures of the Issuer or any Guarantor located at the Facility so long as such property is pledged to secure the obligations under the SPV Financing Agreement and (b) Special Property other than the following:

(i)	the right to receive any payment of money (including Accounts, General Intangibles and Payment Intangibles) or any other rights referred to in Sections 9 406(d), 9 407(a) or 9 408(a) of the UCC to the extent that such sections of the UCC are effective to limit the prohibitions which make such property “Special Property”; and
(ii)	any Proceeds, substitutions or replacements of any Special Property (unless such Proceeds, substitutions or replacements would constitute Special Property).

     “General Intangibles” shall mean, collectively, with respect to each Pledgor, all “general intangibles,” as such term is defined in the UCC, of such Pledgor and, in any event, shall include (i) all of such Pledgor’s rights, title and interest in, to and under all insurance policies and Contracts, (ii) all know-how and warranties relating to any of the Pledged Collateral, (iii) any and all other rights, claims, choses-in-action and causes of action of such Pledgor against any other person and the benefits of any and all collateral or other security given by any other person in connection therewith, (iv) all guarantees, endorsements and indemnifications on, or of, any of the Pledged Collateral, (v) all lists, books, records, correspondence, ledgers, printouts, files (whether in printed form or stored electronically), tapes and other papers or materials containing information relating to any of the Pledged Collateral, including all customer or tenant lists, identification of suppliers, data, plans, blueprints, specifications, designs, drawings, appraisals, recorded knowledge, surveys, studies, engineering reports, test reports, manuals, standards, processing standards, performance standards, catalogs, research data, computer and automatic machinery software and programs and the like, field repair data, accounting information pertaining to such Pledgor’s operations or any of the Pledged Collateral and all media in which or on which any of the information or knowledge or data or records may be recorded or stored and all computer programs used for the compilation or printout of such information, knowledge, records or data, (vi) all licenses, consents, permits, variances, certifications, authorizations and approvals, however characterized, of any Governmental Authority (or any person acting on behalf of a Governmental Authority) now or hereafter acquired or held by such Pledgor pertaining to operations now or hereafter conducted by such Pledgor or any of the Pledged Collateral including building permits, certificates of occupancy, environmental certificates, industrial permits or licenses and certificates of operation and (vii) all rights to reserves, deferred payments, deposits, refunds, indemnification of claims to the extent the foregoing relate to any Pledged Collateral and claims for tax or other refunds against any Governmental Authority relating to any Pledged Collateral.

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     “Goodwill” shall mean, collectively, with respect to each Pledgor, the goodwill connected with such Pledgor’s business including all goodwill connected with (i) the use of and symbolized by any Trademark or Trademark License in which such Pledgor has any interest, (ii) all know-how, trade secrets, customer and supplier lists, proprietary information, inventions, methods, procedures, formulae, descriptions, compositions, technical data, drawings, specifications, name plates, catalogs, confidential information and the right to limit the use or disclosure thereof by any person, pricing and cost information, business and marketing plans and proposals, consulting agreements, engineering contracts and such other assets which relate to such goodwill and (iii) all product lines of such Pledgor’s business.

     “Guarantors” shall have the meaning assigned to such term in the Preamble hereof.

     “Initial Pledged Interests” shall mean, with respect to each Pledgor, all membership, partnership or other equity interests (other than in a corporation), as applicable, of each issuer described in Schedule 10 annexed to the Perfection Certificate, together with all rights, privileges, authority and powers of such Pledgor in and to each such issuer or under any Organizational Document of each such issuer pertaining to such membership, partnership or other interests, and the certificates, instruments and agreements representing such membership, partnership or other interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such membership, partnership or other interests.

     “Initial Pledged Shares” shall mean, collectively, with respect to each Pledgor, the issued and outstanding shares of capital stock of each issuer described in Schedule 10 annexed to the Perfection Certificate together with all rights, privileges, authority and powers of such Pledgor relating to such interests in each such issuer or under any Organizational Document of each such issuer pertaining to the Initial Pledged Shares, and the certificates, instruments and agreements representing such shares of capital stock and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to the Initial Pledged Shares.

     “Instruments” shall mean, collectively, with respect to each Pledgor, all “instruments,” as such term is defined in Article 9, rather than Article 3, of the UCC, and shall include all promissory notes, drafts, bills of exchange or acceptances.

     “Intellectual Property Collateral” shall mean, collectively, the Patents, Trademarks, Copyrights, Licenses and Goodwill other than any non-U.S. Intellectual Property Collateral.

     “Intercompany Notes” shall mean, with respect to each Pledgor, all intercompany notes described in Schedule 11 annexed to the Perfection Certificate and intercompany notes hereafter acquired by such Pledgor and all certificates, instruments or agreements evidencing such intercompany notes, and all assignments, amendments, restatements, supplements, extensions, renewals, replacements or modifications thereof to the extent permitted pursuant to the terms hereof.

     “Issuer” shall have the meaning assigned to such term in the Preamble hereof.

     “Joinder Agreement” shall mean an agreement substantially in the form annexed hereto as Exhibit 3.

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     “Licenses” shall mean, collectively, with respect to each Pledgor, all license and distribution agreements with, and covenants not to sue, any other party with respect to any Patent, Trademark or Copyright or any other patent, trademark or copyright, whether such Pledgor is a licensor or licensee, distributor or distributee under any such license or distribution agreement, together with any and all (i) renewals, extensions, supplements and continuations thereof, (ii) income, fees, royalties, damages, claims and payments now and hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements or violations thereof, (iii) rights to sue for past, present and future infringements or violations thereof and (iv) other rights to use, exploit or practice any or all of the Patents, Trademarks or Copyrights or any other patent, trademark or copyright.

     “Obligations” means (i) any principal, premium and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Series A Notes, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Company and the other Issuers under this Agreement, the Purchase Agreement and the other Basic Documents pertaining to the Series A Notes, Subsidiary Guarantees or Security Documents and other documents related thereto executed in connection therewith and (iii) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Company and the other Issuers under or pursuant to this Agreement and the other Basic Documents pertaining to the Series A Notes, Subsidiary Guarantees or Security Documents and other documents related thereto executed in connection therewith.

     “Organizational Documents” shall mean, with respect to any person, (i) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such person, (ii) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such person, (iv) in the case of any general partnership, the partnership agreement (or similar document) of such person and (v) in any other case, the functional equivalent of the foregoing.

     “Original Guarantors” shall have the meaning assigned to such term in the Preamble hereof.

     “Patents” shall mean, collectively, with respect to each Pledgor, all patents issued or assigned to and all patent applications and registrations made by such Pledgor (whether established or registered or recorded in the United States or any other country or any political subdivision thereof), together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s use of any patents, (ii) inventions and improvements described and claimed therein, (iii) reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and

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payments for past, present or future infringements thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, present or future infringements thereof.

     “Patent Security Agreement” shall mean an agreement substantially in the form annexed hereto as Exhibit 5.

     “Perfection Certificate” shall mean that certain perfection certificate dated as of the date hereof, executed and delivered by each Pledgor in favor of the Agent for the benefit of the Secured Parties, and each other Perfection Certificate (which shall be in form and substance reasonably acceptable to the Agent) executed and delivered by the applicable Guarantor in favor of the Agent for the benefit of the Secured Parties contemporaneously with the execution and delivery of each Joinder Agreement executed in accordance with Section 3.5 hereof, in each case, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the Purchase Agreement or upon the request of the Agent.

     “Pledge Amendment” shall have the meaning assigned to such term in Section 5.1 hereof.

     “Pledged Collateral” shall have the meaning assigned to such term in Section 2.1 hereof.

     “Pledged Interests” shall mean, collectively, the Initial Pledged Interests and the Additional Pledged Interests; provided, however, that to the extent applicable, Pledged Interests shall not include any interest which is not required to be pledged pursuant to Section 7.13(b) of the Purchase Agreement.

     “Pledged Securities” shall mean, collectively, the Pledged Interests, the Pledged Shares and the Successor Interests.

     “Pledged Shares” shall mean, collectively, the Initial Pledged Shares and the Additional Pledged Shares; provided, however, that Pledged Shares shall not include any shares which are not required to be pledged pursuant to Section 7.13(b) of the Purchase Agreement.

     “Pledgor” shall have the meaning assigned to such term in the Preamble hereof.

     “Purchase Agreement” shall have the meaning assigned to such term in Recital A hereof.

     “Secured Parties” shall mean, collectively, the Agent and the Series A Noteholders.

     “Securities Collateral” shall mean, collectively, the Pledged Securities, the Intercompany Notes and the Distributions.

     “Senior Agent” shall mean FMP Agency Services, LLC, and any successor thereof in its capacity as agent under the Senior Security Agreement.

     “Senior Security Agreement” shall mean the Security Agreement by and among the Company, the Guarantors named therein and the Senior Agent, dated as of December 31, 2004, as the same may be amended, supplemented or otherwise modified from time to time

     “Special Property” shall mean:

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(a)	any permit, lease or contract held by any Pledgor that prohibits the creation by such Pledgor of a security interest therein without the consent of any of the other parties thereto to the extent they are not Pledgors;
(b)	any permit, lease or contract held by any Pledgor to the extent that any Requirement of Law applicable thereto prohibits the creation of a security interest therein without the consent of any of the other parties thereto to the extent they are not Pledgors; and
(c)	all right, title and interest of any Pledgor to any Equipment or other personal property and fixtures now held on the date hereof or hereafter acquired that is subject to a Lien securing a Purchase Money Obligation or Capital Lease Obligation permitted to be incurred pursuant to the provisions of the Purchase Agreement if the contract or other agreement in which such Lien is granted (or the documentation providing for such Purchase Money Obligation or Capital Lease Obligation) validly prohibits the creation of any other Lien on such right, title and interest;

provided, however, that in each case described in clauses (a), (b) and (c) of this definition, such property shall constitute “Special Property” only to the extent and for so long as such permit or lease or Requirement of Law applicable thereto validly prohibits the creation of a Lien on such property in favor of the Agent and, upon the termination of such prohibition (howsoever occurring), such property shall cease to constitute “Special Property.”

     “Successor Interests” shall mean, collectively, with respect to each Pledgor, all shares of each class of the capital stock of the successor corporation or interests or certificates of the successor limited liability company, partnership or other entity owned by such Pledgor (unless such successor is such Pledgor itself) formed by or resulting from any consolidation or merger in which any person listed in Schedule 1(a) annexed to the Perfection Certificate is not the surviving entity; provided, however, that to the extent applicable, Successor Interest shall not include any shares or interests which are not required to be pledged pursuant to Section 7.13(b) of the Purchase Agreement.

     “TCA” shall mean Technology Center of the Americas, LLC.

     “TCA Collateral” shall mean the assets, rights and properties from time to time subject to the security interests granted pursuant to the SPV Financing Agreement.

     “TCA Debt” shall mean all Indebtedness from time to time owing pursuant to the SPV Financing Agreement.

     “TCA Lender” shall mean Citigroup Global Markets Realty Corp., and its successors and assigns as lender pursuant to the SPV Financing Agreement.

     “Trademarks” shall mean, collectively, with respect to each Pledgor, all trademarks (including service marks), slogans, logos, certification marks, trade dress, uniform resource locations (URL’s), domain names, corporate names and trade names, whether registered or

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unregistered, owned by or assigned to such Pledgor and all registrations and applications for the foregoing (whether statutory or common law and whether established or registered in the United States or any other country or any political subdivision thereof), together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s use of any trademarks, (ii) reissues, continuations, extensions and renewals thereof, (iii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present and future infringements thereof.

     “Trademark Security Agreement” shall mean an agreement substantially in the form annexed hereto as Exhibit 6.

     “UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in the State of New York; provided, however, that if by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the Agent’s and the Secured Parties’ security interest in any item or portion of the Pledged Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions relating to such provisions.

     SECTION 1.2. Interpretation. The rules of interpretation specified in the Purchase Agreement shall be applicable to this Agreement.

     SECTION 1.3. Resolution of Drafting Ambiguities. Each Pledgor acknowledges and agrees that it was represented by counsel in connection with the execution and delivery hereof, that it and its counsel reviewed and participated in the preparation and negotiation hereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (i.e., the Agent) shall not be employed in the interpretation hereof.

     SECTION 1.4. Perfection Certificate. The Agent and each Secured Party agree that the Perfection Certificate and all descriptions of Pledged Collateral, schedules, amendments and supplements thereto are and shall at all times remain a part of this Agreement.

ARTICLE II
GRANT OF SECURITY AND SECURED OBLIGATIONS

     SECTION 2.1. Grant of Security Interest. As collateral security for the payment and performance in full of all the Obligations, each Pledgor hereby pledges and grants to the Agent for the benefit of the Secured Parties, a lien on and security interest in and to all of the right, title and interest of such Pledgor in, to and under the following property, wherever located, whether now existing or hereafter arising or acquired from time to time (collectively, the “Pledged Collateral”):

(i)	all Accounts;
(ii)	all Equipment, Goods, Inventory and Fixtures;

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(iii)	all Documents, Instruments and Chattel Paper;
(iv)	all Letters of Credit and Letter-of-Credit Rights;
(v)	all Securities Collateral;
(vi)	all Intellectual Property Collateral;
(vii)	the Commercial Tort Claims described on Schedule 13 to the Perfection Certificate;
(viii)	all General Intangibles;
(ix)	all Supporting Obligations;
(x)	all books and records relating to the Pledged Collateral; and
(xi)	to the extent not covered by clauses (i) through (x) of this sentence, all other personal property of such Pledgor, whether tangible or intangible and all Proceeds and products of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing, any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to such Pledgor from time to time with respect to any of the foregoing

     SECTION 2.2. Excluded Collateral; Senior Liens.

(a) Notwithstanding anything to the contrary contained in this Agreement:

(i) No Pledgor shall be required to take any action outside of the United States to perfect a security interest in any non-U.S. Intellectual Property Collateral; and

(ii) The security interest created by this Agreement shall not extend to, and the term “Pledged Collateral” shall not include, any Excluded Property, Deposit Accounts or Investment Property.

(b) Notwithstanding anything to the contrary contained in this Agreement, and without limiting paragraph (a) above, the security interest created by this Agreement shall not extend to, and the term “Pledged Collateral” shall not include, any cash balances of any of the Pledgors, and the Agent on behalf of the Secured Parties (i) hereby represents and covenants that it shall have no Lien on or security interest in any of the property of TCA pledged to the TCA Lender pursuant to the SPV Financing Agreement, and (ii) hereby agrees that, until the holders of TCA Debt shall have received payment in full in cash of the TCA Debt, the holders of the Obligations will not at any time assert or seek to enforce against TCA any Lien, claim or other interest in any TCA Collateral and that the TCA Lender and the

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	holders of TCA Debt may dispose of any or all of such TCA Collateral free of any and all Liens, including, but not limited to, any Liens created in favor of the Secured Parties through judicial or non-judicial proceedings.
(c)	The Pledgors shall from time to time at the request of the Agent give written notice to the Agent identifying in reasonable detail the Special Property (and stating in such notice that such Special Property constitutes “Excluded Property”) and shall provide to the Agent such other information regarding the Special Property as the Agent may reasonably request and (ii) from and after the Closing Date, no Pledgor shall permit to become effective in any document creating, governing or providing for any permit, lease or license, a provision that would prohibit the creation of a Lien on such permit, lease or license in favor of the Agent unless such Pledgor believes, in its reasonable judgment, that such prohibition is usual and customary in transactions of such type.
(d)	In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control. Without limiting the foregoing and notwithstanding anything to the contrary contained in this Agreement, for so long as the security interest granted by the Senior Security Agreement remains in effect, (i) the Pledgors agree that the Senior Agent shall have possession of or control over any items of Pledged Collateral not only for purposes of perfecting its security interest under the Senior Security Agreement on behalf of the secured parties thereunder, but also for purposes of perfecting, through a bailment with the Agent, the security interest of the Agent hereunder, and (ii) no Pledgor shall be deemed to be in default of any of its representations and warranties or covenants hereunder with respect to possession by the Agent of or control by the Agent over any Pledged Collateral (including without limitation under Sections 3.1 and 3.2 hereof) so long as the Pledgors are in compliance with their obligations under the Senior Security Agreement. Upon such time as the security interest granted by the Senior Security Agreement is no longer in effect, the Pledgors acknowledge that pursuant to the Intercreditor Agreement, the Agent shall arrange for the delivery to it by the Senior Agent of all Pledged Collateral in the Senior Agent’s possession.

     SECTION 2.3. Filings(a) . (a) Each Pledgor hereby irrevocably authorizes the Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment relating to the Pledged Collateral, including (i) whether such Pledgor is an organization, the type of organization and any organizational identification number issued to such Pledgor, (ii) any financing or continuation statements or other documents without the signature of such Pledgor where permitted by law, and (iii) in the case of a financing

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statement filed as a fixture filing or covering Pledged Collateral constituting minerals or the like to be extracted or timber to be cut, a sufficient description of the real property to which such Pledged Collateral relates. Each Pledgor agrees to provide all information described in the immediately preceding sentence to the Agent promptly upon request.

     (b) Each Pledgor hereby ratifies its authorization for the Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto relating to the Pledged Collateral if filed prior to the date hereof.

     (c) Each Pledgor hereby further authorizes the Agent to file filings with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country), including this Agreement, the Copyright Security Agreement, the Patent Security Agreement and the Trademark Security Agreement, or other documents for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest granted by such Pledgor hereunder, without the signature of such Pledgor, and naming such Pledgor, as debtor, and the Agent, as secured party.

ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF PLEDGED COLLATERAL

     SECTION 3.1. Delivery of Certificated Securities Collateral. Each Pledgor represents and warrants that all certificates, agreements or instruments representing or evidencing the Securities Collateral in existence on the date hereof have been delivered to the Agent in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank and that the Agent has a perfected first priority security interest therein. Each Pledgor hereby agrees that all certificates, agreements or instruments representing or evidencing Securities Collateral acquired by such Pledgor after the date hereof shall immediately upon receipt thereof by such Pledgor be delivered to and held by or on behalf of the Agent pursuant hereto. All certificated Securities Collateral shall be in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Agent. The Agent shall have the right, at any time upon the occurrence and during the continuance of any Event of Default, to endorse, assign or otherwise transfer to or to register in the name of the Agent or any of its nominees or endorse for negotiation any or all of the Securities Collateral, without any indication that such Securities Collateral is subject to the security interest hereunder. In addition, upon the occurrence and during the continuance of an Event of Default, the Agent shall have the right at any time to exchange certificates representing or evidencing Securities Collateral for certificates of smaller or larger denominations.

     SECTION 3.2. Perfection of Uncertificated Securities Collateral. Each Pledgor represents and warrants that the Agent has a perfected first priority security interest in all uncertificated Pledged Securities pledged by it hereunder that is in existence on the date hereof. Each Pledgor hereby agrees that if any of the Pledged Securities are at any time not evidenced by certificates of ownership, then each applicable Pledgor shall, to the extent permitted by applicable law (i) if necessary or desirable to perfect a security interest in such Pledged Securities, cause such pledge to be recorded on the equityholder register or the books of the

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issuer, cause the issuer to execute and deliver to the Agent an acknowledgment of the pledge of such Pledged Securities substantially in the form of Exhibit 1 annexed hereto, execute any customary pledge forms or other documents necessary or appropriate to complete the pledge and give the Agent the right to transfer such Pledged Securities under the terms hereof and, upon request, provide to the Agent an opinion of counsel, in form and substance reasonably satisfactory to the Agent, confirming such pledge and perfection thereof and (ii) use its commercially reasonable efforts to cause such Pledged Securities to become certificated and delivered to the Agent in accordance with the provisions of Section 3.1.

     SECTION 3.3. Financing Statements and Other Filings; Maintenance of Perfected Security Interest. Each Pledgor represents and warrants that all filings necessary to perfect the security interest granted by it to the Agent in respect of the Pledged Collateral have been delivered to the Agent in completed and, to the extent necessary or appropriate, duly executed form for filing in each governmental, municipal or other office specified in Schedule 7 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made). Each Pledgor agrees that at the sole cost and expense of the Pledgors, (i) such Pledgor will maintain the security interest created by this Agreement in the Pledged Collateral as a perfected first priority security interest and shall defend such security interest against the claims and demands of all persons except Permitted Collateral Liens, (ii) such Pledgor shall furnish to the Agent from time to time statements and schedules further identifying and describing the Pledged Collateral and such other reports in connection with the Pledged Collateral as the Agent may reasonably request, all in reasonable detail and (iii) at any time and from time to time, upon the written request of the Agent, such Pledgor shall promptly and duly execute and deliver, and file and have recorded, such further instruments and documents and take such further action as the Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and the rights and powers herein granted, including the filing of any financing statements, continuation statements and other documents (including this Agreement) under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interest created hereby, all in form reasonably satisfactory to the Agent and in such offices (including the United States Patent and Trademark Office and the United States Copyright Office) wherever required by law to perfect, continue and maintain a valid, enforceable, first priority security interest in the Pledged Collateral as provided herein and to preserve the other rights and interests granted to the Agent hereunder, as against third parties, with respect to the Pledged Collateral.

     SECTION 3.4. Other Actions. In order to further insure the attachment, perfection and priority of, and the ability of the Agent to enforce, the Agent’s security interest in the Pledged Collateral, each Pledgor represents and warrants (as to itself) as follows and agrees, in each case at such Pledgor’s own expense, to take the following actions with respect to the following Pledged Collateral:

(a) Instruments and Tangible Chattel Paper. (i) No amounts payable under or in connection with any of the Pledged Collateral are evidenced by any Instrument or Tangible Chattel Paper other than such Instruments and Tangible Chattel Paper listed in Schedule 11 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this

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representation is made or deemed made) and (ii) each Instrument and each item of Tangible Chattel Paper listed in Schedule 11 annexed to the Perfection Certificate has been properly endorsed, assigned and delivered to the Agent, accompanied by instruments of transfer or assignment duly executed in blank. If any amount then payable under or in connection with any of the Pledged Collateral shall be evidenced by any Instrument or Tangible Chattel Paper, and such amount, together with all amounts payable evidenced by any Instrument or Tangible Chattel Paper not previously delivered to the Agent exceeds $500,000 in the aggregate for all Pledgors, the Pledgor acquiring such Instrument or Tangible Chattel Paper shall forthwith endorse, assign and deliver the same to the Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Agent may from time to time specify.

(b)

Pledged Securities.

(i)

If any Pledgor shall at any time hold or acquire any certificated securities constituting Pledged Securities, such Pledgor shall promptly endorse, assign and deliver the same to the Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Agent. If any securities now or hereafter acquired by any Pledgor constituting Pledged Securities are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Agent thereof and pursuant to an agreement in form and substance satisfactory to the Agent, either (a) cause the issuer to agree to comply with instructions from the Agent as to such securities, without further consent of any Pledgor or such nominee, or (b) arrange for the Agent to become the registered owner of the securities.

(ii)

As between the Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Pledged Securities, and the risk of loss of, damage to, or the destruction of the Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Agent, any Pledgor or any other person. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Pledged Securities pledged by it under this Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Agent from all costs and expenses incurred by the Agent under this Section 3.4(b) in accordance with Section 13 of the Purchase Agreement.

(c) Electronic Chattel Paper and Transferable Records. No amount under or in connection with any of the Pledged Collateral is evidenced by any Electronic Chattel Paper or any “transferable record” (as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant

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	jurisdiction) other than such Electronic Chattel Paper and transferable records listed in Schedule 11 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made). If any amount payable under or in connection with any of the Pledged Collateral shall be evidenced by any Electronic Chattel Paper or any transferable record, the Pledgor acquiring such Electronic Chattel Paper or transferable record shall promptly notify the Agent thereof and shall take such action as the Agent may reasonably request to vest in the Agent control under UCC Section 9 105 of such Electronic Chattel Paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The requirement in the preceding sentence shall apply to the extent that such amount, together with all amounts payable evidenced by Electronic Chattel Paper or any transferable record in which the Agent has not been vested control within the meaning of the statutes described in this sentence exceeds $500,000 in the aggregate for all Pledgors. The Agent agrees with such Pledgor that the Agent will arrange, pursuant to procedures satisfactory to the Agent and so long as such procedures will not result in the Agent’s loss of control, for the Pledgor to make alterations to the Electronic Chattel Paper or transferable record permitted under UCC Section 9 105 or, as the case may be, Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to allow without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Pledgor with respect to such Electronic Chattel Paper or transferable record.
(d)	Letter-of-Credit Rights. If any Pledgor is at any time a beneficiary under a Letter of Credit now or hereafter issued in favor of such Pledgor, such Pledgor shall promptly notify the Agent thereof and such Pledgor shall, at the request of the Agent, pursuant to an agreement in form and substance reasonably satisfactory to the Agent, either (i) arrange for the issuer and any confirmer of such Letter of Credit to consent to an assignment to the Agent of the proceeds of any drawing under the Letter of Credit or (ii) arrange for the Agent to become the transferee beneficiary of such Letter of Credit, with the Agent agreeing, in each case, that the proceeds of any drawing under the Letter of Credit are to be applied as provided in the Purchase Agreement. The actions in the preceding sentence shall be taken to the extent that the amount under such Letter of Credit, together with all amounts under Letters of Credit for which the actions described above in clause (i) and (ii) have not been taken, exceeds $500,000 in the aggregate for all Pledgors.
(e)	Commercial Tort Claims. As of the date hereof each Pledgor hereby represents and warrants that it holds no Commercial Tort Claims other than those listed in Schedule 13 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made). If any Pledgor shall at any time hold or

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	acquire a Commercial Tort Claim having a value together with all other Commercial Tort Claims of all Pledgors in which the Agent does not have a security interest in excess of $500,000 in the aggregate, such Pledgor shall immediately notify the Agent in writing signed by such Pledgor of the brief details thereof and grant to the Agent in such writing a security interest therein and in the Proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Agent.
(f)	Landlord’s Access Agreements. Each Pledgor shall use its commercially reasonable efforts to obtain a Landlord Access Agreement and/or, if required by the Purchase Agreement, landlord’s lien waiver, as applicable, from all such landlords, as applicable, who from time to time after the date hereof have possession of Pledged Collateral (other than with respect to any location of Pledged Collateral maintained on the date hereof) in the ordinary course of such Pledgor’s business and if reasonably requested by the Agent. A Landlord Access Agreement and/or landlord’s lien waiver shall not be required if (i) the value of the Pledged Collateral held by such landlord is less than $100,000, provided that the aggregate value of the Pledged Collateral held by all landlords who have not delivered a Landlord Access Agreement and/or landlord’s lien waiver is less than $500,000 in the aggregate or (ii) the Pledgor has delivered a leasehold mortgage with respect to such property.
(g)	Motor Vehicles. Upon the request of the Agent, each Pledgor shall deliver to the Agent originals of the certificates of title or ownership for the motor vehicles (and any other Equipment covered by Certificates of Title or ownership) owned by it with the Agent listed as lienholder therein. Such requirement shall apply to the Pledgors if any such motor vehicle (or any such other Equipment) is valued at over $50,000, provided that the value of all such motor vehicles (and such Equipment) as to which any Pledgor has not delivered a Certificate of Title or ownership is over $500,000.

     SECTION 3.5. Joinder of Additional Guarantors. The Pledgors shall cause each new Subsidiary of the Issuer (other than a Foreign Subsidiary) which, from time to time, after the date hereof shall be required to pledge any assets to the Agent for the benefit of the Secured Parties pursuant to the provisions of the Purchase Agreement, to execute and deliver to the Agent (i) a Joinder Agreement substantially in the form of Exhibit 3 annexed hereto within thirty (30) Business Days of the date on which it was acquired or created and (ii) a Perfection Certificate, in each case, within thirty (30) Business Days of the date on which it was acquired or created and, in each case, upon such execution and delivery, such Subsidiary shall constitute a “Guarantor” and a “Pledgor” for all purposes hereunder with the same force and effect as if originally named as a Guarantor and Pledgor herein. The execution and delivery of such Joinder Agreement shall not require the consent of any Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor and Pledgor as a party to this Agreement.

     SECTION 3.6. Supplements; Further Assurances. Each Pledgor shall take such further actions, and to execute and deliver to the Agent such additional assignments, agreements,

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supplements, powers and instruments, as the Agent may in its reasonable judgment deem necessary or appropriate, wherever required by law, in order to perfect, preserve and protect the security interest in the Pledged Collateral as provided herein and the rights and interests granted to the Agent hereunder, to carry into effect the purposes hereof or better to assure and confirm unto the Agent the Pledged Collateral or permit the Agent to exercise and enforce its rights, powers and remedies hereunder with respect to any Pledged Collateral. Without limiting the generality of the foregoing, each Pledgor shall make, execute, endorse, acknowledge, file or refile and/or deliver to the Agent from time to time upon reasonable request such lists, descriptions and designations of the Pledged Collateral, copies of warehouse receipts, receipts in the nature of warehouse receipts, bills of lading, documents of title, vouchers, invoices, schedules, confirmatory assignments, supplements, additional security agreements, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments as the Agent shall reasonably request. If an Event of Default has occurred and is continuing, the Agent may institute and maintain, in its own name or in the name of any Pledgor, such suits and proceedings as the Agent may be advised by counsel shall be necessary or expedient to prevent any impairment of the security interest in or the perfection thereof in the Pledged Collateral. All of the foregoing shall be at the sole cost and expense of the Pledgors.

ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS

     Each Pledgor represents, warrants and covenants as follows:

     SECTION 4.1. Title. Except for the security interest granted to the Agent for the ratable benefit of the Secured Parties pursuant to this Agreement and Permitted Liens, such Pledgor owns and, as to Pledged Collateral acquired by it from time to time after the date hereof, will own the rights in each item of Pledged Collateral pledged by it hereunder free and clear of any and all Liens or claims of others other than Permitted Collateral Liens. In addition, no Liens or claims exist on the Securities Collateral, other than as permitted by Section 8.07 of the Purchase Agreement. Such Pledgor has not filed, nor authorized any third party to file a financing statement or other public notice with respect to all or any part of the Pledged Collateral on file or of record in any public office, except such as have been filed in favor of the Agent pursuant to this Agreement, those filed by the holder of a Permitted Collateral Lien relating to the Permitted Collateral Liens or as are permitted by the Purchase Agreement or financing statements or public notices relating to the termination statements listed on Schedule 9 to the Perfection Certificate. No person other than the Agent has control or possession of all or any part of the Pledged Collateral, except as permitted by the Purchase Agreement.

     SECTION 4.2. Validity of Security Interest. The security interest in and Lien on the Pledged Collateral granted to the Agent for the benefit of the Secured Parties hereunder constitutes (a) a legal and valid security interest in all the Pledged Collateral securing the payment and performance of the Obligations, and (b) subject to the filings and other actions described in Schedule 7 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made), a perfected security interest in all the Pledged Collateral. The security interest and Lien granted to the Agent for the benefit of the Secured Parties pursuant to this Agreement in and on

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the Pledged Collateral will at all times constitute a perfected, continuing security interest therein, subject only to Permitted Collateral Liens.

     SECTION 4.3. Defense of Claims; Transferability of Pledged Collateral. Each Pledgor shall, at its own cost and expense, defend title to the Pledged Collateral pledged by it hereunder and the security interest therein and Lien thereon granted to the Agent and the priority thereof against all claims and demands of all persons, at its own cost and expense, at any time claiming any interest therein adverse to the Agent or any other Secured Party other than Permitted Collateral Liens (other than Contested Liens). There is no agreement, and no Pledgor shall enter into any agreement or take any other action, that would restrict the transferability of any of the Pledged Collateral or otherwise impair or conflict with such Pledgors’ obligations or the rights of the Agent hereunder, except as permitted herein or by the Purchase Agreement.

     SECTION 4.4. Other Financing Statements. It has not filed, nor authorized any third party to file (nor will there be any) valid or effective financing statement (or similar statement or instrument of registration under the law of any jurisdiction) covering or purporting to cover any interest of any kind in the Pledged Collateral other than financing statements and other statements and instruments relating to Permitted Collateral Liens. So long as any of the Obligations remain unpaid, no Pledgor shall execute, authorize or permit to be filed in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) relating to any Pledged Collateral, except financing statements and other statements and instruments filed or to be filed in respect of and covering the security interests granted by such Pledgor to the holder of the Permitted Collateral Liens.

     SECTION 4.5. Chief Executive Office; Change of Name; Jurisdiction of Organization.

     (a) It shall comply with the provisions of Section 7.15(a) of the Purchase Agreement.

     (b) The Agent may rely on opinions of counsel as to whether any or all UCC financing statements of the Pledgors need to be amended as a result of any of the changes described in Section 7.15(a) of the Purchase Agreement. If any Pledgor fails to provide information to the Agent about such changes on a timely basis, the Agent shall not be liable or responsible to any party for any failure to maintain a perfected security interest in such Pledgor’s property constituting Pledged Collateral, for which the Agent needed to have information relating to such changes. The Agent shall have no duty to inquire about such changes if any Pledgor does not inform the Agent of such changes, the parties acknowledging and agreeing that it would not be feasible or practical for the Agent to search for information on such changes if such information is not provided by any Pledgor.

     SECTION 4.6. Location of Inventory and Equipment. It shall not move any Equipment or Inventory to any location other than one within the continental United States and until (i) it shall have given the Agent not less than 30 days’ prior written notice (in the form of an Officers’ Certificate) of its intention so to do, clearly describing such new location within the continental United States and providing such other information in connection therewith as the Agent may request and (ii) with respect to such new location, such Pledgor shall have taken all action reasonably satisfactory to the Agent to maintain the perfection and priority of the security interest of the Agent for the benefit of the Secured Parties in the Pledged Collateral intended to

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be granted hereby, including using commercially reasonable efforts to obtain waivers of landlord’s liens with respect to such new location, if applicable, and if requested by the Agent. Such Pledgor agrees to provide the Agent with prompt notice following the movement of any Equipment or Inventory to any location other than one that is listed in the relevant Schedules to the Perfection Certificate.

     SECTION 4.7. Due Authorization and Issuance. All of the Initial Pledged Shares have been, and to the extent any Pledged Shares are hereafter issued, such Pledged Shares will be, upon such issuance, duly authorized, validly issued and fully paid and non-assessable. All of the Initial Pledged Interests have been fully paid for, and there is no amount or other obligation owing by any Pledgor to any issuer of the Initial Pledged Interests in exchange for or in connection with the issuance of the Initial Pledged Interests or any Pledgor’s status as a partner or a member of any issuer of the Initial Pledged Interests.

     SECTION 4.8. Consents, etc. In the event that the Agent desires to exercise any remedies, voting or consensual rights or attorney-in-fact powers set forth in this Agreement and determines it necessary to obtain any approvals or consents of any Governmental Authority or any other person therefor, then, upon the reasonable request of the Agent, such Pledgor agrees to use its commercially reasonable efforts to assist and aid the Agent to obtain as soon as practicable any necessary approvals or consents for the exercise of any such remedies, rights and powers.

     SECTION 4.9. Pledged Collateral. All information set forth herein, including the schedules annexed hereto, and all information contained in any documents, schedules and lists heretofore delivered to any Secured Party, including the Perfection Certificate and the schedules thereto, in connection with this Agreement, in each case, relating to the Pledged Collateral, is accurate and complete in all material respects. The Pledged Collateral described on the schedules annexed to the Perfection Certificate constitutes all of the property of such type of Pledged Collateral owned or held by the Pledgors that is required to be pledged herein or by the Purchase Agreement.

     SECTION 4.10. Insurance. In the event that the proceeds of any insurance claim are paid after the Agent has exercised its right to foreclose after an Event of Default, such Net Cash Proceeds shall be paid to the Agent to satisfy any deficiency remaining after such foreclosure.

     SECTION 4.11. Payment of Taxes; Compliance with Laws; Contesting Liens; Claims. Each Pledgor represents and warrants that all Claims imposed upon or assessed against the Pledged Collateral have been paid and discharged except to the extent such Claims constitute a Lien not yet due and payable which is a Contested Lien or a Permitted Collateral Lien. Each Pledgor shall comply with all Requirements of Law applicable to the Pledged Collateral the failure to comply with which would, individually or in the aggregate, have a Material Adverse Effect. Each Pledgor may at its own expense contest the validity, amount or applicability of any Claims so long as the contest thereof shall be conducted in accordance with, and permitted pursuant to the provisions of, the Purchase Agreement. Notwithstanding the foregoing provisions of this Section 4.11, (i) no contest of any such obligation may be pursued by such Pledgor if such contest would expose the Agent or any other Secured Party to (A) any possible criminal liability or (B) any additional civil liability for failure to comply with such obligations

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unless such Pledgor shall have furnished a bond or other security therefor satisfactory to the Agent, or such Secured Party, as the case may be and (ii) if at any time payment or performance of any obligation contested by such Pledgor pursuant to this Section 4.11 shall become necessary to prevent the imposition of remedies because of non-payment, such Pledgor shall pay or perform the same in sufficient time to prevent the imposition of remedies in respect of such default or prospective default.

     SECTION 4.12. Access to Pledged Collateral, Books and Records; Other Information. Except as provided in the Purchase Agreement, upon reasonable request to each Pledgor and upon the execution of a confidentiality agreement substantially in the form set forth in the Purchase Agreement or as otherwise mutually acceptable to the Issuer and the Agent, the Agent, its agents, accountants and attorneys shall have full and free access to visit and inspect, as applicable, during normal business hours and such other reasonable times as may be requested by the Agent all of the Pledged Collateral including all of the books, correspondence and records of such Pledgor relating thereto. The Agent and its representatives may examine the same, take extracts therefrom and make photocopies thereof, and such Pledgor agrees to render to the Agent, at such Pledgor’s cost and expense, such clerical and other assistance as may be reasonably requested by the Agent with regard thereto. Such Pledgor shall, at any and all times, within a reasonable time after written request by the Agent, furnish or cause to be furnished to the Agent, in such manner and in such detail as may be reasonably requested by the Agent, additional information with respect to the Pledged Collateral.

ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL

     SECTION 5.1. Pledge of Additional Securities Collateral. Each Pledgor shall, upon obtaining any Pledged Securities or Intercompany Notes of any person, accept the same in trust for the benefit of the Agent and forthwith deliver to the Agent a pledge amendment, duly executed by such Pledgor, in substantially the form of Exhibit 2 annexed hereto (each, a “Pledge Amendment”), and the certificates and other documents required under Section 3.1 and Section 3.2 hereof in respect of the additional Pledged Securities or Intercompany Notes which are to be pledged pursuant to this Agreement, and confirming the attachment of the Lien hereby created on and in respect of such additional Pledged Securities or Intercompany Notes. Each Pledgor hereby authorizes the Agent to attach each Pledge Amendment to this Agreement and agrees that all Pledged Securities or Intercompany Notes listed on any Pledge Amendment delivered to the Agent shall for all purposes hereunder be considered Pledged Collateral.

     SECTION 5.2. Voting Rights; Distributions; etc.

          (i) So long as no Event of Default shall have occurred and be continuing:

(A) Each Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Securities Collateral or any part thereof for any purpose not inconsistent with the terms or purposes hereof, the Purchase Agreement or any other document evidencing the Obligations; provided, however, that no Pledgor

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shall in any event exercise such rights in any manner which could reasonably be expected to have a Material Adverse Effect.

(B)

Each Pledgor shall be entitled to receive and retain, and to utilize free and clear of the Lien hereof, any and all Distributions, but only if and to the extent made in accordance with the provisions of the Purchase Agreement; provided, however, that any and all such Distributions consisting of rights or interests in the form of securities shall be forthwith delivered to the Agent to hold as Pledged Collateral and shall, if received by any Pledgor, be received in trust for the benefit of the Agent, be segregated from the other property or funds of such Pledgor and be forthwith delivered to the Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).

          (ii) The Agent shall be deemed without further action or formality to have granted to each Pledgor all necessary consents relating to voting rights and shall, if necessary, upon written request of any Pledgor and at the sole cost and expense of the Pledgors, from time to time execute and deliver (or cause to be executed and delivered) to such Pledgor all such instruments as such Pledgor may reasonably request in order to permit such Pledgor to exercise the voting and other rights which it is entitled to exercise pursuant to Section 5.2(i)(A) hereof and to receive the Distributions which it is authorized to receive and retain pursuant to Section 5.2(i)(B) hereof.

          (iii) Upon the occurrence and during the continuance of any Event of Default:

(A)

All rights of each Pledgor to exercise the voting and other consensual rights it would otherwise be entitled to exercise pursuant to Section 5.2(i)(A) hereof shall cease, and all such rights shall thereupon become vested in the Agent to the extent permitted by applicable law, which shall thereupon have the sole right to exercise such voting and other consensual rights to the extent permitted by applicable law.

(B)

All rights of each Pledgor to receive Distributions which it would otherwise be authorized to receive and retain pursuant to Section 5.2(i)(B) hereof shall cease and all such rights shall thereupon become vested in the Agent to the extent permitted by applicable law, which shall thereupon have the sole right to receive and hold as Pledged Collateral such Distributions to the extent permitted by applicable law.

          (iv) Each Pledgor shall, at its sole cost and expense, from time to time execute and deliver to the Agent appropriate instruments as the Agent may request in order to permit the Agent to exercise the voting and other rights which it may be entitled to exercise pursuant to Section 5.2(iii)(A) hereof and to receive all Distributions which it may be entitled to receive under Section 5.2(iii)(B) hereof.

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          (v) All Distributions which are received by any Pledgor contrary to the provisions of Section 5.2(i)(B) hereof shall be received in trust for the benefit of the Agent, shall be segregated from other funds of such Pledgor and shall immediately be paid over to the Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).

     SECTION 5.3. Defaults, etc. Such Pledgor is not in default in the payment of any portion of any mandatory capital contribution, if any, required to be made under any agreement to which such Pledgor is a party relating to the Pledged Securities pledged by it, and such Pledgor is not in violation of any other provisions of any such agreement to which such Pledgor is a party, or otherwise in default or violation thereunder. No Securities Collateral pledged by such Pledgor is subject to any defense, offset or counterclaim, nor have any of the foregoing been asserted or alleged against such Pledgor by any person with respect thereto, and as of the date hereof, there are no certificates, instruments, documents or other writings (other than the Organizational Documents and certificates, if any, delivered to the Agent) which evidence any Pledged Securities of such Pledgor.

     SECTION 5.4. Certain Agreements of Pledgors As Issuers and Holders of Equity Interests.

          (i) In the case of each Pledgor which is an issuer of Securities Collateral, such Pledgor agrees to be bound by the terms of this Agreement relating to the Securities Collateral issued by it and will comply with such terms insofar as such terms are applicable to it.

          (ii) In the case of each Pledgor which is a partner in a partnership, limited liability company or other entity, such Pledgor hereby consents to the extent required by the applicable Organizational Document to the pledge by each other Pledgor, pursuant to the terms hereof, of the Pledged Interests in such partnership, limited liability company or other entity and, upon the occurrence and during the continuance of an Event of Default, to the transfer of such Pledged Interests to the Agent or its nominee and to the substitution of the Agent or its nominee as a substituted partner or member in such partnership, limited liability company or other entity with all the rights, powers and duties of a general partner or a limited partner or member, as the case may be.

ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL

     SECTION 6.1. Grant of License. For the purpose of enabling the Agent, during the continuance of an Event of Default, to exercise rights and remedies under Article IX hereof at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each Pledgor hereby grants to the Agent, to the extent assignable, an irrevocable, non-exclusive license to use, assign, license or sublicense any of the Intellectual Property Collateral now owned or hereafter acquired by such Pledgor, wherever the same may be located. Such license shall include access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout hereof.

     SECTION 6.2. Protection of Agent’s Security. On a continuing basis, each Pledgor shall, at its sole cost and expense, (i) promptly following its becoming aware thereof, notify the

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Agent of (A) any materially adverse determination in any proceeding in the United States Patent and Trademark Office or the United States Copyright Office with respect to any material Patent, Trademark or Copyright or (B) the institution of any proceeding or any adverse determination in any federal, state or local court or administrative body regarding such Pledgor’s claim of ownership in or right to use any of the Intellectual Property Collateral material to the use and operation of the Pledged Collateral, its right to register such Intellectual Property Collateral or its right to keep and maintain such registration in full force and effect, (ii) maintain and protect the Intellectual Property Collateral material to the use and operation of the Pledged Collateral as presently used and operated and as contemplated by the Purchase Agreement, (iii) not permit to lapse or become abandoned any Intellectual Property Collateral material to the use and operation of the Pledged Collateral as presently used and operated and as contemplated by the Purchase Agreement, and not settle or compromise any pending or future litigation or administrative proceeding with respect to such Intellectual Property Collateral, in each case except as shall be consistent with commercially reasonable business judgment, (iv) upon such Pledgor obtaining knowledge thereof, promptly notify the Agent in writing of any event which may be reasonably expected to materially and adversely affect the value or utility of the Intellectual Property Collateral or any portion thereof material to the use and operation of the Pledged Collateral, the ability of such Pledgor or the Agent to dispose of the Intellectual Property Collateral or any portion thereof or the rights and remedies of the Agent in relation thereto including a levy or threat of levy or any legal process against the Intellectual Property Collateral or any portion thereof, (v) not license the Intellectual Property Collateral other than licenses entered into by such Pledgor in, or incidental to, the ordinary course of business, or amend or permit the amendment of any of the licenses in a manner that materially and adversely affects the right to receive payments thereunder, or in any manner that would materially impair the value of the Intellectual Property Collateral or the Lien on and security interest in the Intellectual Property Collateral intended to be granted to the Agent for the benefit of the Secured Parties, without the consent of the Agent, (vi) diligently keep adequate records respecting the Intellectual Property Collateral and (vii) furnish to the Agent from time to time upon the Agent’s request therefor reasonably detailed statements and amended schedules further identifying and describing the Intellectual Property Collateral and such other materials evidencing or reports pertaining to the Intellectual Property Collateral as the Agent may from time to time request.

     SECTION 6.3. After-Acquired Property. If any Pledgor shall, at any time before the Obligations have been paid in full (other than contingent indemnification obligations which, pursuant to the provisions of the Purchase Agreement or the Security Documents, survive the termination thereof), (i) obtain any rights to any additional Intellectual Property Collateral or (ii) become entitled to the benefit of any additional Intellectual Property Collateral or any renewal or extension thereof, including any reissue, division, continuation, or continuation-in-part of any Intellectual Property Collateral, or any improvement on any Intellectual Property Collateral, the provisions hereof shall automatically apply thereto and any such item enumerated in clause (i) or (ii) of this Section 6.3 with respect to such Pledgor shall automatically constitute Intellectual Property Collateral if such would have constituted Intellectual Property Collateral at the time of execution hereof and be subject to the Lien and security interest created by this Agreement without further action by any party. Each Pledgor shall promptly (i) provide to the Agent written notice of any of the foregoing and (ii) confirm the attachment of the Lien and security interest created by this Agreement to any rights described in clauses (i) and (ii) of the immediately preceding sentence of this Section 6.3 by execution of an instrument in form reasonably

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acceptable to the Agent and the filing of any instruments or statements as shall be reasonably necessary to preserve, protect or perfect the Agent’s security interest in such Intellectual Property Collateral. Further, each Pledgor authorizes the Agent to modify this Agreement by amending Schedules 12(a) and 12(b) annexed to the Perfection Certificate to include any Intellectual Property Collateral acquired or arising after the date hereof of such Pledgor.

     SECTION 6.4. Litigation. Unless there shall occur and be continuing any Event of Default, each Pledgor shall have the right to commence and prosecute in its own name, as the party in interest, for its own benefit and at the sole cost and expense of the Pledgors, such applications for protection of the Intellectual Property Collateral and suits, proceedings or other actions to prevent the infringement, counterfeiting, unfair competition, dilution, diminution in value or other damage as are necessary to protect the Intellectual Property Collateral. Upon the occurrence and during the continuance of any Event of Default, the Agent shall have the right but shall in no way be obligated to file applications for protection of the Intellectual Property Collateral and/or bring suit in the name of any Pledgor, the Agent or the Secured Parties to enforce the Intellectual Property Collateral and any license thereunder. In the event of such suit, each Pledgor shall, at the reasonable request of the Agent, do any and all lawful acts and execute any and all documents requested by the Agent in aid of such enforcement and the Pledgors shall promptly reimburse and indemnify the Agent for all costs and expenses incurred by the Agent in the exercise of its rights under this Section 6.4 in accordance with Section 13 of the Purchase Agreement. In the event that the Agent shall elect not to bring suit to enforce the Intellectual Property Collateral, each Pledgor agrees, at the reasonable request of the Agent, to take all commercially reasonable actions necessary, whether by suit, proceeding or other action, to prevent the infringement, counterfeiting, unfair competition, dilution, diminution in value of or other damage to any of the material Intellectual Property Collateral by others and for that purpose agrees to diligently maintain any suit, proceeding or other action against any person so infringing necessary to prevent such infringement.

ARTICLE VII
CERTAIN PROVISIONS CONCERNING ACCOUNTS

     SECTION 7.1. Maintenance of Records. Each Pledgor shall keep and maintain at its own cost and expense complete records of each Account, in a manner consistent with prudent business practice, including records of all payments received, all credits granted thereon, all merchandise returned and all other documentation relating thereto. Except as provided in the Intercreditor Agreement, each Pledgor shall, at such Pledgor’s sole cost and expense, upon the Agent’s demand made at any time after the occurrence and during the continuance of any Event of Default, deliver all tangible evidence of Accounts, including all documents evidencing Accounts and any books and records relating thereto to the Agent or to its representatives (copies of which evidence and books and records may be retained by such Pledgor). Except as provided in the Intercreditor Agreement, upon the occurrence and during the continuance of any Event of Default and acceleration of the Notes (as defined in the Purchase Agreement), the Agent may transfer a full and complete copy of any Pledgor’s books, records, credit information, reports, memoranda and all other writings relating to the Accounts to and for the use by any person that has acquired or is contemplating acquisition of an interest in the Accounts or the Agent’s security interest therein without the consent of any Pledgor.

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     SECTION 7.2. Legend. Each Pledgor shall legend, at the request of the Agent and in form and manner satisfactory to the Agent, the Accounts and the other books, records and documents of such Pledgor evidencing or pertaining to the Accounts with an appropriate reference to the fact that the Accounts have been assigned to the Agent for the benefit of the Secured Parties and that the Agent has a security interest therein.

     SECTION 7.3. Modification of Terms, etc. No Pledgor shall rescind or cancel any obligations evidenced by any Account or modify any term thereof or make any adjustment with respect thereto except in the ordinary course of business consistent with prudent business practice, or extend or renew any such obligations except in the ordinary course of business consistent with prudent business practice or compromise or settle any dispute, claim, suit or legal proceeding relating thereto or sell any Account or interest therein except in the ordinary course of business consistent with prudent business practice without the prior written consent of the Agent. Each Pledgor shall timely fulfill all obligations on its part to be fulfilled under or in connection with the Accounts.

     SECTION 7.4. Collection. Each Pledgor shall cause to be collected from the Account Debtor of each of the Accounts, as and when due in the ordinary course of business and consistent with prudent business practice (including Accounts that are delinquent), any and all amounts owing under or on account of such Account, and apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account, except that any Pledgor may, with respect to an Account, allow in the ordinary course of business (i) a refund or credit due and (ii) such extensions of time to pay amounts due in respect of Accounts and such other modifications of payment terms or settlements in respect of Accounts as shall be commercially reasonable in the circumstances, all in accordance with such Pledgor’s ordinary course of business consistent with its collection practices as in effect from time to time. The costs and expenses (including attorneys’ fees) of collection, in any case, whether incurred by any Pledgor, the Agent or any Secured Party, shall be paid by the Pledgors.

ARTICLE VIII
TRANSFERS

     SECTION 8.1. Transfers of Pledged Collateral. No Pledgor shall sell, convey, assign or otherwise dispose of, or grant any option with respect to, any of the Pledged Collateral pledged by it hereunder except as permitted by the Purchase Agreement, including Section 7.19 of the Purchase Agreement.

ARTICLE IX
REMEDIES

     SECTION 9.1. Remedies. Upon the occurrence and during the continuance of any Event of Default the Agent may from time to time exercise in respect of the Pledged Collateral, in addition to the other rights and remedies provided for herein or otherwise available to it, the following remedies:

          (i) Personally, or by agents or attorneys, immediately take possession of the Pledged Collateral or any part thereof, from any Pledgor or any other person who then has

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possession of any part thereof with or without notice or process of law, and for that purpose may enter upon any Pledgor’s premises where any of the Pledged Collateral is located, remove such Pledged Collateral, remain present at such premises to receive copies of all communications and remittances relating to the Pledged Collateral and use in connection with such removal and possession any and all services, supplies, aids and other facilities of any Pledgor;

          (ii) Demand, sue for, collect or receive any money or property at any time payable or receivable in respect of the Pledged Collateral including instructing the obligor or obligors on any agreement, instrument or other obligation constituting part of the Pledged Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Agent, and in connection with any of the foregoing, compromise, settle, extend the time for payment and make other modifications with respect thereto; provided, however, that in the event that any such payments are made directly to any Pledgor, prior to receipt by any such obligor of such instruction, such Pledgor shall segregate all amounts received pursuant thereto in trust for the benefit of the Agent and shall promptly (but in no event later than one (1) Business Day after receipt thereof) pay such amounts to the Agent;

          (iii) Sell, assign, grant a license to use or otherwise liquidate, or direct any Pledgor to sell, assign, grant a license to use or otherwise liquidate, any and all investments made in whole or in part with the Pledged Collateral or any part thereof, and take possession of the proceeds of any such sale, assignment, license or liquidation;

          (iv) Take possession of the Pledged Collateral or any part thereof, by directing any Pledgor in writing to deliver the same to the Agent at any place or places so designated by the Agent, in which event such Pledgor shall at its own expense: (A) forthwith cause the same to be moved to the place or places designated by the Agent and therewith delivered to the Agent, (B) store and keep any Pledged Collateral so delivered to the Agent at such place or places pending further action by the Agent and (C) while the Pledged Collateral shall be so stored and kept, provide such security and maintenance services as shall be necessary to protect the same and to preserve and maintain them in good condition. Each Pledgor’s obligation to deliver the Pledged Collateral as contemplated in this Section 9.1(iv) is of the essence hereof. Upon application to a court of equity having jurisdiction, the Agent shall be entitled to a decree requiring specific performance by any Pledgor of such obligation;

          (v) Withdraw all moneys, instruments, securities and other property in any bank, financial securities, deposit or other account of any Pledgor constituting Pledged Collateral for application to the Obligations as provided in Article X hereof;

          (vi) Retain and apply the Distributions to the Obligations as provided in Article X hereof;

          (vii) Exercise any and all rights as beneficial and legal owner of the Pledged Collateral, including perfecting assignment of and exercising any and all voting, consensual and other rights and powers with respect to any Pledged Collateral; and

          (viii) Exercise all the rights and remedies of a secured party on default under the UCC, and the Agent may also in its sole discretion, without notice except as specified in

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           Section 9.2 hereof, sell, assign or grant a license to use the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Agent’s offices or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Agent may deem commercially reasonable. The Agent or any other Secured Party or any of their respective Affiliates may be the purchaser, licensee, assignee or recipient of any or all of the Pledged Collateral at any such sale and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Pledged Collateral sold, assigned or licensed at such sale, to use and apply any of the Obligations owed to such person as a credit on account of the purchase price of any Pledged Collateral payable by such person at such sale. Each purchaser, assignee, licensee or recipient at any such sale shall acquire the property sold, assigned or licensed absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives, to the fullest extent permitted by law, all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor hereby waives, to the fullest extent permitted by law, any claims against the Agent arising by reason of the fact that the price at which any Pledged Collateral may have been sold, assigned or licensed at such a private sale was less than the price which might have been obtained at a public sale, even if the Agent accepts the first offer received and does not offer such Pledged Collateral to more than one offeree.

     SECTION 9.2. Notice of Sale. Each Pledgor acknowledges and agrees that, to the extent notice of sale or other disposition of Pledged Collateral shall be required by law, ten (10) days’ prior notice to such Pledgor of the time and place of any public sale or of the time after which any private sale or other intended disposition is to take place shall be commercially reasonable notification of such matters. No notification need be given to any Pledgor if it has signed, after the occurrence of an Event of Default, a statement renouncing or modifying any right to notification of sale or other intended disposition.

     SECTION 9.3. Waiver of Notice and Claims. Each Pledgor hereby waives, to the fullest extent permitted by applicable law, notice or judicial hearing in connection with the Agent’s taking possession or the Agent’s disposition of any of the Pledged Collateral, including any and all prior notice and hearing for any prejudgment remedy or remedies and any such right which such Pledgor would otherwise have under law, and each Pledgor hereby further waives, to the fullest extent permitted by applicable law: (i) all damages occasioned by such taking of possession, (ii) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Agent’s rights hereunder and (iii) all rights of redemption, appraisal, valuation, stay, extension or moratorium now or hereafter in force under any applicable law. The Agent shall not be liable for any incorrect or improper payment made pursuant to this Article IX in the absence of gross negligence or willful misconduct. Any sale of, or the grant of options to purchase, or any other realization upon, any Pledged Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the applicable Pledgor therein and thereto, and shall be a perpetual bar both at law and in equity against such Pledgor and against any and all persons claiming or attempting to claim the Pledged

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Collateral so sold, optioned or realized upon, or any part thereof, from, through or under such Pledgor.

     SECTION 9.4. Certain Sales of Pledged Collateral.

          (i) Each Pledgor recognizes that, by reason of certain prohibitions contained in law, rules, regulations or orders of any Governmental Authority, the Agent may be compelled, with respect to any sale of all or any part of the Pledged Collateral, to limit purchasers to those who meet the requirements of such Governmental Authority. Each Pledgor acknowledges that any such sales may be at prices and on terms less favorable to the Agent than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such restricted sale shall be deemed to have been made in a commercially reasonable manner and that, except as may be required by applicable law, the Agent shall have no obligation to engage in public sales.

          (ii) Each Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act, and applicable state securities laws, the Agent may be compelled, with respect to any sale of all or any part of the Securities Collateral, to limit purchasers to persons who will agree, among other things, to acquire such Securities Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor acknowledges that any such private sales may be at prices and on terms less favorable to the Agent than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act), and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Securities Collateral for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would agree to do so.

          (iii) Notwithstanding the foregoing, each Pledgor shall, upon the occurrence and during the continuance of any Event of Default, at the reasonable request of the Agent, for the benefit of the Agent, cause any registration, qualification under or compliance with any Federal or state securities law or laws to be effected with respect to all or any part of the Securities Collateral as soon as practicable and at the sole cost and expense of the Pledgors. Each Pledgor will use its commercially reasonable efforts to cause such registration to be effected (and be kept effective) and will use its commercially reasonable efforts to cause such qualification and compliance to be effected (and be kept effective) as may be so requested and as would permit or facilitate the sale and distribution of such Securities Collateral including registration under the Securities Act (or any similar statute then in effect), appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with all other requirements of any Governmental Authority. Each Pledgor shall use its commercially reasonable efforts to cause the Agent to be kept advised in writing as to the progress of each such registration, qualification or compliance and as to the completion thereof, shall furnish to the Agent such number of prospectuses, offering circulars or other documents incident thereto as the Agent from time to time may request, and shall indemnify and shall cause the issuer of the Securities Collateral to indemnify the Agent and all others participating in the

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distribution of such Securities Collateral against all claims, losses, damages and liabilities caused by any untrue statement (or alleged untrue statement) of a material fact contained therein (or in any related registration statement, notification or the like) or by any omission (or alleged omission) to state therein (or in any related registration statement, notification or the like) a material fact required to be stated therein or necessary to make the statements therein not misleading.

          (iv) If the Agent determines to exercise its right to sell any or all of the Securities Collateral, upon written request, the applicable Pledgor shall from time to time furnish to the Agent all such information as the Agent may request in order to determine the number of securities included in the Securities Collateral which may be sold by the Agent as exempt transactions under the Securities Act and the rules of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.

          (v) Each Pledgor further agrees that a breach of any of the covenants contained in this Section 9.4 will cause irreparable injury to the Agent and other Secured Parties, that the Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 9.4 shall be specifically enforceable against such Pledgor, and such Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred and is continuing.

     SECTION 9.5. No Waiver; Cumulative Remedies.

          (i) No failure on the part of the Agent to exercise, no course of dealing with respect to, and no delay on the part of the Agent in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy; nor shall the Agent be required to look first to, enforce or exhaust any other security, collateral or guaranties. The remedies herein provided are cumulative and are not exclusive of any remedies provided by law.

          (ii) In the event that the Agent shall have instituted any proceeding to enforce any right, power or remedy under this Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Agent, then and in every such case, the Pledgors, the Agent and each other Secured Party shall be restored to their respective former positions and rights hereunder with respect to the Pledged Collateral, and all rights, remedies and powers of the Agent and the other Secured Parties shall continue as if no such proceeding had been instituted.

     SECTION 9.6. Certain Additional Actions Regarding Intellectual Property. If any Event of Default shall have occurred and be continuing, upon the written demand of the Agent, each Pledgor shall execute and deliver to the Agent an assignment or assignments of the registered Patents, Trademarks and/or Copyrights and Goodwill constituting Intellectual Property Collateral and such other documents as are necessary or appropriate to carry out the intent and purposes hereof. Within five (5) Business Days of written notice thereafter from the Agent, each Pledgor shall make available to the Agent, to the extent within such Pledgor’s power and authority, such

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personnel in such Pledgor’s employ on the date of the Event of Default as the Agent may reasonably designate to permit such Pledgor to continue, directly or indirectly, to produce, advertise and sell the products and services sold by such Pledgor under the registered Patents, Trademarks and/or Copyrights constituting Intellectual Property Collateral, and such persons shall be available to perform their prior functions on the Agent’s behalf.

ARTICLE X
PROCEEDS OF CASUALTY EVENTS AND COLLATERAL DISPOSITIONS;
APPLICATION OF PROCEEDS

     SECTION 10.1. Proceeds of Casualty Events and Collateral Dispositions. The Pledgors shall take all actions required by the Purchase Agreement with respect to any Net Cash Proceeds of any Casualty Event or from the sale or disposition of any Pledged Collateral.

     SECTION 10.2. Application of Proceeds. The proceeds received by the Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral pursuant to the exercise by the Agent of its remedies shall be applied, together with any other sums then held by the Agent pursuant to this Agreement, in accordance with the Purchase Agreement.

ARTICLE XI
MISCELLANEOUS

     SECTION 11.1. Concerning Agent.

          (i) The Agent has been appointed as collateral agent pursuant to the Purchase Agreement. The actions of the Agent hereunder are subject to the provisions of the Purchase Agreement. The Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Pledged Collateral), in accordance with this Agreement and the Purchase Agreement. The Agent may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Agent may resign and a successor Agent may be appointed in the manner provided in the Purchase Agreement. Upon the acceptance of any appointment as the Agent by a successor Agent, that successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent under this Agreement, and the retiring Agent shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Agent’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Agent.

          (ii) The Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to that which the Agent, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Agent nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Agent or any other Secured Party has or

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is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any person with respect to any Pledged Collateral.

          (iii) The Agent shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.

          (iv) If any item of Pledged Collateral also constitutes collateral granted to the Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the Agent, in its sole discretion, shall select which provision or provisions shall control.

     SECTION 11.2. Agent May Perform; Agent Appointed Attorney-in-Fact. If any Pledgor shall fail to perform any covenants contained in this Agreement (including such Pledgor’s covenants to (i) pay the premiums in respect of all required insurance policies hereunder, (ii) pay Claims, (iii) make repairs, (iv) discharge Liens or (v) pay or perform any obligations of such Pledgor under any Pledged Collateral) or if any representation or warranty on the part of any Pledgor contained herein shall be breached, the Agent may (but shall not be obligated to) do the same or cause it to be done or remedy any such breach, and may expend funds for such purpose; provided, however, that the Agent shall in no event be bound to inquire into the validity of any tax, lien, imposition or other obligation which such Pledgor fails to pay or perform as and when required hereby and which such Pledgor does not contest in accordance in accordance with the provisions of Section 4.11 hereof. Any and all amounts so expended by the Agent shall be paid by the Pledgors in accordance with the provisions of Section 13 of the Purchase Agreement. Neither the provisions of this Section 11.2 nor any action taken by the Agent pursuant to the provisions of this Section 11.2 shall prevent any such failure to observe any covenant contained in this Agreement nor any breach of representation or warranty from constituting an Event of Default. Each Pledgor hereby appoints the Agent its attorney-in-fact, with full authority in the place and stead of such Pledgor and in the name of such Pledgor, or otherwise, from time to time in the Agent’s discretion to take any action and to execute any instrument consistent with the terms of the Purchase Agreement, this Agreement and the other Security Documents which the Agent may deem necessary or advisable to accomplish the purposes hereof. The foregoing grant of authority is a power of attorney coupled with an interest and such appointment shall be irrevocable for the term hereof. Each Pledgor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof.

     SECTION 11.3. Continuing Security Interest; Assignment. This Agreement shall create a continuing security interest in the Pledged Collateral and shall (i) be binding upon the Pledgors, their respective successors and assigns and (ii) inure, together with the rights and remedies of the Agent hereunder, to the benefit of the Agent and the other Secured Parties and each of their respective successors, transferees and assigns. No other persons (including any other creditor of any Pledgor) shall have any interest herein or any right or benefit with respect hereto. Without limiting the generality of the foregoing clause (ii), any Secured Party may assign or otherwise

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transfer any indebtedness held by it secured by this Agreement 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, subject however, to the provisions of the Purchase Agreement.

     SECTION 11.4. Termination; Release. When all the Obligations have been paid in full, this Agreement shall terminate. Upon termination of this Agreement the Pledged Collateral shall be released from the Lien of this Agreement. Upon the transfer of any Pledged Collateral that is permitted by Section 7.19(a) or Section 8.05 of the Purchase Agreement to a party that in not the Issuer or a Guarantor, such Pledged Collateral shall be released from the Lien of this Agreement. Upon such release or any release of Pledged Collateral in accordance with the provisions of the Purchase Agreement, the Agent shall, upon the request and at the sole cost and expense of the Pledgors, assign, transfer and deliver to Pledgor, against receipt and without recourse to or warranty by the Agent except as to the fact that the Agent has not encumbered the released assets, such of the Pledged Collateral to be released (in the case of a release) as may be in possession of the Agent and as shall not have been sold or otherwise applied pursuant to the terms hereof, and, with respect to any other Pledged Collateral, proper documents and instruments (including UCC 3 termination statements or releases) acknowledging the termination hereof or the release of such Pledged Collateral, as the case may be.

     SECTION 11.5. Modification in Writing. No amendment, modification, supplement, termination or waiver of or to any provision hereof, nor consent to any departure by any Pledgor therefrom, shall be effective unless the same shall be made in accordance with the terms of the Purchase Agreement and unless in writing and signed by the Agent. Any amendment, modification or supplement of or to any provision hereof, any waiver of any provision hereof and any consent to any departure by any Pledgor from the terms of any provision hereof shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement or any other document evidencing the Obligations, no notice to or demand on any Pledgor in any case shall entitle any Pledgor to any other or further notice or demand in similar or other circumstances.

     SECTION 11.6. Notices. Unless otherwise provided herein or in the Purchase Agreement, any notice or other communication herein required or permitted to be given shall be given in the manner and become effective as set forth in the Purchase Agreement, as to any Pledgor, addressed to it at the address of the Issuer set forth in the Purchase Agreement and as to the Agent, addressed to it at the address set forth in the Purchase Agreement, or in each case at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 11.6.

     SECTION 11.7. Governing Law, Consent to Jurisdiction and Service of Process; Waiver of Jury Trial. Section 15.08 of the Purchase Agreement is incorporated herein, mutatis mutandis, as if a part hereof.

     SECTION 11.8. Severability of Provisions. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

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     SECTION 11.9. Execution in Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement.

     SECTION 11.10. Business Days. In the event any time period or any date provided in this Agreement ends or falls on a day other than a Business Day, then such time period shall be deemed to end and such date shall be deemed to fall on the next succeeding Business Day, and performance herein may be made on such Business Day, with the same force and effect as if made on such other day.

     SECTION 11.11. No Credit for Payment of Taxes or Imposition. Such Pledgor shall not be entitled to any credit against the principal, premium, if any, or interest payable under the Purchase Agreement, and such Pledgor shall not be entitled to any credit against any other sums which may become payable under the terms thereof or hereof, by reason of the payment of any Tax on the Pledged Collateral or any part thereof.

     SECTION 11.12. No Claims Against Agent. Nothing contained in this Agreement shall constitute any consent or request by the Agent, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Pledged Collateral or any part thereof, nor as giving any Pledgor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against the Agent in respect thereof or any claim that any Lien based on the performance of such labor or services or the furnishing of any such materials or other property is prior to the Lien hereof.

     SECTION 11.13. No Release. Nothing set forth in this Agreement shall relieve any Pledgor from the performance of any term, covenant, condition or agreement on such Pledgor’s part to be performed or observed under or in respect of any of the Pledged Collateral or from any liability to any person under or in respect of any of the Pledged Collateral or shall impose any obligation on the Agent or any other Secured Party to perform or observe any such term, covenant, condition or agreement on such Pledgor’s part to be so performed or observed or shall impose any liability on the Agent or any other Secured Party for any act or omission on the part of such Pledgor relating thereto or for any breach of any representation or warranty on the part of such Pledgor contained in this Agreement, the Purchase Agreement or the other Basic Documents, or under or in respect of the Pledged Collateral or made in connection herewith or therewith. The obligations of each Pledgor contained in this Section 11.13 shall survive the termination hereof and the discharge of such Pledgor’s other obligations under this Agreement, the Purchase Agreement and the other Basic Documents.

     SECTION 11.14. Obligations Absolute. All obligations of each Pledgor hereunder shall be absolute and unconditional irrespective of:

(i) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any other Pledgor;

33

(ii)	any lack of validity or enforceability of the Purchase Agreement or any other Basic Document, or any other agreement or instrument relating thereto;
(iii)	any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Purchase Agreement or any other Basic Document or any other agreement or instrument relating thereto;
(iv)	any pledge, exchange, release or non-perfection of any other collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Obligations;
(v)	any exercise, non-exercise or waiver of any right, remedy, power or privilege under or in respect hereof, the Purchase Agreement or any other Basic Document except as specifically set forth in a waiver granted pursuant to the provisions of Section 11.5 hereof; or
(vi)	any other circumstances which might otherwise constitute a defense available to, or a discharge of, any Pledgor.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]

34

     IN WITNESS WHEREOF, the Pledgors and the Agent have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written.

TERREMARK WORLDWIDE, INC., as Pledgor
By:	/s/ Jose A. Segrera
	Name:	Jose A. Segrera
	Title:	Chief Financial Officer

NAP OF THE AMERICAS, INC.

NAP OF THE AMERICAS/WEST, INC.

PARK WEST TELECOMMUNICATIONS INVESTORS, INC.

SPECTRUM TELECOMMUNICATIONS CORP.

TECOTA SERVICES CORP.

TERREMARK EUROPE, INC.

TERREMARK FINANCIAL SERVICES, INC.

TERREMARK FORTUNE HOUSE #1, INC.

TERREMARK LATIN AMERICA, INC.

TERREMARK MANAGEMENT SERVICES, INC.

TERREMARK REALTY, INC.

TERREMARK TECHNOLOGY CONTRACTORS, INC.

TERREMARK TRADEMARK HOLDINGS, INC.

TERRENAP DATA CENTERS, INC.

TERRENAP SERVICES, INC.,

as Pledgors
By:	/s/ Jose A. Segrera
	Name:	Jose A. Segrera
	Title:	Chief Financial Officer

OPTICAL COMMUNICATIONS, INC., as Pledgor
By:	/s/ Manuel D. Medina
	Name:	Manuel D. Medina
	Title:

S-1

TERREMARK FEDERAL GROUP, INC., as Pledgor
By:	/s/ Nelson Fonseca
	Name:	Nelson Fonseca
	Title:	Treasurer & CFO

CREDIT SUISSE, CAYMAN ISLANDS BRANCH as Agent
By:	/s/ Julia P. Kingsbury
	Name:	Julia P. Kingsbury
	Title:	Director
By:	/s/ Pilarcita V. Naval
	Name:	Pilarcita V. Naval
	Title:	Assistant Vice President

S-2

EXHIBIT 1

[Form of]

ISSUER’S ACKNOWLEDGMENT

     The undersigned hereby (i) acknowledges receipt of a copy of that certain security agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), dated as of January 5, 2007, made by TERREMARK WORLDWIDE, INC., a Delaware corporation (the “Issuer”), the Guarantors party thereto and CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as collateral agent (in such capacity and together with any successors in such capacity, the “Agent”), (ii) agrees promptly to note on its books the security interests granted to the Agent and confirmed under the Security Agreement, (iii) agrees that it will comply with instructions of the Agent with respect to the applicable Securities Collateral without further consent by the applicable Pledgor, (iv) agrees to notify the Agent upon obtaining knowledge of any interest in favor of any person in the applicable Securities Collateral that is adverse to the interest of the Agent therein and (v) waives any right or requirement at any time hereafter to receive a copy of the Security Agreement in connection with the registration of any Securities Collateral thereunder in the name of the Agent or its nominee or the exercise of voting rights by the Agent or its nominee.

[                           ]
By:
	Name:
	Title:

1- 1

EXHIBIT 2

[Form of]

SECURITIES PLEDGE AMENDMENT

     This Security Pledge Amendment, dated as of [                    ], is delivered pursuant to Section 5.1 of that certain security agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), dated as of January 5, 2007, made by TERREMARK WORLDWIDE, INC., a Delaware corporation (the “Issuer”), the Guarantors party thereto and CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as collateral agent (in such capacity and together with any successors in such capacity, the “Agent”). The undersigned hereby agrees that this Pledge Amendment may be attached to the Security Agreement and that the Pledged Securities and/or Intercompany Notes listed on this Pledge Amendment shall be deemed to be and shall become part of the Pledged Collateral and shall secure all Obligations.

PLEDGED SECURITIES

					PERCENTAGE
					OF ALL ISSUED
					CAPITAL OR
	CLASS OF			NUMBER OF	OTHER EQUITY
	STOCK OR		CERTIFICATE	SHARES OR	INTERESTS OF
ISSUER	INTERESTS	PAR VALUE	NO(S).	INTERESTS	ISSUER

INTERCOMPANY NOTES

	PRINCIPAL	DATE OF	INTEREST	MATURITY
ISSUER	AMOUNT	ISSUANCE	RATE	DATE

2- 1

[                                                    ], as Pledgor
By:
	Name:
	Title:

AGREED TO AND ACCEPTED:

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Agent

By:
	Name:
	Title:

  2-2

EXHIBIT 3

[Form of]

JOINDER AGREEMENT

[Name of New Pledgor]
[Address of New Pledgor]

[Date]

Ladies and Gentlemen:

     Reference is made to that certain security agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), dated as of January 5, 2007, made by TERREMARK WORLDWIDE, INC., a Delaware corporation (the “Issuer”), the Guarantors party thereto and CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as collateral agent (in such capacity and together with any successors in such capacity, the “Agent”).

     This letter supplements the Security Agreement and is delivered by the undersigned, [          ] (the “New Pledgor”), pursuant to Section 3.5 of the Security Agreement. The New Pledgor hereby agrees to be bound as a Guarantor and as a Pledgor by all of the terms, covenants and conditions set forth in the Security Agreement to the same extent that it would have been bound if it had been a signatory to the Security Agreement on the execution date of the Security Agreement. The New Pledgor also hereby agrees to be bound as a party by all of the terms, covenants and conditions applicable to it set forth in Sections 4, 7 and 8 of the Purchase Agreement to the same extent that it would have been bound if it had been a signatory to the Purchase Agreement on the execution date of the Purchase Agreement. Without limiting the generality of the foregoing, the New Pledgor hereby grants and pledges to the Agent, as collateral security for the full, prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations, a Lien on and security interest in, all of its right, title and interest in, to and under the Pledged Collateral and expressly assumes all obligations and liabilities of a Guarantor and Pledgor thereunder. The New Pledgor hereby makes each of the representations and warranties and agrees to each of the covenants applicable to the Pledgors contained in the Security Agreement and Section 4 of the Purchase Agreement.

  3-1

     Annexed hereto are supplements to each of the schedules to the Security Agreement and the Purchase Agreement, as applicable, with respect to the New Pledgor. Such supplements shall be deemed to be part of the Security Agreement or the Purchase Agreement, as applicable.

     This agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement.

     THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

  3-2

     IN WITNESS WHEREOF, the New Pledgor has caused this letter agreement to be executed and delivered by its duly authorized officer as of the date first above written.

[NEW PLEDGOR], as Pledgor
By:
	Name:
	Title:

AGREED TO AND ACCEPTED:

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Agent

By:
	Name:
	Title:

[Schedules to be attached]

  3-3

EXHIBIT 4

[Form of]

Copyright Security Agreement

     Copyright Security Agreement, dated as of [            ], by [            ] and [            ] (individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of CREDIT SUISSE, CAYMAN ISLANDS BRANCH, in its capacity as collateral agent pursuant to the Purchase Agreement (in such capacity, the “Agent”).

W I T N E S S E T H :

     WHEREAS, the Pledgors are party to a Security Agreement of even date herewith (the “Security Agreement”) in favor of the Agent pursuant to which the Pledgors are required to execute and deliver this Copyright Security Agreement;

     NOW, THEREFORE, in consideration of the premises and to induce the Agent, for the benefit of the Secured Parties, to enter into the Purchase Agreement, the Pledgors hereby agree with the Agent as follows:

     SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.

     SECTION 2. Grant of Security Interest in Copyright Collateral. Each Pledgor hereby pledges and grants to the Agent for the benefit of the Secured Parties a lien on and security interest in and to all of its right, title and interest in, to and under all the following Pledged Collateral of such Pledgor:

     (a) Copyrights of such Pledgor listed on Schedule I¹ attached hereto; and

     (b) all Proceeds of any and all of the foregoing (other than Excluded Property).

     SECTION 3. Security Agreement. The security interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interest granted to the Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that the rights and remedies of the Agent with respect to the security interest in the Copyrights made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Copyright Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Agent shall otherwise determine.

     SECTION 4. Termination. Upon the full performance of the Obligations, the Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable

¹ Should include same Copyrights listed on Schedule 12(b) of the Perfection Certificate.

  4-1

form releasing the collateral pledge, grant, assignment, lien and security interest in the Copyrights under this Copyright Security Agreement.

[signature page follows]

  4-2

     IN WITNESS WHEREOF, each Pledgor has caused this Copyright Security Agreement to be executed and delivered by its duly authorized offer as of the date first set forth above.

Very truly yours, [PLEDGORS]2
By:
	Name:
	Title:

Accepted and Agreed:

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Agent

By:
	Name:
	Title:

² This document needs only to be executed by the Issuer and/or any Guarantor which owns a pledged Copyright.

  4-3

SCHEDULE I
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND COPYRIGHT APPLICATIONS

Copyright Registrations:

OWNER REGISTRATION NUMBER TITLE

Copyright Applications:

OWNER TITLE

  4-I-1

EXHIBIT 5

[Form of]

Patent Security Agreement

     Patent Security Agreement, dated as of [           ], by [            ] and [           ] (individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of CREDIT SUISSE, CAYMAN ISLANDS BRANCH, in its capacity as collateral agent pursuant to the Purchase Agreement (in such capacity, the “Agent”).

W I T N E S S E T H:

     WHEREAS, the Pledgors are party to a Security Agreement of even date herewith (the “Security Agreement”) in favor of the Agent pursuant to which the Pledgors are required to execute and deliver this Patent Security Agreement;

     NOW, THEREFORE, in consideration of the premises and to induce the Agent, for the benefit of the Secured Parties, to enter into the Purchase Agreement, the Pledgors hereby agree with the Agent as follows:

     SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.

     SECTION 2. Grant of Security Interest in Patent Collateral. Each Pledgor hereby pledges and grants to the Agent for the benefit of the Secured Parties a lien on and security interest in and to all of its right, title and interest in, to and under all the following Pledged Collateral of such Pledgor:

     (a) Patents of such Pledgor listed on Schedule I³ attached hereto; and

     (b) all Proceeds of any and all of the foregoing (other than Excluded Property).

     SECTION 3. Security Agreement. The security interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interest granted to the Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that the rights and remedies of the Agent with respect to the security interest in the Patents made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Patent Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Agent shall otherwise determine.

     SECTION 4. Termination. Upon the full performance of the Obligations, the Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable

³ Should include same Patents listed on Schedule 12(a) of the Perfection Certificate.

  5-1

form releasing the collateral pledge, grant, assignment, lien and security interest in the Patents under this Patent Security Agreement.

[signature page follows]

  5-2

     IN WITNESS WHEREOF, each Pledgor has caused this Patent Security Agreement to be executed and delivered by its duly authorized offer as of the date first set forth above.

Very truly yours, [PLEDGORS]4
By:
	Name:
	Title:

Accepted and Agreed:

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Agent

By:
	Name:
	Title:

⁴ This document needs only to be executed by the Issuer and/or any Guarantor which owns a pledged Copyright.

  5-3

SCHEDULE I
to
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS AND PATENT APPLICATIONS

Patent Registrations:

OWNER REGISTRATION NUMBER NAME

Patent Applications:

OWNER APPLICATION NUMBER NAME

  5-I-1

EXHIBIT 6

[Form of]

Trademark Security Agreement

     Trademark Security Agreement, dated as of [            ], by [            ] and [            ] (individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of CREDIT SUISSE, CAYMAN ISLANDS BRANCH, in its capacity as collateral agent pursuant to the Purchase Agreement (in such capacity, the “Agent”).

W I T N E S S E T H:

     WHEREAS, the Pledgors are party to a Security Agreement of even date herewith (the “Security Agreement”) in favor of the Agent pursuant to which the Pledgors are required to execute and deliver this Trademark Security Agreement;

     NOW, THEREFORE, in consideration of the premises and to induce the Agent, for the benefit of the Secured Parties, to enter into the Purchase Agreement, the Pledgors hereby agree with the Agent as follows:

     SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.

     SECTION 2. Grant of Security Interest in Trademark Collateral. Each Pledgor hereby pledges and grants to the Agent for the benefit of the Secured Parties a lien on and security interest in and to all of its right, title and interest in, to and under all the following Pledged Collateral of such Pledgor:

     (a) Trademarks of such Pledgor listed on Schedule I⁵ attached hereto;

     (b) all Goodwill associated with such Trademarks; and

     (c) all Proceeds of any and all of the foregoing (other than Excluded Property).

     SECTION 3. Security Agreement. The security interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interest granted to the Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that the rights and remedies of the Agent with respect to the security interest in the Trademarks made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Trademark Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Agent shall otherwise determine.

⁵ Should include same Trademarks listed on Schedule 12(a) of the Perfection Certificate.

  6-1

     SECTION 4. Termination. Upon the full performance of the Obligations, the Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Trademarks under this Trademark Security Agreement.

[signature page follows]

  6-2

     IN WITNESS WHEREOF, each Pledgor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized offer as of the date first set forth above.

Very truly yours, [PLEDGORS]6
By:
	Name:
	Title:

Accepted and Agreed:

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Agent

By:
	Name:
	Title:

⁶ This document needs only to be executed by the Issuer and/or any Guarantor which owns a pledged Copyright.

  6-3

SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS AND TRADEMARK APPLICATIONS

Trademark Registrations:

OWNER REGISTRATION NUMBER TRADEMARK

Trademark Applications:

OWNER APPLICATION NUMBER TRADEMARK

 6-I-1

EX-10.41

Exhibit 10.41

Execution Copy

TERREMARK WORLDWIDE, INC.

REGISTRATION RIGHTS AGREEMENT

     This REGISTRATION RIGHTS AGREEMENT (the “Agreement”), is made and entered into as of January 5, 2007, by and between Terremark Worldwide, Inc. (the “Company”) and Credit Suisse International (the “Purchaser”).

R E C I T A L S:

     A. The Company and the Purchaser have entered into a Purchase Agreement (“Purchase Agreement”), dated as of the date hereof for (i) the purchase and sale of $4,000,000 principal amount of the Company’s 0.50% Senior Subordinated Convertible Notes due 2009 (the “Notes”) issued pursuant to an Indenture between the Company and The Bank of New York Trust Company, N.A., as trustee (the “Indenture”), and (ii) the issuance of 145,985 shares (the “Fee Shares”, and together with the shares of common stock issuable upon conversion of the Notes, the “Shares”) of the Company’s common stock, par value $.001 (the “Common Stock”).

     B. As a condition to closing of the Purchase Agreement, the parties have agreed to enter into this Agreement.

     NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, representations, warranties and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto intending to be legally bound do hereby agree as follows:

     1. Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Purchase Agreement.

     2. Representations of the Purchasers. The Purchaser represents and warrants to the Company as follows:

          (a) The Purchaser acknowledges and agrees that the certificates representing the Shares shall bear a legend in substantially the form appearing below (unless subsequently registered under the Act) in addition to any other legend required by a subordination agreement or intercreditor agreement:

“THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT THAT HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY (EXCEPT IN THE CASE OF A TRANSFER MADE PURSUANT TO RULE 144,

RULE 144A OR REGULATION S PROMULGATED UNDER THE SECURITIES ACT) UPON THE COMPANY FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAWS.”

     The Purchaser also acknowledges that the Company may place a stop transfer order against transfer of any of the Shares, if necessary in the Company’s reasonable judgment, in order to assure compliance by the Purchaser with the terms of the Purchase Agreement and this Agreement.

          (b) The individual executing this Agreement has appropriate authority to act on behalf of the Purchaser. This Agreement has been duly executed and delivered by or on behalf of such Purchaser and constitutes the valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought).

     3. Representations and Warranties of the Company. The Company represents and warrants to the Purchaser that the Company has full right, power and authority to enter into this Agreement and this Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws. affecting the enforcement of creditors’ rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought).

     4. Covenants of the Purchaser. The Purchaser agrees and covenants that it will not sell, transfer or make any disposition of any securities of the Company after the effectiveness of any registration statement relating to a primary public offering by the Company for a period of time as required by the managing underwriter of any such offering not to exceed 90 days; provided that each director, executive officer and 5% or greater shareholder of the Company shall have agreed to such restrictions for the same time period.

     5. Registration and Listing of Shares . The Company hereby agrees with the Purchasers that:

          (a) (i) (i) The Company shall use its commercially reasonable efforts to file or cause to be filed, a registration statement (the “Registration Statement”) under the Securities Act, to permit the resale by a holder thereof of the Shares and to have such registration statement

2

declared effective no later than 180 days following the Closing Date (the “Effectiveness Deadline”).

               (ii) The Company shall use its commercially reasonable efforts to cause such Registration Statement to remain effective until the earlier to occur of (A) the date on which the shares are transferable without registration pursuant to Rule 144(k) under the Securities Act with respect to the Purchaser and (B) such time as all the Shares covered by the Registration Statement have been sold or are otherwise freely tradable without registration under the Securities Act (the “Effectiveness Period”).

          (b) In connection with the foregoing, the Company will:

               (i) Prepare and file with the Securities and Exchange Commission (the “Commission”) a Registration Statement with respect to such securities and use its commercially reasonable efforts to cause such Registration Statement to become and remain effective.

               (ii) Prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such Registration Statement whenever the holder of such securities shall desire to sell the same.

               (iii) Furnish to each holder of shares such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents, as such holder may reasonably request in order to facilitate the sale of the Common Stock owned by holder.

               (iv) Use its commercially reasonable efforts to register or qualify the securities covered by such Registration Statement under applicable blue sky laws, and do such other reasonable acts and things as may be required in jurisdictions to which such blue sky laws apply; provided, however, that the Company shall not be obligated to file any general consent to service of process or qualify as a foreign corporation in any jurisdiction.

          (c) Deliver such documents and certificates as may be reasonably requested by such holder, including those to evidence compliance with Section (b)(ii) hereof.

          (d) If requested, promptly include or incorporate in a prospectus supplement or post-effective amendment to the Registration Statement such information as such holder requests should be included therein and to which the Company does not reasonably object and shall make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such prospectus supplement or post-effective amendment.

          (e) All of the expenses incurred in complying with the foregoing, including, without limitation, all registration and filing fees (including all expenses incident to filing with the NASD), printing expenses, fees and disbursements of counsel for the Company, expenses of

3

any special audits incident to or required by any such registration and expenses of complying with the securities or blue sky laws or any jurisdictions shall be paid by the Company.

          (f) The Company shall also use its commercially reasonable efforts to cause such Common Stock to be listed on the American Stock Exchange or such other principal national securities exchange on which the shares of Common Stock are then listed or if the shares are not so listed, on The NASDAQ Stock Market, if the shares are then listed on such market.

          (g) The Purchaser shall furnish to the Company such information regarding itself and, the Shares beneficially owned by it and the intended method of disposition of the Shares beneficially owned by it as shall be reasonably required to effect the registration of such Shares and shall execute such documents in connection with such registration as the Company may reasonably request.

     6. Indemnification. In the event of any offer of the Shares pursuant to the Registration Statement or any amendment thereof hereof, the Company agrees to indemnify and hold harmless the Purchaser, each underwriter, if any, of such Shares, and each other person, if any, who controls the Purchaser or any such underwriter within the meaning of the Act, from and against any and all losses, claims, damages or liabilities (or actions in respect thereof including, without limitation, any action brought under Section 11 or Section 12 of the Securities Act) which arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement under which the Shares were registered and offered under the Act or any prospectus contained therein, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse such Purchaser, each such underwriter, and each such controlling person for any legal or any other expenses reasonably incurred by such Purchaser, such underwriter or controlling person in connection with the investigation or defense of any such loss, claim, damage, liability or action, provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement or such prospectus in reliance upon, and in conformity with, written information furnished to the Company by such Purchaser, such underwriter or such controlling person, specifically for use in preparation thereof, provided further, that the Company shall not file any such Registration Statement or prospectus containing information relating to such Purchaser without providing the Purchaser with an opportunity to review and, to the extent incorrect, correct such information.

     In the event of any offer of the Shares pursuant to the Registration Statement or any amendment thereof, and to the extent permitted by applicable law, the Purchaser, agrees to indemnify and hold harmless the Company, each person who controls the Company within the meaning of the Act, and each officer and director of the Company from and against any losses, claims, damages or liabilities, joint or several, to which the Company, such controlling person or any such officer or director may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof including, without limitation, any action brought under Section 11 or Section 12 of the Securities Act) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such

4

post-effective amendment or other Registration Statement under which such Shares were offered or any prospectus contained therein, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, which untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon, and in conformity with, written information furnished to the Company by such Purchaser or such controlling person specifically for use in connection with the preparation thereof (provided that the Company shall have afforded the Purchaser with an opportunity to review, and to the extent incorrect, correct such information prior to the filing thereof), and to reimburse the Company, each such controlling person and each such officer or director for any legal or any other expenses reasonably incurred by them in connection with investigating, or defending any such loss, claim, damage, liability or action; provided, however, that any such indemnification obligation shall be individual to a Purchaser and limited to an aggregate maximum dollar amount not to exceed the aggregate dollar amount of the proceeds received by the Purchaser in any such offering.

     Promptly after receipt by an indemnified party of notice of the commencement of any action or the assertion of a claim that may be subject to indemnification hereunder, such indemnified party, if a claim in respect thereof is to be made against an indemnifying party, will give written notice to such indemnifying party of the commencement or assertion thereof. Indemnification provided for under this Section 6 shall not be available to the indemnified party if it shall fail to give such notice to the indemnifying party (if the indemnifying party was not aware of the action) to the extent the indemnifying party was prejudiced by failure to receive such notice, but the omission to give such notice shall not relieve the indemnifying party from any liability it otherwise may have to the indemnified party. In case any such action is brought or such assertion is made against any indemnified party, and it notifies any indemnifying party of such commencement or assertion, the indemnifying party will be entitled to participate in and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than the reasonable cost of investigation.

     7. Liquidated Damages. If the Registration Statement covering the securities required to be filed by the Company pursuant to Section 5 hereof is not declared effective by the Commission by the Effectiveness Deadline, or the Registration Statement shall cease to be effective at any time after the Effectiveness Deadline but prior to the termination of the Effectiveness Period (a “Noneffective Period”), then the Company shall make the payments to the Purchaser as provided in the next sentence as liquidated damages and not as a penalty; provided however, that if after a Registration Statement is declared effective the Board of Directors of the Company reasonably determines in good faith that the continued effectiveness of the filing of such Registration Statement at such time would be materially detrimental to the Company and it is therefore necessary to suspend the filing of such Registration Statement the Company may suspend the effectiveness of such Registration Statement for a period of time not to exceed 90 days in any 12 month period without incurring any liquidated damages pursuant to this Section 7 for such Noneffective Period. The amount to be paid by the Company to each Purchaser shall be determined as of each Computation Date (as defined below), and such amount

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per share shall be equal to 0.5% (the “Liquidated Damage Rate”) of the total proceeds received by the Company pursuant to the sale of the Notes divided by the aggregate number of shares into which the Notes are convertible on the Computation Date for the period from the Effectiveness Deadline or the commencement of a Noneffective Period, as applicable, to the first Computation Date, and for each 30-day period of any subsequent Computation Dates thereafter, calculated on a pro rata basis to the date on which the Registration Statement is declared effective by the Commission (the “Periodic Amount”). The full Periodic Amount shall be paid by the Company to the Purchaser by wire transfer of immediately available funds within three days after each Computation Date. As used in this Section 7, “Computation Date” means the date which is 30 days after the Effectiveness Deadline or the commencement of a Noneffective Period, as applicable, and, if the Registration Statement to be filed by the Company pursuant to Section 5 has not theretofore been declared effective by the Commission, each date which is 30 days after the previous Computation Date until such Registration Statement is so declared effective.

     8. Rule 144. The Company covenants that it will file the reports required to be filed by it under the Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder, and it will take such further action as the Purchasers may reasonably request, all to the extent required from time to time to enable the Purchasers to sell the Shares without registration under the Act within the limitation of the exemptions provided by (a) Rule 144 under the Act, as such Rule may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by the Commission. Upon the request of the Purchaser, the Company will deliver to it a written statement as to whether the. Company has complied with such information disclosure and other requirements.

     9. Notices.

          (a) Any notice required to be given or delivered to the Purchaser shall be sent to the Purchaser’s address as follows:

If to the Purchaser:	11 Madison Avenue
	New York, NY 10010-3629
	Attention: Damien Dwin
	Telecopy: 212-743-4280
	With a copy to:
	Latham & Watkins LLP
	885 Third Avenue
	New York, NY 10022
	Attention: Joshua Tinkelman
	Telecopy: (212) 751-4864

          (b) Any notice required to be given or delivered to the Company shall be sent to:

Terremark Worldwide, Inc.

2601 S. Bayshore Drive

6

Miami, Florida 33133

Attention: Adam Smith, Chief Legal Officer

Telecopy: (305) 856-3200

          (c) All notices hereunder shall be in writing and shall be deemed to have been given (i) when delivered personally, (ii) when received via facsimile if on a business day during customary business hours (otherwise, on the next business day), (iii) three (3) days after being deposited in the United States mail, registered, postage prepaid, or (iv) the next business day after being delivered to a nationally recognized overnight courier.

     10. Survival of Representations and Warranties. All representations and warranties and agreements hereunder shall survive execution of this Agreement.

     11. Governing Law/Venue. This Agreement and the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed wholly within that State. The Purchaser hereby irrevocably consents to the non-exclusive jurisdiction of the state or federal courts located in Miami-Dade County, Florida in connection with any suit, action, or other proceeding arising out of or related to this Agreement and hereby agrees not to assert, by way of motion, as a defense, or otherwise in any such suit action or other proceeding that the same is brought in an inconvenient forum, that the venue is improper, or that the subject matter hereof can not be enforced by such courts.

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     IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date first set forth above:

COMPANY:		INVESTORS:
TERREMARK WORLDWIDE, INC.		CREDIT SUISSE INTERNATIONAL
By:	/s/ Jose A. Segrera	By:	/s/ Robert Nydegger
Print Name:	Jose A. Segrera	Name:	Robert Nydegger
Title:	Chief Financial Officer	Title:	Managing Director
		By:	/s/ Damien Dwin
		Name:	Damien Dwin
		Title:	Director

EX-10.42

Exhibit 10.42

Execution Copy

TERREMARK WORLDWIDE, INC.

and

THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE

INDENTURE

Dated as of January 5, 2007

$4,000,000 PRINCIPAL AMOUNT

0.50% SENIOR SUBORDINATED CONVERTIBLE NOTES DUE 2009

TABLE OF CONTENTS

ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE	1
1.1 Definitions	1
1.2 Other Definitions	5
1.3 Incorporation by Reference of Trust Indenture Act	5
1.4 Rules of Construction	6
ARTICLE II. THE SECURITIES	7
2.1 Form and Dating	7
2.2 Execution And Authentication.	8
2.3 Registrar, Paying Agent and Conversion Agent	8
2.4 Paying Agent to Hold Money in Trust	9
2.5 Securityholder Lists	9
2.6 Transfer and Exchange	9
2.7 Replacement Securities	10
2.8 Outstanding Securities	10
2.9 Securities Held by the Company or An Affiliate	11
2.10 Temporary Securities	11
2.11 Cancellation	12
2.12 Defaulted Interest	12
2.13 CUSIP Numbers	12
2.14 Deposit of Moneys	12
2.15 Book-Entry Provisions for Global Securities	12
2.16 Special Transfer Provisions	13
2.17 Restrictive Legends	15
ARTICLE III. REDEMPTION; REPURCHASE	15
3.1 Right of Redemption, Repurchase	15
3.2 Notices to Trustee	16
3.3 Securities to be Redeemed	16
3.4 Notice of Redemption	16
3.5 Effect of Notice of Redemption	17
3.6 Deposit of Redemption Price	18
3.7 Intentionally Omitted	18
3.8 Repurchase at Option of Holder Upon a Change in Control	18
ARTICLE IV. COVENANTS	23
4.1 Payment of Securities	23
4.2 Maintenance of Office or Agency	24
4.3 Rule 144A Information and Annual Reports	24
4.4 Compliance Certificate; Statement by Officers as to Default	25
4.5 Stay, Extension and Usury Laws	25
4.6 Corporate Existence	25

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4.7 Notice of Default	26
4.8 Further Instruments and Acts	26
ARTICLE V. SUCCESSORS	26
5.1 When Company May Merge, Etc.	26
5.2 Successor Substituted	26
ARTICLE VI. DEFAULTS AND REMEDIES	27
6.1 Events of Default	27
6.2 Acceleration	28
6.3 Other Remedies	29
6.4 Waiver of Past Defaults	29
6.5 Control by Majority	29
6.6 Limitation on Suits	30
6.7 Rights of Holders to Receive Payment	30
6.8 Collection Suit by Trustee	30
6.9 Trustee May File Proofs of Claim	31
6.10 Priorities	31
6.11 Undertaking For Costs	31
ARTICLE VII. TRUSTEE	32
7.1 Duties of Trustee	32
7.2 Rights of Trustee	33
7.3 Individual Rights of Trustee	34
7.4 Trustee’s Disclaimer	34
7.5 Notice of Defaults	34
7.6 Reports by Trustee to Holder of the Securities	35
7.7 Compensation, Reimbursement and Indemnity	35
7.8 Replacement of Trustee	36
7.9 Successor Trustee by Merger, Etc.	37
7.10 Eligibility; Disqualification	37
7.11 Preferential Collection of Claims Against Company	38
ARTICLE VIII. DISCHARGE OF INDENTURE	38
8.1 Termination of the Obligations of the Company	38
8.2 Application of Trust Money	38
8.3 Repayment to Company	38
8.4 Reinstatement	39
ARTICLE IX. AMENDMENTS	39
9.1 Without Consent of Holders	39
9.2 With Consent of Holders	40
9.3 Compliance with Trust Indenture Act	41

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9.4 Revocation and Effect of Consents	41
9.5 Notation on or Exchange of Securities	41
9.6 Trustee Protected	42
ARTICLE X. CONVERSION	42
10.1 Conversion Privilege; Restrictive Legends	42
10.2 INTENTIONALLY OMITTED	43
10.3 Conversion Procedure.	43
10.4 Fractional Shares	44
10.5 Taxes on Conversion	44
10.6 Company to Provide Stock	44
10.7 Adjustment of Conversion Price	44
10.8 No Adjustment	47
10.9 Adjustments For Tax Purposes	48
10.10 Notice of Adjustment	48
10.11 Notice of Certain Transactions	48
10.12 Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales on Conversion Privilege	49
10.13 Trustee’s Disclaimer	50
ARTICLE XI. SUBORDINATION	50
ARTICLE XII. MISCELLANEOUS	50
12.1 Trust Indenture Act Controls	50
12.2 Notices	50
12.3 Communication by Holders with Other Holders.	51
12.4 Certificate and Opinion as to Conditions Precedent.	51
12.5 Statements Required in Certificate or Opinion	52
12.6 Rules by Trustee and Agents	52
12.7 Legal Holidays	52
12.8 Duplicate Originals	52
12.9 Governing Law	52
12.10 No Adverse Interpretation of Other Agreements	53
12.11 Successors	53
12.12 Separability	53
12.13 Table of Contents, Headings, Etc.	53
12.14 Calculations in Respect of The Securities	53
12.15 Force Majeure	53
12.16 Waiver of Jury Trial	53
Exhibit A – Form of Global Security
Exhibit B-1 — Form of Private Placement Legend
Exhibit B-2 — Form of Legend for Global Security

iii

Exhibit B-3 — Form of Legend Regarding Registration Rights Agreement

Exhibit C — Form of Notice of Transfer Pursuant to Registration Statement

Exhibit D — Form of Certificate

iv

     INDENTURE, dated as of January 5, 2007, between Terremark Worldwide, Inc., a Delaware corporation (the “Company”), and The Bank of New York Trust Company, N.A., a national banking association, as trustee (the “Trustee”).

     Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s 0.50% Senior Subordinated Convertible Notes due 2009 (the “Securities” or the “Notes”).

ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE

     1.1 Definitions.

          “Affiliate” means any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. For this purpose, “control” shall mean the power to direct the management and policies of a person through the ownership of securities, by contract or otherwise.

          “Board of Directors” means the Board of Directors of the Company or any committee thereof authorized to act for it hereunder.

          “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

          “Capital Stock” of any Person means any and all shares, interests, participations or other equivalents (however designated) of capital stock of such Person and all warrants or options to acquire such capital stock.

          “Closing Sale Price” means the price of a share of Common Stock on the relevant date, determined (a) on the basis of the closing per share sale price (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on such date on the principal national securities exchange on which the Common Stock is listed; or (b) if the Common Stock is not listed on a national securities exchange, as reported by the National Association of Securities Dealers Automated Quotation System; or (c) if not so quoted, as reported by National Quotation Bureau, Incorporated or a similar organization. In the absence of such a quotation or report, the Closing Sale Price shall be such price as the Company shall reasonably determine on the basis of such quotations as most accurately reflecting the price that a fully informed buyer, acting on his own accord, would pay to a fully informed seller, acting on his own accord in an arms-length transaction, for a share of such Common Stock.

          “Common Stock” means the common stock, $0.001 par value per share, of the Company, or such other Capital Stock of the Company into which the Company’s common stock is reclassified or changed.

          “Company” means the party named as such above until a successor replaces it pursuant to the applicable provision hereof and thereafter means the successor.

          “Company Order” or “Company Request” means a written request or order signed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief Operating Officer, its Chief Financial Officer, any Executive Vice President or any Senior Vice President and by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary, and delivered to the Trustee.

          “Conversion Price” means $8.14, subject to adjustment as provided in Article X.

          “Corporate Trust Office” means the office of the Trustee at which at any time its corporate trust business shall be administered, which office at the dated hereof is located at 10161 Centurion Parkway, Jacksonville, Florida 32256, Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

          “Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

          “Depositary” means The Depository Trust Company, its nominees and successors.

          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder.

          “Holder” or “Securityholder” means a person in whose name a Security is registered on the Registrar’s books.

          “Indebtedness” of a Person means the principal of, premium, if any, and interest on, and all other obligations in respect of (a) all indebtedness of such Person for borrowed money (including all indebtedness evidenced by notes, bonds, debentures or other securities), (b) all obligations (other than trade payables) incurred by such Person in the acquisition (whether by way of purchase, merger, consolidation or otherwise and whether by such Person or another Person) of any business, real property or other assets, (c) all reimbursement obligations of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person, (d) all capital lease obligations of such Person, (e) all net obligations of such Person under interest rate swap, currency exchange or similar agreements of such Person, (f) all obligations and other liabilities, contingent or otherwise, under any lease or related document, including a purchase agreement, conditional sale or other title retention agreement, in connection with the lease of real property or improvements thereon (or any Personal property included as part of any such lease) which provides that such Person is contractually obligated to purchase or cause a third party to purchase the leased property or pay an agreed-upon residual value of the leased property, including such Person’s obligations under such lease or related document to purchase or cause a third party to purchase such leased property or pay an agreed-upon residual value of the leased property to the lessor, (g) guarantees by such Person of indebtedness described in clauses (a) through (f) of another Person, and (h) all renewals,

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extensions, refundings, deferrals, restructurings, amendments and modifications of any indebtedness, obligation, guarantee or liability of the kind described in clauses (a) through (g).

          “Indenture” means this Indenture as amended or supplemented from time to time.

          “Initial Purchaser” means Credit Suisse International.

          “Interest” means an amount per annum equal to 0.50% for the first 24 months that Securities are outstanding, and thereafter at a rate of 1.50% per annum until maturity.

          “Issue Date” means January 5, 2007.

          “Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind.

          “Maturity Date” means June 30, 2009.

          “Note Register” a register maintained by the Company for the registration or transfer of the Securities.

          “Officer” of a Person means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, any Vice President, the Treasurer or the Secretary of such Person.

          “Officers’ Certificate” means a certificate signed by two (2) Officers of the Company or by an Officer and an Assistant Treasurer or an Assistant Secretary of the Company.

          “Opinion of Counsel” means a written opinion from legal counsel reasonably acceptable to the Trustee who may be an employee of or counsel for the Company, or other counsel reasonably acceptable to the Trustee.

          “Permitted Holder” means (i) Manuel D. Medina, (ii) Francis Lee and (iii) any “controlled” (as such term is defined in the definition of Affiliate) Affiliate of Manuel D. Medina and/or Francis Lee.

          “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof.

          “Purchase Agreement” means the Purchase Agreement dated January 5, 2007 between the Company and the Initial Purchaser.

          “Purchase Notice” means a Purchase Notice in the form set forth in the Securities.

          “QIB” means a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act.

          “Redemption Date” means the date specified for a Redemption of the Securities in accordance with the terms of the Securities and this Indenture.

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          “Registration Date” has the meaning ascribed to it in the Registration Rights Agreement.

          “Registration Rights Agreement” means the Registration Rights Agreement, dated as of the date hereof, between the Company and the Initial Purchaser.

          “Registration Statement” has the meaning ascribed to it in the Registration Rights Agreement.

          “Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

          “Restricted Security” means a Security that constitutes a “restricted security” within the meaning of Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any Security constitutes a Restricted Security.

          “Rule 144A” means Rule 144A under the Securities Act.

          “SEC” means the Securities and Exchange Commission.

          “Securities” means the 0.50% Senior Subordinated Convertible Notes due 2009 issued by the Company pursuant to this Indenture.

          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder.

          “Security Agent” means any Registrar, Paying Agent, Conversion Agent or co-Registrar or co-agent.

          “Subsidiary” means (i) a corporation a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by the Company, by one or more subsidiaries of the Company or by the Company and one or more of its subsidiaries or (ii) any other person (other than a corporation) in which the Company, one or more its subsidiaries or the Company and one or more its subsidiaries, directly or indirectly, at the date of determination thereof, have at least majority ownership interest.

          “TIA” means the Trust Indenture Act of 1939, as amended and in effect from time to time.

          “Trading Day” means a day during which trading in securities generally occurs on the principal national or regional securities exchange in the United States on which the Common

4

Stock is then listed or, if the Common Stock is not listed on a national or regional securities exchange in the United States, on the National Association of Securities Dealers Automated Quotation System or, if the Common Stock is not quoted on the National Association of Securities Dealers Automated Quotation System, on the principal other market on which the Common Stock is then traded.

          “Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions hereof and thereafter means the successor.

          “Voting Stock” of any Person means the total voting power of all classes of the Capital Stock of such Person entitled to vote generally in the election of directors of such Person.

     1.2 Other Definitions.

TERM	DEFINED IN SECTION
“Bankruptcy Law”		6.1
“Business Day”		12.7
“Change in Control Notice”		3.8
“Conversion Agent”		2.3
“Conversion Date”		10.3
“Custodian”		6.1
“Determination Date”		10.7
“Event of Default”		6.1
“Global Security”		2.1
“Legal Holiday”		12.7
“Participants”		2.15
“Paying Agent”		2.3
“Physical Securities”		2.1
“Private Placement Legend”		2.17
“Redemption”		3.1
“Redemption Payment”		3.1
“Redemption Price”		3.1
“Registrar”		2.3
“Repurchase Upon a Change in Control”		3.1
“Repurchase Date”		3.8
“Repurchase Price”		3.8
“Repurchase Right”		3.8
“Resale Restriction Termination Date”		2.17

     1.3 Incorporation by Reference of Trust Indenture Act.

          Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

          “Commission” means the SEC;

          “Indenture Securities” means the Securities;

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          “Indenture Security Holder” means a Securityholder or a Holder;

          “Indenture to be Qualified” means this Indenture;

          “Indenture Trustee” or “Institutional Trustee” means the Trustee; and

          “Obligor” on the Indenture Securities means the Company (or any successor).

     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them.

     1.4 Rules of Construction.

          Unless the context otherwise requires:

     (i) a term has the meaning assigned to it;

     (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in effect from time to time;

     (iii) “or” is not exclusive;

     (iv) words in the singular include the plural and in the plural include the singular;

     (v) provisions apply to successive events and transactions;

     (vi) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and

     (vii) references to currency shall mean the lawful currency of the United States of America, unless the context requires otherwise.

     1.5 Acts of Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 7.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

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          The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by an officer of a corporation or a member of a partnership, on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

          The ownership of Securities shall be proved by the register maintained by the Registrar.

          Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

          If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

ARTICLE II.
THE SECURITIES

     2.1 Form and Dating.

          The Securities and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A, which is incorporated in and forms a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication.

          Securities offered and sold in reliance on Rule 144A shall be issued either (a) in definitive form or (b) in the form of one or more Global Securities, substantially in the form set

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forth in Exhibit A (the “Global Security”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided and bearing the legends set forth in Exhibits B-1 and B-2. The aggregate principal amount of the Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, as hereinafter provided; provided, that in no event shall the aggregate principal amount of the Global Security or Securities exceed $4,000,000.

     Securities issued in exchange for interests in a Global Security pursuant to Section 2.15 may be issued in the form of permanent certificated Securities in registered form in substantially the form set forth in Exhibit A (the “Physical Securities”) and, if applicable, bearing any legends required by Section 2.17.

          The Securities shall bear the legends set forth in Exhibit B-3.

     2.2 Execution And Authentication.

          One Officer shall sign the Securities for the Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid. A Security shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture. Upon the Trustee’s receipt of a Company Order and the other documents required by Section 12.4 and 12.5 hereof, the Trustee shall authenticate Securities for original issue in the aggregate principal amount of $4,000,000 and such additional principal amount, if any, as shall be determined pursuant to the next sentence of this Section 2.2. The aggregate principal amount of Securities outstanding at any time may not exceed $4,000,000 except as provided in this Section 2.2.

     The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such authenticating agent. An authenticating agent has the same rights as a Security Agent to deal with the Company and its Affiliates.

     The Securities shall be issuable only in registered form without interest coupons and only in denominations of $1,000 principal amount and any integral multiple thereof.

     2.3 Registrar, Paying Agent and Conversion Agent.

          The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“Registrar”), an office or agency where Securities may be presented for payment (“Paying Agent”) and an office or agency where Securities may be presented for conversion (“Conversion Agent”). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may appoint or change one or more co-registrars, one or more additional paying agents and one or more additional conversion agents without notice and may act in any such capacity on its own behalf.

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The term “Registrar” includes any co-Registrar; the term “Paying Agent” includes any additional paying agent; and the term “Conversion Agent” includes any additional conversion agent.

     The Company shall enter into an appropriate agency agreement with any Security Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Security Agent. The Company shall notify the Trustee in writing of the name and address of any Security Agent not a party to this Indenture. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such.

     The Company initially appoints the Trustee as Paying Agent, Registrar and Conversion Agent. The Securities may be presented for the registration or transfer and exchange at the offices of the Register which initially will be the Corporate Trust Office of the Trustee.

     2.4 Paying Agent to Hold Money in Trust.

          Each Paying Agent shall hold in trust for the benefit of the Securityholders or the Trustee all moneys held by the Paying Agent for the payment of the Securities, and shall notify the Trustee of any Default by the Company in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no further liability for the money. If the Company acts as Paying Agent, it shall segregate and hold as a separate trust fund all money held by it as Paying Agent.

     2.5 Securityholder Lists.

          The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee on or before each July 1 and January 1 (of if such date is not a Business Day, the immediately succeeding Business Day, such dates, the “Interest Payment Date”) and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders as set forth in the Note Register.

     2.6 Transfer and Exchange.

          Subject to Sections 2.15 and 2.16 hereof, when Securities are presented to the Registrar with a request to register their transfer or to exchange them for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transaction are met. The Company shall execute and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denomination and of a like aggregate principal amount and bearing such restricted legends as may be required by this Indenture. Securities may be exchanged for other Securities of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency maintained by the Registrar pursuant to Section 2.3. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive bearing

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registration numbers not contemporaneously outstanding. All Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Registrar, and the Securities shall be duly executed by the Holder thereof or his attorney duly authorized in writing. The Company, the Trustee and the Registrar shall not be required to register the transfer of or exchange any Security (i) during a period beginning at the opening of business fifteen (15) days before the mailing of a notice of redemption of the Securities selected for Redemption under Section 3.4 and ending at the close of business on the day of such mailing or (ii) that has been selected for repurchase or for which a Purchase Notice has been delivered, and not withdrawn, in accordance with this Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or repurchased in part.

     No service charge shall be made for any transfer, exchange or conversion of Securities, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Securities, other than exchanges pursuant to Sections 2.10, 9.5 or 10.3, or Article III, not involving any transfer.

     2.7 Replacement Securities.

          If the Holder of a Security claims that the Security has been mutilated, lost, destroyed or wrongfully taken, the Company shall issue and the Trustee upon receipt of a Company Order in accordance with Section 2.2 shall authenticate a replacement Security upon surrender to the Trustee of the mutilated Security, or upon delivery to the Trustee of evidence of the loss, destruction or theft of the Security satisfactory to the Trustee and the Company. In the case of lost, destroyed or wrongfully taken Securities, an indemnity bond must be provided by the Holder that is reasonably satisfactory to the Trustee and the Company to protect the Company, the Trustee or any Security Agent from any loss which any of them may suffer if a Security is replaced. The Trustee may charge for its expenses in replacing a Security.

          In case any such mutilated, lost, destroyed or wrongfully taken Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security when due.

          Every replacement Security is an additional obligation of the Company only as provided in Section 2.8.

     2.8 Outstanding Securities.

          Securities outstanding at any time are all the Securities authenticated by the Trustee except for those converted, those cancelled by it, those delivered to it for cancellation, those paid pursuant to Section 2.7 and those described in this Section 2.8 as not outstanding. Except to the extent provided in Section 2.9, a Security does not cease to be outstanding because the Company or one of its Subsidiaries or Affiliates holds the Security.

     If a Security is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee receives proof satisfactory to it, or a court holds, that the replaced Security is held by a protected purchaser.

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     If the Paying Agent (other than the Company) holds on a Redemption Date, Repurchase Date or Maturity Date, money (and, if applicable as provided herein and in accordance herewith, shares of Common Stock) sufficient to pay the aggregate Redemption Price, Repurchase Price or principal amount, as the case may be, with respect to all Securities to be redeemed, purchased or paid upon Redemption, Repurchase Upon Change in Control or maturity, as the case may be, in each case plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Redemption, Repurchase Upon Change in Control or maturity, then (unless there shall be a Default in the payment of such aggregate Redemption Price, Repurchase Price or principal amount, or of such accrued and unpaid interest, interest on such Securities shall cease to accrue, and such Securities shall be deemed paid whether or not such Securities are delivered to the Paying Agent.

     Thereafter, all rights of the Holders of such Securities shall terminate with respect to such Securities, other than the right to receive the Redemption Price, Repurchase Price or principal amount, as the case may be, plus, if applicable, such accrued and unpaid interest, in accordance with this Indenture.

     If a Security is converted in accordance with Article X, then, from and after the time of such conversion on the Conversion Date, such Security shall cease to be outstanding, and interest, if any, shall cease to accrue on such Security; provided, however, that nothing in this paragraph shall affect the provision in the Registration Rights Agreement for additional interest on shares of Common Stock issued upon conversion of such Security.

     2.9 Securities Held by the Company or An Affiliate.

          In determining whether the Holders of the required aggregate principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company or any of its Subsidiaries or Affiliates shall be considered as though not outstanding, except that, for the purposes of determining whether a Responsible Officer of the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be considered to be outstanding for purposes of this Section 2.9 if the pledgee establishes, to the satisfaction of the Trustee, the pledgee’s right so to concur with respect to such Securities and that the pledgee is not, and is not acting at the direction or on behalf of, the Company, any other obligor on the Securities, an Affiliate of the Company or any such other obligor. In the event of a dispute as to whether the pledgee has established the foregoing, the Trustee may conclusively rely on the advice of counsel of its selection or on an Officers’ Certificate.

     2.10 Temporary Securities.

          Until definitive Securities are ready for delivery, the Company may prepare and, upon receipt of a Company Order in accordance with Section 2.2, the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the

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Company shall prepare and the Trustee shall, as soon as practicable upon its receipt of a Company Order, authenticate definitive Securities in exchange for such temporary Securities.

     2.11 Cancellation.

          The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange, payment or conversion. The Trustee shall promptly cancel all Securities surrendered for transfer, exchange, payment, conversion or cancellation in accordance with its customary procedures. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation or that any Securityholder has converted pursuant to Article X.

     2.12 Defaulted Interest.

          If and to the extent the Company defaults in a payment of interest on the Securities, the Company shall pay the defaulted interest in any lawful manner plus, to the extent not prohibited by applicable statute or case law, interest on such defaulted interest at the rate provided in the Securities. The Company may pay the defaulted interest (plus interest on such defaulted interest) to the persons who are Securityholders on a subsequent special record date. The Company shall fix such record date and payment date. At least fifteen (15) calendar days before the record date, the Company shall mail to Securityholders a notice that states the record date, payment date and amount of interest to be paid.

     2.13 CUSIP Numbers.

          The Company in issuing the Securities may use one or more “CUSIP” numbers, and, if so, the Trustee shall use the CUSIP numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that no representation is hereby deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP numbers printed on the notice or on the Securities; provided further, that reliance may be placed only on the other identification numbers printed on the Securities, and the effectiveness of any such notice shall not be affected by any defect in, or omission of, such CUSIP numbers. The Company shall promptly notify the Trustee in writing of any change in the CUSIP numbers.

     2.14 Deposit of Moneys.

          Prior to 10:00 A.M., New York City time, on each interest payment date, Maturity Date, Redemption Date, or Repurchase Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.4) money, in funds immediately available on such date, (and, if applicable as provided herein and in accordance herewith, shares of Common Stock) sufficient to make cash payments, if any, due on such interest payment date, Maturity Date, Redemption Date, or Repurchase Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such interest payment date, Maturity Date, Redemption Date or Repurchase Date, as the case may be.

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     2.15 Book-Entry Provisions for Global Securities.

          (a) The Global Securities initially shall (i) be registered in the name of the Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as set forth in Section 2.17.

     Members of, or participants in, the Depositary (“Participants”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Security.

          (b) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. In addition, Physical Securities shall be transferred to all beneficial owners, as identified by the Depositary, in exchange for their beneficial interests in Global Securities only if (i) the Depositary notifies the Company that the Depositary is unwilling or unable to continue as depositary for any Global Security (or the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by the Company within ninety (90) days of such notice or cessation or (ii) an Event of Default has occurred and is continuing and the Registrar has received a written request from the Depositary to issue Physical Securities.

          (c) In connection with the transfer of a Global Security in its entirety to beneficial owners pursuant to Section 2.15(b), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall upon receipt of a Company Order authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Physical Securities of authorized denominations.

          (d) Any Physical Security constituting a Restricted Security delivered in exchange for an interest in a Global Security pursuant to Section 2.15(c) shall, except as otherwise provided by Section 2.16, bear the Private Placement Legend.

          (e) The Holder of any Global Security may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action which a Holder is entitled to take under this Indenture or the Securities.

     2.16 Special Transfer Provisions.

          (a) Restrictions on Transfer and Exchange of Global Securities. Notwithstanding any other provisions of this Indenture, but except as provided in Section 2.15(b), a Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another

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nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

          (b) Private Placement Legend. Upon the transfer, exchange or replacement of Securities not bearing the Private Placement Legend, the Registrar or co-registrar shall deliver Securities that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Securities bearing the Private Placement Legend, the Registrar or co-Registrar shall deliver only Securities that bear the Private Placement Legend unless (i) the requested transfer is after the Resale Restriction Termination Date, (ii) there is delivered to the Trustee and the Company an Opinion of Counsel reasonably satisfactory to the Trustee and the Company and addressed to the Trustee and the Company to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act or (iii) such Security has been sold pursuant to an effective Registration Statement under the Securities Act and the Holder that sold such Securities has delivered to the Registrar or co-Registrar a notice in the form of Exhibit C hereto. Upon the effectiveness, under the Securities Act, of a Registration Statement, the Company shall deliver to the Trustee a notice of effectiveness, a Global Security or Global Securities, which do not bear the Private Placement Legend, a Company Order in accordance with Section 2.2 and an Opinion of Counsel in a form reasonably satisfactory to the Trustee, and, if required by the Depositary, the Company shall deliver to the Depositary a letter of representations in a form reasonably acceptable to the Depositary. Upon the effectiveness of any post-effective amendment to the Registration Statement and upon the effectiveness, under the Securities Act, of any subsequent Registration Statement, the Company shall deliver to the Trustee a notice of effectiveness and an Opinion of Counsel in a form reasonably satisfactory to the Trustee. Upon any sale, pursuant to a Registration Statement, of a beneficial interest in a Global Security that theretofore constituted a Restricted Security and delivery of evidence thereof acceptable to the Trustee, and upon any sale or transfer of a beneficial interest in connection with which the Private Placement Legend will be removed in accordance with this Indenture, the Trustee shall increase the principal amount of the Global Security that does not constitute a Restricted Security by the principal amount of such sale or transfer and likewise reduce the principal amount of the Global Security that does constitute a Restricted Security.

          (c) General. By its acceptance of any Security bearing the Private Placement Legend, each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Security only as provided in this Indenture.

     The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.15 or this Section 2.16. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

     Each Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable United States federal or state securities law.

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     The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

     Neither the Trustee nor any Security Agent shall have any responsibility for any actions taken or not taken by the Depositary.

          (d) Transfers of Securities Held by Affiliates. Any certificate (i) evidencing a Security that has been transferred to an Affiliate within two (2) years after the Issue Date, as evidenced by a notation on the assignment form for such transfer or in the representation letter delivered in respect thereof or (ii) evidencing a Security that has been acquired from an Affiliate (other than by an Affiliate) in a transaction or a chain of transactions not involving any public offering, shall, until two (2) years after the last date on which the Company or any of its Affiliates was an owner of such Security (or such longer period of time as may be required under the Securities Act or applicable state securities laws), in each case, bear the Private Placement Legend, unless otherwise agreed by the Company (with written notice thereof to the Trustee).

     2.17 Restrictive Legends.

          Each Global Security and Physical Security that constitutes a Restricted Security shall bear the legend (the “Private Placement Legend”) as set forth in Exhibit B-1 on the face thereof until after the second anniversary of the later of (i) the Issue Date and (ii) the last date on which the Company or any Affiliate was the owner of such Security (or any predecessor security) (or such shorter period of time as permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such longer period of time as may be required under the Securities Act or applicable state securities laws, as set forth in an Opinion of Counsel, unless otherwise agreed between the Company and the Holder thereof) (such date, the “Resale Restriction Termination Date”).

     Each Global Security shall also bear the legend as set forth in Exhibit B-2.

ARTICLE III.
REDEMPTION; REPURCHASE

     3.1 Right of Redemption, Repurchase.

          (a) Redemption or repurchase of the Securities, as permitted by any provision of this Indenture, shall be made (i) with respect to a Redemption at the Company’s option, in accordance with PARAGRAPH 6 of the Securities and (ii) with respect to a repurchase at the Holder’s option, in accordance with PARAGRAPH 8 of the Securities (a “Repurchase At Holder’s Option Upon A Change In Control”), in each case in accordance with the applicable provisions of this Article III.

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          (b) The Company will comply with all federal and state securities laws, and the applicable laws of any foreign jurisdiction, in connection with any offer to sell or solicitations of offers to buy Securities pursuant to this Article III.

          (c) The Company shall have the right, at the Company’s option, on any Interest Payment Date that is six months following the date of this Indenture, upon no less than fifteen (15) days prior written notice to the Trustee and the Initial Purchaser, to redeem (the “Redemption”) all of the Securities at a redemption price equal to (i) the amount set forth below (expressed as percentages of the principal amount outstanding on the date of redemption), plus (ii) the amount (if any) by which the fair market value of on such date of the Common Stock into which the Security is then convertible exceeds the principal amount of the Security on such date, plus (iii) accrued, but unpaid Interest (the “Redemption Payment” or “Redemption Price”), if redeemed during the following monthly periods following the closing date:

Monthly Period	Percentage
After Month Six and Before Month Twelve		113.00	%
On or After Month Twelve and Before Month Eighteen		112.40	%
On or After Month Eighteen and Before Month Twenty Four		111.30	%
On or After Month Twenty Four		108.80	%

     3.2 Notices to Trustee.

          If the Company elects to redeem Securities pursuant to Paragraph 6 of the Securities, it shall notify the Trustee in writing at least fifteen (15) days prior to the mailing, in accordance with Section 3.4, of the Redemption (unless a shorter notice period shall be satisfactory to the Trustee), the Redemption Date, the applicable provision of this Indenture pursuant to which the Redemption is to be made and the aggregate principal amount of Securities to be redeemed.

     3.3 Securities to be Redeemed.

     The Company, the Trustee and the Registrar need not register the transfer of or exchange of any Securities that have been selected for Redemption, except the unredeemed portion of Securities being redeemed in part. The Company, the Trustee and the Registrar need not issue, authenticate, register the transfer of or exchange any Security for a period of fifteen (15) days before the mailing of a notice of Redemption, pursuant to this Article III, of Securities to be redeemed.

     3.4 Notice of Redemption.

          At least twenty (20) days but not more than sixty (60) days before a Redemption Date, the Company shall mail, or cause to be mailed, a notice of Redemption to the Initial Purchaser and each Holder whose Securities are to be redeemed, at the address of such Holder appearing in the Note Register.

     The notice shall identify the Securities and the aggregate principal amount thereof to be redeemed pursuant to a Redemption and shall state:

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          (i) the Redemption Date;

          (ii) the Redemption Payment;

          (iii) the Conversion Price;

          (iv) the names and addresses of the Paying Agent and the Conversion Agent;

          (v) that the right to convert the Securities called for Redemption will terminate at the close of business on the Redemption Date, unless there shall be a Default in the payment of the Redemption Payment;

          (vi) that Holders who want to convert Securities must satisfy the requirements of Article X;

          (vii) the paragraph of the Securities pursuant to which the Securities are to be redeemed;

          (viii) that Securities called for Redemption must be surrendered to the Paying Agent to collect the Redemption Payment;

          (ix) that, unless there shall be a Default in the payment of the Redemption Payment, interest on Securities called for Redemption ceases to accrue on and after the Redemption Date, such Securities will cease to be convertible after the close of business on the Redemption Date, and all rights of the Holders of such Securities shall terminate on and after the Redemption Date, other than the right to receive, upon surrender of such Securities and in accordance with the Indenture, the Redemption Payment; and

          (x) the CUSIP number or numbers, as the case may be, of the Securities.

     The right, pursuant to Article X, to convert Securities called for Redemption shall terminate at the close of business on the Redemption Date, unless there shall be a Default in the payment of the Redemption Payment.

     At the Company’s request, upon reasonable prior written notice agreed to by the Trustee, the Trustee shall give the notice of Redemption in the Company’s name and at the Company’s expense; provided, that the form and content of such notice shall be prepared by the Company.

     3.5 Effect of Notice of Redemption.

          Once notice of Redemption is mailed, Securities called for Redemption become due and payable on the Redemption Date at the Redemption Payment, and, on and after such Redemption Date (unless there shall be a Default in the payment of the Redemption Payment Amount), such Securities shall cease to bear interest, and all rights of the Holders of such Securities shall terminate, other than the right to receive, upon surrender of such Securities and

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in accordance with the next sentence, the Redemption Payment. Upon surrender to the Paying Agent of a Security subject to Redemption, such Security shall be paid, to the Holder surrendering such Security, at the Redemption Payment. If the Redemption Date is an interest payment date, the Company shall pay, on such Redemption Date, the accrued and unpaid interest, if any, to, but excluding, the Redemption Date to the Holder of record of such Security at the close of business on the record date for such interest payment, and such accrued and unpaid interest shall not be paid to the Holder submitting such Security for Redemption (unless such Holder was the Holder of record of such Security at the close of business on the record date for such interest payment).

     If any Security shall not be fully and duly paid upon surrender thereof for Redemption, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest from the Redemption Date at the rate borne by such Security on the principal amount of such Security, and such Security shall continue to be convertible pursuant to Article X.

     Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to a Redemption if there has occurred (prior to, on or after, as the case may be, the mailing of the notice of Redemption specified in Section 3.4) and is continuing an Event of Default (other than a Default in the payment of the Redemption Payment). The Paying Agent will promptly return to the respective Holders thereof any Securities held by it during the continuance of such an Event of Default.

     3.6 Deposit of Redemption Price.

          Prior to 10:00 A.M., New York City time on the Redemption Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.4) money, in funds immediately available on the Redemption Date, and, if applicable as provided herein and in accordance herewith, shares of Common Stock, sufficient to pay the Redemption Payment. The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

     3.7 Intentionally Omitted.

     3.8 Repurchase at Option of Holder Upon a Change in Control.

          (a) In the event any Change in Control (as defined below) shall occur, each Holder of Securities shall have the right (the “Repurchase Right”), at the Holder’s option, to require the Company to repurchase all of such Holder’s Securities (or portions thereof that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the “Repurchase Date”), which Repurchase Date shall be no later than forty five (45) days after the date of the Change in Control (as defined below), at a price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Securities (or portions thereof) to be so repurchased (the “Repurchase Price”), plus accrued and unpaid interest, if any, to, and including, the Repurchase Date, upon:

          (i) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Change in

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Control Notice (as defined below), no later than the close of business on the Business Day immediately preceding the Repurchase Date, of a Purchase Notice, in the form set forth in the Securities or any other form of written notice substantially similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, stating:

          (a) the certificate number(s) of the Securities which the Holder will deliver to be repurchased;

          (b) the principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and

          (c) that such principal amount of Securities are to be repurchased pursuant to the terms and conditions specified in Paragraph 8 of the Securities and in this Indenture; and

          (ii) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Change in Control Notice, at any time after the delivery of such Purchase Notice, of such Securities (together with all necessary endorsements) with respect to which the Repurchase Right is being exercised, such delivery being a condition to receipt by the Holder of the Repurchase Price therefor plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Change in Control.

     If such Securities are held in book-entry form through the Depositary, the Purchase Notice shall comply with applicable procedures of the Depositary.

     Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent, as the case may be, a nontransferable receipt of deposit evidencing such delivery.

     Notwithstanding anything herein to the contrary, any Holder delivering the Purchase Notice contemplated by this Section 3.8(a) to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such purpose in the Change in Control Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the close of business on the Business Day immediately preceding the Repurchase Date or such longer period as may be required by law, of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information specified in Section 3.8(c)(xii).

     The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written notice of withdrawal thereof.

          (b) INTENTIONALLY OMITTED

          (c) Within twenty five (25) days after the occurrence of a Change in Control, the Company shall mail, or cause to be mailed, to all Holders of record of the Securities at their addresses shown in the Registrar, and to beneficial owners as required by applicable law, a notice (the “Change In Control Notice”) of the occurrence of such Change in Control and the

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Repurchase Right arising as a result thereof. The Company shall deliver a copy of the Change in Control Notice to the Trustee and shall cause a copy to be published at the expense of the Company in The New York Times or The Wall Street Journal or another newspaper of national circulation.

          Each Change in Control Notice shall state:

          (i) the events causing the Change in Control;

          (ii) the date of such Change in Control;

          (iii) the Repurchase Date;

          (iv) the date by which the Repurchase Right must be exercised;

          (v) the Repurchase Price plus accrued and unpaid interest, if any, to, but excluding, the Repurchase Date;

          (vi) whether the Company will pay the Repurchase Price in cash or shares of Common Stock or in a combination thereof, in each case specifying the percentages of the Repurchase Price in respect of which the Company will pay in cash or shares of Common Stock;

          (vii) the names and addresses of the Paying Agent and the Conversion Agent;

          (viii) a description of the procedure which a Holder must follow to exercise the Repurchase Right;

          (ix) that, in order to exercise the Repurchase Right, the Securities must be surrendered for payment of the Repurchase Price plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Change in Control;

          (x) that the Repurchase Price, plus accrued and unpaid interest, if any, to, and including, the Repurchase Date, for any Security as to which a Purchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in no event more than three (3) Business Days, following the later of the Repurchase Date or the time of delivery of the Security as described in (ix);

          (xi) that, on and after the Repurchase Date (unless there shall be a Default in the payment of such Repurchase Price or such accrued and unpaid interest), interest on Securities subject to Repurchase Upon Change in Control will cease to accrue, and all rights of the Holders of such Securities shall terminate, other than the right to receive, upon surrender of such Securities, the Repurchase Price and such accrued and unpaid interest;

          (xii) that a Holder will be entitled to withdraw its election in the Purchase Notice if the Company (if acting as its own Paying Agent), or the Paying Agent

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receives, prior to the close of business on the Business Day immediately preceding the Repurchase Date, or such longer period as may be required by law, a letter or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (i) the name of such Holder, (ii) a statement that such Holder is withdrawing its election to have Securities repurchased, (iii) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof, (iv) the certificate number of such Securities to be so withdrawn, and (v) the principal amount, if any, of the Securities of such Holder that remain subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.8, which amount must be $1,000 or an integral multiple thereof;

          (xiii) the Conversion Price and any adjustments to the Conversion Price that will result from the Change in Control;

          (xiv) that Securities with respect to which a Purchase Notice is given by a Holder may be converted pursuant to Article X, if otherwise convertible in accordance with Article X, only if such Purchase Notice has been withdrawn in accordance with this Section 3.8; and

          (xv) the CUSIP number or numbers, as the case may be, of the Securities.

          At the Company’s written request, the Trustee shall mail such Change in Control Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Change in Control Notice shall be prepared by the Company.

          No failure of the Company to give a Change in Control Notice shall limit any Holder’s right to exercise a Repurchase Right.

          (d) Subject to the provisions of this Section 3.8, the Company shall pay, or cause to be paid, the Repurchase Price, plus accrued and unpaid interest, if any, to, and including, the Repurchase Date, with respect to each Security as to which the Repurchase Right shall have been exercised to the Holder thereof as promptly as practicable, but in no event more than three (3) Business Days, following the later of the Repurchase Date and the time such Security is surrendered to the Paying Agent.

          (e) Prior to 10:00 A.M., New York City time on a Repurchase Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.4) money, in funds immediately available on the Repurchase Date, sufficient to pay the Repurchase Price, plus accrued and unpaid interest, if any, to, and including, the Repurchase Date, of all of the Securities that are to be repurchased by the Company on such Repurchase Date pursuant to a Repurchase Upon Change in Control. The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

          (f) Once the Change in Control Notice and the Purchase Notice have been duly given in accordance with this Section 3.8, the Securities to be repurchased pursuant to a Repurchase Upon Change in Control shall, on the Repurchase Date, become due and payable at

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the Repurchase Price (plus accrued and unpaid interest, if any, to, and including, the Repurchase Date) applicable thereto, and, on and after such date (unless there shall be a Default in the payment of the Repurchase Price or such accrued and unpaid interest), such Securities shall cease to bear interest and shall cease to be convertible pursuant to Article X, and all rights of the Holders of such Securities shall terminate, other than the right to receive, in accordance with this Section 3.8, the Repurchase Price and such accrued and unpaid interest.

          (g) Securities with respect to which a Purchase Notice has been duly delivered in accordance with this Section 3.8 may be converted pursuant to Article X, if otherwise convertible in accordance with Article X, only if such Purchase Notice has been withdrawn in accordance with this Section 3.8 or if there shall be a Default in the payment of the Repurchase Price or in the accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Change in Control.

          (h) If any Security shall not be paid upon surrender thereof for Repurchase Upon Change in Control, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest from the Repurchase Date at the rate borne by such Security on the principal amount of such Security, and such Security shall continue to be convertible pursuant to Article X.

          (i) Any Security which is to be submitted for Repurchase Upon Change in Control only in part shall be delivered pursuant to this Section 3.8 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not submitted for Repurchase Upon Change in Control.

          (j) Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to this Section 3.8 if there has occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the required Purchase Notice) and is continuing an Event of Default (other than a Default in the payment of the Repurchase Price or accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Change in Control). The Paying Agent will promptly return to the respective Holders thereof any Securities held by it during the continuance of an Event of Default (other than a Default in the payment of the Repurchase Price or such accrued and unpaid interest), in which case, upon such return, the Purchase Notice with respect to the Repurchase Upon Change in Control shall be deemed to have been withdrawn.

          (k) Notwithstanding anything herein to the contrary, if the option granted to Holders to require the repurchase of the Securities upon the occurrence of a Change in Control is determined to constitute a tender offer, the Company shall comply with all applicable tender offer rules under the Exchange Act, including Rule 13e-4 and Regulation 14E, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any other applicable laws.

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          (l) As used herein and in the Securities:

          A “Change in Control” shall be deemed to have occurred at such time as:

          (i) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder, is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the total voting power of all classes of the Company’s Capital Stock entitled to vote generally in the election of directors calculated on a fully-diluted basis; or

          (ii) the Company consolidates with, or merges with or into, another Person or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction where the Persons that “beneficially owned,” directly or indirectly, the shares of the Company’s Voting Stock immediately prior to such transaction, “beneficially own,” directly or indirectly, immediately after such transaction, shares of the continuing, surviving or acquiring corporation’s Voting Stock representing at least a majority of the total voting power of all outstanding classes of the Voting Stock of the continuing, surviving or acquiring corporation; or

          (iii) the sale, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act;

provided, however, that a Change in Control will not be deemed to have occurred if at least eighty percent (80%) of the consideration (other than cash payments for fractional shares or pursuant to statutory appraisal rights) in the merger or consolidation otherwise constituting the Change in Control consists of Common Stock, depositary receipts or other certificates representing common equity interests and any associated rights traded on a U.S. national securities exchange or quoted on The Nasdaq National Market (or which will be so traded or quoted when issued or exchanged in connection with such Change in Control), and, as a result of such transaction or transactions, the Securities become convertible solely into such common stock, depositary receipts or other certificates representing common equity interests and associated rights.

ARTICLE IV.
COVENANTS

     4.1 Payment of Securities.

          The Company shall pay all amounts due with respect to the Securities on the dates and in the manner provided in the Securities. All such amounts shall be considered paid on the date due if the Paying Agent holds (or, if the Company is acting as Paying Agent, the Company has segregated and holds in trust in accordance with Section 2.4) on that date money (and, if

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applicable as provided herein and in accordance herewith, shares of Common Stock) sufficient to pay the amount then due with respect to the Securities (unless there shall be a Default in the payment of such amounts to the respective Holder(s)). The Company shall pay interest on any overdue amount (including, to the extent permitted by applicable law, overdue interest) at the rate borne by the Securities.

     4.2 Maintenance of Office or Agency.

          The Company will maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) where Securities may be surrendered for registration of transfer or exchange or conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the designated Corporate Trust Office of the Trustee.

          The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

          The Company hereby designates the designated Corporate Trust Office of the Trustee as an agency of the Company in accordance with Section 2.3.

     4.3 Rule 144A Information and Annual Reports

          (a) At any time when the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the Company shall promptly provide to the Trustee and shall, upon request, provide to any Holder, beneficial owner or prospective purchaser of Securities or shares of Common Stock issued upon conversion of any Securities or issued pursuant to Article III, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Securities or shares of Common Stock pursuant to Rule 144A. The Company shall take such further action as any Holder or beneficial holder of such Securities or shares of Common Stock may reasonably request to the extent required from time to time to enable such Holder or beneficial holder to sell its Securities or shares of Common Stock in accordance with Rule 144A, as such rule may be amended from time to time.

          (b) The Company shall, in accordance with TIA Section 314(a), deliver to the Trustee, within thirty (30) calendar days after the Company files such annual reports, information, documents and other reports with the SEC, copies of the Company’s annual reports (which shall contain audited financial statements of the Company) and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may

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by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, that the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received confidential treatment by the SEC. In the event the Company is at any time no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company shall continue to provide the Trustee and to each Holder, within thirty (30) calendar days after the Company would have been required to file such reports with the SEC, annual and quarterly consolidated financial statements substantially equivalent to financial statements that would have been included in reports filed with the SEC if the Company were subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, including, with respect to annual information only, a report thereon by the Company’s certified independent public accountants as such would be required in such reports filed with the SEC and, in each case, together with a management’s discussion and analysis of financial condition and results of operations which would be so required. The Company also shall comply with the other provisions of TIA Section 314(a).

          (c) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

     4.4 Compliance Certificate; Statement by Officers as to Default.

          The Company shall deliver to the Trustee, within ninety (90) calendar days after the end of each fiscal year of the Company, or, if earlier, by the date the Company is, or would be, required to file with the SEC the Company’s annual report (whether on Form 10-K under the Exchange Act or another appropriate form) for such fiscal year, an Officers’ Certificate, one of the signers of which shall be the principal executive officer, principal financial officer or principal accounting officer of the Company, stating whether or not the signers know of any Default or Event of Default by the Company in performing any of its obligations under this Indenture or the Securities. If such signers do know of any such Default or Event of Default, the certificate shall describe the Default or Event of Default and its status.

     4.5 Stay, Extension and Usury Laws.

          The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.

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     4.6 Corporate Existence.

          The Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory), licenses and franchises of the Company; provided, however, that the Company shall not be required to preserve any such right, license or franchise, if in the good faith judgment of the Board of Directors the loss of such right, license or franchise does not have a material adverse impact on the Holders.

     4.7 Notice of Default.

          In the event that any Default or Event of Default shall occur, the Company will give prompt written notice of such Default or Event of Default, and any remedial action proposed to be taken, to the Trustee.

     4.8 Further Instruments and Acts.

          Upon request of the Trustee, the Company shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

ARTICLE V.
SUCCESSORS

5.1 When Company May Merge, Etc.

          The Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially all of the property or assets of the Company to, another person, whether in a single transaction or series of related transactions, unless: (i) the Company is the surviving person, or the resulting surviving person is organized and existing under the laws of the United States, any State thereof or the District of Columbia; or (ii) such person assumes by supplemental indenture all the obligations of the Company under the Securities and this Indenture; and (iii) immediately after giving effect to the transaction, no Default or Event of Default shall exist.

          The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing effect and an Opinion of Counsel (which may rely upon such Officers’ Certificate as to the absence of Defaults and Events of Default) stating that the proposed transaction and such supplemental indenture will, upon consummation of the proposed transaction, comply with this Indenture.

     5.2 Successor Substituted.

          Upon any consolidation, merger or any sale, transfer, lease, conveyance or other disposition of all or substantially all of the property or assets of the Company, the successor person formed by such consolidation or into which the Company is merged or to which such sale, transfer, lease, conveyance or other disposition is made shall succeed to, and, except in the case of a lease, be substituted for, and may exercise every right and power of, and shall assume every duty and obligation of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein. When the successor assumes all obligations of the Company hereunder, except in the case of a lease, all obligations of the predecessor shall terminate.

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ARTICLE VI.
DEFAULTS AND REMEDIES

     6.1 Events of Default.

          An “Event of Default” occurs if:

               (i) the Company fails to pay the principal of any Security when the same becomes due and payable, whether at maturity, upon Redemption, on a Repurchase Date with respect to a Repurchase Upon Change in Control or otherwise;

               (ii) the Company fails to pay Interest on any Security when due, if such failure continues for thirty (30) days after the date when due;

               (iii) the Company fails to timely provide a Change in Control Notice, as required by the provisions of this Indenture;

               (iv) the Company defaults in its obligation to convert the Securities into shares of Common Stock, cash or a combination of cash and Common Stock upon exercise of a Holder’s conversion right and such default continues for ten (10) days;

               (v) the Company defaults in its obligation to repurchase any Security on a Repurchase Date with respect to a Repurchase Upon Change in Control or otherwise;

               (vi) the Company defaults in its obligation to redeem any Security after exercise of its option to redeem;

               (vii) the Company fails to perform or observe any of the covenants in Article IV for sixty (60) days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least fifty percent (50%) in the aggregate principal amount of the Securities then outstanding;

               (viii) there occurs an event of default with respect to the Company’s or any of its Subsidiaries’ Indebtedness having a principal amount then outstanding, individually or in the aggregate, of at least fifteen million dollars ($15,000,000), whether such Indebtedness now exists or is hereafter incurred, which default or defaults: (a) shall have resulted in such Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable; or (b) shall constitute the failure to pay such Indebtedness at the final stated maturity thereof (after expiration of any applicable grace period);

               (ix) any final judgment or judgments for the payment of money in excess of fifteen million dollars ($15,000,000) shall be rendered against the Company and shall not be discharged for any period of sixty (60) consecutive days during which time a stay of enforcement shall not be in effect or during which time an appeal has not been filed; or

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               (x) the Company pursuant to, or within the meaning of, any Bankruptcy Law, insolvency law, or other similar law now or hereafter in effect or otherwise:

               (a) commences a voluntary case,

               (b) consents to the entry of an order for relief against it in an involuntary case,

               (c) consents to the appointment of a Custodian of it or for all or substantially all of its property or assets, or

               (d) makes a general assignment for the benefit of its creditors, or

               (e) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

               (1) is for relief against the Company in an involuntary case or proceeding, or adjudicates the Company insolvent or bankrupt,

               (2) appoints a Custodian of the Company for all or substantially all of the property or assets of the Company, or

               (3) orders the winding up or liquidation of the Company and, in the case of each of the foregoing clauses (1), (2) and (3) of this Section 6.1(x), the order or decree remains unstayed and in effect for at least ninety (90) consecutive days.

          The term “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

          When a Default is cured, it ceases.

     6.2 Acceleration.

          If an Event of Default (excluding an Event of Default specified in Section 6.1(x) with respect to the Company (but including an Event of Default specified in Section 6.1(ix)) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least fifty percent (50%) in aggregate principal amount of the Securities then outstanding by notice to the Company and the Trustee, may declare the Securities to be immediately due and payable in full. The notice must specify the Default, demand that it be remedied and state that the notice is a “Notice of Default”. If the Holders of at least fifty percent (50%) in aggregate principal amount of the outstanding Securities request in writing the Trustee to give such notice on their behalf,

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the Trustee shall do so. Upon such declaration, the principal of, premium, if any, and any accrued and unpaid interest on, all Securities shall be due and payable immediately. If an Event of Default specified in Section 6.1(x) occurs, the principal of, and accrued and unpaid interest on, all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the Securities then outstanding by written notice to the Trustee may rescind or annul an acceleration and its consequences if (A) the rescission would not conflict with any order or decree, (B) all existing Events of Default, except the nonpayment of principal or interest that has become due solely because of the acceleration, have been cured or waived and (C) all amounts due to the Trustee under Section 7.7 have been paid.

     6.3 Other Remedies.

          Notwithstanding any other provision of this Indenture, if an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of amounts due with respect to the Securities or to enforce the performance of any provision of the Securities or this Indenture.

          The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative.

     6.4 Waiver of Past Defaults.

          Subject to Sections 6.7 and 9.2, the Holders of a majority in aggregate principal amount of the Securities then outstanding may, by written notice to the Trustee, waive any past Default or Event of Default and its consequences, other than (A) a Default or Event of Default in the payment of the principal of, or premium, if any, or interest or additional interest on, any Security, or in the payment of the Redemption Price or Repurchase Price (or accrued and unpaid interest, if any, payable as herein provided upon Redemption or Repurchase Upon Change in Control), (B) a Default or Event of Default arising from a failure by the Company to convert any Securities into shares of Common Stock in accordance with this Indenture or (C) any Default or Event of Default in respect of any provision of this Indenture or the Securities which, under Section 9.2, cannot be modified or amended without the consent of the Holder of each outstanding Security affected. When a Default or an Event of Default is waived, it is cured and ceases. This Section 6.4 shall be in lieu of TIA Section 316(a)(1)(B), and TIA Section 316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the TIA.

     6.5 Control by Majority.

          The Holders of a majority in aggregate principal amount of the Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability unless the Trustee

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is offered indemnity reasonably satisfactory to it; provided, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. This Section 6.5 shall be in lieu of TIA Section 316(a)(1)(A), and TIA Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as permitted by the TIA.

     6.6 Limitation on Suits.

          Except as provided in Section 6.7, a Securityholder may not institute any proceeding under this Indenture, or for the appointment of a receiver or a trustee, or for any other remedy under this Indenture unless:

          (i) the Holder gives to the Trustee written notice of a continuing Event of Default;

          (ii) the Holders of at least fifty percent (50%) in aggregate principal amount of the Securities then outstanding make a written request to the Trustee to pursue the remedy;

          (iii) such Holder or Holders offer and, if requested, provide to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;

          (iv) the Trustee does not comply with the request within sixty (60) days after receipt of notice, the request and the offer of indemnity; and

          (v) during such sixty (60) day period, the Holders of a majority in aggregate principal amount of the Securities then outstanding do not give the Trustee a direction inconsistent with the request.

          A Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).

     6.7 Rights of Holders to Receive Payment.

          Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of all amounts due with respect to the Securities, on or after the respective due dates as provided herein, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of the Holder.

          Notwithstanding any other provision of this Indenture, the right of any Holder to bring suit for the enforcement of the right to convert the Security in accordance with this Indenture shall not be impaired or affected without the consent of the Holder.

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     6.8 Collection Suit by Trustee.

          If an Event of Default specified in Section 6.1(i) or (ii) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount due with respect to the Securities, including any unpaid and accrued interest.

     6.9 Trustee May File Proofs of Claim.

          The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee, any predecessor Trustee and the Securityholders allowed in any judicial proceedings relative to the Company or its creditors or properties.

          The Trustee may collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.

          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

     6.10 Priorities.

          If the Trustee collects any money pursuant to this Article VI, it shall pay out the money in the following order:

          First: to the Trustee for amounts due under Section 7.7;

          Second: to Securityholders for all amounts due and unpaid on the Securities, without preference or priority of any kind, according to the amounts due and payable on the Securities; and

          Third: to the Company.

          The Trustee, upon prior written notice to the Company may fix a record date and payment date for any payment by it to Securityholders pursuant to this Section 6.10.

     6.11 Undertaking For Costs.

          In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit other than the Trustee of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable

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costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than ten percent (10%) in aggregate principal amount of the outstanding Securities.

ARTICLE VII.
TRUSTEE

     7.1 Duties of Trustee.

          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise thereof, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.

          (b) Except during the continuance of an Event of Default:

          (i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the TIA and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or the TIA against the Trustee; and

          (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, without investigation, as to the truth or the statements and the correctness of the opinions expressed therein, upon and statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture but need not verify the contents thereof.

     However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

     (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

          (i) this paragraph does not limit the effect of paragraph (b) of this Section;

          (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

          (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.2, 6.4 or 6.5.

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          (d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this paragraphs (a), (b) and (c) of Section 7.1 and Section 7.2.

          (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, pursuant to the provisions of this Indenture, including, without limitation, Section 6.5, unless such Holder’s shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense which might be incurred by it in compliance with such request or direction.

          (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

     7.2 Rights of Trustee.

          (a) The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.

          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the advice of such counsel and Opinions of Counsel with respect to legal matters relating to this Indenture and the Securities shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

          (c) The Trustee may act through its attorneys, accountants, experts and such other professionals as the Trustee deems necessary, advisable or appropriate and shall not be responsible for the misconduct or negligence of any attorney, accountant, expert or other such professional appointed with due care.

          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

          (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficiently evidenced by a Company Order or a Company Request.

          (f) The Trustee shall not be charged with knowledge of any Default or Event of Default under Section 6.1 (other than under Section 6.1(a) (subject to the following sentence) or Section 6.1(b)) unless either (i) a Responsible Officer shall have actual knowledge thereof, or

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(ii) the Trustee shall have received notice thereof in accordance with Section 12.2 from the Company or any Holder of the Securities.

          (g) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

          (h) In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

          (i) The Trustee may request that the Company deliver a certificate substantially in the form of Exhibit D setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person specified as so authorized in any such certificate previously delivered and not superseded.

          (j) The Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.

     7.3 Individual Rights of Trustee.

          The Trustee may become the owner or pledgee of Securities and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest within the meaning of the TIA it must eliminate such conflict within ninety (90) days, or apply (subject to the consent of the Company) to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.

     7.4 Trustee’s Disclaimer.

          The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Securities or any other document in connection with the sale of the Securities or pursuant to this Indenture other than its certificate of authentication.

     7.5 Notice of Defaults.

          If a Default or Event of Default occurs and is continuing, the Trustee shall mail to Holders of Securities a notice of the Default or Event of Default within ninety (90) days after

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such Event of Default becomes known to the Trustee. Except in the case of a Default in payment on any Security (including the failure to make a mandatory repurchase pursuant hereto), the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities.

     7.6 Reports by Trustee to Holder of the Securities.

          Within sixty (60) days after each May 15 beginning with the May 15 following the date of this Indenture, and for so long as Securities remain outstanding, the Trustee shall mail to the Holders of the Securities a brief report dated as of such reporting date that complies with TIA Section 313(a) (but if no event described in TIA Section 313(a) has occurred within the twelve (12) months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA Section 313(b). The Trustee shall also transmit by mail all reports as required by TIA Section 313(c).

          A copy of each report at the time of its mailing to the Holders of Securities shall be mailed to the Company and filed with the Commission and each stock exchange on which the Securities are listed in accordance with TIA Section 313(d). The Company shall promptly notify the Trustee in writing when the Securities are listed on any stock exchange or of any delisting thereof.

     7.7 Compensation, Reimbursement and Indemnity.

          The Company shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and the rendering by it of the services required hereunder as shall be agreed upon in writing by the Company and the Trustee. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by or on behalf of it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s attorneys, accountants, experts and such other professionals as the Trustee deems necessary, advisable or appropriate.

          The Company shall indemnify the Trustee and any predecessor Trustee (which for purposes of this Section 7.7 shall include its officers, directors, employees, agents and shareholders), and hold it harmless against, any and all losses, liabilities, claims, damages or expenses, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) and reasonable attorneys’ fees and expenses, incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture (including its duties under Section 9.6), including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.7) and defending itself against or investigating any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, damage, claim, liability or expense shall have been determined by a court of competent jurisdiction to have been caused by its gross negligence or willful misconduct. The Trustee shall notify the Company promptly of any claim for which it

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may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. At the Trustee’s sole discretion, the Company shall defend any claim or threatened claim asserted against the Trustee, with counsel satisfactory to the Trustee, and the Trustee shall cooperate in the defense at the Company’s expense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.

          The obligations of the Company under this Section 7.7 shall survive the resignation or removal of the Trustee, the satisfaction and discharge of this Indenture and the termination of this Indenture.

          To secure the Company’s payment obligations in this Section 7.7, the Trustee shall have a Lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal, Redemption Price of, or interest on, particular Securities. Such Lien shall survive the resignation or removal of the Trustee, the satisfaction and discharge of this Indenture and the termination of this Indenture.

          When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(x) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

     7.8 Replacement of Trustee.

          A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.

          The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of Securities of a majority in principal amount of the then outstanding Securities may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:

          (a) the Trustee fails to comply with Section 7.10;

          (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

          (c) a custodian, receiver or public officer takes charge of the Trustee or its property for the purpose of rehabilitation, conversation or liquidation; or

          (d) the Trustee becomes incapable of acting.

          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the date on which the successor Trustee takes office, the Holders of a majority in principal

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amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

          If a successor Trustee does not take office within thirty (30) days after the retiring trustee resigns or is removed, the retiring Trustee, the Company, or the Securityholders of at least 10% in principal amount of the then outstanding Securities may petition any court of competent jurisdiction, in the case of the Trustee, at the expense of the Company, for the appointment of a successor Trustee.

          If the Trustee, after written request by any Securityholder who has been a bona fide holder of a Security or Securities for at least six (6) months, fails to comply with Section 7.10, such Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

          A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The Company shall mail a notice of its succession to each Holder of a Security. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.7. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 shall continue for the benefit of the retiring Trustee.

     7.9 Successor Trustee by Merger, Etc.

          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation that is eligible under Section 7.10, the successor corporation without any further act shall be the successor Trustee.

     7.10 Eligibility; Disqualification.

          There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof (including the District of Columbia) that is authorized under such laws to exercise corporate trust power, that is subject to supervision or examination by federal or state authorities and that has (or, in the case of a corporation included in a bank holding company system, the related bank holding company shall have) a combined capital and surplus of at least fifty million dollars ($50,000,000) as set forth in its (or its related bank holding company’s) most recent published annual report of condition.

          This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b).

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     7.11 Preferential Collection of Claims Against Company.

          The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein.

ARTICLE VIII.
DISCHARGE OF INDENTURE

     8.1 Termination of the Obligations of the Company.

          This Indenture shall cease to be of further effect if (a) either (i) all outstanding Securities (other than Securities replaced pursuant to Section 2.7 hereof) have been delivered to the Trustee for cancellation or (ii) all outstanding Securities have become due and payable at their scheduled maturity or upon Redemption or Repurchase Upon Change in Control, and in any case the Company irrevocably deposits, prior to the applicable due date, with the Trustee or the Paying Agent (if the Paying Agent is not the Company or any of its Affiliates) cash sufficient to pay all amounts due and owing on all outstanding Securities (other than Securities replaced pursuant to Section 2.7 hereof) on the Maturity Date or Redemption Date, or Repurchase Date, as the case may be; (b) the Company pays to the Trustee all other sums payable hereunder by the Company and the Company has otherwise satisfied in full all of its obligations under this Indenture; (c) no Default or Event of Default with respect to the Securities shall exist on the date of such deposit; (d) such deposit will not result in a breach or violation of, or constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; and (e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with; provided, however, that Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.15, 2.16, 2.17, 3.5, 3.8, 4.1, 4.2, 4.5, 7.7 and 7.8 and Articles VIII and X and Sections 12.2, 12.3 and 12.4 shall survive any discharge of this Indenture until such time as the Securities have been paid in full and there are no Securities outstanding. Thereafter only the Company’s obligations in Section 7.7 shall survive such satisfaction and discharge

     8.2 Application of Trust Money.

          The Trustee shall hold in trust money deposited with it pursuant to Section 8.1. It shall apply the deposited money through the Paying Agent and in accordance with this Indenture to the payment of the principal of and any unpaid and accrued interest on the Securities.

     8.3 Repayment to Company.

          The Trustee and the Paying Agent shall promptly notify the Company of, and pay to the Company upon the written request of the Company, any excess money held by them at any time. The Trustee and the Paying Agent shall pay to the Company upon the written request of the Company any money held by them for the payment of the principal of, premium, if any, or any accrued and unpaid interest or additional interest on, the notes that remains unclaimed for two (2) years; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company, cause to be published once in

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a newspaper of general circulation in the City of New York or cause to be mailed to each Holder, notice stating that such money remains unclaimed and that, after a date specified therein, which shall not be less than thirty (30) days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. After payment to the Company, Securityholders entitled to the money must look to the Company for payment as general creditors, subject to applicable law, and all liability of the Trustee and the Paying Agent with respect to such money and payment shall, subject to applicable law, cease.

     8.4 Reinstatement.

          If the Trustee or Paying Agent is unable to apply any money in accordance with Sections 8.1 and 8.2 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Sections 8.1 and 8.2 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Sections 8.1 and 8.2; provided, however, that if the Company has made any payment of amounts due with respect to any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE IX.
AMENDMENTS

     9.1 Without Consent of Holders.

          The Company, with the consent of the Trustee, may amend or supplement this Indenture or the Securities without notice to or the consent of any Securityholder:

          (a) to evidence the assumption of the Company’s obligations by a successor;

          (b) to evidence the acceptance of appointment by a successor trustee;

          (c) to make any changes or modifications to this Indenture necessary to cure and ambiguity or correct any error in this Indenture, so long as such action will not adversely affect the interests of the Holders;

          (d) to qualify or maintain the qualification of this Indenture under the TIA;

          (e) to secure the obligations of the Company in respect of the Securities;

          (f) to establish the forms or terms of the Securities;

          (g) to add to the covenants of the Company described in this Indenture for the benefit of Securityholders; or

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          (h) to make other changes to this Indenture or forms or terms of the Securities, provided no such change individually or in the aggregate with all other such changes has or will have a material adverse effect on the interests of the Holders.

     9.2 With Consent of Holders.

          The Company, with the consent of the Trustee, may amend or supplement this Indenture or the Securities without notice to any Securityholder but with the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities. Subject to Sections 6.4 and 6.7, the Holders of a majority in aggregate principal amount of the outstanding Securities may, by notice to the Trustee, waive compliance by the Company with any provision of this Indenture or the Securities without notice to any other Securityholder. Notwithstanding anything herein to the contrary, without the consent of each Holder of each outstanding Security affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.4, may not:

          (a) extend the Maturity Date of the principal of, or the payment date of any installment of interest on, any Security;

          (b) reduce the principal amount of, or any premium, interest or additional interest on, any Security;

          (c) change the currency in which any Security is payable;

          (d) impair the right to institute suit for the enforcement of any payment on, or with respect to, any Security;

          (e) reduce any amount payable upon Redemption or repurchase of any Security;

          (f) change the Company’s obligation to maintain an office or agency in the places and for the purposes specified in this Indenture;

          (g) affect the Company’s obligation to redeem any Securities upon a Redemption Date in a manner adverse to the Holders;

          (h) affect the Company’s obligation to repurchase any Securities upon a Change in Control in a manner adverse to the Holders;

          (i) impair the right of Holders to convert Securities or reduce the number of shares of Common Stock, the amount of cash or the amount of any other property receivable upon conversion;

          (j) reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a modification to or amendment of any provision of this Indenture;

          (k) reduce the quorum or voting requirements under this Indenture;

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          (l) reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a waiver of compliance with any provision of this Indenture or a waiver of any Default or Event of Default; or

          (m) modify the provisions of this Indenture with respect to modification and waiver (including waiver of a Default or an Event of Default), except to increase the percentage required for modification or waiver or to provide for consent of each affected Holder.

          Promptly after an amendment, supplement or waiver under Section 9.1 or this Section 9.2 becomes effective, the Company shall mail, or cause to be mailed, to Securityholders a notice briefly describing such amendment, supplement or waiver. Any failure of the Company to mail such notice shall not in any way impair or affect the validity of such amendment, supplement or waiver.

          It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.

     9.3 Compliance with Trust Indenture Act.

          Every amendment, waiver or supplement to this Indenture or the Securities shall comply with the TIA as then in effect.

     9.4 Revocation and Effect of Consents.

          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

          After an amendment, supplement or waiver becomes effective with respect to the Securities, it shall bind every Holder unless it makes a change that requires, pursuant to Section 9.2, the consent of each Holder affected. In that case, the amendment, supplement or waiver shall bind each Holder of a Security who has consented to it and, provided that notice of such amendment, supplement or waiver is reflected on a Security that evidences the same debt as the consenting Holder’s Security, every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.

     9.5 Notation on or Exchange of Securities.

          If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security as directed and prepared by the Company about the

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changed terms and return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for the Security shall issue and the Trustee, upon receipt of a Company Order, shall authenticate a new Security that reflects the changed terms.

     9.6 Trustee Protected.

          The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until the Board of Directors approves such amended or supplemental indenture. In executing any amended or supplemental indenture, the Trustee shall be provided with an Opinion of Counsel and an Officers’ Certificate, and, subject to Section 7.1, shall be fully protected in conclusively relying upon such documents.

ARTICLE X.
CONVERSION

     10.1 Conversion Privilege; Restrictive Legends.

          (a) Subject to the provisions of Sections 3.4 and 3.8, the Securities shall be convertible into shares of Common Stock at any time on or after the earlier of (x) the Registration Date or (y) two hundred seventy (270) days following the Issue Date but prior to the close of business on the Maturity Date, in accordance with this Article X and as set forth below. A Security, or portion of a Security, which has been called for Redemption pursuant to Paragraph 6 of the Securities may be surrendered for conversion into shares of Common Stock; provided, however, that such Security or portion thereof may be surrendered for conversion pursuant to this paragraph only until the close of business on the Redemption Date.

          (b) The initial Conversion Price shall be $8.14 per share of Common Stock. The Conversion Price shall be subject to adjustment in accordance with Sections 10.7 through 10.12.

          (c) Whenever any event described in Section 10.1 shall occur which shall cause the Securities to become convertible into shares of Common Stock, the Company shall promptly deliver, in accordance with Section 12.2, written notice of the convertibility of the Securities to the Trustee and each Holder. Such written notice and public announcement shall include a description of such event, a description of the periods during which the Securities shall be convertible and the procedures by which a Holder may convert its Securities. At the Company’s request, upon reasonable prior written notice agreed to by the Trustee, the Trustee shall, in the Company’s name and at the Company’s expense, deliver to each Holder the written notice of the convertibility of the Securities required by this Section 10.1(c); provided, that the form and content of such notice shall be prepared by the Company.

          (d) A Holder may convert a portion of the principal of such Security if the portion is $1,000 principal amount or an integral multiple of $1,000 principal amount. Provisions of this Indenture that apply to conversion of all of a Security also apply to conversion of a portion of it.

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          (e) Any shares of Common Stock issued upon conversion of a Security shall bear the Private Placement Legend until such shares are sold pursuant to an effective Registration Statement or until after the second anniversary of the later of the Issue Date and the last date on which the Company or any Affiliate was the owner of such shares or the Security (or any predecessor security) from which such shares were converted (or such shorter period of time as permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such longer period of time as may be required under the Securities Act or applicable state securities laws, as set forth in an Opinion of Counsel, unless otherwise agreed by the Company and the Holder thereof).

     10.2 INTENTIONALLY OMITTED.

     10.3 Conversion Procedure.

          To convert a Security, a Holder must satisfy the requirements of paragraph 9 of the Securities. As soon as practicable following the date (the “Conversion Date”) on which the Holder satisfies all those requirements, the Company shall deliver to the Holder through the Conversion Agent a certificate for the number of full shares of Common Stock issuable upon the conversion, as provided in Paragraph 9 of the Securities, and a check for the amount of cash payable in lieu of any fractional share. On and after the Conversion Date, the person in whose name such certificate is to be registered shall be treated as a shareholder of record of the Company, and all rights of the Holder of the Security to be converted shall terminate, other than the right to receive the shares of Common Stock and cash deliverable as provided in the preceding sentence. A Holder of Securities is not entitled to any rights of a holder of Common Stock until such Holder has converted its Securities into shares of Common Stock, or is deemed to be a shareholder of record of the Company, as provided in this paragraph, and then only to the extent such Securities are deemed to have been so converted or such Holder is so deemed to be a shareholder of record.

          Except as provided in the Securities or in this Article X or in Article III, no payment or adjustment will be made for accrued interest on, or additional interest with respect to, a converted Security or for dividends on any Common Stock issued on or prior to conversion. If any Holder surrenders a Security for conversion after the close of business on the record date for the payment of an installment of interest and prior to the related interest payment date, then, notwithstanding such conversion, the interest payable with respect to such Security on such interest payment date shall be paid on such interest payment date to the Holder of record of such Security at the close of business on such record date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment to the Conversion Agent on behalf of the Company of an amount equal to the interest payable on such interest payment date on the portion so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required if such Security is called for Redemption pursuant to Section 3.4 and paragraphs 6 of the Securities; provided further, that, if the Company shall have, prior to the Conversion Date with respect to a Security, defaulted in a payment of interest on such Security, then in no event shall the Holder of such Security who surrenders such Security for conversion be required to pay such defaulted interest or the interest that shall have accrued on such defaulted

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interest pursuant to Section 2.12 (it being understood that nothing in this Section 10.3 shall affect the Company’s obligations under Section 2.12).

          If a Holder converts more than one Security at the same time, the number of full shares of Common Stock issuable upon such conversion shall be based on the total principal amount of all Securities converted. Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

          If the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday.

     10.4 Fractional Shares.

          The Company will not issue fractional shares of Common Stock upon conversion of Securities and instead will deliver a check in an amount equal to the value of such fraction computed on the basis of the Closing Sale Price on the Trading Day immediately before the Conversion Date.

     10.5 Taxes on Conversion.

          If a Holder converts its Security, the Company shall pay any documentary, stamp or similar issue or transfer tax or duty due on the issue, if any, of shares of Common Stock upon the conversion. However, such Holder shall pay any such tax or duty which is due because such shares are issued in a name other than such Holder’s name. The Conversion Agent may refuse to deliver a certificate representing the shares of Common Stock to be issued in a name other than such Holder’s name until the Conversion Agent receives a sum sufficient to pay any tax or duty which will be due because such shares are to be issued in a name other than such Holder’s name. Nothing herein shall preclude any tax withholding required by law or regulation.

     10.6 Company to Provide Stock.

          The Company shall at all times reserve out of its authorized but unissued Common Stock or Common Stock held in its treasury enough shares of Common Stock to permit the conversion of all of the Securities into shares of Common Stock.

          All shares of Common Stock which may be issued upon conversion of the Securities shall be validly issued, fully paid and non-assessable and shall be free of preemptive or similar rights and free of any lien or adverse claim.

          The Company shall comply with all securities laws regulating the offer and delivery of shares of Common Stock upon conversion of Securities and shall list such shares on each national securities exchange or automated quotation system on which the Common Stock is listed.

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     10.7 Adjustment of Conversion Price.

     The Conversion Price shall be subject to adjustment from time to time as follows:

          (a) In case the Company shall (1) pay a dividend in shares of Common Stock to all holders of Common Stock, (2) make a distribution in shares of Common Stock to all holders of Common Stock, (3) subdivide the outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which such Holder would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this Section 10.7(a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.

          (b) In case the Company shall issue rights or warrants to all holders of Common Stock, entitling them, for a period expiring not more than sixty (60) days immediately following the record date for the determination of holders of Common Stock entitled to receive such rights or warrants, to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock), at a price per share (or having a conversion, exchange or exercise price per share) that is less than the current market price (as determined pursuant to Section 10.7(e)) of Common Stock on the record date for the determination of holders of Common Stock entitled to receive such rights or warrants, the Conversion Price shall be increased by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (A) the numerator shall be the sum of (i) the number of shares of Common Stock outstanding at the close of business on such record date and (ii) the number of shares of Common Stock which the aggregate exercise, conversion, exchange or other price at which the Underlying Shares (as defined below) may be subscribed for or purchased pursuant to such rights or warrants would purchase at such current market price and (B) the denominator shall be the sum of (i) number of shares of Common Stock outstanding at the close of business on such record date and (ii) the aggregate number of shares (the “Underlying Shares”) of Common Stock underlying all such issued rights or warrants (whether by exercise, conversion, exchange or otherwise). Such increase shall become effective immediately prior to the opening of business on the day following such record date. In no event shall the Conversion Price be increased pursuant to this Section 10.7(b).

          (c) In case the Company shall dividend or distribute to all holders of Common Stock shares of Capital Stock of the Company (other than Common Stock), evidences of Indebtedness or other assets, or shall dividend or distribute to all holders of Common Stock rights or warrants to subscribe for or purchase securities (other than those referred to in Section 10.7(b)), if these distributions, aggregated on a rolling twelve (12) month basis, have a per share value exceeding fifteen percent (15%) of the market price of the Company’s Common Stock on the Trading Day immediately preceding the declaration of the distribution, then in each such case the Conversion

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Price shall be decreased by multiplying the Conversion Price in effect immediately prior to the close of business on the record date for the determination of shareholders entitled to such dividend or distribution by a fraction of which (A) the numerator shall be the current market price of Common Stock (as determined pursuant to Section 10.7(e)) on such record date and (B) the denominator shall be an amount equal to (i) such current market price plus (ii) the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), on such record date, of the portion of the shares of Capital Stock, evidences of Indebtedness, assets, rights and warrants to be dividended or distributed applicable to one share of Common Stock, such increase to become effective immediately prior to the opening of business on the day following such record date; provided, however, that if such denominator is equal to or less than one, then, in lieu of the foregoing adjustment to the Conversion Price, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of its Securities, in addition to the shares of Common Stock issuable (and cash, if any, payable) upon such conversion, an amount of shares of Capital Stock, evidences of Indebtedness, assets, rights and/or warrants that such Holder would have received had such Holder converted all of its Securities on such record date.

          (d) In addition to the foregoing adjustments in Subsections (a), (b) and (c) above, the Company, from time to time and to the extent permitted by law, may decrease the Conversion Price by any amount for a period of at least twenty (20) days or such longer period as may be required by law, if the Board of Directors has made a determination, which determination shall be conclusive, that such decrease would be in the best interests of the Company. Such Conversion Price decrease shall be irrevocable during such period. The Company shall give notice to the Trustee and cause notice of such decrease to be mailed to each Holder of Securities at such Holder’s address as the same appears on the registry books of the Registrar, at least fifteen (15) days prior to the date on which such decrease commences.

          (e) For the purpose of any computation under Subsections (a), (b) or (c) above of this Section 10.7, the current market price per share of Common Stock on the date fixed for determination of the shareholders entitled to receive the issuance or distribution requiring such computation (the “Determination Date”) shall be deemed to be the average of the Closing Sale Prices for the ten (10) consecutive Trading Days immediately preceding the Determination Date; provided, however, that (i) if the “ex” date for any event (other than the event requiring such computation) that requires an adjustment to the Conversion Price pursuant to subsection (a), (b), or (c), above occurs on or after the tenth (10th) Trading Day prior to the Determination Date, and prior to the “ex” date for the issuance or distribution requiring such computation, the Closing Sale Price for each Trading Day prior to the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result of such other event, (ii) if the “ex” date for any event (other than the event requiring such computation) that requires an adjustment to the Conversion Price pursuant to Subsection (a), (b), or (c), above occurs on or after the “ex” date for the issuance or distribution requiring such computation and on or prior to the Determination Date, the Closing Sale Price for each

46

Trading Day on and after the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the same fraction by which the Conversion Price is so required to be adjusted as a result of such other event, and

          (f) if the “ex” date for the event requiring such computation is on or prior to the Determination Date, after taking into account any adjustment required pursuant to this proviso, the Closing Sale Price for each Trading Day on and after such “ex” date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for the purposes of this Section 10.7, whose determination shall be conclusive and described in a Resolution of the Board of Directors) of the evidences of Indebtedness, shares of Capital Stock or other securities or assets or cash being distributed (in the event requiring such computation) applicable to one share of Common Stock as of the close of business on the day before such “ex” date.

          For purposes of this subsection, the term “ex” date, (i) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution, (ii) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades the regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (iii) when used with respect to any tender offer or exchange offer means the first date on which the Common Stock trades the regular way on such exchange or in such market after the expiration time of such tender offer or exchange offer (as it may be amended or extended).

     10.8 No Adjustment.

          No adjustment in the Conversion Price shall be required if Holders may participate in a transaction that would otherwise give rise to an adjustment under Section 10.7, so long as the distributed assets or securities the Holders would receive upon conversion of the Securities, if convertible, exchangeable, or exercisable, are convertible, exchangeable, or exercisable, as applicable, without any loss of rights or privileges for a period of at least sixty (60) days following the Conversion Date.

          No adjustment in the Conversion Price shall be required:

          (a) upon the issuance of shares of Common Stock or any securities exchangeable into Common Stock or carrying the right to purchase any of the foregoing, except as stated above;

          (b) for a change in the par value or no par value of the Common Stock; or

          (c) for accrued and unpaid interest.

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          No adjustment in the Conversion Price shall be required unless the adjustment would require an increase or decrease of at least one percent (1%) of the Conversion Price as last adjusted (or, if never adjusted, the initial Conversion Price); provided, however, that any adjustments which by reason of this Section 10.8 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article X shall be made to the nearest cent or to the nearest one-millionth of a share, as the case may be.

     10.9 Adjustments For Tax Purposes.

          The Company may make such increases in the Conversion Price, in addition to those required by Section 10.7 hereof, as it determines to be advisable in order that any stock dividend, subdivision of shares, distribution or rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock made by the Company or to its shareholders will not be taxable to the recipients thereof.

     10.10 Notice of Adjustment.

          Whenever the Conversion Price is adjusted, the Company shall promptly mail to Holders at the addresses appearing on the Registrar’s books a notice of the adjustment and file with the Trustee an Officers’ Certificate briefly stating the facts requiring the adjustment and the manner of computing it. The certificate shall be conclusive evidence of the correctness of such adjustment. At the Company’s request, upon reasonable prior written notice agreed to by the Trustee, the Trustee shall, in the Company’s name and at the Company’s expense, mail to Holders at the addresses appearing on the Registrar’s books such notice of adjustment required by this Section 10.10; provided, that the form and content of such notice shall be prepared by the Company.

     10.11 Notice of Certain Transactions.

          In the event that:

     (1) the Company takes any action, or becomes aware of any event, which would require an adjustment in the Conversion Price,

     (2) the Company takes any action that would require a supplemental indenture pursuant to Section 10.12, or

     (3) there is a dissolution or liquidation of the Company,

the Company shall mail to Holders at the addresses appearing on the Registrar’s books and the Trustee a written notice stating the proposed record, effective or expiration date, as the case may be, of any transaction referred to in clause (1), (2) or (3) of this Section 10.11. The Company shall mail such notice at least twenty (20) days before such date; however, failure to mail such notice or any defect therein shall not affect the validity of any transaction referred to in clause (1), (2) or (3) of this Section 10.11. At the Company’s request, upon reasonable prior written notice agreed to by the Trustee, the Trustee shall, in the Company’s name and at the Company’s expense, mail to Holders at the addresses appearing on the Registrar’s books such written notice

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required by this Section 10.11; provided, that the form and content of such notice shall be prepared by the Company.

     10.12 Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales on Conversion Privilege.

          If any of the following shall occur, namely: (i) any reclassification or change in the Common Stock issuable upon conversion of Securities (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or binding share exchange to which the Company is a party other than a merger in which the Company is the continuing Person and which does not result in any reclassification of, or change (other than a change in name, or par value, or from par value to no par value, or from no par value to par value or as a result of a subdivision or combination) in, the Common Stock or (iii) any sale, transfer, lease, conveyance or other disposition of all or substantially all of the property or assets of the Company, then the Company or such successor or purchasing Person, as the case may be, shall, as a condition precedent to such reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, execute and deliver to the Trustee, together with the documents required by Section 12.4 hereof, a supplemental indenture in form reasonably satisfactory to the Trustee providing that, at and after the effective time of such reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, the Holder of each Security then outstanding shall have the right to convert such Security into the kind and amount of shares of stock and other securities and property (including cash) receivable upon such reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or disposition by a holder of the number of shares of Common Stock deliverable upon conversion of such Security immediately prior to such reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, assuming that such Holder would not have exercised any rights of election that such Holder would have had as a holder of Common Stock to select a particular type of consideration. Such supplemental indenture shall provide for adjustments of the Conversion Price which shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Price provided for in this Article X. If, in the case of any such consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock includes shares of stock or other securities and property of a Person other than the successor or purchasing Person, as the case may be, in such consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors in good faith shall reasonably determine necessary by reason of the foregoing (which determination shall be described in a Board Resolution). The provision of this Section 10.12 shall similarly apply to successive consolidations, mergers, binding share exchanges, sales, transfers, leases, conveyances or dispositions.

          In the event a supplemental indenture shall have been executed pursuant to this Section 10.12, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or securities or property (including cash) receivable by Holders of the Securities upon the conversion of their Securities

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after any such reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or disposition and any adjustment to be made with respect thereto.

     10.13 Trustee’s Disclaimer.

          The Trustee has no duty to make any calculations under this Article X, to determine when an adjustment under this Article X should be made, how it should be made or what such adjustment should be, but may accept as conclusive evidence of the correctness of any such adjustment, and shall be protected in conclusively relying upon, the Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 10.10 hereof. The Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of Securities, and the Trustee shall not be responsible for the failure by the Company to comply with any provisions of this Article X.

          The Trustee shall not be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture executed pursuant to Section 10.12, but may accept as conclusive evidence of the correctness thereof, and shall be protected in relying upon, the Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 10.12 hereof.

ARTICLE XI.
SUBORDINATION

     All obligations under the Notes will be subordinate to the extent set forth in the Subordination and Intercreditor Agreement, dated the date hereof, among the Company, the Trustee, FMP Agency Services, LLC, as Agent to the Senior Creditors named therein and Credit Suisse International, as the Subordinated Creditor (the “Subordination Agreement”). A Holder by its acceptance of a Security agrees to be bound by this Article XI and the terms and provisions of the Subordination Agreement and authorizes and expressly directs the Trustee, on its behalf, to take such action as may be necessary or appropriate to effectuate the subordination between the Holders and the holders of Senior Indebtedness (as defined in the Subordination Agreement) of the Company (including, but not limited to, the execution of the Subordination Agreement) and appoints the Trustee as attorney-in-fact for any and all such purposes.

ARTICLE XII.
MISCELLANEOUS

     12.1 Trust Indenture Act Controls.

          If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision of the TIA shall control.

     12.2 Notices.

          Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person, mailed by first-class mail or by express delivery to

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the other party’s address stated in this Section 12.2. The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.

          Any notice or communication to a Holder shall be mailed to its address shown on the register kept by the Note Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

          If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

          If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Security Agent at the same time.

          All notices or communications shall be in writing.

     The Company’s address is: Terremark Worldwide, Inc.
2601 South Bayshore Drive
Miami, Florida 33133
Attn: Chief Financial Officer

     The Trustee’s address is: The Bank of New York Trust Company, N.A. 10161 Centurion Parkway
Jacksonville, Florida 32256
Attention: Corporate Trust Administration

     12.3 Communication by Holders with Other Holders.

          Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).

     12.4 Certificate and Opinion as to Conditions Precedent.

          Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:

          (i) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

          (ii) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

          Each signer of an Officers’ Certificate or an Opinion of Counsel may (if so stated) rely, effectively, upon an Opinion of Counsel as to legal matters and an Officers’ Certificate or certificates of public officials as to factual matters if such signer reasonably and in good faith believes in the accuracy of the document relied upon.

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     12.5 Statements Required in Certificate or Opinion.

          Each Officers’ Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture shall include:

          (i) a statement that the person making such certificate or opinion has read such covenant or condition;

          (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

          (iii) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

          (iv) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

     12.6 Rules by Trustee and Agents.

          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar, Paying Agent or Conversion Agent may make reasonable rules and set reasonable requirements for their respective functions.

     12.7 Legal Holidays.

          A “Legal Holiday” is a Saturday, a Sunday or a day on which banking institutions are not required to be open in the City of New York, in the State of New York or in the city in which the Trustee administers its corporate trust business. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on that payment for the intervening period.

          A “Business Day” is a day other than a Legal Holiday.

     12.8 Duplicate Originals.

          The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart by facsimile shall be effective as delivery of a manually executed counterpart thereof.

     12.9 Governing Law.

          The laws of the State of New York, without regard to principles of conflicts of law, shall govern this Indenture and Securities.

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     12.10 No Adverse Interpretation of Other Agreements.

          This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

     12.11 Successors.

          All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.

     12.12 Separability.

          In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and a Holder shall have no claim therefor against any party hereto.

     12.13 Table of Contents, Headings, Etc.

          The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.

     12.14 Calculations in Respect of The Securities.

          The Company and its agents shall make all calculations under this Indenture and the Securities in good faith. In the absence of manifest error, such calculations shall be final and binding on all Holders. The Company shall provide a copy of such calculations to the Trustee as required hereunder, and, absent such manifest error, the Trustee shall be entitled to conclusively rely on the accuracy of any such calculation without independent verification.

     12.15 Force Majeure.

          In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

     12.16 Waiver of Jury Trial.

     EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND

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ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

***THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS***

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          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first above written.

TERREMARK WORLDWIDE, INC.
By:	/s/ Jose A. Segrera
Name:	Jose A. Segrera
Title:	Executive Vice President and Chief Financial Officer
THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
By:	/s/ Geraldine Creswell
Name:	Geraldine Creswell
Title:	Assistant Treasurer

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EXHIBIT A

FORM OF SECURITY
TERREMARK WORLDWIDE, INC.
0.50% SENIOR SUBORDINATED CONVERTIBLE NOTE DUE 2009

THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT (THE “SUBORDINATION AGREEMENT”) DATED AS OF JANUARY 5, 2007 AMONG TERREMARK WORLDWIDE, INC. AS THE ISSUER, THE TRUSTEE, FMP AGENCY SERVICES, LLC, AS THE AGENT TO THE SENIOR CREDITORS NAMED THEREIN, AND CREDIT SUISSE, INTERNATIONAL, AS THE SUBORDINATED CREDITOR NAMED THEREIN, AND EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AND INTERCREDITOR AGREEMENT.

1. INTEREST.

          Terremark Worldwide, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Security at 0.50% per annum for the first 24 months that the Note is outstanding, and therafter at a rate of 1.50% per annum until maturity. The Company will pay interest upon the maturity of the Securities. All interest payable hereunder shall be payable in kind by adding such amount to the aggregate principal amount of the Securities. Interest on the Securities will accrue on the principal amount from, and including, January 5, 2007, to, but excluding, the Maturity Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months, and accrued interest shall compound and be added to outstanding principal on each July 1 and January 1 (of if such date is not a Business Day, the immediately succeeding Business Day, such dates, the “Interest Payment Date”), as well as on June 30, 2009.

2. MATURITY.

          The Securities will mature on June 30, 2009.

3. METHOD OF PAYMENT.

          Except as provided in the Indenture (as defined below), the Company will pay interest on the Securities to the persons who are Holders of record of Securities at the close of business on June 30, 2009. Holders must surrender Securities to a Paying Agent to collect the principal amount, Redemption Price, Repurchase Price of the Securities, plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Redemption or Repurchase Upon Change in Control, as the case may be. The Company will pay, in money of the United States that at the time of payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid (A) in the case this Security is in global form, by wire transfer of immediately available funds to the account specified by the Holder hereof and (B) in the case this Security is held in other than global form, by wire transfer of immediately available funds to the account specified by the Holder hereof or,

if no such account is specified, by mailing a check to such Holder’s address shown in the Note Register.

4. PAYING AGENT, REGISTRAR, CONVERSION AGENT.

          Initially, The Bank of New York Trust Company, N.A., a national banking association (the “Trustee”), will act as Paying Agent, Registrar and Conversion Agent. The Company may change any Paying Agent, Registrar or Conversion Agent without notice.

5. INDENTURE.

          The Company issued the Securities under an Indenture dated as of January 5, 2007 (the “Indenture”) between the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 as amended and in effect from time to time (the “TIA”). The Securities are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. The Securities are general unsecured senior subordinated obligations of the Company limited to $4,000,000 aggregate principal amount, except as otherwise provided in the Indenture (except for Securities issued in substitution for destroyed, mutilated, lost or stolen Securities). Terms used herein without definition and which are defined in the Indenture have the meanings assigned to them in the Indenture.

6. OPTIONAL REDEMPTION.

          The Company shall have the right, at the Company’s option, on any Interest Payment Date that is six months following the date of this Indenture, upon no less than fifteen (15) days prior written notice to the Trustee and the Initial Purchaser, to redeem (the “Redemption”) all of the Securities at a redemption price equal to (i) the amount set forth below (expressed as percentages of the principal amount outstanding on the date of redemption), plus (ii) the amount (if any) by which the fair market value of on such date of the Common Stock into which the Security is then convertible exceeds the principal amount of the Security on such date, plus (iii) accrued, but unpaid Interest (the “Redemption Payment” or “Redemption Price”), if redeemed during the following monthly periods following the closing date:

Monthly Period	Percentage
After Month Six and Before Month Twelve		113.00	%
On or After Month Twelve and Before Month Eighteen		112.40	%
On or After Month Eighteen and Before Month Twenty Four		111.30	%
On or After Month Twenty Four		108.80	%

7. NOTICE OF REDEMPTION.

          Notice of Redemption will be mailed at least twenty (20) days but not more than sixty (60) days before the Redemption Date to each Holder of Securities to be redeemed at its address appearing in the Note Register. Securities in denominations larger than $1,000 principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.

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8. REPURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL.

          Subject to the terms and conditions of the Indenture, in the event of a Change in Control, each Holder of the Securities shall have the right, at the Holder’s option, to require the Company to repurchase such Holder’s Securities including any portion thereof which is $1,000 in principal amount or any integral multiple thereof on a date selected by the Company (the “Repurchase Date”), which date is no later than forty five (45) days after the date of the Change in Control, at a price payable in cash equal to one hundred percent (100%) of the principal amount of such Security, plus accrued and unpaid interest to, and including, the Repurchase Date.

          Within twenty five (25) days after the occurrence of the Change in Control, the Company must mail, or cause to be mailed, notice of the occurrence of such Change in Control to each Holder. Such notice shall include, among other things, a description of the procedure which a Holder must follow to exercise the Repurchase Right. To exercise the Repurchase Right, a Holder of Securities must, in accordance with the provisions of the Indenture, (i) deliver, no later than the close of business on the Business Day immediately preceding the Repurchase Date, a Purchase Notice to the Company (if it is acting as its own Paying Agent) or to the Paying Agent; and (ii) deliver, at any time after the delivery of such Purchase Notice, the Securities with respect to which the Holder is exercising its Repurchase Right (together with all necessary endorsements).

          A “Change In Control” shall be deemed to have occurred at such time as:

          (i) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder, is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the total voting power of all classes of the Company’s Capital Stock entitled to vote generally in the election of directors calculated on a fully-diluted basis; or

          (ii) the Company consolidates with, or merges with or into, another Person or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction where the Persons that “beneficially owned,” directly or indirectly, the shares of the Company’s Voting Stock immediately prior to such transaction, “beneficially own,” directly or indirectly, immediately after such transaction, shares of the continuing, surviving or acquiring corporation’s Voting Stock representing at least a majority of the total voting power of all outstanding classes of the Voting Stock of the continuing, surviving or acquiring corporation; or

          (iii) the sale, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act;

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provided, however, that a Change in Control will not be deemed to have occurred if at least eighty percent (80%) of the consideration (other than cash payments for fractional shares or pursuant to statutory appraisal rights) in the merger or consolidation otherwise constituting the Change in Control consists of common stock, depositary receipts or other certificates representing common equity interests and any associated rights traded on a U.S. national securities exchange or quoted on The Nasdaq National Market (or which will be so traded or quoted when issued or exchanged in connection with such Change in Control), and, as a result of such transaction or transactions, the Securities become convertible solely into such common stock, depositary receipts or other certificates representing common equity interests and associated rights.

9. CONVERSION.

          The Securities shall be convertible into shares of Common Stock at any time on or after the earlier of (x) the Registration Date or (y) 270 days following the Issue Date but prior to the close of business on the Maturity Date, in accordance with the terms of the Indenture and as set forth below.

          The initial Conversion Price is $8.14 per share, subject to adjustment in the event of certain circumstances as specified in the Indenture. The Company will deliver a check in lieu of any fractional share. On conversion, no payment or adjustment for any unpaid and accrued interest on, or additional interest with respect to, the Securities will be made, except as specified in the Indenture.

          To convert a Security, a Holder must (1) complete and sign the Conversion Notice attached to this Note, with appropriate signature guarantee, on the back of the Security, (2) surrender the Security to a Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent and (4) pay any tax or duty if required pursuant to the Indenture. A Holder may convert a portion of a Security if the portion is $1,000 principal amount or an integral multiple of $1,000 principal amount.

          Any shares of Common Stock issued upon conversion of a Security shall bear the Private Placement Legend until such shares are sold pursuant to an effective registration statement or after the second anniversary of the later of the Issue Date and the last date on which the Company or any Affiliate was the owner of such shares or the Security (or any predecessor security) from which such shares were converted (or such shorter period of time as permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such longer period of time as may be required under the Securities Act or applicable state securities laws, as set forth in an Opinion of Counsel, unless otherwise agreed by the Company and the Holder thereof).

10. INTENTIONALLY OMITTED.

11. SUBORDINATION.

          All obligations under the Notes will be subordinate to the extent set forth in the Subordination Agreement. A Holder by its acceptance of a Security agrees to be bound by the terms and provisions of Article XI of the Indenture and the terms and provisions of the

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Subordination Agreement and authorizes and expressly directs the Trustee, on its behalf, to take such action as may be necessary or appropriate to effectuate the subordination between the Holders and the holders of Senior Indebtedness (as defined in the Subordination Agreement) of the Company (including, but not limited to, the execution of the Subordination Agreement) and appoints the Trustee as attorney-in-fact for any and all such purposes.

12. DENOMINATIONS, TRANSFER, EXCHANGE.

          The Securities are in registered form, without coupons, in denominations of $1,000 principal amount and integral multiples of $1,000 principal amount. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or similar governmental charge that may be imposed in connection with certain transfers or exchanges. The Company, the Trustee and the Registrar shall not be required to register the transfer of or exchange any Security (i) during a period beginning at the opening of business fifteen (15) days before the mailing of a notice of redemption of the Securities selected for Redemption under Section 3.4 of the Indenture and ending at the close of business on the day of such mailing or (ii) that has been selected for Redemption or for which a Purchase Notice has been delivered, and not withdrawn, in accordance with the Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or repurchased in part.

13. PERSONS DEEMED OWNERS.

          The registered Holder of a Security may be treated as the owner of such Security for all purposes.

14. MERGER OR CONSOLIDATION.

          The Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially all of the property or assets of the Company to, another person, whether in a single transaction or series of related transactions, unless (i) such other person is a corporation organized under the laws of the United States, any State thereof or the District of Columbia; (ii) such person assumes by supplemental indenture all the obligations of the Company under the Securities and the Indenture; and (iii) immediately after giving effect to the transaction, no Default or Event of Default shall exist.

15. AMENDMENTS, SUPPLEMENTS AND WAIVERS.

          Subject to certain exceptions and to the provisions of the Indenture, the Indenture and the Securities may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities, and certain existing Defaults or Events of Default may be waived with the consent of the Holders of a majority in aggregate principal amount of the Securities then outstanding. In accordance with the terms of the Indenture, the Company, with the consent of the Trustee, may amend or supplement the Indenture or the Securities without notice to or the consent of any Securityholder: (i) to evidence

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the assumption of the Company’s obligations by a successor; (ii) to evidence the acceptance of appointment by a successor trustee; (iii) to make any changes or modifications to the Indenture necessary to cure and ambiguity or correct any error in the Indenture, so long as such action will not adversely affect the interests of the Holders; (iv) to qualify or maintain the qualification of the Indenture under the TIA; (v) to secure the obligations of the Company in respect of the Securities; (vi) to establish the forms or terms of the Securities; (vii) to add to the covenants of the Company described in the Indenture for the benefit of Securityholders; or (viii) to make other changes to the Indenture or forms or terms of the Securities, provided no such change individually or in the aggregate with all other such changes has or will have a material adverse effect on the interests of the Holders. In accordance with the terms of the Indenture, certain amendments, supplements and waivers cannot be made without the consent of each Holder of each outstanding Security affected.

16. DEFAULTS AND REMEDIES.

          Subject to the provisions of the Indenture, an “Event of Default” occurs if: (i) the Company fails to pay the principal of any Security when the same becomes due and payable, whether at maturity, upon Redemption, on a Repurchase Date with respect to a Repurchase Upon Change in Control or otherwise; (ii) the Company fails to pay Interest on any Security when due, if such failure continues for thirty (30) days after the date when due; (iii) the Company fails to timely provide a Change in Control Notice, as required by the provisions of this Indenture; (iv) the Company defaults in its obligation to convert the Securities into shares of Common Stock, cash or a combination of cash and Common Stock upon exercise of a Holder’s conversion right and such default continues for ten (10) days; (v) the Company defaults in its obligation to repurchase any Security on a Repurchase Date with respect to a Repurchase Upon Change in Control or otherwise; (vi) the Company defaults in its obligation to redeem any Security after exercise of its option to redeem; (vii) the Company fails to perform or observe any of the covenants in Article IV of the Indenture for sixty (60) days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least fifty percent (50%) in the aggregate principal amount of the Securities then outstanding; (viii) there occurs an event of default with respect to the Company’s or any of its Subsidiaries’ Indebtedness having a principal amount then outstanding, individually or in the aggregate, of at least fifteen million ($15,000,000), whether such Indebtedness now exists or is hereafter incurred, which default or defaults: (a) shall have resulted in such Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable; or (b) shall constitute the failure to pay such Indebtedness at the final stated maturity thereof (after expiration of any applicable grace period); (ix) any final judgment or judgments for the payment of money in excess of fifteen million ($15,000,000) shall be rendered against the Company and shall not be discharged for any period of sixty (60) consecutive days during which time a stay of enforcement shall not be in effect or during which time an appeal has not been filed; or (x) certain events of bankruptcy, insolvency or reorganization involving the Company.

          If an Event of Default (excluding an Event of Default specified in Section 6.1(x) of the Indenture (but including an Event of Default specified in Section 6.1(ix) of the Indenture)) occurs and is continuing, the Trustee by notice to the Company or the Holders of at least fifty percent (50%) in aggregate principal amount of the Securities then outstanding by notice to the Company and the Trustee, may declare the Securities to be immediately due and payable in full.

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Upon such declaration, the principal of, premium, if any, and any accrued and unpaid interest on, all Securities shall be due and payable immediately. If an Event of Default specified in Section 6.1(x) of the Indenture occurs, the principal of, and accrued and unpaid interest on, all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the Securities then outstanding by written notice to the Trustee may rescind or annul an acceleration and its consequences if (A) the rescission would not conflict with any order or decree, (B) all existing Events of Default, except the nonpayment of principal or interest that has become due solely because of the acceleration, have been cured or waived and (C) all amounts due to the Trustee under Section 7.7 if the Indenture have been paid.

          Holders may not enforce the Indenture or the Securities except as provided in the Indenture. The Holders of a majority in aggregate principal amount of the Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability unless the Trustee is offered indemnity reasonably satisfactory to it; provided, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

          If a Default or Event of Default occurs and is continuing, the Trustee shall mail to Holders of Securities a notice of the Default or Event of Default within ninety (90) days after such Event of Default becomes known to the Trustee. Except in the case of a Default in payment on any Security (including the failure to make a mandatory repurchase pursuant hereto), the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities.

17. REGISTRATION RIGHTS.

          The Holders are entitled to registration rights as set forth in the Registration Rights Agreement. The Holders shall be entitled to receive additional interest in certain circumstances, all as set forth in the Registration Rights Agreement.

18. TRUSTEE DEALINGS WITH THE COMPANY.

          The Trustee under the Indenture, or any banking institution serving as successor Trustee thereunder, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for, the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee.

19. NO RECOURSE AGAINST OTHERS.

          No past, present or future director, officer, employee or shareholder, as such, of the Company shall have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder, by accepting a Security, waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.

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20. AUTHENTICATION.

          This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent in accordance with the Indenture.

21. ABBREVIATIONS.

          Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).

The company will furnish to any holder upon written request and without charge a copy of the indenture. Requests may be made to:

Terremark Worldwide, Inc.

2601 South Bayshore Drive

Miami, Florida 33133

Attn: Chief Financial Officer

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[FORM OF ASSIGNMENT]

I or we assign to

PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER

(please print or type name and address)

the within Security and all rights thereunder, and hereby irrevocably constitutes and appoints

                                                                                                       Attorney to transfer the Security on the books of the Company with full power of substitution in the premises.

Dated:

NOTICE: The signature on this assignment must correspond with the name as it appears upon the face of the within Security in every particular without alteration or enlargement or any change whatsoever and be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.

Signature Guarantee:

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          In connection with any transfer of this Security occurring prior to the date which is the earlier of (i) the date of the declaration by the SEC of the effectiveness of a registration statement under the Securities Act of 1933, as amended, covering resales of this Security (which effectiveness shall not have been suspended or terminated at the date of the transfer) and (ii) the Resale Restriction Termination Date, the undersigned confirms that it is making, and it has not utilized any general solicitation or general advertising in connection with, the transfer:

[Check One]

(1) ___ to the Company or any Subsidiary thereof, or

(2) ___ pursuant to, and in compliance with, the exemption from registration provided by Rule 144A under the Securities Act of 1933, as amended, or

(3) ___ pursuant to, and in compliance with, the exemption from registration provided by Rule 144 under the Securities Act of 1933, as amended, or

(4) ___pursuant to, and in compliance with, an exemption from registration under the Securities Act of 1933, as amended, other than Rule 144A or Rule 144, or

(5) ___ pursuant to an effective registration statement under the Securities Act of 1933, as amended,

and, unless the box below is checked, the undersigned confirms that this Security is not being transferred to an “affiliate” of the Company (an “Affiliate”) as defined in Rule 144 under the Securities Act of 1933, as amended:

[ ] The transferee is an Affiliate of the Company. (If the Security is transferred to an Affiliate, the restrictive legend must remain on the Security for at least two (2) years following the date of the transfer.)

          Unless one of the items (1) through (5) is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if item (3) or (4) is checked, the Company or the Trustee may require, prior to registering any such transfer of the Securities, in their sole discretion, such written legal opinions, certifications and other information as the Trustee or the Company have reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended. If item (2) is checked, the purchaser must complete the certification below.

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          If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to register this Security in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in the Indenture shall have been satisfied.

Dated:

Signed:

(Sign exactly as name appears on the other side of this Security)

Signature Guarantee:

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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED

          The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A and acknowledges that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

Dated:                                         

NOTICE: To be executed by an executive officer

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CONVERSION NOTICE

To convert this Security into Common Stock of the Company, check the box: [ ]

To convert only part of this Security, state the principal amount to be converted (must be in multiples of $1,000):

$                                        

If you want the stock certificate made out in another person’s name, fill in the form below:

(Insert other person’s soc. sec. or tax I.D. no.)

(Print or type other person’s name, address and zip code)

Dated:

Signature(s):

(Sign exactly as your name(s) appear(s) on the other side of this Security)

Signature(s) guaranteed by:

(All signatures must be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.)

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PURCHASE NOTICE

Certificate No. of Security:                                         

If you want to elect to have this Security purchased by the Company pursuant to Section 3.8 of the Indenture, check the box: [ ]

If you want to elect to have only part of this Security purchased by the Company pursuant to Section 3.8 of the Indenture, state the principal amount to be so purchased by the Company:

$

(in an integral multiple of $1,000)

Date:

Signature(s):

(Sign exactly as your name(s) appear(s) on the other side of this Security)

Signature(s) guaranteed by:

(All signatures must be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.)

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SCHEDULE A

SCHEDULE OF EXCHANGES OF INTERESTS
IN THE GLOBAL SECURITY (a)

          The following exchanges of a part of this Global Security for an interest in another Global Security or for Securities in certificated form, have been made:

(a) This is included in Global Securities only.

EXHIBIT B-1

FORM OF PRIVATE PLACEMENT LEGEND

          THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (2) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN “IAI”); (3) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (D) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATION AND AGREEMENTS RELATING TO THE TRANSFER OF THE NOTES (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.

B-1-1

EXHIBIT B-2

FORM OF LEGEND FOR GLOBAL SECURITY

          Any Global Security authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a Restricted Security) in substantially the following form:

          THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

          UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

          TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.

B-2-1

EXHIBIT B-3

FORM OF LEGEND REGARDING
REGISTRATION RIGHTS AGREEMENT

THIS SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THAT CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED JANUARY 5, 2007, AMONG TERREMARK WORLDWIDE, INC., CREDIT SUISSE INTERNATIONAL AND THE OTHER PARTIES NAMED THEREIN.

B-3-1

EXHIBIT C

FORM OF NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT

Terremark Worldwide, Inc.
2601 South Bayshore Drive
Miami, Florida 33133
Attn: Chief Financial Officer

The Bank of New York Trust Company, N.A.
10161 Centurion Parkway
Jacksonville, Florida 32256
Attention: Corporate Trust Administration

     Re: Terremark Worldwide, Inc. (the “Company”) 0.50% Senior Subordinated Convertible Notes due 2009 (the “Securities”)

Ladies and Gentlemen:

          Please be advised that                      has transferred $                      aggregate principal amount of the Securities and                     shares of the Common Stock, $0.001 par value per share, of the Company issued on conversion of the Securities (“Stock”) pursuant to an effective Registration Statement on Form ___(File No. 333-___).

          We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933 as amended, have been satisfied with respect to the transfer described above and that the above-named beneficial owner of the Securities or Stock is named as a “Selling Security Holder” in the Prospectus dated ___, or in amendments or supplements thereto, and that the aggregate principal amount of the Securities and the number of shares of Stock transferred are [a portion of] the Securities and Stock listed in such Prospectus, as amended or supplemented, opposite such owner’s name.

Very truly yours,

(Name)

C-1

EXHIBIT D

FORM OF CERTIFICATE
TERREMARK WORLDWIDE, INC.
INCUMBENCY CERTIFICATE

          The undersigned, ___, being the ___of Terremark Worldwide, Inc. (the “Company”) does hereby certify that the individuals listed below are qualified and acting officers of the Company as set forth in the right column opposite their respective names and the signatures appearing in the extreme right column opposite the name of each such officer is a true specimen of the genuine signature of such officer and such individuals have the authority to execute documents to be delivered to, or upon the request of, The Bank of New York Trust Company, N.A., as Trustee under the Indenture dated as of January 5, 2007, by and between the Company and The Bank of New York Trust Company, N.A..

Name Title Signature

     IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the ___day of ___, 20___.

Name:

Title:

     The above is the true signature of the above-named                      of the Company.

Name:

Title:

D-1

EX-10.43

Exhibit 10.43

AMENDMENT, CONSENT AND WAIVER

     This AMENDMENT, CONSENT AND WAIVER (the “Amendment”) dated as of January 5, 2007, is entered into by TERREMARK WORLDWIDE, INC., a Delaware corporation (“the Company”), the Guarantors, FMP Agency Services, LLC (the “Agent”) and the Noteholders named herein.

WITNESSETH:

     WHEREAS, (i) the Company, the Guarantors, the Agent and the Noteholders listed on the signature pages thereto are parties to that certain Purchase Agreement dated as of December 31, 2004 (including all annexes, exhibits and schedules thereto, and as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”) and (ii) the Company, the Guarantors and the Agent are parties to that certain Security Agreement dated as of December 31, 2004 (including all annexes, exhibits and schedules thereto, and as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”). Capitalized terms used and not defined in this Amendment shall have the meanings given to them in the Purchase Agreement;

     WHEREAS, the Noteholders listed on the signature pages to this Amendment are the registered holders of all the outstanding Notes;

     WHEREAS, the Company has requested that (i) the Noteholders consent to the issuance of up to $10,000,000 aggregate principal amount of the Company’s Senior Subordinated Secured Notes due 2009, as such amount may be increased from time to time solely as a result of the capitalization of payment in kind interest paid pursuant to the terms thereof as in effect on the date hereof (the “Series A Notes”) pursuant to a Purchase Agreement, dated as of the date hereof, by and among the Issuers, the agents party thereto and the purchasers listed on the signature pages thereto (the “Subordinated Notes Purchase Agreement”), (ii) the Noteholders consent to (x) amend Section 8.04(a) of the Purchase Agreement to allow for the issuance of up to $4,000,000 aggregate principal amount of the Company’s Convertible Subordinated Notes due 2009, as such amount may be increased from time to time solely as a result of the capitalization of payment in kind interest paid pursuant to the terms thereof as in effect on the date hereof (the “Series B Notes”) pursuant to the Subordinated Notes Purchase Agreement and the Indenture, dated as of the date hereof, by and between the Company and Bank of New York Trust Company, N.A. relating to the Series B Notes (the “Series B Notes Indenture”) and (y) the Company entering into the lease transactions (the “Lease Transactions”) described in the Commitment Letter from Credit Suisse Securities (USA) LLC and Credit Suisse, Cayman Islands Branch, dated as of January 5, 2007, relating to the lease transaction for each Property (as defined in therein), together with the term sheet attached thereto (the “Credit Suisse Commitment Letter”) as a Capital Lease Obligation under Section 8.04(a)(viii) of the Purchase Agreement, and (iii) the Noteholders and Agent consent to amend the definition of “Special Property” in the Security Agreement; and

     WHEREAS, the Company, the Guarantors and the Noteholders desire to amend the Purchase Agreement and the Company, the Guarantors and the Agent desire to amend the Security Agreement, in each case as hereinafter set forth.

     NOW THEREFORE, in consideration of the mutual conditions and agreements set forth in the Purchase Agreement and the Security Agreement and this Amendment, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree to the following:

          1. Amendments to Purchase Agreement. Subject to the satisfaction of the conditions set forth in Section 4 of this Amendment, the Noteholders hereby agree to amend the Purchase Agreement as follows:

          (a) All references to “13.5%” as used in the definitions of “Applicable Rate” and “Standard Rate” in the Purchase Agreement and the Basic Documents, including without limitation paragraph 2 of the Notes, shall be deemed to be references to “14.5%”.

          (b) The following defined terms shall be added to Section 1.01 of the Purchase Agreement in alphabetical order:

          “Amendment No. 1 Effective Date” means January 5, 2007.

          “Series A Notes” means $10,000,000 aggregate principal of the Company’s senior subordinated secured notes due 2009, as such amount may be increased from time to time solely as a result of the capitalization of payment in kind interest paid pursuant to the terms thereof as in effect on the Amendment No. 1 Effective Date.

          “Series B Notes” means $4,000,000 aggregate principal of the Company’s senior subordinated convertible notes due 2009, as such amount may be increased from time to time solely as a result of the capitalization of payment in kind interest paid pursuant to the terms thereof as in effect on the Amendment No. 1 Effective Date.

          “Series B Notes Indenture” means the Indenture for the Series B Notes dated as of the Amendment No. 1 Effective Date as in effect on such date.”

          “Series A Subordination Agreement” means the Subordination and Intercreditor Agreement dated as of the Amendment No. 1 Effective Date by and among the Issuers, the Noteholders and Credit Suisse, Cayman Islands Branch.

          “Series B Subordination Agreement” means the Subordination and Intercreditor Agreement dated as of the Amendment No. 1 Effective Date by and among the Issuers, the Noteholders, Credit Suisse, International and The Bank of New York Trust Company, N.A.

          “Subordinated Note Purchase Agreement” means the Purchase Agreement, dated as of the Amendment No. 1 Effective Date by and among the Issuers, the agents party thereto and the purchasers listed on the signature pages thereto relating to the Series A Notes and the Series B Notes.”

          (c) The definition of “Permitted Collateral Liens” is hereby amended by deleting the word “and (l)” immediately preceding the phrase “of Section 8.07” in clause (iii) thereof and replacing it with “, (l) and (q)”.

          (d) Section 8.02(a)(iii) is hereby amended by deleting it in its entirety and replacing it with the following:

          “(iii) make any payment or prepayment of principal, premium, if any, interest, or fees on, or purchase, repurchase, redeem, defease, retire or otherwise acquire for value, any Subordinated Indebtedness (other than (i) any Subordinated Indebtedness owed to and held by the Company or a Guarantor, (ii) any Permitted Subordinated Debt Payments (as defined in the Series A Subordination Agreement) under the Series A Subordination Agreement and (iii) any

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Permitted Subordinated Debt Payments (as defined in the Series B Subordination Agreement) under the Series B Subordination Agreement;”

          (e) Section 8.03 is hereby amended by deleting clause (c)(viii) thereof and the word “and” immediately preceding such clause and replacing it with the following:

          “, (viii) the Series B Notes Indenture, (ix) the Subordinated Note Purchase Agreement, and (x) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (i) through (ix), or in this clause (x),”

          (f) Section 8.04(a) of the Purchase Agreement is hereby amended by deleting “and” at the end of clause (xi) and by deleting “.” at the end of clause (xii) and replacing it with the following:

“; and

(xiii) Indebtedness under the Series B Notes Indenture relating to the Series B Notes to the extent outstanding on the Amendment No. 1 Effective Date (plus all interest capitalized thereon in accordance with the terms of the Series B Notes Indenture as in effect on the Amendment No.1 Effective Date).”

          (g) The second paragraph of Section 2 of the Notes is hereby amended by adding the following sentence to the end of such paragraph:

          “Commencing on July 1, 2007, the Applicable Rate shall increase by 0.25% per annum and shall increase by an additional 0.25% per annum with respect to each subsequent fiscal quarter to up a maximum increase of 1.00%, so that the Applicable Rate as of July 1, 2007 shall equal 14.75% per annum, as of October 1, 2007 shall equal 15.0% per annum, as of January 1, 2008 shall equal 15.25% per annum and as of April 1, 2008 and for each quarter thereafter shall equal 15.5% per annum .”

          (h) Section 3 of the Notes shall be amended by deleting the chart set forth therein in its entirety and replacing it with the following:

“Period Commencing:	Redemption Price
December 31, 2005		115.0	%
December 31, 2006		105.0	%
December 31, 2007		102.25	%
June 30, 2008 and thereafter		100.0%”

          2. Consent to Purchase Agreement. Subject to the conditions set forth in Section 4 of this Amendment, the Noteholders hereby consent to the issuance of the Series A Notes as an incurrence of Indebtedness pursuant to Section 8.04(a)(ii) of the Purchase Agreement. Subject to the conditions set forth in Section 4 to this Amendment, the Noteholders hereby consent to the execution by the Company of the Credit Suisse Commitment Letter and the consummation by the Company of the Lease Transactions provided that (x) the Lease Transactions shall be consummated in a manner which is consistent in all material respects with the terms of the Credit Suisse Commitment Letter, (y) the Company shall provide a leasehold Mortgage with respect to each property pursuant to Section 7.13(c) of the Purchase Agreement and (z) all material terms set forth in the agreements, certificates,

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instruments and other documents entered into or otherwise delivered in connection with the Lease Transactions (the “Lease Transaction Documents”) (except to the extent provided in the following sentence) which are not set forth in the Credit Suisse Commitment Letter shall be reasonably satisfactory to the Required Holders to the extent such terms are not otherwise permitted by the Purchase Agreement or any other Basic Document. The Noteholders and the Company agree that the Lease Transaction shall be treated as a Capitalized Lease Obligation incurred under Section 8.04(a)(viii) notwithstanding that the Lease Transaction may not satisfy the definition of “Capitalized Lease Transaction” under the Purchase Agreement and the amount of the Lease Transactions for purposes of such Section 8.04(a)(viii) shall be the greater of (x) $13,250,000 and (y) the aggregate amount reflected as an obligation of the Company and its Subsidiaries with respect thereto on the Company’s balance sheet prepared in accordance with GAAP. The Company agrees to provide each Noteholder and Cahill Gordon & Reindel LLP, counsel to the Noteholders, with copies of the final Lease Transaction Documents no later than three (3) Business Days prior to execution thereof and to reimburse the Noteholders and their counsel to all out-of-pocket expenses incurred in connection with the review of such documents.

          3. Amendment to Security Agreement. Subject to the satisfaction of the conditions set forth in Section 4 of this Amendment, the Agent hereby agrees to amend the definition of “Special Property” in Section 1.1 of the Security Agreement by deleting clause (c) thereof in its entirety and replacing it with the following:

          “(c) all right, title and interest of any Pledgor to any Equipment or other personal property and any fixtures now held on the date hereof or hereafter acquired that is subject to a Lien securing a Purchase Money Obligation or Capital Lease Obligation permitted to be incurred pursuant to the provisions of the Purchase Agreement if the contract or other agreement in which such Lien is granted (or the documentation providing for such Purchase Money Obligation or Capital Lease Obligation) validly prohibits the creation of any other Lien on such right, title and interest;”

          4. Conditions to Effectiveness. The effectiveness of this Amendment is subject to the following conditions precedent (unless specifically waived in writing by the Noteholders), each to be in form and substance satisfactory to the Noteholders; the execution of this Amendment by the Noteholders shall constitute their acknowledgement that such conditions have been satisfied or waived and upon the satisfaction and/or waiver of such conditions, this Amendment shall be effective:

          (a) Upon the Noteholders having received a counterpart of this Amendment from the Company and each of the Guarantors signed on behalf of such party and such other documents and instruments as the Noteholders may require; provided that counterparts of this Amendment executed by each Guarantor that is a Foreign Subsidiary may be received within five (5) days of the date hereof;

          (b) Upon the Noteholders having received evidence of the consummation of the transactions contemplated by the Subordinated Notes Purchase Agreement, including, without limitation , receipt of (i) true, correct and complete copies of (A) the Subordinated Notes Purchase Agreement, (B) the Series B Notes Indenture and (C) the Credit Suisse Commitment Letter, which copies are attached hereto as Exhibit A - C, (ii) a counterpart of the Subordination Agreement relating the Series A Notes from each other party thereto signed on behalf of such party and (iii) a counterpart of the Subordination Agreement relating the Series B Notes from each other party thereto signed on behalf of such party;

          (c) Upon no Default or Event of Default having occurred and continuing before or after giving effect to this Amendment;

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          (d) Upon the Company having reimbursed the Noteholders for the legal fees and disbursements of Cahill Gordon & Reindel llp, special counsel to the Noteholders; and

          (e) The representations and warranties in Section 5 of this Amendment shall be true and correct.

          5. Representations and Warranties. To induce the Noteholders to enter into this Amendment, the Company represents and warrants to each Noteholder:

          (a) The execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate action on the part of the Company and that this Amendment has been duly executed and delivered by the Company;

          (b) After giving effect to this Amendment, the representations and warranties of the Company and the Guarantors contained in the Subordinated Notes Purchase Agreement and each other Basic Document (as defined in the Subordinated Notes Purchase Agreement) are true and correct on and as of the date hereof, except that any such representation or warranty which is expressly made only as of a specified date need be true only as of such date and such representations and warranties are hereby incorporated by reference to this Amendment;

          (c) On the date hereof no Event of Default or Event of Default has occurred or is continuing under the Purchase Agreement and neither the Company nor any of its Subsidiaries is currently in default under any of the other Basic Document; and

          (d) The recitals set forth above are true and correct and are hereby incorporated into this Amendment.

          6. Fees. The Company agrees that if it shall redeem the Notes prior to the first anniversary of the date hereof, the Company shall pay to the Noteholders on the Redemption Date relating thereto a fee (which shall not be less than $0) in an amount equal to (x) $300,000 minus (y) the interest in excess of 13.5% that shall have accrued since the date hereof through the Redemption Date, which fee shall be payable to the Noteholders on a pro rata basis in proportion to principal amount of Notes held by such Noteholder on such Redemption Date.

          7. Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.

          8. Ratification. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions of the Purchase Agreement (and any amendments, waivers and/or consents to the Purchase Agreement executed prior to this Amendment) and shall not be deemed to be a consent to the modification or waiver of any other term or condition of the Purchase Agreement. Except as expressly modified and superseded by this Amendment, the terms and provisions of the Purchase Agreement are ratified and confirmed and shall continue in full force and effect.

          9. Acknowledgment. The Noteholders, the Agent, the Company and the Guarantors hereby acknowledge that none of the matters set forth in this Amendment shall discharge, limit or otherwise impair the Obligations of the Company or the Guarantors, or any security interest or other lien granted by the Company or the Guarantors under the Purchase Agreement and the other Basic

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Documents to secure the Obligations and that all obligations of the Company and the Guarantors under the Purchase Agreement and the Basic Documents are enforceable against the Company and the Guarantors in accordance with their terms. All other terms and conditions of the Purchase Agreement (as amended) shall remain in full force and effect.

          10. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall be one and the same instrument.

          11. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers on the date first written above.

TERREMARK WORLDWIDE INC., a Delaware corporation
By:	/s/ Jose A. Segrera
	Name: Jose A. Segrera
	Title:   Chief Financial Officer
NAP OF THE AMERICAS, INC. NAP OF THE AMERICAS/WEST, INC. PARK WEST TELECOMMUNICATIONS INVESTORS, INC. SPECTRUM TELECOMMUNICATIONS CORP. TECOTA SERVICES CORP. TERREMARK FINANCIAL SERVICES, INC. TERREMARK FORTUNE HOUSE #1, INC. TERREMARK LATIN AMERICA, INC. TERREMARK MANAGEMENT SERVICES, INC. TERREMARK REALTY, INC. TERREMARK TECHNOLOGY CONTRACTORS, INC. TERRREMARK TRADEMARK HOLDINGS, INC. TERRENAP DATA CENTERS, INC. TERRENAP SERVICES, INC. TERREMARK EUROPE, INC. NAP DE LAS AMERICAS-MADRID, S.A. TERREMARK LATIN AMERICA (BRAZIL), LTDA. TERREMARK DO BRASIL LTDA. DEDIGATE N.V.
By:	/s/ Jose A. Segrera
	Name: Jose A. Segrera
	Title:   Chief Financial Officer

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OPTICAL COMMUNICATIONS, INC.
By:	/s/ Manuel D. Medina
	Name:	Manuel D. Medina
	Title:

TERREMARK FEDERAL GROUP, INC.
By:	/s/ Nelson Fonseca
	Name:	Nelson Fonseca
	Title:	Treasurer and Chief Financial Officer

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AGENT: FMP AGENCY SERVICES, LLC
By:	/s/ William J. Kennedy, Jr.
	Name:	William J. Kennedy, Jr.
	Title:	Manager

NOTEHOLDERS: FALCON MEZZANINE PARTNERS, LP
By:	Falcon Mezzanine Investments, LLC,
	its General Partner
By:	/s/ Rafael Fogel
	Name:	Rafael Fogel
	Title:	Vice President

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STICHTING PENSIOENFONDS VOOR DE GEZOND-HEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN Duly represented by AlpInvest Partners, N.V.
By:	/s/ M. Rademakers
	Name:	M. Rademakers
	Title:	Tax Counsel
By:	/s/ C.F. de Ru
	Name:	C.F. de Ru
	Title:	Senior Legal Counsel

STICHTING PENSIOENFONDS ABP Duly represented by AlpInvest Partners N.V.
By:	/s/ M. Rademakers
	Name:	M. Rademakers
	Title:	Tax Counsel
By:	/s/ C.F. de Ru
	Name:	C.F. de Ru
	Title:	Senior Legal Counsel

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Exhibit A

Credit Suisse Commitment Letter

[SEE ATTACHED]

Exhibit B

Subordinated Notes Purchase Agreement

[SEE ATTACHED]

2

Exhibit C

Series B Notes Indenture

[SEE ATTACHED]

3

EX-10.44

Exhibit 10.44

SUBORDINATION AND INTERCREDITOR AGREEMENT

          This SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Agreement”), dated as of January 5, 2007 is among TERREMARK WORLDWIDE, INC., a Delaware corporation (“the Company”); NAP OF THE AMERICAS, INC.; NAP OF THE AMERICAS/WEST, INC.; OPTICAL COMMUNICATIONS, INC.; PARK WEST TELECOMMUNICATIONS INVESTORS, INC.; SPECTRUM TELECOMMUNICATIONS CORP.; TECOTA SERVICES CORP.; TERREMARK FINANCIAL SERVICES, INC.; TERREMARK FORTUNE HOUSE #1, INC.; TERREMARK LATIN AMERICA, INC.; TERREMARK MANAGEMENT SERVICES, INC.; TERREMARK REALTY, INC.; TERREMARK TECHNOLOGY CONTRACTORS, INC.; TERRREMARK TRADEMARK HOLDINGS, INC.; TERRENAP DATA CENTERS, INC.; TERRENAP SERVICES, INC.; TERREMARK FEDERAL GROUP, INC.; and TERREMARK EUROPE, INC. (each, a “Guarantor” and, collectively, the “Guarantors”), FALCON MEZZANINE PARTNERS, LP (“Falcon”), STICHTING PENSIOENFONDS VOOR DE GEZOND-HEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN (“SPM”), STICHTING PENSIOENFONDS ABP (“ABP” and, together with Falcon and SPM, the “Senior Creditors”), FMP AGENCY SERVICES, LLC (the “Senior Agent”) and CREDIT SUISSE, CAYMAN ISLANDS BRANCH (the “Subordinated Agent” and the “Subordinated Creditor”).

R E C I T A L S

          A. The Company, Senior Agent and the Senior Creditors have entered into a Purchase Agreement dated December 31, 2004 (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time including, without limitation, as amended on the date hereof, the “Senior Purchase Agreement”), pursuant to which, among other things, Senior Creditors have purchased $30,000,000 aggregate principal amount of Senior Secured Notes due 2009 (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder and including any notes issued in exchange or substitution therefore or replacement thereof, each individually a “Senior Note” and collectively the “Senior Notes”).

          B. The Company, Subordinated Agent, Subordinated Creditor and Credit Suisse, International have entered into a Purchase Agreement of even date herewith (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder, the “Subordinated Purchase Agreement”) pursuant to which, among other things, the Subordinated Creditor has extended credit to the Company as evidenced by certain Senior Subordinated Secured Notes due 2009 issued by the Company in favor of the Subordinated Creditor in the original aggregate principal amount of $10,000,000 (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder and including any notes issued in exchange or substitution therefor or replacement thereof, each individually a “Subordinated Note” and collectively the “Subordinated Notes”).

          C. As an inducement to and as one of the conditions precedent to the agreement of the Senior Creditors to consent to the transactions contemplated by the Subordinated

Purchase Agreement, Senior Agent and Senior Creditors have required the execution and delivery of this Agreement by the Subordinated Creditor, Subordinated Agent and Obligors.

          NOW, THEREFORE, in order to induce Senior Agent and Senior Creditors to consent to the transactions contemplated by the Subordinated Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:

     1. Definitions. All capitalized terms used but not elsewhere defined in this Agreement (including the preamble and recitals hereto) shall have the respective meanings ascribed to such terms in the Senior Purchase Agreement as in effect on the date hereof. The following terms shall have the following meanings in this Agreement:

     Bankruptcy Code shall mean the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended and in effect from time to time and the regulations issued from time to time thereunder.

     Basic Documents shall have (and each capitalized term used therein shall have) the meaning ascribed to such term in the Senior Purchase Agreement, as in effect on the date hereof.

     Enforcement Action is defined in subsection 2.7(b).

     Excluded Collateral shall mean Receivables Proceeds (as such term is defined in the Subordination Agreement dated as of December 31, 2004 among the Company, Citigroup Global Markets Realty Corp. as senior creditor, and the holders of the Senior Notes as of such date, as Subordinated Creditor).

     Lien shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or otherwise) or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever and any contingent or other agreement to provide any of the foregoing.

     Obligor shall mean the Company and each other Person that guarantees or grants a Lien on any of its Property to secure the payment, observance or performance of all or any part of the Senior Indebtedness, including, without limitation, the Guarantors.

     Paid in Full or Payment in Full shall mean the payment in full in cash of all Senior Indebtedness and termination of all commitments to lend under the Basic Documents and Permitted Refinancing Debt Documents. Senior Indebtedness shall be considered to be outstanding whenever any commitment to make loans or otherwise extend credit under the Senior Purchase Agreement or Permitted Refinancing Debt Documents is outstanding.

     Permitted Refinancing shall mean any refinancing of the Senior Indebtedness under the Basic Documents; provided, that the financing documentation entered into by Obligors in connection with such Permitted Refinancing constitutes Permitted Refinancing Debt Documents and the aggregate principal amount of such refinancing does not

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exceed the maximum principal amount of Senior Indebtedness permitted under the definition thereof.

     Permitted Refinancing Debt Documents shall mean any financing documentation which replaces the Basic Documents and pursuant to which the Senior Indebtedness under the Basic Documents is refinanced, as such financing documentation may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder, but specifically excluding any such financing documentation to the extent that it contains, either initially or by amendment or other modification, any terms, conditions, covenants or defaults other than those which (a) then exist in the Basic Documents or (b) could be included in the Basic Documents by an amendment or other modification that would not be prohibited by the terms of this Agreement.

     Permitted Subordinated Indebtedness Payments shall mean:

     (a) interest payments on account of the Subordinated Indebtedness evidenced by the Subordinated Notes but only to the extent made on a paid-in-kind or accretion basis (and not made in cash);

     (b) the accrual (and not payment in cash) of default interest on Subordinated Indebtedness evidenced by the Subordinated Notes;

     (c) reimbursement under the Subordinated Purchase Agreement for the reasonable and documented out-of-pocket costs and expenses of the holders of the Subordinated Notes pursuant to the terms of the Subordinated Purchase Agreement either (1) incurred in connection with the negotiation, execution or delivery of the Subordinated Purchase Agreement and paid within 30 days of the date hereof or (2) incurred in connection with the enforcement of the Subordinated Purchase Agreement or otherwise in an aggregate not to exceed $100,000;

in each instance, to the extent then due and payable in accordance with the terms of the Subordinated Indebtedness Documents.

     Person shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

     Proceeding is defined in subsection 2.3.

     Property shall mean, with respect to any Person, all property and interests in property of such Person, whether real, personal or mixed, whether now owned or existing or hereafter acquired or arising and wheresoever located.

     Related Fund shall mean, with respect to any holder of Subordinated Indebtedness, (a) any fund, trust or similar entity that invests in commercial loans in the ordinary course of business and is advised, managed or serviced by (i) such holder, (ii) an affiliate of such holder, (iii) the same investment advisor that manages such holder or (iv) an affiliate of an investment advisor that manages such holder, or (b) any finance company,

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insurance company or other financial institution which temporarily warehouses loans for such holder or any Person described in clause (a) above.

     Reorganization Subordinated Securities shall mean any (a) equity securities of the Company or any of its subsidiaries and (b) notes or other debt securities issued in substitution of all or any portion of the Subordinated Indebtedness that are subordinated, including in right of payment, to the Senior Indebtedness (or any notes or other securities issued in substitution of all or any portion of the Senior Indebtedness) at least to the same extent and, in the case of clause (b), on substantially the same terms that the Subordinated Indebtedness is subordinated to the Senior Indebtedness pursuant to the terms of this Agreement, and which securities have maturities and other terms no less advantageous to Obligors and Senior Creditors than the terms contained in the Subordinated Indebtedness Documents.

     Required Holders shall have the meaning ascribed to such term in the Senior Purchase Agreement; provided, that, after the consummation of any Permitted Refinancing, the term “Required Holders” shall mean the holders of Senior Indebtedness having the right and/or ability under the Permitted Refinancing Debt Documents to effectuate the waiver, amendment, granting of consent or other matter in question.

     Senior Agent shall have the meaning ascribed to such term in the preamble of this Agreement; provided, that, after the consummation of any Permitted Refinancing, the term “Senior Agent” shall refer to any Person appointed by the holders of the Senior Indebtedness as agent for themselves for the purposes of this Agreement.

     Senior Covenant Default shall mean any “Default” or “Event of Default” under the Senior Purchase Agreement or Permitted Refinancing Debt Documents, other than a Senior Payment Default.

     Senior Creditor or Senior Creditors shall mean any “Noteholder” or the “Noteholders,” respectively, as such terms are defined in the Senior Purchase Agreement; provided, that, after the consummation of any Permitted Refinancing, such terms shall refer to any holder or all of the holders, respectively, of the Senior Indebtedness.

     Senior Creditor Collateral shall mean all of the assets and property of any Obligor, whether real, personal. mixed, with respect to which a Lien is granted or purported to be granted as security for any Senior Indebtedness.

     Senior Default Notice shall mean a written notice from Senior Agent or any Senior Creditor to Subordinated Agent and the Company pursuant to which the Subordinated Creditor is notified of the existence of a Senior Covenant Default.

     Senior Indebtedness shall mean all Indebtedness, liabilities and other obligations of any and every kind and nature now existing or hereafter arising, contingent or otherwise, of any Obligor or any other Person under, in connection with, or evidenced or secured by the Senior Purchase Agreement or any of the other Basic Documents, including, without limitation, all such Obligations to pay (i) principal, (ii) interest or premium (including interest accruing after the commencement of any Proceeding, whether or not con

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stituting an allowed claim in such Proceeding), (iii) fees, (iv) costs, expenses and other amounts related to any indemnity against loss, damage or liability, (v) any other monetary obligation, and all such Indebtedness, obligations and liabilities incurred with respect to Permitted Refinancings, together with any amendments, restatements, modifications, renewals or extensions of any thereof permitted hereunder; provided, that, in no event shall the principal amount of the Senior Indebtedness exceed the sum of (a) $30,000,000, reduced by the amount of any principal repayments and permanent commitment reductions under the Senior Purchase Agreement or any Permitted Refinancing Debt Documents, to the extent that such repayments and reductions may not be reborrowed (specifically excluding, however, any such repayments and commitment reductions occurring in connection with any Permitted Refinancing), plus (b) costs and expenses incurred following the occurrence of a Senior Payment Default or Senior Covenant Default, as the case may be, by or for the account of the holders of Senior Indebtedness (or any representatives thereof) to preserve or protect any Senior Creditor Collateral, plus (c) the amount of interest that is capitalized and added to the principal amount of the Senior Notes in accordance with the terms thereof.

     Senior Payment Default shall mean a Default or Event of Default described in Section 10.01(a) or (b) of the Senior Purchase Agreement or any corresponding provision in the Permitted Refinancing Debt Documents or any other Default or Event of Default resulting from the failure of any Obligor to pay, on a timely basis, any principal interest, premium, fees or other obligations under any Basic Document or Permitted Refinancing Debt Document, including, without limitation, in each case, any default in payment of Senior Indebtedness after acceleration thereof.

     Shared Collateral shall mean all of the assets and property of any Obligor, whether real, personal, mixed, constituting either Senior Creditor Collateral or Subordinated Creditor Collateral, but specifically excluding the Excluded Collateral.

     Subordinated Creditor shall mean the Subordinated Creditor that is a signatory to this Agreement and any other holder of the Subordinated Note(s) or any other Subordinated Indebtedness from time to time.

     Subordinated Creditor Collateral shall mean all of the assets and property of any Obligor, whether real, personal. mixed, with respect to which a Lien is granted or purported to be granted as security for any Subordinated Indebtedness.

     Subordinated Default shall mean a default in the payment of the Subordinated Indebtedness, or performance of any term, covenant or condition contained in the Subordinated Indebtedness Documents or the occurrence of any other event or condition constituting a default or event of default under the Subordinated Indebtedness Documents.

     Subordinated Default Notice shall mean a written notice to Senior Agent and the Company from Subordinated Agent or the Subordinated Creditor pursuant to which Senior Agent is notified of the existence of a Subordinated Default, which notice incorporates a reasonably detailed description of such Subordinated Default.

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     Subordinated Indebtedness shall mean all Indebtedness, liabilities and other obligations of any and every kind and nature now existing or hereafter arising, contingent or otherwise, of any Obligor or any other Person under, in connection with, or evidenced or secured by any of the Subordinated Indebtedness Documents, in each case including, without limitation, obligations to pay (i) principal, (ii) interest or premium (including interest accruing after the commencement of any Proceeding, whether or not constituting an allowed claim in such Proceeding, and any premium payable with respect to any prepayment of the Subordinated Indebtedness pursuant to the Subordinated Indebtedness Documents), (iii) fees, (iv) costs, expenses and other amounts related to any indemnity against loss, damage or liability, and (v) any other monetary obligation.

     Subordinated Indebtedness Documents shall mean the Subordinated Notes, Subordinated Purchase Agreement, any guaranty with respect to the Subordinated Indebtedness, and all other agreements, documents and instruments evidencing, securing or pertaining to any portion of the Subordinated Indebtedness, as amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder.

     UCC shall mean the Uniform Commercial Code, as in effect from time to time in any applicable jurisdiction.

     The definitions in Section 1 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including”, and words of similar import, shall not be limiting and shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all rights and interests in tangible and intangible assets and properties of any kind whatsoever, whether real, personal or mixed, including cash, securities, equity interests, accounts and contract rights. The words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement unless the context shall otherwise require. Any reference to a Person, shall be deemed to include a reference to such Person’s successors and assigns (including any debtor in possession and any other Person to which substantially all of the assets of such Person are transferred). All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require.

     2. Subordination of Subordinated Indebtedness to Senior Indebtedness.

     2.1 Subordination. The payment of any and all of the Subordinated Indebtedness hereby expressly is subordinated, to the extent and in the manner set forth herein, to the Payment in Full of the Senior Indebtedness. Each holder of Senior Indebtedness, whether now outstanding or hereafter arising, shall be deemed to have acquired Senior Indebtedness in reliance upon the provisions contained herein.

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     2.2 Restriction on Payments. Notwithstanding any provision of the Subordinated Indebtedness Documents to the contrary and in addition to any other limitations set forth herein or therein, no payment (whether made in cash, securities, other than any Reorganization Subordinated Securities, or other Property or by set-off) of principal, interest, premium or any other amount due with respect to the Subordinated Indebtedness shall be made or received, and neither Subordinated Agent nor the Subordinated Creditor shall exercise any right of set-off or recoupment with respect to any Subordinated Indebtedness, until all of the Senior Indebtedness is Paid in Full; provided, that, except as provided in the immediately succeeding sentence or in subsection 2.3, the Company may make and Subordinated Agent and the Subordinated Creditor may accept and retain Permitted Subordinated Indebtedness Payments. Notwithstanding the foregoing, no Obligor may make, and neither Subordinated Agent nor the Subordinated Creditor may accept or retain, any payment of principal, interest, premium or any other amount with respect to the Subordinated Indebtedness (other than any payment made solely in Reorganization Subordinated Securities) if, at the time of such payment or, with respect to clause (a) below, immediately after giving effect thereto:

     (a) a Senior Payment Default exists; or

     (b) subject to the penultimate sentence of this subsection 2.2, the Subordinated Agent or the Subordinated Creditor shall have received a Senior Default Notice from Senior Agent or any Senior Creditor stating that a Senior Covenant Default exists or would be created by the making of such payment.

          The Company may resume Permitted Subordinated Indebtedness Payments (and may make any Permitted Subordinated Indebtedness Payments missed due to the application of clauses (a) or (b) of this subsection 2.2), and Subordinated Agent and Subordinated Creditor may accept and retain such Permitted Subordinated Indebtedness Payments:

     (1) in the case of a Senior Payment Default referred to in clause (a) of this subsection 2.2, upon a cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) thereof in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents; or

     (2) in the case of a Senior Covenant Default referred to in clause (b) of this subsection 2.2, upon the earlier to occur of (x) the cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) of all such Senior Covenant Defaults in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents, and (y) the expiration of 180 days from the date on which the Senior Default Notice was received.

     Notwithstanding any provision of this subsection 2.2 to the contrary:

     (A) the Company shall not be prohibited from making, and Subordinated Agent and Subordinated Creditor shall not be prohibited from accepting and retaining, Permitted Subordinated Indebtedness Payments by virtue of the payment blockage effected by clause (b) of this subsection 2.2 for more than an aggregate of 180 days within any period of 360 consecutive days;

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     (B) no Senior Covenant Default existing on the date any notice is given pursuant to clause (b) of this subsection 2.2 shall, unless the same shall have ceased to exist for a period of at least 60 consecutive days, be used as a basis for any subsequent such notice (for purposes of this paragraph, breaches of the same financial covenant for consecutive periods shall constitute separate and distinct Senior Covenant Defaults); and

     (C) Senior Agent and the Senior Creditors shall not deliver more than three (3) Senior Default Notices, in the aggregate, prior to the termination of this Agreement.

          The provisions of this subsection 2.2 shall not apply to any payment with respect to which subsection 2.3 would be applicable.

     2.3 Proceedings. In the event of any insolvency, bankruptcy, receivership, custodianship, liquidation, reorganization, assignment for the benefit of creditors or other proceeding for the liquidation, dissolution or other winding up of any Obligor or any of its Subsidiaries or any of their respective Property (a “Proceeding”): (i) all Senior Indebtedness first shall be Paid in Full before any payment (whether made in cash, securities or other Property) of or with respect to the Subordinated Indebtedness shall be made in such Proceeding (other than a distribution of Reorganization Subordinated Securities); (ii) any payment which, but for the terms hereof, otherwise would be payable or deliverable in such Proceeding in respect of the Subordinated Indebtedness (other than a distribution of Reorganization Subordinated Securities), shall be paid or delivered directly to Senior Agent (to be held and/or applied by Senior Agent in accordance with the terms of the Senior Purchase Agreement or the Permitted Refinancing Debt Documents) until all Senior Indebtedness is Paid in Full, and Subordinated Agent and the Subordinated Creditor each irrevocably authorizes, empowers and directs all receivers, trustees, liquidators, custodians, conservators and others having authority in the premises to effect all such payments and deliveries, and Subordinated Agent and the Subordinated Creditor each also irrevocably authorizes, empowers and directs Senior Agent to demand, sue for, collect and receive every such payment or distribution; (iii) Subordinated Agent and the Subordinated Creditor each agrees to execute and deliver to Senior Agent or its representative all such further instruments confirming the authorization referred to in the foregoing clause (ii) as Senior Agent may reasonably request; and (iv) Subordinated Agent and the Subordinated Creditor each hereby irrevocably authorizes, empowers and appoints Senior Agent its agent and attorney-in-fact to execute, verify, deliver and file any proofs of claim (but not vote such claims) in respect of the Subordinated Indebtedness in connection with any such Proceeding upon the failure of such Person to do so 15 days before the expiration of the time to file any such proof of claim; provided, that Senior Agent shall have no obligation to execute, verify, deliver, and/or file any such proof of claim. The Senior Indebtedness shall continue to be treated as Senior Indebtedness and the provisions of this Agreement shall continue to govern the relative rights and priorities of Senior Agent, Senior Creditors, Subordinated Agent and Subordinated Creditor even if all or part of the Senior Indebtedness or the Liens securing the Senior Indebtedness are subordinated, set aside, avoided or disallowed in connection with any such proceeding. This Agreement shall be reinstated if at any time any payment of any of the Senior Indebtedness is rescinded or must otherwise be returned by any holder of the Senior Indebtedness or any representative of such holder and the Senior Indebtedness, or portion thereof, intended to have been satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.

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     2.4 Incorrect Payments. If any payment (whether made in cash, securities or other Property) not permitted to be accepted by Subordinated Agent or Subordinated Creditor under this Agreement is received by Subordinated Agent or the Subordinated Creditor on account of any Subordinated Indebtedness before all Senior Indebtedness is Paid in Full, such payment shall not be commingled with any asset of such Person, shall be held in trust by such Person for the benefit of Senior Agent and Senior Creditors and shall be paid over to Senior Agent, or its designated representative, for application (in accordance with the Senior Purchase Agreement or the Permitted Refinancing Debt Documents, as the case may be) to the payment of the Senior Indebtedness then remaining unpaid, until all of the Senior Indebtedness is Paid in Full.

     2.5 Sale, Transfer. The Subordinated Creditor shall not sell, assign, dispose of or otherwise transfer all or any portion of the Subordinated Indebtedness unless following such sale, assignment, disposition or other transfer, there shall either be (i) no more than two (2) holders of Subordinated Indebtedness (provided, that each holder of Subordinated Indebtedness and its respective affiliates and Related Funds shall be counted as a single holder for purposes of determining compliance with the foregoing limitation), or (ii) one Person acting as agent for all holders of the Subordinated Indebtedness pursuant to documentation reasonably satisfactory to Senior Agent such that any Senior Default Notices and other notices and communications to be delivered to the Subordinated Creditor hereunder and any consents required by the Subordinated Creditor shall be made to or obtained from such agent and shall be binding on the Subordinated Creditor as if directly delivered to or obtained from such Subordinated Creditor. In the event of a permitted sale, assignment, disposition or other transfer, prior to or substantially contemporaneously with the consummation of any such action, the transferee thereof shall execute and deliver to Senior Agent a joinder to this Agreement, or an agreement substantially identical to this Agreement, in either case providing for the continued subordination and forbearance of the Subordinated Indebtedness to the Senior Indebtedness as provided herein and for the continued effectiveness of all of the rights of Senior Agent and Senior Creditors arising under this Agreement. Notwithstanding the failure to execute or deliver any such agreement, the subordination effected hereby shall survive any sale, assignment, disposition or other transfer of all or any portion of the Subordinated Indebtedness, and the terms of this Agreement shall be binding upon the successors and assigns of the Subordinated Creditor, as provided in Section 10 below.

     2.6 Legends. Until the Senior Indebtedness is Paid in Full, the Subordinated Purchase Agreement, each of the Subordinated Notes and all other Subordinated Indebtedness Documents evidencing or otherwise containing the grant of any Lien on any Shared Collateral at all times shall contain in a conspicuous manner the following legend:

“This Note [or other Subordinated Indebtedness Document] and the indebtedness evidenced hereby are subordinate in the manner and to the extent set forth in that certain Subordination and Intercreditor Agreement (the “Subordination Agreement”) dated as of January 5, 2007 among Terremark Worldwide, Inc. as the Issuer, the Subsidiary Guarantors named therein, FMP Agency Services, LLC, as the Senior Agent to the Senior Creditors named therein, and Credit Suisse, Cayman Islands Branch, as the Subordinated Creditor named therein and each holder of this Note, by its acceptance hereof, shall be bound by the provisions of the Subordination and Intercreditor Agreement.”

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     2.7 Restriction on Action by the Subordinated Creditor.

     (a) Until the Senior Indebtedness is Paid in Full and notwithstanding anything contained in the Subordinated Indebtedness Documents, the Senior Purchase Agreement, the other Basic Documents or the Permitted Refinancing Debt Documents to the contrary, neither Subordinated Agent nor the Subordinated Creditor shall, without the prior written consent of Senior Agent and each Senior Creditor, agree to any amendment, modification or supplement to the Subordinated Indebtedness Documents, the effect of which is to (i) increase the maximum principal amount of the Subordinated Indebtedness, (ii) increase the rate of interest on any of the Subordinated Indebtedness, except in connection with the imposition of a default rate of interest to the extent provided for in the Subordinated Indebtedness Documents on the date hereof, (iii) shorten the dates upon which payments of principal or interest on the Subordinated Indebtedness are due, (iii) change in a manner adverse to any Obligor or add any event of default, or add or make more restrictive any covenant with respect to the Subordinated Indebtedness, (iv) change the redemption, prepayment or put provisions of the Subordinated Indebtedness in a manner adverse to any Obligor, (v) alter the subordination provisions with respect to the Subordinated Indebtedness or any Lien securing the same, including, without limitation, subordinating the Subordinated Indebtedness or any Lien securing the same to any other indebtedness, (vi) alter the repayment terms of the Subordinated Indebtedness, (vii) take any Liens on any Property of any Obligor, any Subsidiary of any Obligor or any other Person, except to the extent that Senior Agent shall have been granted a Lien on such Property, (viii) obtain any guaranties or credit support from any Person, unless Senior Agent and Senior Creditors have obtained a guaranty or credit support, as the case may be, in respect of the Senior Indebtedness from such Person and such Person’s obligations in respect of such guaranty or credit support, as the case may be, in favor of Subordinated Agent and Subordinated Creditor in respect of the Subordinated Indebtedness are subordinated to its obligations in respect of the Senior Indebtedness on the same terms and to the same extent that the Subordinated Indebtedness is subordinated to the Senor Indebtedness pursuant the terms of this Agreement, or (ix) change or amend any other term of the Subordinated Indebtedness Documents if such change or amendment would increase the obligations of any Obligor or confer additional material rights on Subordinated Agent or the Subordinated Creditor or any other holder of the Subordinated Indebtedness in a manner adverse to any Obligor, Senior Agent or Senior Creditors; provided, that, notwithstanding the foregoing, if the Senior Purchase Agreement or any of the other Basic Documents are amended (x) to change any existing or include any additional financial covenants thereunder, Subordinated Creditor may amend the Subordinated Indebtedness Documents to reflect such changes, so long as the relative difference between such covenants as reflected in the Subordinated Indebtedness Documents and the Basic Documents, in each case as of the date hereof, shall be maintained, or (y) to include any additional covenants or defaults, the Subordinated Creditor may include such covenants and defaults under the applicable Subordinated Indebtedness Documents, so long as monetary thresholds, if any, referenced therein shall be adjusted ratably to incorporate the same relative difference as reflected generally between monetary amounts set forth in the Subordinated Indebtedness Documents and the Basic Documents, in each case as of the date hereof.

     (b) Until the Senior Indebtedness is Paid in Full, neither Subordinated Agent nor Subordinated Creditor shall, without the prior written consent of Senior Agent, take any action to collect, or enforce payment of the Subordinated Indebtedness, exercise any of the remedies with respect to the Subordinated Indebtedness set forth in any of the Subordinated Indebtedness

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Documents or that otherwise may be available to Subordinated Agent or the Subordinated Creditor, either at law or in equity, by judicial proceedings (including by filing a Proceeding) or otherwise including, without limitation, taking any action under state or Federal law (including the UCC) to foreclose upon, take possession of or sell any Shared Collateral (an “Enforcement Action”), except as provided in the following sentence. Subject in any event to the terms and provisions of Section 21, upon the earliest to occur of:

     (i) the passage of 180 days from the date of Senior Agent’s and each Senior Creditor’s receipt of a Subordinated Default Notice that includes a statement that Subordinated Creditor is commencing the 180-day standstill period provided for herein if the Subordinated Default described therein shall not have been cured or waived within such period;

     (ii) acceleration of the Senior Indebtedness (provided, that if, following any such acceleration of the Senior Indebtedness, such acceleration in respect of the Senior Indebtedness is rescinded, then all Enforcement Actions taken by Subordinated Agent or the Subordinated Creditor shall likewise be rescinded if (A) such Enforcement Actions are based on this clause (ii) and (B) neither Subordinated Agent nor the Subordinated Creditor shall have any right under any other clause of this subsection 2.7(b) to take any Enforcement Actions).

     (iii) the occurrence of a Proceeding (provided, that if such Proceeding is dismissed, the corresponding prohibition against Subordinated Agent or Subordinated Creditor taking any Enforcement Action shall automatically be reinstated as of the date of dismissal as if such Proceeding had not been initiated, unless Subordinated Agent and Subordinated Creditor shall have the right to take any Enforcement Action under another clause of this subsection 2.7(b); provided, further, that such reinstatement shall not affect the running of the 180 day period under clause (a) above to the extent the Subordinated Default giving rise thereto is not based on an acceleration of the Senior Indebtedness or the initiation of such Proceeding);

Subordinated Agent and Subordinated Creditor may, upon five (5) Business Days’ prior written notice to Senior Agent, take Enforcement Actions; provided, that no such notice shall be required in the case of any Enforcement Action permitted to be taken under clauses (ii) or (iii) of this subsection 2.7(b).

     3. Continued Effectiveness of this Agreement; Modifications to Senior Indebtedness.

     (a) The terms of this Agreement, the subordination effected hereby, and the rights and the obligations of Subordinated Agent, Subordinated Creditor, Senior Agent and Senior Creditors arising hereunder, shall not be affected, modified or impaired in any manner or to any extent by: (i) any amendment or modification of or supplement to the Senior Purchase Agreement, any other Basic Document or any Permitted Refinancing Debt Document (to the extent such amendment, modification or supplement is not prohibited under the terms of this Agreement) or any Subordinated Indebtedness Document; (ii) the validity or enforceability of any of such documents; or (iii) any exercise or non-exercise of any right, power or remedy under or in

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respect of the Senior Indebtedness or the Subordinated Indebtedness or any of the instruments or documents referred to in clause (i) above.

     (b) Senior Agent and Senior Creditors may at any time and from time to time without the consent of or notice to Subordinated Agent or the Subordinated Creditor, without incurring liability to Subordinated Agent or the Subordinated Creditor and without impairing or releasing the obligations of Subordinated Agent or the Subordinated Creditor under this Agreement, change the manner or place of payment or extend the time of payment of or renew or alter any Senior Indebtedness, or amend, supplement, restate or otherwise modify in any manner any Basic Document or Permitted Refinancing Debt Document; provided, that Senior Creditors shall not amend or otherwise modify the terms of the Senior Indebtedness if the effect of such amendment or modification is to (i) increase the principal amount of the Senior Indebtedness to an amount in excess of the maximum amount determined pursuant to the proviso to the definition of Senior Indebtedness set forth herein, (ii) increase any fees on the Senior Indebtedness or any applicable interest rate with respect to the Senior Indebtedness by more than 300 basis points in excess of the highest rate set forth in the Senior Purchase Agreement as amended as of the date hereof, except in connection with the imposition of a default rate of interest pursuant to the terms of the Senior Purchase Agreement as in effect on the date hereof, or (iii) extend the final maturity of the Senior Indebtedness (as set forth in the Basic Documents in effect on the date hereof) by more than twelve months.

     4. Representations and Warranties. Subordinated Agent and the Subordinated Creditor each hereby represents and warrants (as to itself and not as to any other Person) to Senior Agent and Senior Creditors, and Senior Agent hereby represents and warrants (as to itself and not as to any other Person) to Subordinated Agent and the Subordinated Creditor, in each case as follows:

     4.1 Existence and Power. Such Person is duly organized, validly existing and in good standing under the laws of the state of its organization.

     4.2 Authority. Such Person has full power and authority to enter into, execute, deliver and carry out the terms of this Agreement and to incur the obligations provided for herein, all of which have been duly authorized by all proper and necessary action and are not prohibited by the organizational documents of such Person.

     4.3 Binding Agreements. This Agreement, when executed and delivered, will constitute the valid and legally binding obligation of such Person enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles.

     4.4 Conflicting Agreements; Litigation. No provisions of any mortgage, indenture, contract, agreement, statute, rule, regulation, judgment, decree or order binding on such Person or affecting the Property of such Person conflicts with, or requires any consent which has not already been obtained under, or would in any way prevent the execution, delivery or performance of the terms of this Agreement. The execution, delivery and carrying out of the terms of this Agreement will not constitute a default under, or re

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sult in the creation or imposition of, or obligation to create, any Lien upon the Property of such Person pursuant to the terms of any such mortgage, indenture, contract or agreement. No pending or, to the best of such Person’s knowledge, threatened, litigation, arbitration or other proceedings if adversely determined would in any way prevent the performance of the terms of this Agreement.

     4.5 No Divestiture. Solely in the case of the Subordinated Creditor, on the date hereof, Subordinated Creditor which is signatory hereto is the current owner and holder of the Subordinated Notes and all other Subordinated Indebtedness Documents.

     4.6 Default under Subordinated Indebtedness Documents and Senior Indebtedness Documents.

     (a) Solely in the case of the Subordinated Creditor, on the date hereof, to the knowledge of such Subordinated Creditor, no default exists under or with respect to any of the Subordinated Indebtedness Documents.

     (b) Solely in the case of each Senior Creditor, on the date hereof, to the knowledge of such Senior Creditor, no default exists under or with respect to the Senior Purchase Agreement or any of the other Basic Documents.

     5. Cumulative Rights, No Waivers. Each and every right, remedy and power granted to Senior Agent or Senior Creditors hereunder shall be cumulative and in addition to any other right, remedy or power specifically granted herein, in the Senior Purchase Agreement, the other Basic Documents or Permitted Refinancing Debt Documents or now or hereafter existing in equity, at law, by virtue of statute or otherwise, and may be exercised by Senior Agent or Senior Creditors, from time to time, concurrently or independently and as often and in such order as Senior Agent or Senior Creditors may deem expedient. Any failure or delay on the part of Senior Agent or Senior Creditors in exercising any such right, remedy or power, or abandonment or discontinuance of steps to enforce the same, shall not operate as a waiver thereof or affect Senior Agent’s or Senior Creditors’ right thereafter to exercise the same, and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power, and no such failure, delay, abandonment or single or partial exercise of Senior Agent’s or Senior Creditors’ rights hereunder shall be deemed to establish a custom or course of dealing or performance among the parties hereto.

     6. Modification. Any modification or waiver of any provision of this Agreement, or any consent to any departure by Senior Agent, any Senior Creditor, Subordinated Agent or the Subordinated Creditor therefrom, shall not be effective in any event unless the same is in writing and signed by Senior Agent, the Senior Creditors, Subordinated Agent and the holders of the Subordinated Notes, and then such modification, waiver or consent shall be effective only in the specific instance and for the specific instance and for the specific purpose given. Any notice to or demand on Subordinated Agent or the Subordinated Creditor in any event not specifically required of Senior Agent or any Senior Creditor hereunder shall not entitle Subordinated Agent or the Subordinated Creditor to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder.

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     7. Additional Documents and Actions. Subordinated Agent and the Subordinated Creditor at any time, and from time to time, after the execution and delivery of this Agreement, upon the request of Senior Agent or any Senior Creditor and at the expense of the Company, promptly will execute and deliver such further documents and do such further acts and things as Senior Agent or any Senior Creditor, may reasonably request in order to effect fully the purposes of this Agreement.

     8. Notices. All notices and communications under this Agreement shall be in writing and shall be (i) delivered in person, (ii) mailed, postage prepaid, either by registered or certified mail, return receipt requested, (iii) delivered by overnight express courier, or (iv) sent by telecopy (with such telecopy to be confirmed promptly in writing sent in accordance with (i), (ii) or (iii) above), addressed in each case as follows:

If to Subordinated Agent or the Subordinated Creditor:	Credit Suisse, Cayman Islands Branch Eleven Madison Avenue New York, NY 10010-3629 Attention: Matthew Carter Facsimile: (212) 743-1842
with a copy to:	Latham & Watkins LLP
	885 Third Avenue
	New York, NY 10022
	Attention: Jane Summers
	Facsimile: (212) 751-4864
If to any Obligor:	Terremark Worldwide, Inc.
	2601 S. Bayshore Drive
	Miami, FL 33133
	Attention: Chief Financial Officer
	Facsimile: (305) 856-8190
with a copy to:	Greenberg Traurig
	1221 Brickell Avenue, 22nd Floor
	Miami, FL 33133
	Attention: Barbara Oikle
	Facsimile: (305) 961-5722
If to Senior Agent or any Senior Creditor:	FMP Agency Services, LLC 21 Custom House Street; 10th Floor Boston, MA 02110 Attention: William J. Kennedy Jr. Facsimile: (617) 412-2799

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with a copy to:	Cahill Gordon & Reindel llp
	80 Pine Street
	New York, New York 10005
	Attention: John Papachristos, Esq.
	Facsimile: (212) 269-5420

or to any other address, as to any of the parties hereto (including any Person that becomes a holder of Subordinated Indebtedness after the date hereof), as such party shall designate in a written notice to the other parties hereto. All notices sent pursuant to the terms of this Section 8 shall be deemed received (i) if personally delivered, then on the Business Day of delivery, (ii) if sent by overnight, express carrier, on the next Business Day immediately following the day sent, (iii) if sent by registered or certified mail, on the earlier of the third Business Day following the day sent or when actually received or (iv) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 p.m. (New York time), otherwise on the next Business Day.

     9. Severability. In the event that any provision of this Agreement is deemed to be invalid by reason of the operation of any law or by reason of the interpretation placed thereon by any court or governmental authority, this Agreement shall be construed as not containing such provision and the invalidity of such provision shall not affect the validity of any other provisions hereof, and any and all other provisions hereof which otherwise are lawful and valid shall remain in full force and effect.

     10. Successors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of Senior Agent and Senior Creditors and shall be binding upon the successors and assigns of Subordinated Agent, Subordinated Creditor and the Obligors.

     11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which taken together shall be one and the same instrument. Any such counterpart which may be delivered to Senior Agent and Senior Creditors by facsimile, email or similar electronic transmission shall be deemed the equivalent of an originally signed counterpart and shall be fully admissible in any enforcement proceedings regarding this Agreement.

     12. Defines Rights of Creditors; Subrogation.

     (a) The provisions of this Agreement are solely for the purpose of defining the relative rights of Subordinated Agent and Subordinated Creditor, on the one hand, and Senior Agent and Senior Creditors, on the other hand, and shall not be deemed to create any rights or priorities in favor of any other Person, including, without limitation, any Obligor. The failure of any Obligor to make any payment to the Subordinated Creditor due to the operation of this Agreement shall not be construed as prohibiting the occurrence of a Subordinated Default.

     (b) Subject to the Payment in Full of the Senior Indebtedness, in the event and to the extent cash, Property or securities otherwise payable or deliverable to the holders of the Subordinated Indebtedness shall have been applied pursuant to this Agreement to the payment of Senior Indebtedness, then and in each such event, the holders of the Subordinated Indebtedness shall be

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subrogated to the rights of each holder of Senior Indebtedness to receive any further payment or distribution in respect of or applicable to the Senior Indebtedness (provided, that if, after Payment in Full of all Senior Indebtedness, Senior Agent or any Senior Creditor takes action against an Obligor for any indemnity obligations owing to Senior Agent or any Senior Creditor under the Basic Documents or Permitted Refinancing Debt Documents, Subordinated Agent and the Subordinated Creditor each agrees that its rights of subrogation hereunder shall be suspended during such period of time that Senior Agent or any Senior Creditor is taking any such action to enforce any such indemnity obligations under the Basic Documents or Permitted Refinancing Debt Documents and Subordinated Agent and the Subordinated Creditor each agrees that it shall not be permitted to receive or retain any payment or distribution made on account of the Subordinated Indebtedness (other than a distribution of Reorganization Subordinated Securities) during such period); and, for the purposes of such subrogation, no payment or distribution to the holders of Senior Indebtedness of any cash, Property or securities to which any holder of Subordinated Indebtedness would be entitled except for the provisions of this Agreement shall, and no payment over pursuant to the provisions of this Agreement to the holders of Senior Indebtedness by the holders of the Subordinated Indebtedness shall, as between any Obligor, its creditors other than the holders of Senior Indebtedness and the holders of Subordinated Indebtedness, be deemed to be a payment by such Obligor to or on account of Senior Indebtedness.

     13. Conflict. In the event of any conflict between any term, covenant or condition of this Agreement and any term, covenant or condition of any of the Subordinated Indebtedness Documents, the provisions of this Agreement shall control and govern. For purposes of this Section 13, to the extent that any provisions of any of the Subordinated Indebtedness Documents provide rights, remedies and benefits to Senior Agent or Senior Creditors that exceed the rights, remedies and benefits provided to Senior Agent or Senior Creditors under this Agreement, such provisions of the applicable Subordinated Indebtedness Documents shall be deemed to supplement (and not to conflict with) the provisions hereof.

     14. Statement of Indebtedness to the Subordinated Creditor. The Company will furnish to Senior Agent, upon demand, a statement of the indebtedness owing from Obligors to Subordinated Creditor, and will give Senior Agent access to the books of Obligors in accordance with the Senior Purchase Agreement so that Senior Agent can make a full examination of the status of such indebtedness. The Company will furnish to the Subordinated Creditor, upon demand, a statement of the indebtedness owing from Obligors to Senior Creditors, and will give the Subordinated Creditor access to the books of Obligors in accordance with the Subordinated Purchase Agreement so that the Subordinated Creditor can make a full examination of the status of such indebtedness.

     15. Headings. The paragraph headings used in this Agreement are for convenience only and shall not affect the interpretation of any of the provisions hereof.

     16. Termination. This Agreement shall terminate upon the Payment in Full of the Senior Indebtedness.

     17. Subordinated Default Notice. The Company shall provide Senior Agent and each Senior Creditor with prompt written notice of the occurrence of a Subordinated Default (which notice shall incorporate a reasonably detailed description of such Subordinated Default)

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and of any cure or waiver thereof. The Company shall provide Subordinated Agent and the Subordinated Creditor with prompt written notice of the occurrence of a Senior Payment Default or Senior Covenant Default, as the case may be (which notice shall incorporate a reasonably detailed description of such Senior Payment Default or Senior Covenant Default), and of any cure or waiver thereof.

     18. APPLICABLE LAW. THIS AGREEMENT, AND ALL MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

     19. JURISDICTION AND VENUE. EACH PARTY HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE STATE, COUNTY AND CITY OF NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PERSON BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PERSON AT THE ADDRESS SET FORTH IN SECTION 8 OF THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.

     20. WAIVER OF RIGHT TO JURY TRIAL. EACH PARTY HERETO (INCLUDING, WITHOUT LIMITATION, ANY PERSON THAT BECOMES A HOLDER OF SUBORDINATED INDEBTEDNESS OR A SENIOR CREDITOR AFTER THE DATE HEREOF) HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH PARTY HERETO (INCLUDING, WITHOUT LIMITATION, ANY PERSON THAT BECOMES A HOLDER OF SUBORDINATED INDEBTEDNESS OR A SENIOR CREDITOR AFTER THE DATE HEREOF) ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT SUCH PERSON HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT SUCH PERSON WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY HERETO (INCLUDING, WITHOUT LIMITATION, ANY PERSON THAT BECOMES A HOLDER OF SUBORDINATED INDEBTEDNESS OR A SENIOR CREDITOR AFTER THE DATE HEREOF) WARRANTS AND REPRESENTS THAT SUCH PERSON HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL,

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AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.

     21. Liens on Shared Collateral; Enforcement of Liens on Shared Collateral.

     21.1 Rights as Unsecured Creditors. Notwithstanding anything to the contrary set forth in this Section 21, nothing in this Section 21 is intended or shall be deemed or construed to limit in any way the exercise by Subordinated Agent or the Subordinated Creditor against any Obligor or its Property of any of their respective rights and remedies as unsecured creditors of such Obligor and, subject to the other terms and provisions of this Agreement, including, without limitation, subsection 2.7 hereof, Subordinated Agent and the Subordinated Creditor may exercise at any time against any Obligor or its Property the respective rights and remedies of such Persons as unsecured creditors of such Obligor under the Subordinated Indebtedness Documents and applicable law. In furtherance and not in limitation of the foregoing, and notwithstanding the provisions of subsections 21.5, 21.7 or 21.10, (i) the Subordinated Creditor shall be free to propose, or vote for or against, any plan of reorganization and, take, or not take, any action, and otherwise participate, in any Proceeding in its capacity as an unsecured creditor, (ii) Subordinated Agent and the Subordinated Creditor shall have and hereby expressly retain and reserve any claim, motion, objection or argument that otherwise could be asserted by an unsecured creditor of any Obligor, including any objections or claims that any transfer (including any strict foreclosure) constitutes a fraudulent conveyance or transfer under Section 548 of the Bankruptcy Code or any applicable state law or a violation by any Obligor of any applicable law (including any breach of fiduciary duty) and, (iii) except to the extent expressly prohibited pursuant to Sections 2.7 and 21 hereof, the Subordinated Agent and the Subordinated Creditor shall be entitled to file any pleadings, claims, objections, motions or arguments that assert rights or interests available to unsecured creditors of the Company arising under the Bankruptcy Code or applicable state law.

     21.2 Lien Subordination; No Lien on Excluded Collateral Benefiting Subordinated Indebtedness. Notwithstanding the date, manner or order of grant, attachment or perfection of the Liens on all or any part of the Shared Collateral granted to Senior Agent and Subordinated Agent, respectively, and notwithstanding the provisions of the UCC or any other applicable law or decision, or the terms or provisions of the Basic Documents (or Permitted Refinancing Debt Documents, as applicable) or Subordinated Indebtedness Documents, respectively, or any other circumstance whatsoever, each of Senior Agent and Subordinated Agent and the Subordinated Creditor hereby agrees that (a) Senior Agent on behalf of Senior Agent and Senior Creditors shall have a first, prior, senior and continuing Lien on all of the Shared Collateral to secure the prompt and complete payment, performance and observance of all Senior Indebtedness, and (b) any Lien on all or any part of the Shared Collateral now or hereafter held by Subordinated Agent (on its behalf or on behalf of Subordinated Creditor) or the Subordinated Creditor (on its behalf or on behalf of Subordinated Agent), regardless of when or how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be in all respects and for all purposes subject to, junior to and subordinate to all Liens on all or any part of the Shared Collateral granted to or held by Senior Agent on behalf of Senior Agent and Senior Creditors. All Liens on the Shared Collateral securing any Senior Indebtedness shall be and remain senior in all respects and prior to all Liens on the Shared Collateral securing any Subordinated Indebtedness for all purposes, whether or not such Liens securing any Senior Indebtedness are subordinated to any

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Lien securing any other obligation of the Company , any other Obligor or any other Person. The Subordinated Agent for itself and on behalf of the Subordinated Creditor expressly agrees that any Lien purported to be granted on any Shared Collateral as security for the Senior Indebtedness shall be and remain senior in all respects and prior to all Liens on the Shared Collateral securing any Subordinated Indebtedness for all purposes regardless of whether the Lien purported to be granted is found to be improperly granted, improperly perfected, preferential, a fraudulent conveyance or legally or otherwise deficient in any manner. Notwithstanding anything to the contrary in this Agreement or any Subordinated Indebtedness Document, Subordinated Agent and the Subordinated Creditor agree that the Subordinated Indebtedness shall not be secured by any Lien or other security interest in any of the Excluded Collateral and that they shall not claim on behalf of themselves or any other person that the any Subordinated Indebtedness is entitled to the benefit of any Lien or other security interest in respect of any Excluded Collateral. Subject to the terms and provisions of this Agreement, including the respective definitions of “Senior Indebtedness” and “Subordinated Indebtedness” set forth in Section 1 hereof, the relative priorities of the respective Liens described in this subsection 21.2 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement, replacement or refinancing of the Senior Indebtedness or Subordinated Indebtedness, respectively, or by any action or inaction which Senior Agent and any Senior Creditor, on the one hand, or Subordinated Agent or the Subordinated Creditor, on the other hand, may take or fail to take, in each case in respect of the Shared Collateral.

     21.3 Release of Shared Collateral. Subordinated Agent shall, promptly upon the written notice of Senior Agent, release or otherwise terminate Subordinated Agent’s Lien on the Shared Collateral (or applicable portion thereof) contemporaneously with the release by the Senior Agent of its Lien thereon if the Shared Collateral (or a portion thereof) is sold or otherwise disposed of by the Senior Agent (or any representative thereof), whether by strict foreclosure or otherwise, or such Shared Collateral is sold or otherwise disposed of by the record owner thereof as permitted by the Basic Documents and the Subordinated Purchase Agreement or otherwise with the consent of the Required Holders (or any representative thereof); provided, that, (i) the subordinate Lien of Subordinated Agent securing the Subordinated Indebtedness shall attach to the proceeds of such sale or other disposition to the extent not applied to the reduction of the Senior Indebtedness, and (ii) such subordinate Lien on such proceeds shall in all respects remain subject to all of the terms and provisions of this Agreement. In connection with any release of Lien pursuant to the terms hereof, Subordinated Agent (on behalf of its itself and the Subordinated Creditor) will immediately deliver such release documents as the Senior Agent (or any representative thereof) may require in connection therewith. In furtherance of the foregoing, each of Subordinated Agent and the Subordinated Creditor hereby irrevocably appoints Senior Agent as its lawful attorney and agent to execute any and all such release documents (including, without limitation, Uniform Commercial Code termination statements) and to record and/or file such release documents as Senior Agent deems necessary if such release documents are not received promptly after written request therefor. Each of Senior Creditors, Subordinated Agent and the Subordinated Creditor agrees that Senior Agent has not assumed any obligations to act as agent for such Subordinated Agent or Subordinated Creditor with respect to the Shared Collateral.

     21.4 Perfection. Except to the extent otherwise expressly provided in Section 23, Senior Agent and Senior Creditors, on the one hand, and Subordinated Agent and Subordinated Creditor, on the other hand, shall be solely responsible for perfecting and maintaining the

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perfection of their respective Liens on each item constituting Shared Collateral. The provisions of this Section 21 are intended solely to govern the respective Lien priorities as between the holders of Senior Indebtedness and the holders of Subordinated Indebtedness and shall not impose on any such Person any obligations in respect of the disposition of proceeds of any Shared Collateral which would conflict with prior perfected claims therein in favor of any other Person or any applicable order or decree of any court or governmental authority or any applicable law.

     21.5 Management of Collateral.

     (a) Until the Senior Indebtedness has been Paid in Full, the Senior Agents and the holders of Senior Indebtedness (or any representative thereof) shall have the exclusive right to manage, perform and enforce the terms of the Senior Indebtedness, the Basic Documents and Permitted Refinancing Debt Documents with respect to all Shared Collateral and to exercise and enforce all privileges and rights thereunder and with respect thereto, in each case in the exercise of their business judgment and sole and absolute discretion, including, without limitation, the sole and exclusive right to take or retake control or possession of any Shared Collateral, to hold, prepare for sale, process, sell, lease, foreclose upon, collect, exercise rights or remedies with respect to, dispose of, or liquidate any Shared Collateral, to incur expenses in connection with any of the foregoing and to exercise all rights and remedies of a secured lender under the UCC, and neither Subordinated Agent nor the Subordinated Creditor shall take or seek to take any such action. In furtherance and not in limitation of the foregoing, Subordinated Agent and the Subordinated Creditor each waives any and all rights of such Person to direct the method or challenge the appropriateness of any action by any holder of Senior Indebtedness (or any representative thereof) in connection with, and any right to object to, a strict foreclosure with respect to any Shared Collateral, waives any and all rights of redemption and hereby consents to each holder of Senior Indebtedness (or any representative thereof) dealing in all respects with the Shared Collateral as if there were no Liens on the Shared Collateral securing Subordinated Indebtedness.

     (b) The provisions of subsection 21.5(a) are not intended and shall not be deemed or construed to limit or impair (i) the right of Subordinated Agent to join (but not control) any foreclosure or other judicial lien enforcement proceeding with respect to any Shared Collateral initiated by Senior Agent for the sole purpose of preserving and protecting Subordinated Agent’s Lien on the Shared Collateral, so long as (x) at the time of such joinder, the Subordinated Agent or the Subordinated Creditor still hold a valid and perfected lien in such Shared Collateral and (y) such joinder does not delay or interfere in any material respect with the exercise by Senior Agent of its rights under this Agreement, the Basic Documents and applicable law, in each case with respect to the Shared Collateral; and (ii) if and to the extent the Subordinated Agent or the Subordinated Creditor still hold a valid and perfected lien in such Shared Collateral, the right of Subordinated Agent and the Subordinated Creditor to receive any proceeds of Shared Collateral remaining after Payment in Full of the Senior Indebtedness.

     21.6 Lien Enforcement. Notwithstanding anything to the contrary set forth in this Agreement, including, without limitation, subsection 2.7 hereof, but subject in any event to subsection 21.1 hereof:

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     (a) Until Payment in Full of all Senior Indebtedness, except as otherwise expressly permitted in subsections 21.6(b) and (c) below, other than Permitted Subordinated Indebtedness Payments, in each case to the extent permitted at the time of payment thereof to be paid to and received and retained by Subordinated Creditor pursuant to the other terms and provisions of this Agreement, neither Subordinated Agent nor the Subordinated Creditor shall ask, demand or sue for any right or remedy in respect of all or any part of the Shared Collateral and Subordinated Agent and the Subordinated Creditor agree not to take or receive from any Obligor, directly or indirectly, in cash or other Property or by set-off or in any other manner, whether pursuant to any enforcement, collection, execution, levy or foreclosure proceeding or otherwise, all or any part of the Shared Collateral. Without limiting the generality of the foregoing, until Payment in Full of all Senior Indebtedness, (i) neither Subordinated Agent nor the Subordinated Creditor shall exercise or otherwise assert any right or remedy in respect of all or any part of the Shared Collateral or any Liens thereon; (ii) the sole right of Subordinated Agent and Subordinated Creditor with respect to the Shared Collateral shall be to hold a Lien thereon to the extent granted pursuant to the Subordinated Indebtedness Documents (until such time as such Lien is released or required to be released pursuant to Section 21.3 hereof) and to receive proceeds thereof remaining after such Payment in Full; and (iii) without the prior written consent of Senior Agent, neither Subordinated Agent nor the Subordinated Creditor shall exercise any right such Person may have under the Subordinated Indebtedness Documents or under the UCC or other applicable law to deliver any notices to account debtors informing them of such Person’s interest in any accounts of any Obligor or direct such account debtors to make payments in any particular manner of amounts due in respect of any such account.

     (b) Subordinated Agent and the Subordinated Creditor each agrees that, until Payment in Full of all Senior Indebtedness, such Person will not commence, or join with any creditor other than Senior Agent in commencing, any enforcement, collection, execution, levy or foreclosure proceeding with respect to any Lien held by it in, or otherwise with respect to, all or any part of the Shared Collateral, including, without limitation, petitioning, filing or joining in any involuntary Proceeding pursuant to Section 303 of the Bankruptcy Code.

     (c) The provisions of this subsection 21.6 are intended to limit the enforcement of the rights and remedies of Subordinated Agent and Subordinated Creditor with respect to the Shared Collateral or any Lien thereon for so long and to the extent set forth in subsection 21.6(a) and (b) hereof. Nothing in this subsection 21.6 is intended or shall be deemed or construed to prohibit Subordinated Agent or the Subordinated Creditor from receiving and retaining at any time any Permitted Subordinated Indebtedness Payments to the extent such receipt and retention is permitted hereunder at such time, or to the extent such action is permitted hereunder at such time, from making any demand for payment or any declaration of acceleration with respect to the Subordinated Notes or commencing any judicial or other action to collect (without enforcement of any of such Person’s rights and remedies with respect to all or any part of the Shared Collateral) the Subordinated Indebtedness under the Subordinated Notes and the other Subordinated Indebtedness Documents.

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     21.7 Proceedings. In the event of any Proceeding involving any Obligor, neither Subordinated Agent nor the Subordinated Creditor shall assert any claim, motion, objection or argument in respect of all or any part of the Shared Collateral in connection with such Proceeding that could otherwise be asserted or raised in connection with such Proceeding by any such Person as a secured creditor of such Obligor, except to the extent such claim, motion, objection or argument could be asserted by an unsecured creditor of such Obligor. Without limiting the generality of the foregoing, Subordinated Agent and the Subordinated Creditor each agrees that it will:

     (a) not object to or oppose (or support any other Person in objecting to or opposing) any sale or other disposition of all or any part of the Shared Collateral free and clear of Liens or other claims of Subordinated Agent or Subordinated Creditor under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code or any other law applicable to such Proceeding if Senior Agent and Senior Creditors have consented to such sale or disposition and the net proceeds thereof are used to (i) repay Senior Notes, (ii) pay reasonable expenses incurred in connection with such sale or disposition or (iii) pay expenses related to the administration of such Proceeding which are entitled to be paid out of the proceeds of such Shared Collateral;

     (b) (i) at the request of Senior Agent, challenge or otherwise object to any use of cash collateral or debtor-in-possession financing that is challenged or otherwise objected to by Senior Agent and Senior Creditors; and (ii) not challenge or otherwise object to (or support any other Person in challenging or otherwise objecting to) any use of cash collateral or debtor-in-possession financing consented to or provided by any Senior Creditor if and to the extent that (A) the interest rate, fees, advance rates, lending sublimits and limits and other terms are determined by the bankruptcy court with jurisdiction over the Proceeding to be commercially reasonable under the circumstances, (B) the principal amount (including unfunded commitments) of such debtor-in-possession financing, together with the aggregate principal amount of the Senior Indebtedness outstanding immediately after giving effect to any payment thereof with proceeds of any such debtor-in-possession financing, does not exceed the greater of (x) one hundred twenty percent (120%) of the aggregate principal amount of the pre-petition Senior Indebtedness (including unfunded commitments) outstanding immediately prior to the commencement of the applicable Proceeding and (y) the aggregate maximum permitted principal amount of the pre-petition Senior Indebtedness, (C) the Liens granted to the Person providing such financing rank prior to or pari passu with the pre-petition Lien of Senior Agent;

     (c) not assert (or support any other Person in asserting) any right it may have to “adequate protection” of its interest in any Shared Collateral in any Proceeding (provided, that Subordinated Agent shall be permitted to seek and obtain (A) “adequate protection” of its interest in any Shared Collateral in connection with any debtor-in-possession financing consented to or provided by any Senior Creditor if and to the extent that the principal amount thereof exceeds the maximum amount with respect thereto set forth in the preceding clause (b), (B) a Lien on the Shared Collateral in which Senior Agent has a Lien for the benefit of Senior Creditors with the same priority vis-a-vis the Liens securing the Senior Indebtedness as existed prior to the commencement of such Proceeding and (C) a replacement Lien on post-petition assets in which Senior Agent has

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a Lien for the benefit of Senior Agent and Senior Creditors with the same priority vis-à-vis the Liens securing the Senior Indebtedness as provided herein, although the failure to obtain any such Liens or replacement Liens by Subordinated Agent or the Subordinated Creditor shall not be used as the basis to challenge any cash collateral (or usage thereof) or debtor-in-possession financing described in the preceding clause (b));

     (d) will not seek and will, in any event, turn over to Senior Agent for the pro rata benefit of Senior Agent and Senior Creditors any “adequate protection” of their interest in any Shared Collateral that they receive in any Proceeding for application to the Senior Indebtedness owed to Senior Agent and Senior Creditors, other than “adequate protection” of the type described in clause (c) above; and

     (e) not seek to have the automatic stay of Section 362 of the Bankruptcy Code (or any similar stay under any other applicable law) lifted or modified with respect to any Shared Collateral without the prior written consent of Senior Agent; provided, that, in the case of this clause (e), if Senior Agent and Senior Creditors seek such aforementioned relief, Subordinated Agent and the Subordinated Creditor hereby irrevocably consents thereto and shall join in any such motion or application seeking such relief if requested by Senior Agent. Subordinated Agent and the Subordinated Creditor each waives any claim it may now or hereafter have arising out of the election of Senior Agent and Senior Creditors, in any Proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code.

     21.8 Notice of Liens. Subordinated Agent, Subordinated Creditor and Senior Agent and each Senior Creditor each acknowledges that this Agreement shall constitute notice of their respective interests in the Shared Collateral under and for any purpose such a notice may be required by the UCC.

     21.9 Proceeds of Events of Loss.

     (a) Proceeds of the Shared Collateral include proceeds of insurance in respect of, and compensation and other awards and payments made on account of, in each case, any of the following events or occurrences (each such event or occurrence being an “Event of Loss”): (i) any loss, theft or destruction of, or damage to, any Shared Collateral, (ii) any pending or threatened institution of any proceedings for the condemnation or seizure of any Shared Collateral or for the exercise of any right of eminent domain with respect thereto; or (ii) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of any Shared Collateral, or confiscation thereof, and therefore, anything contained in the Subordinated Indebtedness Documents to the contrary notwithstanding, the priorities provided for herein shall govern and control the ultimate application and disposition of all of such proceeds.

     (b) Until the Senior Indebtedness has been Paid in Full, (i) Senior Agent shall have the sole and exclusive right, as against Subordinated Agent and Subordinated Creditor, to adjust settlement of each and every claim with respect to any Event of Loss, and (ii) all proceeds of each Event of Loss shall be paid to Senior Agent for application to the Senior Indebtedness in accordance with the respective terms and provisions of the Basic

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Documents or Permitted Refinancing Debt Documents, as applicable, and, to the extent necessary or desirable, Subordinated Agent and Subordinated Creditor shall cooperate promptly and in a reasonable manner in effecting the payment of all of such proceeds to Senior Agent. If the requisite holders of Senior Indebtedness (or any representative thereof), in their (or its) sole discretion or pursuant to agreement with any Obligor (pursuant to the terms and provisions the Basic Documents or the Permitted Refinancing Debt Documents, as the case may be, or otherwise), permit such Obligor to utilize any proceeds of any Event of Loss to repair or replace the affected Shared Collateral, or purchase other Shared Collateral, the consent of the holders of Senior Indebtedness (or any representative thereof) to such utilization automatically shall be deemed to include the consent of Subordinated Agent and Subordinated Creditor to such repair, replacement or purchase, as the case may be.

     21.10 Prohibition on Contesting Liens. Senior Agent, Subordinated Agent and the Subordinated Creditor each agrees not to seek to challenge, to avoid, to subordinate or to contest or directly or indirectly to support any other Person in challenging, avoiding or contesting in any judicial or other proceeding, including, without limitation, any Proceeding, the priority, validity, extent, perfection or enforceability of any Lien held by Senior Agent or Subordinated Agent, as the case may be, on all or any part of the Senior Creditor Collateral; provided, that nothing in this subsection 21.10 is intended or shall be deemed or construed to limit in any way the ability of Senior Agent, Senior Creditor, Subordinated Agent or Subordinated Creditor to enforce all of the terms and provisions of this Agreement. As between Senior Agent and Senior Creditors, on the one hand, and Subordinated Agent and Subordinated Creditor, on the other hand, the terms of this Agreement shall govern and control even if part or all of the Subordinated Indebtedness or Senior Indebtedness, as the case may be, or the respective Liens securing payment, observance and performance thereof are avoided, disallowed, set aside or otherwise invalidated in any Proceeding or otherwise.

     21.11 Marshalling; Additional Waiver. Subordinated Agent and the Subordinated Creditor hereby waives to the fullest extent permitted by applicable law any rights such Person may have under applicable law to assert the doctrine of marshalling or otherwise to require Senior Agent or any Senior Creditor to marshall any Property of any Obligor for the benefit of Subordinated Agent or Subordinated Creditor. Subordinated Agent and the Subordinated Creditor each expressly waives all notice of the acceptance by Senior Agent and Senior Creditors of the subordination and other terms and provisions of this Agreement and all the notices whatsoever not specifically required pursuant to the terms of this Agreement or under the UCC in connection with any foreclosure on or sale of Property of any of the Obligors and Subordinated Agent and the Subordinated Creditor expressly consents to reliance by Senior Agent and Senior Creditors upon the subordination and other terms and provisions of this Agreement.

     21.12 Turnover of Shared Collateral. Upon Payment in Full of all Senior Indebtedness, if and to the extent that the Subordinated Agent and the Subordinated Creditor still hold a Lien on any of the Shared Collateral, Senior Agent agrees to use commercially reasonable efforts to deliver to Subordinated Agent all of the Shared Collateral then in the possession or control of Senior Agent in order that Subordinated Agent may hold such Shared Collateral as security for the Subordinated Indebtedness; provided, however, that the failure of Senior Agent to make such delivery to Subordinated Agent for any reason whatsoever (including making such delivery to

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the Company) shall not create any liability for Senior Agent or any Senior Creditor or subject Senior Agent or any Senior Creditor to any claim for damages, whether based in tort or on contract. Nothing herein is intended or shall be construed to make Senior Agent an agent for Subordinated Agent or the Subordinated Creditor or to impose upon Senior Agent any duty or obligation, fiduciary or otherwise, in favor of Subordinated Agent or the Subordinated Creditor. Subordinated Agent agrees and acknowledges that it is not relying on the turnover of any Shared Collateral by Senior Agent in entering into the Subordinated Indebtedness Documents or the transactions contemplated thereunder. The Company hereby authorizes and directs the Senior Agent to deliver any and all such Shared Collateral to Subordinated Agent as aforesaid and agree, jointly and severally, to indemnify and hold Senior Agent and each Senior Creditor harmless from any and all claims in connection with complying, or for failing to comply, with the provisions of this Section 21.12.

     22. Subordinated Creditor’s Purchase Option.

     22.1 Purchase Notice. If (a) Senior Agent and Senior Creditors take any action to collect, enforce payment or accelerate any of the Senior Indebtedness or to exercise any of the remedies with respect to all or substantially all of the Shared Collateral set forth in any of the Basic Documents or that otherwise may be available to Senior Agent or Senior Creditors with respect to the Shared Collateral, either at law or in equity, by judicial proceedings or otherwise, including, without limitation, taking any action under state or Federal law (including the UCC) to foreclose upon, take possession of or sell all or a material portion of the Shared Collateral (a “Senior Enforcement Action”), Senior Agent shall give Subordinated Agent notice thereof concurrently with the taking of any such action (a “Purchase Trigger Notice”), or (b) a Proceeding shall have otherwise commenced, the Subordinated Creditor shall have the option to purchase all (but not less than all) of the Senior Indebtedness by giving a written notice (the “Purchase Notice”) to Senior Agent and each Senior Creditor no later than the fifth Business Day after the first to occur of (x) receipt by Subordinated Agent of the Purchase Trigger Notice, or (y) the commencement of such Proceeding, as applicable (the Subordinated Creditor giving the Purchase Notice being herein referred to individually as a “Purchasing Creditor” and collectively as the “Purchasing Creditors”). Upon delivery thereof to Senior Agent by the Purchasing Creditors, the Purchase Notice shall be irrevocable.

     22.2 Purchase Option Closing. On the date specified by the Purchasing Creditors in the Purchase Notice (which shall not be less than three (3) Business Days nor more than five (5) Business Days, after the receipt by the Senior Agent and each Senior Creditor of the Purchase Notice), the Senior Creditors shall sell to the Purchasing Creditors, and the Purchasing Creditors shall purchase from the Senior Creditors, the Senior Indebtedness. In the event that the Purchasing Creditors fail to purchase all the Senior Indebtedness on such date, the Purchasing Creditors’ purchase rights hereunder shall expire.

     22.3 Purchase Price. Upon the date of the purchase and sale described in subsection 22.2, the Purchasing Creditors shall (i) pay to Senior Creditors as the purchase price therefor the sum of (x) full amount of all the Senior Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses) and (y) an amount equal to the full redemption premium that would be due and payable in respect of all outstanding Senior Notes on such date had the Company elected to redeem in full all

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outstanding Senior Notes pursuant to Paragraph 3 of the Senior Notes and (ii) agree to reimburse Senior Agent and each Senior Creditor for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any payments provisionally credited to the Senior Indebtedness, and/or as to which Senior Creditors have not yet received final payment. Such purchase price and cash collateral shall be remitted by wire transfer of immediately available funds to such bank account of each Senior Creditor as such Senior Creditor may designate in writing to Subordinated Agent for such purpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Purchasing Creditors to the bank account designated by Senior Agent are received in such bank account prior to 1:00 p.m., New York time and interest shall be calculated to and including such Business Day if the amounts so paid by the Purchasing Creditors to the bank account designated by each Senior Creditor are received in such bank account later than 1:00 p.m., New York time.

     22.4 Nature of Sale. Such purchase shall be expressly made without representation or warranty of any kind by Senior Agent or any of the Senior Creditors and without recourse to Senior Agent or any of the Senior Creditors, except that each of the Senior Creditors shall represent and warrant: (i) the amount of the Senior Indebtedness being purchased from such Senior Creditor, (ii) that such Senior Creditor owns such Senior Indebtedness free and clear of any Liens and (iii) such Senior Creditor has the right to assign such Senior Indebtedness and the assignment is duly authorized. The Company hereby consents to all transfers of Notes made pursuant to this Section 22 and hereby waives any and all conditions to such transfers set forth in the Basic Documents.

     23. Collateral In Possession.

     23.1 Control by Senior Agent. If Senior Agent takes possession of or has “control” (as such term is defined in the UCC) over any Shared Collateral for purposes of perfecting its Lien thereon (including equity certificates, deposit accounts and investment property), Senior Agent, to the extent such Liens may be perfected only by such possession or control, shall be deemed to be holding such Shared Collateral as agent for Subordinated Agent, solely for purposes of perfection of its Lien under the UCC on such Shared Collateral; provided that Senior Agent shall have no duty or liability to protect or preserve any rights pertaining to any of the Shared Collateral for Subordinated Agent or the Subordinated Creditor, and Subordinated Agent and the Subordinated Creditor each hereby waives and releases Senior Agent from all claims and liabilities arising pursuant to its role as such agent, except for claims and liabilities arising from Senior Agent’s gross negligence or willful misconduct, as finally determined pursuant to a final non-appealable order of a court of competent jurisdiction.

     23.2 Control by Subordinated Agent. If Subordinated Agent takes possession of or has “control” (as such term is defined in the UCC) over any Shared Collateral for purposes of perfecting its Lien thereon (including equity certificates, deposit accounts and investment property), Subordinated Agent shall be deemed to be holding such Shared Collateral as agent for Senior Agent, solely for purposes of perfection of its Lien under the UCC on such Shared Collateral; provided that Subordinated Agent shall have no duty or liability to protect or preserve any rights pertaining to any of the Shared Collateral for Senior Agent or any of the Senior Creditors, and, Senior Agent and each of the Senior Creditors each hereby waives and releases Subordinated

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Agent and the Subordinated Creditor from all claims and liabilities arising pursuant to its role as such agent, except for claims and liabilities arising from Subordinated Agent’s gross negligence or willful misconduct, as finally determined pursuant to a final non-appealable order of a court of competent jurisdiction.

     23.3 No Alteration of Priorities. It is understood and agreed that this Section 23 is intended solely to assure continuous perfection of the Liens granted under the Basic Documents or Subordinated Indebtedness Documents, as applicable, and nothing in this Section 23 is intended or shall be deemed or construed to alter the respective priorities or obligations set forth elsewhere in this Agreement.

     24. No New Liens; Similar Liens

     24.1 No New Liens. So long as the Payment in Full of the Senior Indebtedness has not occurred, the parties hereto agree that the Company shall not, and shall not permit any Subsidiary to, grant or permit any additional Liens on any asset or property to secure any Subordinated Indebtedness unless it has granted a Lien on such asset or property to secure the Senior Indebtedness. To the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies available to the Senior Agent and/or any Senior Creditor, the Subordinated Agent, on behalf of the Subordinated Creditor agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 24.1 shall be subject to this Agreement.

     24.2 Similar Liens and Agreements. The parties hereto agree that it is their intention that the collateral securing the Senior Indebtedness and the Subordinated Indebtedness shall, with the exception of the Excluded Collateral, be identical. In furtherance of the foregoing, the parties hereto agree, subject to the other provisions of this Agreement:

     (i) upon request by the Senior Agent or the Subordinated Agent, to cooperate in good faith (and to direct their counsel to cooperate in good faith) from time to time in order to determine the specific items included in the Shared Collateral and the steps taken to perfect their respective Liens thereon and the identity of the respective parties obligated under the Basic Documents and the Subordinated Indebtedness Documents; and

     (ii) that the documents and agreements creating or evidencing the Shared Collateral shall be in all material respects the same forms of documents other than with respect to (i) the first lien and the second lien nature of the obligations thereunder and (ii) the delivery of collateral, the security interest in which may be perfected only by possession or control by a single person of such collateral prior to the Payment in Full of the Senior Indebtedness.

[remainder of page intentionally left blank; signature pages follow]

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     IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first above written. The undersigned, by their execution and delivery of this Agreement, agree not to take any actions inconsistent with this Agreement.

TERREMARK WORLDWIDE INC., a Delaware corporation
By:	/s/ Jose A. Segrera
	Name: Jose A. Segrera
	Title:   Chief Financial Officer
NAP OF THE AMERICAS, INC.
NAP OF THE AMERICAS/WEST, INC.
PARK WEST TELECOMMUNICATIONS INVESTORS, INC.
SPECTRUM TELECOMMUNICATIONS CORP.
TECOTA SERVICES CORP.
TERREMARK FINANCIAL SERVICES, INC.
TERREMARK FORTUNE HOUSE #1, INC.
TERREMARK LATIN AMERICA, INC.
TERREMARK MANAGEMENT SERVICES, INC.
TERREMARK REALTY, INC.
TERREMARK TECHNOLOGY CONTRACTORS, INC.
TERRREMARK TRADEMARK HOLDINGS, INC.
TERRENAP DATA CENTERS, INC.
TERRENAP SERVICES, INC.
TERREMARK EUROPE, INC.
By:	/s/ Jose A. Segrera
	Name: Jose A. Segrera
	Title:   Chief Financial Officer
OPTICAL COMMUNICATIONS, INC.
By:	/s/ Manuel D. Medina
	Name: Manuel D. Medina
	Title:

Series A Notes Subordination Agreement

TERREMARK FEDERAL GROUP, INC.
By:	/s/ Nelson Fonseca
	Name: Nelson Fonseca
	Title: Treasurer and Chief Financial Officer

Series A Notes Subordination Agreement

     IN WITNESS WHEREOF, Senior Agent and Senior Creditor have caused this Agreement to be executed as of the date first above written.

SENIOR AGENT :
FMP AGENCY SERVICES, LLC
By:	/s/ William J. Kennedy, Jr.
Name:	William J. Kennedy, Jr.
Title:	Manager
SENIOR CREDITORS :
FALCON MEZZANINE PARTNERS, LP
By:Falcon Mezzanine Investments, LLC,       its General Partner
By:	/s/ Rafael Fogel
Name:	Rafael Fogel
Title:	Vice President

Series A Notes Subordination Agreement

STICHTING PENSIOENFONDS VOOR DE GEZOND-HEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN,
Duly represented by AlpInvest Partners, N.V.
By:	/s/ M. Rademakers
Name:	M. Rademakers
Title:	Tax Counsel
By:	/s/ C.F. de Ru
Name:	C.F. de Ru
Title:	Senior Legal Counsel
STICHTING PENSIOENFONDS ABP,
Duly represented by AlpInvest Partners N.V.
By:	/s/ M. Rademakers
Name:	M. Rademakers
Title:	Tax Counsel
By:	/s/ C.F. de Ru
Name:	C.F. de Ru
Title:	Senior Legal Counsel

Series A Notes Subordination Agreement

SUBORDINATED AGENT :
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
By:	/s/ Julia P. Kingsbury
Name:	Julia P. Kingsbury
Title:	Director
By:	/s/ Pilarcita V. Naval
Name:	Pilarcita V. Naval
Title:	Assistant Vice President
SUBORDINATED CREDITOR :
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
By:	/s/ Robert Nydegger
Name:	Robert Nydegger
Title:	Managing Director
By:	/s/ Damien Dwin
Name:	Damien Dwin
Title:	Director

Series A Notes Subordination Agreement

EX-10.45

Exhibit 10.45

SUBORDINATION AND INTERCREDITOR AGREEMENT

          This SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Agreement”), dated as of January 5, 2007 is among TERREMARK WORLDWIDE, INC., a Delaware corporation (the “Company”); NAP OF THE AMERICAS, INC.; NAP OF THE AMERICAS/WEST, INC.; OPTICAL COMMUNICATIONS, INC.; PARK WEST TELECOMMUNICATIONS INVESTORS, INC.; SPECTRUM TELECOMMUNICATIONS CORP.; TECOTA SERVICES CORP.; TERREMARK FINANCIAL SERVICES, INC.; TERREMARK FORTUNE HOUSE #1, INC.; TERREMARK LATIN AMERICA, INC.; TERREMARK MANAGEMENT SERVICES, INC.; TERREMARK REALTY, INC.; TERREMARK TECHNOLOGY CONTRACTORS, INC.; TERRREMARK TRADEMARK HOLDINGS, INC.; TERRENAP DATA CENTERS, INC.; TERRENAP SERVICES, INC.; TERREMARK FEDERAL GROUP, INC.; and TERREMARK EUROPE, INC. (each, a “Guarantor” and, collectively, the “Guarantors”), FALCON MEZZANINE PARTNERS, LP (“Falcon”), STICHTING PENSIOENFONDS VOOR DE GEZOND-HEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN (“SPM”), STICHTING PENSIOENFONDS ABP (“ABP” and, together with Falcon and SPM, the “Senior Creditors”), FMP AGENCY SERVICES, LLC (the “Senior Agent”), CREDIT SUISSE, INTERNATIONAL (“Subordinated Creditor”) and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee under the Indenture (as hereinafter defined) (“Subordinated Agent”).

R E C I T A L S

          A. The Company, Senior Agent and the Senior Creditors have entered into a Purchase Agreement dated December 31, 2004 (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time including, without limitation, as amended on the date hereof, the “Senior Purchase Agreement”), pursuant to which, among other things, Senior Creditors have purchased $30,000,000 aggregate principal amount of Senior Secured Notes due 2009 (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder and including any notes issued in exchange or substitution therefore or replacement thereof, each individually a “Senior Note” and collectively the “Senior Notes”).

          B. The Company, the Guarantors, Subordinated Creditor, and Credit Suisse, Cayman Islands Branch have entered into a Purchase Agreement of even date herewith (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder, the “Subordinated Purchase Agreement”) pursuant to which, among other things, the Subordinated Creditor has extended credit to the Company as evidenced by certain Senior Subordinated Convertible Notes due 2009 issued by the Company in favor of the Subordinated Creditor in the original aggregate principal amount of $4,000,000 (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder and including any notes issued in exchange or substitution therefor or replacement thereof, each individually a “Subordinated Note” and collectively the “Subordinated Notes”).

          C. The Company and Subordinated Agent have entered into an Indenture of even date herewith (as the same may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder, the “Indenture”) pursuant to which, among other things, the Subordinated Notes were issued by the Company in favor of the Subordinated Creditor.

          D. As an inducement to and as one of the conditions precedent to the agreement of the Senior Creditors to consent to the transactions contemplated by the Subordinated Purchase Agreement and Indenture, Senior Agent, and Senior Creditors have required the execution and delivery of this Agreement by the Subordinated Creditor, the Subordinated Agent and the Obligors (as herinafter defined).

          NOW, THEREFORE, in order to induce Senior Agent and Senior Creditors to consent to the transactions contemplated by the Subordinated Purchase Agreement and the Indenture, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:

     1. Definitions. All capitalized terms used but not elsewhere defined in this Agreement (including the preamble and recitals hereto) shall have the respective meanings ascribed to such terms in the Senior Purchase Agreement as in effect on the date hereof. The following terms shall have the following meanings in this Agreement:

     Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended and in effect from time to time and the regulations issued from time to time thereunder.

     Basic Documents shall have (and each capitalized term used therein shall have) the meaning ascribed to such term in the Senior Purchase Agreement, as in effect on the date hereof.

     Enforcement Action is defined in subsection 2.7(b).

     Lien shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or otherwise) or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever and any contingent or other agreement to provide any of the foregoing.

     Obligor shall mean the Company and each other Person that guarantees or grants a Lien on any of its Property to secure the payment, observance or performance of all or any part of the Senior Indebtedness, including, without limitation, the Guarantors.

     Paid in Full or Payment in Full shall mean the payment in full in cash of all Senior Indebtedness and termination of all commitments to lend under the Basic Documents and Permitted Refinancing Debt Documents. Senior Indebtedness shall be considered to be outstanding whenever any commitment to make loans or otherwise extend credit under the Senior Purchase Agreement or Permitted Refinancing Debt Documents is outstanding.

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     Permitted Refinancing shall mean any refinancing of the Senior Indebtedness under the Basic Documents; provided, that the financing documentation entered into by Obligors in connection with such Permitted Refinancing constitutes Permitted Refinancing Debt Documents and the aggregate principal amount of such refinancing does not exceed the maximum principal amount of Senior Indebtedness permitted under the definition thereof.

     Permitted Refinancing Debt Documents shall mean any financing documentation which replaces the Basic Documents and pursuant to which the Senior Indebtedness under the Basic Documents is refinanced, as such financing documentation may be amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder, but specifically excluding any such financing documentation to the extent that it contains, either initially or by amendment or other modification, any terms, conditions, covenants or defaults other than those which (a) then exist in the Basic Documents or (b) could be included in the Basic Documents by an amendment or other modification that would not be prohibited by the terms of this Agreement.

     Permitted Subordinated Indebtedness Payments shall mean:

     (a) interest payments on account of the Subordinated Indebtedness evidenced by the Subordinated Notes but only to the extent made on a paid-in-kind or accretion basis (and not made in cash);

     (b) the accrual (and not payment in cash) of default interest on Subordinated Indebtedness evidenced by the Subordinated Notes;

     (c) the payment of fees on the date hereof pursuant to the Subordinated Purchase Agreement to the extent made in shares of common stock of the Company (the “Fee Shares”);

     (d) the payment in cash of liquidated damages, if any, pursuant to that certain Registration Rights Agreement dated the date hereof by and among the Obligors and Credit Suisse International related to the Fee Shares; and

     (e) reimbursement under the Subordinated Purchase Agreement for the reasonable and documented out-of-pocket costs and expenses of the holders of the Subordinated Notes pursuant to the terms of the Subordinated Purchase Agreement either (1) incurred in connection with the negotiation, execution or delivery of the Subordinated Purchase Agreement and paid within 30 days of the date hereof or (2) incurred in connection with the enforcement of the Subordinated Purchase Agreement or otherwise in an aggregate not to exceed $100,000;

     in each instance, to the extent then due and payable in accordance with the terms of the Subordinated Indebtedness Documents.

     Person shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

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     Proceeding is defined in subsection 2.3.

     Property shall mean, with respect to any Person, all property and interests in property of such Person, whether real, personal or mixed, whether now owned or existing or hereafter acquired or arising and wheresoever located.

     Related Fund shall mean, with respect to any holder of Subordinated Indebtedness, (a) any fund, trust or similar entity that invests in commercial loans in the ordinary course of business and is advised, managed or serviced by (i) such holder, (ii) an affiliate of such holder, (iii) the same investment advisor that manages such holder or (iv) an affiliate of an investment advisor that manages such holder, or (b) any finance company, insurance company or other financial institution which temporarily warehouses loans for such holder or any Person described in clause (a) above.

     Reorganization Subordinated Securities shall mean any (a) equity securities of the Company or any of its subsidiaries and (b) notes or other debt securities issued in substitution of all or any portion of the Subordinated Indebtedness that are subordinated, including in right of payment, to the Senior Indebtedness (or any notes or other securities issued in substitution of all or any portion of the Senior Indebtedness) at least to the same extent and, in the case of clause (b), on substantially the same terms that the Subordinated Indebtedness is subordinated to the Senior Indebtedness pursuant to the terms of this Agreement, and which securities have maturities and other terms no less advantageous to Obligors and Senior Creditors than the terms contained in the Subordinated Indebtedness Documents.

     Required Holders shall have the meaning ascribed to such term in the Senior Purchase Agreement; provided, that, after the consummation of any Permitted Refinancing, the term “Required Holders” shall mean the holders of Senior Indebtedness having the right and/or ability under the Permitted Refinancing Debt Documents to effectuate the waiver, amendment, granting of consent or other matter in question.

     Senior Agent shall have the meaning ascribed to such term in the preamble of this Agreement; provided, that, after the consummation of any Permitted Refinancing, the term “Senior Agent” shall refer to any Person appointed by the holders of the Senior Indebtedness as agent for themselves for the purposes of this Agreement.

     Senior Covenant Default shall mean any “Default” or “Event of Default” under the Senior Purchase Agreement or Permitted Refinancing Debt Documents, other than a Senior Payment Default.

     Senior Creditor or Senior Creditors shall mean any “Noteholder” or the “Noteholders,” respectively, as such terms are defined in the Senior Purchase Agreement; provided, that, after the consummation of any Permitted Refinancing, such terms shall refer to any holder or all of the holders, respectively, of the Senior Indebtedness.

     Senior Creditor Collateral shall mean all of the assets and property of any Obligor, whether real, personal. mixed, with respect to which a Lien is granted or purported to be granted as security for any Senior Indebtedness.

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     Senior Default Notice shall mean a written notice from Senior Agent or any Senior Creditor to Subordinated Agent and the Company pursuant to which the Subordinated Agent is notified of the existence of a Senior Covenant Default.

     Senior Indebtedness shall mean all Indebtedness, liabilities and other obligations of any and every kind and nature now existing or hereafter arising, contingent or otherwise, of any Obligor or any other Person under, in connection with, or evidenced or secured by the Senior Purchase Agreement or any of the other Basic Documents, including, without limitation, all such Obligations to pay (i) principal, (ii) interest or premium (including interest accruing after the commencement of any Proceeding, whether or not constituting an allowed claim in such Proceeding), (iii) fees, (iv) costs, expenses and other amounts related to any indemnity against loss, damage or liability, (v) any other monetary obligation, and all such Indebtedness, obligations and liabilities incurred with respect to Permitted Refinancings, together with any amendments, restatements, modifications, renewals or extensions of any thereof permitted hereunder; provided, that, in no event shall the principal amount of the Senior Indebtedness exceed the sum of (a) $30,000,000, reduced by the amount of any principal repayments and permanent commitment reductions under the Senior Purchase Agreement or any Permitted Refinancing Debt Documents, to the extent that such repayments and reductions may not be reborrowed (specifically excluding, however, any such repayments and commitment reductions occurring in connection with any Permitted Refinancing), plus (b) costs and expenses incurred following the occurrence of a Senior Payment Default or Senior Covenant Default, as the case may be, by or for the account of the holders of Senior Indebtedness (or any representatives thereof) to preserve or protect any Senior Creditor Collateral, plus (c) the amount of interest that is capitalized and added to the principal amount of the Senior Notes in accordance with the terms thereof.

     Senior Payment Default shall mean a Default or Event of Default described in Section 10.01(a) or (b) of the Senior Purchase Agreement or any corresponding provision in the Permitted Refinancing Debt Documents or any other Default or Event of Default resulting from the failure of any Obligor to pay, on a timely basis, any principal interest, premium, fees or other obligations under any Basic Document or Permitted Refinancing Debt Document, including, without limitation, in each case, any default in payment of Senior Indebtedness after acceleration thereof.

     Subordinated Creditor shall mean the Subordinated Creditor that is a signatory to this Agreement and any other holder of the Subordinated Note(s) or any other Subordinated Indebtedness from time to time.

     Subordinated Default shall mean a default in the payment of the Subordinated Indebtedness, or performance of any term, covenant or condition contained in the Subordinated Indebtedness Documents or the occurrence of any other event or condition constituting a default or event of default under the Subordinated Indebtedness Documents.

     Subordinated Default Notice shall mean a written notice to Senior Agent and the Company from Subordinated Agent or the Subordinated Creditor pursuant to which Sen

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ior Agent is notified of the existence of a Subordinated Default, which notice incorporates a reasonably detailed description of such Subordinated Default.

     Subordinated Indebtedness shall mean all Indebtedness, liabilities and other obligations of any and every kind and nature now existing or hereafter arising, contingent or otherwise, of any Obligor or any other Person under, in connection with, or evidenced by any of the Subordinated Indebtedness Documents, in each case including, without limitation, obligations to pay (i) principal, (ii) interest or premium (including interest accruing after the commencement of any Proceeding, whether or not constituting an allowed claim in such Proceeding, and any premium payable with respect to any prepayment of the Subordinated Indebtedness pursuant to the Subordinated Indebtedness Documents), (iii) fees, (iv) costs, expenses and other amounts related to any indemnity against loss, damage or liability, and (v) any other monetary obligation.

     Subordinated Indebtedness Documents shall mean the Subordinated Notes, Subordinated Purchase Agreement, Indenture, any guaranty with respect to the Subordinated Indebtedness, and all other agreements, documents and instruments evidencing or pertaining to any portion of the Subordinated Indebtedness, as amended, supplemented, restated or otherwise modified and in effect from time to time as permitted hereunder.

     The definitions in Section 1 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including”, and words of similar import, shall not be limiting and shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all rights and interests in tangible and intangible assets and properties of any kind whatsoever, whether real, personal or mixed, including cash, securities, equity interests, accounts and contract rights. The words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement unless the context shall otherwise require. Any reference to a Person, shall be deemed to include a reference to such Person’s successors and assigns (including any debtor in possession and any other Person to which substantially all of the assets of such Person are transferred). All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require.

     2. Subordination of Subordinated Indebtedness to Senior Indebtedness.

     2.1 Subordination. The payment of any and all of the Subordinated Indebtedness hereby expressly is subordinated, to the extent and in the manner set forth herein, to the Payment in Full of the Senior Indebtedness. Each holder of Senior Indebtedness, whether now outstanding or hereafter arising, shall be deemed to have acquired Senior Indebtedness in reliance

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upon the provisions contained herein. Nothing in this Agreement shall apply to claims of, or payments to, the Subordinated Agent, solely in its capacity as Trustee and not for the benefit of any Subordinated Creditor, under or pursuant to any provision of the Indenture.

     2.2 Restriction on Payments. Notwithstanding any provision of the Subordinated Indebtedness Documents to the contrary and in addition to any other limitations set forth herein or therein, no payment (whether made in cash, securities, other than any Reorganization Subordinated Securities, or other Property or by set-off) of principal, interest, premium or any other amount due with respect to the Subordinated Indebtedness shall be made or received, and neither Subordinated Agent nor the Subordinated Creditor shall exercise any right of set-off or recoupment with respect to any Subordinated Indebtedness, until all of the Senior Indebtedness is Paid in Full; provided, that, except as provided in the immediately succeeding sentence or in subsection 2.3, the Company may make and Subordinated Agent and the Subordinated Creditor may accept and retain Permitted Subordinated Indebtedness Payments and provided, further, that the Company may make and Subordinated Agent may accept and retain payments to the Subordinated Agent contemplated by subsection 2.1. Notwithstanding the foregoing, no Obligor may make, and neither Subordinated Agent nor the Subordinated Creditor may accept or retain, any payment of principal, interest, premium or any other amount with respect to the Subordinated Indebtedness (other than any payment made solely in Reorganization Subordinated Securities or payments made to the Subordinated Agent as contemplated in subsection 2.1) if, at the time of such payment or, with respect to clause (a) below, immediately after giving effect thereto:

     (a) a Senior Payment Default exists; or

     (b) subject to the penultimate sentence of this subsection 2.2, the Subordinated Agent and the Subordinated Creditor shall have received a Senior Default Notice from Senior Agent or any Senior Creditor stating that a Senior Covenant Default exists or would be created by the making of such payment.

          The Company may resume Permitted Subordinated Indebtedness Payments (and may make any Permitted Subordinated Indebtedness Payments missed due to the application of clauses (a) or (b) of this subsection 2.2), and Subordinated Agent and Subordinated Creditor may accept and retain such Permitted Subordinated Indebtedness Payments:

     (1) in the case of a Senior Payment Default referred to in clause (a) of this subsection 2.2, upon a cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) thereof in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents; or

     (2) in the case of a Senior Covenant Default referred to in clause (b) of this subsection 2.2, upon the earlier to occur of (x) the cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) of all such Senior Covenant Defaults in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents, and (y) the expiration of 180 days from the date on which the Senior Default Notice was received.

     Notwithstanding any provision of this subsection 2.2 to the contrary:

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     (A) the Company shall not be prohibited from making, and Subordinated Agent and Subordinated Creditor shall not be prohibited from accepting and retaining, Permitted Subordinated Indebtedness Payments by virtue of the payment blockage effected by clause (b) of this subsection 2.2 for more than an aggregate of 180 days within any period of 360 consecutive days;

     (B) no Senior Covenant Default existing on the date any notice is given pursuant to clause (b) of this subsection 2.2 shall, unless the same shall have ceased to exist for a period of at least 60 consecutive days, be used as a basis for any subsequent such notice (for purposes of this paragraph, breaches of the same financial covenant for consecutive periods shall constitute separate and distinct Senior Covenant Defaults); and

     (C) Senior Agent and the Senior Creditors shall not deliver more than three (3) Senior Default Notices, in the aggregate, prior to the termination of this Agreement.

          The provisions of this subsection 2.2 shall not apply to any payment with respect to which subsection 2.3 would be applicable.

     2.3 Proceedings. In the event of any insolvency, bankruptcy, receivership, custodianship, liquidation, reorganization, assignment for the benefit of creditors or other proceeding for the liquidation, dissolution or other winding up of any Obligor or any of its Subsidiaries or any of their respective Property (a “Proceeding”): (i) all Senior Indebtedness first shall be Paid in Full before any payment (whether made in cash, securities or other Property) of or with respect to the Subordinated Indebtedness shall be made in such Proceeding (other than a distribution of Reorganization Subordinated Securities); (ii) any payment which, but for the terms hereof, otherwise would be payable or deliverable in such Proceeding in respect of the Subordinated Indebtedness (other than a distribution of Reorganization Subordinated Securities), shall be paid or delivered directly to Senior Agent (to be held and/or applied by Senior Agent in accordance with the terms of the Senior Purchase Agreement or the Permitted Refinancing Debt Documents) until all Senior Indebtedness is Paid in Full, and Subordinated Agent and the Subordinated Creditor each irrevocably authorizes, empowers and directs all receivers, trustees, liquidators, custodians, conservators and others having authority in the premises to effect all such payments and deliveries, and Subordinated Agent and the Subordinated Creditor each also irrevocably authorizes, empowers and directs Senior Agent to demand, sue for, collect and receive every such payment or distribution; (iii) Subordinated Agent and the Subordinated Creditor each agrees to execute and deliver to Senior Agent or its representative, at the Company’s sole cost and expense, all such further instruments confirming the authorization referred to in the foregoing clause (ii) as Senior Agent may reasonably request; and (iv) Subordinated Agent and the Subordinated Creditor each hereby irrevocably authorizes, empowers and appoints Senior Agent its agent and attorney-in-fact to execute, verify, deliver and file any proofs of claim (but not vote such claims) in respect of the Subordinated Indebtedness in connection with any such Proceeding upon the failure of such Person to do so 15 days before the expiration of the time to file any such proof of claim; provided, that Senior Agent shall have no obligation to execute, verify, deliver, and/or file any such proof of claim. The Senior Indebtedness shall continue to be treated as Senior Indebtedness and the provisions of this Agreement shall continue to govern the relative rights and priorities of Senior Agent, Senior Creditors, Subordinated Agent and Subordinated Creditor even if all or part of the Senior Indebtedness or the Liens securing the Senior Indebtedness are subordinated, set

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aside, avoided or disallowed in connection with any such proceeding. This Agreement shall be reinstated if at any time any payment of any of the Senior Indebtedness is rescinded or must otherwise be returned by any holder of the Senior Indebtedness or any representative of such holder and the Senior Indebtedness, or portion thereof, intended to have been satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.

     2.4 Incorrect Payments. If any payment (whether made in cash, securities or other Property) not permitted to be accepted by Subordinated Agent or Subordinated Creditor under this Agreement is received by Subordinated Agent or the Subordinated Creditor on account of any Subordinated Indebtedness before all Senior Indebtedness is Paid in Full, such payment shall not be commingled with any asset of such Person, shall be held in trust by such Person for the benefit of Senior Agent and Senior Creditors and shall be paid over to Senior Agent, or its designated representative, for application (in accordance with the Senior Purchase Agreement or the Permitted Refinancing Debt Documents, as the case may be) to the payment of the Senior Indebtedness then remaining unpaid, until all of the Senior Indebtedness is Paid in Full.

     2.5 Sale, Transfer. The Subordinated Creditor shall not sell, assign, dispose of or otherwise transfer all or any portion of the Subordinated Indebtedness unless following such sale, assignment, disposition or other transfer, there shall either be (i) no more than two (2) holders of Subordinated Indebtedness (provided, that each holder of Subordinated Indebtedness and its respective affiliates and Related Funds shall be counted as a single holder for purposes of determining compliance with the foregoing limitation), or (ii) one Person acting as agent for all holders of the Subordinated Indebtedness pursuant to documentation reasonably satisfactory to Senior Agent such that any Senior Default Notices and other notices and communications to be delivered to the Subordinated Creditor hereunder and any consents required by the Subordinated Creditor shall be made to or obtained from such agent and shall be binding on the Subordinated Creditor as if directly delivered to or obtained from such Subordinated Creditor. In the event of a permitted sale, assignment, disposition or other transfer, prior to or substantially contemporaneously with the consummation of any such action, the transferee thereof shall execute and deliver to Senior Agent a joinder to this Agreement, or an agreement substantially identical to this Agreement, in either case providing for the continued subordination and forbearance of the Subordinated Indebtedness to the Senior Indebtedness as provided herein and for the continued effectiveness of all of the rights of Senior Agent and Senior Creditors arising under this Agreement. Notwithstanding the failure to execute or deliver any such agreement, the subordination effected hereby shall survive any sale, assignment, disposition or other transfer of all or any portion of the Subordinated Indebtedness, and the terms of this Agreement shall be binding upon the successors and assigns of the Subordinated Creditor, as provided in Section 10 below. The Subordinated Agent shall not be required to take any action in furtherance of this Section 2.5.

     2.6 Legends. Until the Senior Indebtedness is Paid in Full, the Subordinated Purchase Agreement, each of the Subordinated Notes and all other Subordinated Indebtedness Documents evidencing any Subordinated Indebtedness at all times shall contain in a conspicuous manner the following legend:

“This Note [or other Subordinated Indebtedness Document] and the indebtedness evidenced hereby are subordinate in the manner and to the extent set forth in that certain Subordination and Intercreditor Agreement

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(the “Subordination Agreement”) dated as of January 5, 2007 among Terremark Worldwide, Inc. as the Issuer, the Subsidiary Guarantors named therein, FMP Agency Services, LLC, as the Senior Agent to the Senior Creditors named therein, Credit Suisse, International, as the Subordinated Creditor named therein, and The Bank of New York Trust Company, N.A., as Trustee and as the Subordinated Agent named therein and each holder of this Note, by its acceptance hereof, shall be bound by the provisions of the Subordination and Intercreditor Agreement.”

     2.7 Restriction on Action by the Subordinated Creditor.

     (a) Until the Senior Indebtedness is Paid in Full and notwithstanding anything contained in the Subordinated Indebtedness Documents, the Senior Purchase Agreement, the other Basic Documents or the Permitted Refinancing Debt Documents to the contrary, neither Subordinated Agent nor the Subordinated Creditor shall, without the prior written consent of Senior Agent and each Senior Creditor, agree to any amendment, modification or supplement to the Subordinated Indebtedness Documents, the effect of which is to (i) increase the maximum principal amount of the Subordinated Indebtedness, (ii) increase the rate of interest on any of the Subordinated Indebtedness, except in connection with the imposition of a default rate of interest to the extent provided for in the Subordinated Indebtedness Documents on the date hereof, (iii) shorten the dates upon which payments of principal or interest on the Subordinated Indebtedness are due, (iii) change in a manner adverse to any Obligor or add any event of default, or add or make more restrictive any covenant with respect to the Subordinated Indebtedness, (iv) change the redemption, prepayment or put provisions of the Subordinated Indebtedness in a manner adverse to any Obligor, (v) alter the subordination provisions with respect to the Subordinated Indebtedness, including, without limitation, subordinating the Subordinated Indebtedness to any other indebtedness, (vi) alter the repayment terms of the Subordinated Indebtedness, (vii) take any Liens on any Property of any Obligor, any Subsidiary of any Obligor or any other Person, (viii) obtain any guaranties or credit support from any Person, unless Senior Agent and Senior Creditors have obtained a guaranty or credit support, as the case may be, in respect of the Senior Indebtedness from such Person and such Person’s obligations in respect of such guaranty or credit support, as the case may be, in favor of Subordinated Agent and Subordinated Creditor in respect of the Subordinated Indebtedness are subordinated to its obligations in respect of the Senior Indebtedness on the same terms and to the same extent that the Subordinated Indebtedness is subordinated to the Senor Indebtedness pursuant the terms of this Agreement, or (ix) change or amend any other term of the Subordinated Indebtedness Documents if such change or amendment would increase the obligations of any Obligor or confer additional material rights on Subordinated Agent or the Subordinated Creditor or any other holder of the Subordinated Indebtedness in a manner adverse to any Obligor, Senior Agent or Senior Creditors.

     (b) Until the Senior Indebtedness is Paid in Full, neither Subordinated Agent nor the Subordinated Creditor shall, without the prior written consent of Senior Agent, take any action to collect, or enforce payment of the Subordinated Indebtedness, exercise any of the remedies with respect to the Subordinated Indebtedness set forth in any of the Subordinated Indebtedness Documents or that otherwise may be available to Subordinated Agent or the Subordinated Creditor, either at law or in equity, by judicial proceedings (including by filing a Proceeding) or oth-

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erwise (an “Enforcement Action”), except as provided in the following sentence. Upon the earliest to occur of:

     (i) the passage of 180 days from the date of Senior Agent’s and each Senior Creditor’s receipt of a Subordinated Default Notice that includes a statement that Subordinated Creditor is commencing the 180-day standstill period provided for herein if the Subordinated Default described therein shall not have been cured or waived within such period;

     (ii) acceleration of the Senior Indebtedness (provided, that if, following any such acceleration of the Senior Indebtedness, such acceleration in respect of the Senior Indebtedness is rescinded, then all Enforcement Actions taken by Subordinated Agent or the Subordinated Creditor shall likewise be rescinded if (A) such Enforcement Actions are based on this clause (ii) and (B) neither Subordinated Agent nor the Subordinated Creditor shall have any right under any other clause of this subsection 2.7(b) to take any Enforcement Actions).

     (iii) the occurrence of a Proceeding (provided, that if such Proceeding is dismissed, the corresponding prohibition against Subordinated Agent or Subordinated Creditor taking any Enforcement Action shall automatically be reinstated as of the date of dismissal as if such Proceeding had not been initiated, unless Subordinated Agent and Subordinated Creditor shall have the right to take any Enforcement Action under another clause of this subsection 2.7(b); provided, further, that such reinstatement shall not affect the running of the 180 day period under clause (a) above to the extent the Subordinated Default giving rise thereto is not based on an acceleration of the Senior Indebtedness or the initiation of such Proceeding);

Subordinated Agent and Subordinated Creditor may, upon five (5) Business Days’ prior written notice to Senior Agent, take Enforcement Actions; provided, that no such notice shall be required in the case of any Enforcement Action permitted to be taken under clauses (ii) or (iii) of this subsection 2.7(b).

     3. Continued Effectiveness of this Agreement; Modifications to Senior Indebtedness.

     (a) The terms of this Agreement, the subordination effected hereby, and the rights and the obligations of Subordinated Agent, Subordinated Creditor, Senior Agent and Senior Creditors arising hereunder, shall not be affected, modified or impaired in any manner or to any extent by: (i) any amendment or modification of or supplement to the Senior Purchase Agreement, any other Basic Document or any Permitted Refinancing Debt Document (to the extent such amendment, modification or supplement is not prohibited under the terms of this Agreement) or any Subordinated Indebtedness Document; (ii) the validity or enforceability of any of such documents; or (iii) any exercise or non-exercise of any right, power or remedy under or in respect of the Senior Indebtedness or the Subordinated Indebtedness or any of the instruments or documents referred to in clause (i) above.

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     (b) Senior Agent and Senior Creditors may at any time and from time to time without the consent of or notice to Subordinated Agent or the Subordinated Creditor, without incurring liability to Subordinated Agent or the Subordinated Creditor and without impairing or releasing the obligations of Subordinated Agent or the Subordinated Creditor under this Agreement, change the manner or place of payment or extend the time of payment of or renew or alter any Senior Indebtedness, or amend, supplement, restate or otherwise modify in any manner any Basic Document or Permitted Refinancing Debt Document; provided, that Senior Creditors shall not amend or otherwise modify the terms of the Senior Indebtedness if the effect of such amendment or modification is to (i) increase the principal amount of the Senior Indebtedness to an amount in excess of the maximum amount determined pursuant to the proviso to the definition of Senior Indebtedness set forth herein, (ii) increase any fees on the Senior Indebtedness or any applicable interest rate with respect to the Senior Indebtedness by more than 300 basis points in excess of the highest rate set forth in the Senior Purchase Agreement as amended as of the date hereof, except in connection with the imposition of a default rate of interest pursuant to the terms of the Senior Purchase Agreement as in effect on the date hereof, or (iii) extend the final maturity of the Senior Indebtedness (as set forth in the Basic Documents in effect on the date hereof) by more than twelve months.

     4. Representations and Warranties. The Subordinated Creditor hereby represents and warrants (as to itself and not as to any other Person) to Senior Agent and Senior Creditors, and Senior Agent hereby represents and warrants (as to itself and not as to any other Person) to Subordinated Agent and the Subordinated Creditor, in each case as follows:

     4.1 Existence and Power. Such Person is duly organized, validly existing and in good standing under the laws of the state of its organization.

     4.2 Authority. Such Person has full power and authority to enter into, execute, deliver and carry out the terms of this Agreement and to incur the obligations provided for herein, all of which have been duly authorized by all proper and necessary action and are not prohibited by the organizational documents of such Person.

     4.3 Binding Agreements. This Agreement, when executed and delivered, will constitute the valid and legally binding obligation of such Person enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles.

     4.4 Conflicting Agreements; Litigation. No provisions of any mortgage, indenture, contract, agreement, statute, rule, regulation, judgment, decree or order binding on such Person or affecting the Property of such Person conflicts with, or requires any consent which has not already been obtained under, or would in any way prevent the execution, delivery or performance of the terms of this Agreement. The execution, delivery and carrying out of the terms of this Agreement will not constitute a default under, or result in the creation or imposition of, or obligation to create, any Lien upon the Property of such Person pursuant to the terms of any such mortgage, indenture, contract or agreement. No pending or, to the best of such Person’s knowledge, threatened, litigation,

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arbitration or other proceedings if adversely determined would in any way prevent the performance of the terms of this Agreement.

     4.5 No Divestiture. Solely in the case of the Subordinated Creditor, on the date hereof, Subordinated Creditor which is signatory hereto is the current owner and holder of the Subordinated Notes and all other Subordinated Indebtedness Documents.

     4.6 Default under Subordinated Indebtedness Documents and Senior Indebtedness Documents.

     (a) Solely in the case of the Subordinated Creditor, on the date hereof, to the knowledge of such Subordinated Creditor, no default exists under or with respect to any of the Subordinated Indebtedness Documents.

     (b) Solely in the case of each Senior Creditor, on the date hereof, to the knowledge of such Senior Creditor, no default exists under or with respect to the Senior Purchase Agreement or any of the other Basic Documents.

     5. Cumulative Rights, No Waivers. Each and every right, remedy and power granted to Senior Agent or Senior Creditors hereunder shall be cumulative and in addition to any other right, remedy or power specifically granted herein, in the Senior Purchase Agreement, the other Basic Documents or Permitted Refinancing Debt Documents or now or hereafter existing in equity, at law, by virtue of statute or otherwise, and may be exercised by Senior Agent or Senior Creditors, from time to time, concurrently or independently and as often and in such order as Senior Agent or Senior Creditors may deem expedient. Any failure or delay on the part of Senior Agent or Senior Creditors in exercising any such right, remedy or power, or abandonment or discontinuance of steps to enforce the same, shall not operate as a waiver thereof or affect Senior Agent’s or Senior Creditors’ right thereafter to exercise the same, and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power, and no such failure, delay, abandonment or single or partial exercise of Senior Agent’s or Senior Creditors’ rights hereunder shall be deemed to establish a custom or course of dealing or performance among the parties hereto.

     6. Modification. Any modification or waiver of any provision of this Agreement, or any consent to any departure by Senior Agent, any Senior Creditor, Subordinated Agent or the Subordinated Creditor therefrom, shall not be effective in any event unless the same is in writing and signed by Senior Agent, the Senior Creditors, Subordinated Agent and the holders of the Subordinated Notes, and then such modification, waiver or consent shall be effective only in the specific instance and for the specific instance and for the specific purpose given. Any notice to or demand on Subordinated Agent or the Subordinated Creditor in any event not specifically required of Senior Agent or any Senior Creditor hereunder shall not entitle Subordinated Agent or the Subordinated Creditor to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder.

     7. Additional Documents and Actions. Subordinated Agent and the Subordinated Creditor at any time, and from time to time, after the execution and delivery of this Agreement, upon the request of Senior Agent or any Senior Creditor and at the expense of the Company,

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promptly will execute and deliver such further documents and do such further acts and things as Senior Agent or any Senior Creditor, may reasonably request in order to effect fully the purposes of this Agreement.

     8. Notices. All notices and communications under this Agreement shall be in writing and shall be (i) delivered in person, (ii) mailed, postage prepaid, either by registered or certified mail, return receipt requested, (iii) delivered by overnight express courier, or (iv) sent by telecopy (with such telecopy to be confirmed promptly in writing sent in accordance with (i), (ii) or (iii) above), addressed in each case as follows:

If to the Subordinated Creditor:	Credit Suisse, International Eleven Madison Avenue New York, NY 10010-3629 Attention: Kathleen Hess Facsimile: 610-322-2206
with a copy to:	Latham & Watkins LLP 885 Third Avenue New York, NY 10022 Attention: Jane Summers Facsimile: (212) 751-4864
If to the Subordinated Agent:	The Bank of New York Trust Company, N.A. 10161 Centurian Parkway Jacksonville, Florida 32256 Attention: Corporate Trust           Administration Facsimile:(904) 645-1921
with a copy to:	Emmet, Marvin & Martin, LLP 120 Broadway New York, NY 10271 Attention: Elizabeth M. Clark, Esq. Facsimile: (212) 238-3100
If to any Obligor:	Terremark Worldwide, Inc. 2601 S. Bayshore Drive Miami, FL 33133 Attention: Chief Financial Officer Facsimile: (305) 856-8190

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with a copy to:	Greenberg Traurig 1221 Brickell Avenue, 22nd Floor Miami, FL 33133 Attention: Barbara Oikle Facsimile: (305) 961-5722
If to Senior Agent or any Senior Creditor:	FMP Agency Services, LLC 21 Custom House Street; 10th Floor Boston, MA 02110 Attention: William J. Kennedy Jr. Facsimile: (617) 412-2799
with a copy to:	Cahill Gordon & Reindel llp 80 Pine Street New York, New York 10005 Attention: John Papachristos, Esq. Facsimile: (212) 269-5420

or to any other address, as to any of the parties hereto (including any Person that becomes a holder of Subordinated Indebtedness after the date hereof), as such party shall designate in a written notice to the other parties hereto. All notices sent pursuant to the terms of this Section 8 shall be deemed received (i) if personally delivered, then on the Business Day of delivery, (ii) if sent by overnight, express carrier, on the next Business Day immediately following the day sent, (iii) if sent by registered or certified mail, on the earlier of the third Business Day following the day sent or when actually received or (iv) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 p.m. (New York time), otherwise on the next Business Day.

     9. Severability. In the event that any provision of this Agreement is deemed to be invalid by reason of the operation of any law or by reason of the interpretation placed thereon by any court or governmental authority, this Agreement shall be construed as not containing such provision and the invalidity of such provision shall not affect the validity of any other provisions hereof, and any and all other provisions hereof which otherwise are lawful and valid shall remain in full force and effect.

     10. Successors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of Senior Agent and Senior Creditors and shall be binding upon the successors and assigns of Subordinated Agent, Subordinated Creditor and the Obligors.

     11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which taken together shall be one and the same instrument. Any such counterpart which may be delivered by facsimile, email or similar electronic transmission shall be deemed the equivalent of an originally signed counterpart and shall be fully admissible in any enforcement proceedings regarding this Agreement.

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     12. Defines Rights of Creditors; Subrogation.

     (a) The provisions of this Agreement are solely for the purpose of defining the relative rights of Subordinated Agent and Subordinated Creditor, on the one hand, and Senior Agent and Senior Creditors, on the other hand, and shall not be deemed to create any rights or priorities in favor of any other Person, including, without limitation, any Obligor. The failure of any Obligor to make any payment to the Subordinated Creditor due to the operation of this Agreement shall not be construed as prohibiting the occurrence of a Subordinated Default.

     (b) Subject to the Payment in Full of the Senior Indebtedness, in the event and to the extent cash, Property or securities otherwise payable or deliverable to the holders of the Subordinated Indebtedness shall have been applied pursuant to this Agreement to the payment of Senior Indebtedness, then and in each such event, the holders of the Subordinated Indebtedness shall be subrogated to the rights of each holder of Senior Indebtedness to receive any further payment or distribution in respect of or applicable to the Senior Indebtedness (provided, that if, after Payment in Full of all Senior Indebtedness, Senior Agent or any Senior Creditor takes action against an Obligor for any indemnity obligations owing to Senior Agent or any Senior Creditor under the Basic Documents or Permitted Refinancing Debt Documents, Subordinated Agent and the Subordinated Creditor each agrees that its rights of subrogation hereunder shall be suspended during such period of time that Senior Agent or any Senior Creditor is taking any such action to enforce any such indemnity obligations under the Basic Documents or Permitted Refinancing Debt Documents and Subordinated Agent and the Subordinated Creditor each agrees that it shall not be permitted to receive or retain any payment or distribution made on account of the Subordinated Indebtedness (other than a distribution of Reorganization Subordinated Securities and payments to the Subordinated Agent permitted by subsection 2.1) during such period); and, for the purposes of such subrogation, no payment or distribution to the holders of Senior Indebtedness of any cash, Property or securities to which any holder of Subordinated Indebtedness would be entitled except for the provisions of this Agreement shall, and no payment over pursuant to the provisions of this Agreement to the holders of Senior Indebtedness by the holders of the Subordinated Indebtedness shall, as between any Obligor, its creditors other than the holders of Senior Indebtedness and the holders of Subordinated Indebtedness, be deemed to be a payment by such Obligor to or on account of Senior Indebtedness.

     13. Conflict. In the event of any conflict between any term, covenant or condition of this Agreement and any term, covenant or condition of any of the Subordinated Indebtedness Documents, the provisions of this Agreement shall control and govern. For purposes of this Section 13, to the extent that any provisions of any of the Subordinated Indebtedness Documents provide rights, remedies and benefits to Senior Agent or Senior Creditors that exceed the rights, remedies and benefits provided to Senior Agent or Senior Creditors under this Agreement, such provisions of the applicable Subordinated Indebtedness Documents shall be deemed to supplement (and not to conflict with) the provisions hereof.

     14. Statement of Indebtedness to the Subordinated Creditor. The Company will furnish to Senior Agent, upon demand, a statement of the indebtedness owing from Obligors to Subordinated Creditor, and will give Senior Agent access to the books of Obligors in accordance with the Senior Purchase Agreement so that Senior Agent can make a full examination of the status of such indebtedness. The Company will furnish to the Subordinated Creditor, upon

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demand, a statement of the indebtedness owing from Obligors to Senior Creditors, and will give the Subordinated Creditor access to the books of Obligors in accordance with the Subordinated Purchase Agreement so that the Subordinated Creditor can make a full examination of the status of such indebtedness.

     15. Headings. The paragraph headings used in this Agreement are for convenience only and shall not affect the interpretation of any of the provisions hereof.

     16. Termination. This Agreement shall terminate upon the Payment in Full of the Senior Indebtedness.

     17. Subordinated Default Notice. The Company shall provide Senior Agent and each Senior Creditor with prompt written notice of the occurrence of a Subordinated Default (which notice shall incorporate a reasonably detailed description of such Subordinated Default) and of any cure or waiver thereof. The Company shall provide Subordinated Agent and the Subordinated Creditor with prompt written notice of the occurrence of a Senior Payment Default or Senior Covenant Default, as the case may be (which notice shall incorporate a reasonably detailed description of such Senior Payment Default or Senior Covenant Default), and of any cure or waiver thereof.

     18. APPLICABLE LAW. THIS AGREEMENT, AND ALL MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

     19. JURISDICTION AND VENUE. EACH PARTY HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE STATE, COUNTY AND CITY OF NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PERSON BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PERSON AT THE ADDRESS SET FORTH IN SECTION 8 OF THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.

     20. WAIVER OF RIGHT TO JURY TRIAL. EACH PARTY HERETO (INCLUDING, WITHOUT LIMITATION, ANY PERSON THAT BECOMES A HOLDER OF SUBORDINATED INDEBTEDNESS OR SENIOR INDEBTEDNESS AFTER THE DATE HEREOF) HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING

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OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH PARTY HERETO (INCLUDING, WITHOUT LIMITATION, ANY PERSON THAT BECOMES A HOLDER OF SUBORDINATED INDEBTEDNESS OR SENIOR INDEBTEDNESS AFTER THE DATE HEREOF) ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT SUCH PERSON HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT SUCH PERSON WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY HERETO (INCLUDING, WITHOUT LIMITATION, ANY PERSON THAT BECOMES A HOLDER OF SUBORDINATED INDEBTEDNESS OR SENIOR INDEBTEDNESS AFTER THE DATE HEREOF) WARRANTS AND REPRESENTS THAT SUCH PERSON HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.

     21. No Contest of Senior Indebtedness or Liens; No Security for Subordinated Indebtedness. The Subordinated Creditor agrees that it will not, and will not encourage any other Person to, at any time, contest the validity, perfection, priority or enforceability of the Senior Indebtedness or Liens in the Senior Creditor Collateral pursuant to the Senior Purchase Agreement, the other Basic Documents or the Permitted Refinancing Debt Documents or accept or take any collateral security for the Subordinated Indebtedness.

     22. Notice to Subordinated Agent.

          The Subordinated Creditor and the Company shall give prompt written notice to the Subordinated Agent of any fact known to the Subordinated Creditor or the Company, respectively, which would prohibit the making of any payment to or by the Subordinated Agent in respect of the Subordinated Notes. Failure to give such notice shall not affect the subordination of the Subordinated Notes to Senior Indebtedness. Notwithstanding the provisions of this or any other provision of this Agreement, the Subordinated Agent shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Subordinated Agent in respect of the Subordinated Notes, unless and until the Subordinated Agent shall have received written notice thereof at the address specified in Section 8 from the Subordinated Creditor or the Company; and, prior to the receipt of any such written notice, the Subordinated Agent shall be entitled in all respects to assume that no such facts exist; provided, however, that if a Responsible Officer (as defined in the Indenture) of the Subordinated Agent shall not have received, at least two Business Days prior to the date upon which by the terms of the Indenture any such money may become payable for any purpose, the notice with respect to such money provided for in this Section 22, then, anything herein contained to the contrary notwithstanding, the Subordinated Agent shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within two Business Days prior to such date. The Subordinated Agent shall be entitled to conclusively rely on the delivery to it of a written notice by a person representing himself to be a representative of the Subordinated

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Creditor or the Company to establish that such notice has been given by a representative of the Subordinated Creditor or the Company, as applicable. Nothing in this Section 22 shall permit the Subordinated Creditor to accept any payments from the Company or the Subordinated Agent prohibited by any section of this Agreement.

          23. Reliance on Judicial Order or Certificate of Liquidating Agent.

          Upon any payment or distribution of assets of the Company referred to in this Agreement, the Subordinated Agent and the Subordinated Creditor shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Subordinated Agent or the Subordinated Creditor, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Agreement.

          24. Subordinated Agent Not Fiduciary for Holders of Senior Indebtedness.

          The Subordinated Agent shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if the Subordinated Agent shall in good faith mistakenly pay over or distribute to the Subordinated Creditor or to the Company or to any other person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Agreement or otherwise. With respect to the holders of Senior Indebtedness, the Subordinated Agent undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Agreement and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into this Agreement against the Subordinated Agent.

          25. Rights of the Subordinated Agent.

          The rights, privileges, protections and benefits given to the Subordinated Agent, in its capacity as trustee, paying agent, registrar and conversion agent, under Article VII of the Indenture (including, without limitation, its rights to be indemnified) are extended to, and shall be enforceable by, the Subordinated Agent in connection with its execution of this Agreement and its performance hereunder and to each agent, custodian and other Person employed to act hereunder.

[remainder of page intentionally left blank; signature pages follow]

-19-

          IN WITNESS WHEREOF, the Obligors have caused this Agreement to be executed as of the date first above written. The Obligors, by their execution and delivery of this Agreement, agree not to take any actions inconsistent with this Agreement.

TERREMARK WORLDWIDE INC., a Delaware corporation
By:	/s/ Jose A. Segrera
	Name:	Jose A. Segrera
	Title:	Chief Financial Officer
NAP OF THE AMERICAS, INC. NAP OF THE AMERICAS/WEST, INC. PARK WEST TELECOMMUNICATIONS INVESTORS, INC. SPECTRUM TELECOMMUNICATIONS CORP. TECOTA SERVICES CORP. TERREMARK FINANCIAL SERVICES, INC. TERREMARK FORTUNE HOUSE #1, INC. TERREMARK LATIN AMERICA, INC. TERREMARK MANAGEMENT SERVICES, INC. TERREMARK REALTY, INC. TERREMARK TECHNOLOGY CONTRACTORS, INC. TERRREMARK TRADEMARK HOLDINGS, INC. TERRENAP DATA CENTERS, INC. TERRENAP SERVICES, INC. TERREMARK EUROPE, INC.
By:	/s/ Jose A. Segrera
	Name:	Jose A. Segrera
	Title:	Chief Financial Officer
OPTICAL COMMUNICATIONS, INC.
By:	/s/ Manuel D. Medina
	Name:	Manuel D. Medina
	Title:

Series B Notes Subordination Agreement

TERREMARK FEDERAL GROUP, INC.
By:	/s/ Nelson Fonseca
	Name:	Nelson Fonseca
	Title:	Treasurer and Chief Financial Officer

Series B Notes Subordination Agreement

          IN WITNESS WHEREOF, Senior Agent and Senior Creditor have caused this Agreement to be executed as of the date first above written.

SENIOR AGENT: FMP AGENCY SERVICES, LLC
By:	/s/ William J. Kennedy, Jr.
	Name:	William J. Kennedy, Jr.
	Title:	Manager
SENIOR CREDITORS:
FALCON MEZZANINE PARTNERS, LP
By:	Falcon Mezzanine Investments, LLC,
	its General Partner
By:	/s/ Rafael Fogel
	Name:	Rafael Fogel
	Title:	Vice President

Series B Notes Subordination Agreement

STICHTING PENSIOENFONDS VOOR DE GEZOND-HEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN, Duly represented by AlpInvest Partners, N.V.
By:	/s/ M. Rademakers
	Name:	M. Rademakers
	Title:	Tax Counsel
By:	/s/ C.F. de Ru
	Name:	C.F. de Ru
	Title:	Senior Legal Counsel
STICHTING PENSIOENFONDS ABP, Duly represented by AlpInvest Partners N.V.
By:	/s/ M. Rademakers
	Name:	M. Rademakers
	Title:	Tax Counsel
By:	/s/ C.F. de Ru
	Name:	C.F. de Ru
	Title:	Senior Legal Counsel

Series B Notes Subordination Agreement

          IN WITNESS WHEREOF, Subordinated Creditor has caused this Agreement to be executed as of the date first above written.

SUBORDINATED CREDITOR: CREDIT SUISSE, INTERNATIONAL
By:	/s/ Robert Nydegger
	Name:	Robert Nydegger
	Title:	Managing Director

By:	/s/ Damien Dwin
	Name:	Damien Dwin
	Title:	Director

Series B Notes Subordination Agreement

          IN WITNESS WHEREOF, Subordinated Agent has caused this Agreement to be executed as of the date first above written

SUBORDINATED AGENT: THE BANK OF NEW YORK TRUST COMPANY, N.A.
By:	/s/ Geraldine Creswell
	Name:	Geraldine Creswell
	Title:	Assistant Treasurer

Series B Notes Subordination Agreement

EX-10.46

EXHIBIT 10.46

January 5, 2007
(the “Effective Date”)

CONFIDENTIAL

Chief Financial Officer
Terremark Worldwide, Inc.
2601 South Bayshore Drive
Suite 900
Miami, Florida 33133

Terremark Worldwide, Inc. (“Sponsor”)
$13,250,000 Capital Lease Facility
Commitment Letter (the “Commitment Letter”)

Ladies and Gentlemen:

     Credit Suisse and Credit Suisse Securities (USA) LLC (with their other affiliates, “CS”) commit to arrange for the acquisition of each Property by a special purpose entity to be formed for such purpose, and thereafter lease each Property to Lessee, all in accordance with the attached term sheet (the “Term Sheet”), and subject to the conditions in the Term Sheet and below in this Commitment Letter. Wherever this Commitment Letter or the Term Sheet refers to Lessee, each such reference shall be deemed to refer instead to Sponsor unless and until Lessee has actually been formed and executed and delivered a counterpart of (or otherwise assumed Lessee’s obligations under) this Commitment Letter. Any definitions in the Term Sheet also apply in this Commitment Letter. CS, Lessee, and Sponsor further agree as follows:

Standby Fee —
Amount On the first day of every calendar quarter starting January 1, 2007 (accruing for a full calendar quarter upon the signing of this Commitment Letter), CS shall earn a fee (the “Standby Fee”) equal to one quarter of 5.50% (550 basis points) (the “Standby Rate”) times the sum of the following:

· $13,250,000; less

· Any Lessor’s Investment that Lessor has actually funded in cash at a Closing or for which Lessor’s obligation to fund has expired (or for which Sponsor and Lessee have issued a Cancellation Notice, as described below) without funding.

Standby Fee —
Calculation and
Payment The Standby Fee shall accrue on the first day of every calendar quarter. When a Closing occurs for a Property, accrued Standby Fee allocable to that Property shall become part of Lessor’s Investment. If, for any Property, the Term Sheet expires without a Closing or Sponsor and Lessee issue a Cancellation Notice, then on the date of such expiration or Cancellation Notice Sponsor shall pay in cash the Standby Fee earned to date and allocable to such Property.

Sponsor’s Right to Issue Cancellation Notice	Sponsor and Lessee may cancel this Commitment Letter as it relates to any Property(ies) (a “Cancellation Notice”). If Sponsor and Lessee issue a Cancellation Notice for any Property, then neither CS nor Lessor shall have any obligations regarding that Property.
Costs and Expenses	Sponsor shall pay CS’s and Lessor’s reasonable out of pocket costs in evaluating (and, if applicable, closing) the proposed Lease(s), including reasonable accounting, appraisal, auditing, consulting, due diligence, engineering, environmental, legal, out of pocket costs of establishing Lessor, back-office administrative fees, administration and loan fees and other closing costs (but not interest) for any financing Lessor obtains to fund this transaction, independent director service fees, and title fees, and costs of travel, messengers, and other items, including all other bona fide transaction and due diligence costs incurred by CS, but not CS’s staff time or internal overhead (the “Costs and Expenses”).
	Sponsor has requested that CS and Lessor seek to minimize the need to duplicate any due diligence or other investigations that Sponsor or its counsel or other consultants (the “Due Diligence Team”) have performed regarding the Properties and this transaction (the “Sponsor Due Diligence”). CS and Lessor shall reasonably endeavor to comply with that request, but only to the extent that the Due Diligence Team shall have agreed in writing (in a manner reasonably satisfactory to CS) that CS and Lessor shall have the same ability and legal right as Sponsor to rely upon the Sponsor Due Diligence. This does not limit CS and Lessor’s right to perform such due diligence as they require, or limit the extent to which the resulting costs shall constitute Costs and Expenses.
Due Diligence	Lessee and Sponsor consent that CS and Lessor may perform or cause others to perform background checks, credit checks, and other investigations of Lessee and Sponsor.

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Indemnification

Sponsor agrees (a) to indemnify and hold harmless CS, Lessor, and each of their officers, directors, employees, agents, advisors, controlling persons, members and successors and assigns (each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject arising out of or in connection with this Commitment Letter, the Term Sheet, the Lease(s), or any related transaction (including any claims made by any broker or finder) or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a third party), and to reimburse each such Indemnified Person upon demand for any reasonable legal or other expenses incurred in connection with investigating or defending any of the foregoing, provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent they result from the willful misconduct or gross negligence of such Indemnified Person, and (b) to reimburse CS and Lessor from time to time, upon presentation of a summary statement, for all reasonable out-of-pocket expenses (including but not limited to expenses of CS’s and Lessor’s due diligence investigation, consultants’ fees, syndication expenses, travel expenses and fees, disbursements and other charges of counsel), but not CS’s or Lessor’s staff time or internal overhead, in each case, incurred in connection with the preparation, negotiation and enforcement of the Lease(s), this Commitment Letter, the Term Sheet, the definitive documentation for the Lease(s) and any ancillary documents or security arrangements in connection therewith, including arrangements for the establishment of Lessor. Notwithstanding any other provision of this Commitment Letter, neither any Indemnified Person nor Lessee nor Sponsor shall be liable for any indirect, special, punitive or consequential damages in connection with its activities related to the Lease(s) or this transaction.

Information

Sponsor represents and warrants (and it shall be a condition to CS’s commitment hereunder, including CS’s agreements to cause Lessor to enter into the Lease(s)) that (a) all information except the Projections (the “Information”) that has been or will be made available to CS or Lessor by or on behalf of Sponsor or any of Sponsor’s representatives is or will be, when furnished (to Sponsor’s knowledge, in the case of any Information about the Properties) complete and correct in all material respects and does not or will not, when furnished (to Sponsor’s knowledge, in the case of any Information about the Properties) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made and (b) any financial projections that have been or will be made available to CS or Lessor by or on behalf of Sponsor or any of Sponsor’s representatives (the “Projections”) have been or will be prepared in good faith based upon accounting principles consistent with the historical audited financial statements of Lessee and Sponsor and upon assumptions that are reasonable at the time made and at the time the related projections are made available to CS and Lessor.

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	Sponsor agrees that if at any time before either Lease Closing Sponsor becomes aware that any representation in the preceding sentence would be incorrect if the Information and Projections were being furnished, and such representations were being made, at such time, then Sponsor will promptly supplement the Information and Projections so that such representations will be correct under those circumstances. In arranging and causing Lessor to close the Lease(s), CS and Lessor will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof.
Conditions Precedent	CS’s commitment hereunder, and CS’s agreements to cause Lessor to enter into the Lease(s), are subject to the following conditions precedent, in addition to those described in the Term Sheet: (a) CS’s and Lessor’s completion of, and satisfaction in all respects with the results of, legal and environmental due diligence investigation of the Property, Lessee, and the Lease(s); (b) CS’s and Lessor’s not having discovered or otherwise become aware of any information not previously disclosed that they believe to be inconsistent in a material and adverse manner with their understanding, based on the information provided prior to the date hereof, of the business, assets, liabilities, operations, condition (financial or otherwise), operating results, Projections or prospects of Lessee, Sponsor, and their affiliates, taken as a whole; (c) there not having occurred any event, change or condition since March 31, 2006 (the date of the most recent audited financial statements of Sponsor delivered to CS as of the date hereof) that, individually or in the aggregate, has had, or could reasonably be expected to have, a material adverse effect on the business, assets, liabilities, operations, condition (financial or otherwise), operating results, Projections or prospects of Sponsor and its subsidiaries, including Lessee, taken as a whole; (d) the negotiation, execution and delivery of definitive documentation with respect to the Lease(s) reasonably satisfactory to CS, Lessor, and their counsel; (e) Sponsor’s compliance with the terms of this Commitment Letter and the Term Sheet; and (f) the other conditions set forth or referred to in the Term Sheet.
Confidentiality	This Commitment Letter is delivered to Sponsor on the understanding that neither this Commitment Letter, nor any of its terms or substance, nor the activities of CS and Lessor pursuant hereto, shall be disclosed, directly or indirectly, to any other person except (a) to Sponsor’s officers, directors, employees, attorneys, accountants and advisors, or those of Sponsor’s affiliates, on a confidential and need-to-know basis or (b) as required by applicable law or compulsory legal process (in which case you agree to inform us promptly thereof prior to such disclosure); provided that Sponsor may disclose this Commitment Letter and the contents hereof to the party selling the Property and its officers, directors, employees, attorneys, accountants, representatives and advisors on a confidential and need-to-know basis, and only after redaction (in a manner satisfactory to CS) of any information on the amount or calculation of the Standby Fee.

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Conflicting Interests	Sponsor acknowledges that CS may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which Sponsor or its affiliates may have conflicting interests regarding the transactions described herein or otherwise. Sponsor also acknowledges that CS does not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to Sponsor, confidential information obtained by CS from other companies.
Survival	The compensation, reimbursement, indemnification, confidentiality, jurisdiction, governing law and waiver of jury trial provisions contained herein shall remain in full force and effect regardless of whether definitive Lease documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or CS’s commitment hereunder, and CS’s agreements to cause Lessor to enter into the Lease(s) and perform CS’s services described herein.
No Fiduciary Relationship	Sponsor further acknowledges and agrees that (a) no fiduciary, advisory or agency relationship between Sponsor and its affiliates, on the one hand, and CS and Lessor, on the other hand, is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether CS has advised or is advising Sponsor or its affiliates on other matters; (b) CS, on the one hand, and Sponsor and its affiliates, on the other hand, have an arms-length business relationship that does not directly or indirectly give rise to, nor does Sponsor or its affiliates rely on, any fiduciary duty on the part of CS or Lessor; (c) Sponsor and its affiliates are capable of evaluating and understanding, and they understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter and the Term Sheet; (d) Sponsor has been advised that CS is engaged in a broad range of transactions that may involve interests that differ from Sponsor’s interests and that CS has no obligation to disclose such interests and transactions to Sponsor by virtue of any fiduciary, advisory, or agency relationship; and (e) Sponsor and its affiliates waive, to the fullest extent permitted by law, any claims any of them may have against CS and Lessor for breach of fiduciary duty or alleged breach of fiduciary duty and agree that CS and Lessor shall have no liability (whether direct or indirect) to Sponsor and its affiliates in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of Sponsor’s (or its affiliates’), including Sponsor’s stockholders, employees or creditors.
Other Activities	Sponsor and its affiliates further acknowledge that CS is a full service securities firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, CS may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of Sponsor, its affiliates and other companies with which Sponsor may have commercial or other relationships. With respect to any securities and/or financial instruments so held by CS or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.

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Assignment	This Commitment Letter shall not be assignable by Sponsor without the prior written consent of CS (and any attempted assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto (and Indemnified Persons), and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons). Notwithstanding the foregoing, Sponsor may assign this Commitment Letter to any entity wholly owned by Sponsor, provided that such entity (a) is Lessee or holds all the stock of Lessee; and (b) is reasonably satisfactory to CS. Any such assignment shall not limit Sponsor’s or Lessee’s obligations under this Commitment Letter or the Term Sheet. CS may assign its commitment hereunder to one or more of its affiliates, whereupon CS shall be released from the portion of its commitment hereunder so assigned. Any and all obligations of, and services to be provided by, CS hereunder (including, without limitation, CS’s commitment to cause Lessor to enter into the Lease(s)) may be performed and any and all rights of CS hereunder may be exercised by or through any of its respective affiliates or branches.
Miscellaneous	This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by CS and Sponsor. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. Paragraph headings used herein are for convenience of reference only, are not part of this Commitment Letter and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter.
	Both parties acknowledge that information and documents relating to this transaction and the Lease(s) may be transmitted through SyndTrak, Intralinks, the internet, e-mail, or similar electronic transmission systems, and that neither party shall be liable for any damages arising from the unauthorized use by others of information or documents transmitted in such manner. Notwithstanding anything in this Commitment Letter or the Term Sheet to the contrary, CS may place advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of information on the Internet or worldwide web as it may choose, and circulate similar promotional materials, after the closing of the transactions in the form of a “tombstone” or otherwise describing the names of Sponsor and its affiliates (or any of them), and the amount, type and closing date(s) of the Lease(s), all at CS’s expense.
	This Commitment Letter and the Term Sheet supersede all prior understandings, whether written or oral, between us with respect to the Lease(s) or CS’s or Lessor’s obligations relating to or arising from the Lease(s). This Commitment Letter shall be governed by, and construed in accordance with, the laws of the State of New York.

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Jurisdiction	Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive 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, in any action or proceeding arising out of or relating to this Commitment Letter, or the transactions contemplated by this Commitment Letter or the Term Sheet, and agrees that all claims in respect of any such action or proceeding may be heard and determined only in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter or the transactions contemplated hereby in any New York State court or in any such Federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court, and (d) 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.
Jury Trial Waiver	Each of the parties hereto irrevocably waives the right to trial by jury in any action, proceeding, claim or counterclaim brought by or on behalf of any party related to or arising out of this Commitment Letter, the lease(s), or the performance of services hereunder or thereunder.
USA PATRIOT Act	To help fight terrorism funding and money laundering activities, CS obtains, verifies, and records information that identifies each person with whom CS enters (or may enter) into a business relationship. Verification may include name, address, corporate tax identification number, date of birth (if an individual), and other information to allow CS to identify Lessee and Sponsor. CS may also ask to see corporate or limited liability company resolutions or other identifying documents.
Exclusivity	Until either a Closing with respect to a Property occurs or CS advises Sponsor in writing that the conditions precedent to such Closing have not been timely met, Lessee, Sponsor and their related parties shall deal exclusively with CS regarding (and shall not seek or obtain from anyone else) any financing or capital lease arrangements for the acquisition of such Property described in the Term Sheet.

No Further Text on This Page.

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     If the foregoing correctly sets forth our agreement with you, please indicate your acceptance of the terms of this Commitment Letter by returning to us executed counterparts hereof not later than 5:00 p.m., New York City time, on the Effective Date. CS’s offer hereunder, and our agreements to perform the services described herein, will expire automatically and without further action or notice and without further obligation to you at such time in the event that CS has not received such executed counterparts in accordance with the immediately preceding sentence. This Commitment Letter will become a binding commitment on CS only after it has been duly executed and delivered by you in accordance with the first sentence of this paragraph. To the extent that any Property has not been acquired and demised to Lessee under a Lease before the Outside Closing Date, this Commitment Letter and CS’s commitment hereunder, and CS’s agreements to perform the services described herein, shall automatically terminate without further action or notice and without further obligation to Sponsor unless CS shall, in its discretion, agree in writing to an extension.

     We look forward to working with you on this matter.

Very truly yours, CREDIT SUISSE SECURITIES (USA) LLC
By:	/s/ Robert Nydegger
	Name:	Robert Nydegger
	Title:	Managing Director
By:	/s/ Damien Dwin
	Name:	Damien Dwin
	Title:	Director
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
By:	/s/ Robert Nydegger
	Name:	Robert Nydegger
	Title:	Managing Director
By:	/s/ Damien Dwin
	Name:	Damien Dwin
	Title:	Director

8

     Confirmed and agreed to.

SPONSOR TERREMARK WORLDWIDE, INC.
By:	/s/ Jose Segrera
	Its: Chief Financial Officer

Date: Effective Date

Attachment: Term Sheet

9

TERM SHEET

Lessee	A to-be-named wholly owned direct or indirect subsidiary of Sponsor, which shall be a newly formed single-purpose entity subject to SPE covenants satisfactory to CS. Lessee shall at all times be 100% owned, directly or indirectly, by Sponsor.
Property	Each of the following:

• The real property identified as Property 1 in the documentation for the Notes (Allocated Purchase Price: $4,366,300); and

• The real property identified as Property 2 in the documentation for the Notes (Allocated Purchase Price, net of any contribution from other sources: $9,250,000).

Lessor	Single-purpose entity(ies) to be designated and structured (but not necessarily owned) by CS.
Nature of Transaction	Subject to satisfaction of the conditions precedent and other requirements of this Term Sheet and the Commitment Letter to which it is annexed, Lessor shall acquire each Property when and as Lessee or Sponsor would otherwise close such acquisition under its contracts (each, a “Contract”) with the sellers of each Property (each, a “Seller”). Sponsor may direct Lessor to close under either Contract or both Contracts at Sponsor’s election. If Sponsor elects to require Lessor to close under both Contracts, then such closings need not, but may, be simultaneous. Sponsor and Lessee may modify any Contract provided they act in good faith and promptly give CS a copy of the modification. Any such modification shall not increase or extend Lessor’s funding obligations.
	Simultaneously with each such acquisition, CS shall cause Lessor to lease each Property to Lessee on the terms described in this Term Sheet. The Properties shall be leased under a single lease or, at Sponsor’s option, each Property shall be leased under a separate Lease. At Sponsor’s option, Lessor may acquire one Property without acquiring both Properties.
Lessor’s Investment	For each Property, considered separately, Lessor’s aggregate investment (the “Lessor’s Investment”) shall equal the sum of all items listed below as in effect from time to time. The aggregate Lessor’s Investment for both Properties to be funded in cash at Closing(s) (i.e., before taking into account accrued Standby Fees or future PIK Rent Payments) shall never exceed $13,250,000 in aggregate.

• The Allocated Purchase Price plus or minus closing adjustments under the Contract;

• Sponsor’s and Lessee’s bona fide third party transaction costs reasonably approved by CS (including title, escrow and survey fees, Lessee’s transfer taxes, consultants’ fees, reasonable attorneys’ fees for the Closing, and the like);

10

• Sponsor’s and Lessee’s predevelopment costs reasonably approved by CS;

• The aggregate amount of all PIK Rent Payments;

• Accrued Standby Fees for periods before Closing; and

• CS’s and Lessor’s Costs and Expenses.

	No portion of Lessor’s Investment shall be paid directly to Lessee or Sponsor, except as expressly contemplated above in the definition of Lessor’s Investment.
Closing	Each Lease transaction will close (a “Closing”) on a date coinciding with the closing under the respective Contract for the Property to be demised under such Lease. If (at Sponsor’s election) both Contracts close simultaneously, then only a single Closing shall occur, but each Property may (at Sponsor’s election) be demised under a separate Lease.
Outside Closing Date	For each Property, the Commitment Letter, CS’s obligations thereunder and this Term Sheet shall irrevocably expire and terminate on the date (the “Outside Closing Date”) that is the earliest of the following:

• Expiration of the Contract for that Property (after taking into account any extensions of the closing date under such Contract);

• Sponsor’s and Lessee’s issuance of a Cancellation Notice for that Property; and

• December 31, 2007.

Lease Term The Lease(s) will expire on the earliest of the following:

• June 30, 2009;

• The maturity date, occurrence of a payment default, or acceleration, under the Loan Facility and Convertible Debt (together, the “Notes”) to be provided by CS under the Purchase Agreement among Terremark Worldwide, Inc., the Guarantors thereunder, Credit Suisse, Cayman Islands Branch, as Agent, and the Purchasers thereunder, dated the Effective Date; and

• The date of any default under either Lease (or under any financing secured by a mortgage encumbering the Lease) beyond applicable cure periods if such default results in a termination or acceleration of the other Lease or financing in question, unless Lessor elects otherwise in writing.

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Rent	Lessee shall pay rent under each Lease (the “Rent”), without offset or deduction, in an annual amount (payable only as described in the next paragraph) equal to the product of: (a) the Money Rate; times (b) Lessor’s Investment from time to time. If Sponsor elects to use a separate Lease for each Property, then Lessor’s Investment shall be calculated separately for each Property; otherwise Lessor’s Investment shall be calculated on a combined basis. “Money Rate” shall mean the sum of: (a) three-month LIBOR, as in effect for consecutive three-month periods starting at the Closing; plus (b) 5.50% (550 basis points) per annum; plus (c) starting on January 1, 2009, an additional 1.00% (100 basis points) per annum. Rent shall be calculated on an actual/360 basis.
	Lessee need not pay Rent in cash during the Lease term. Instead, at Lessee’s option, each quarter’s Rent may, on the first day of such quarter, be added to and become part of Lessor’s Investment (a “PIK Rent Payment”). Future Rent shall increase accordingly, taking into account that increase in Lessor’s Investment. Lessee may pay Rent under any Lease in cash if it wishes to do so.
Lease Obligations	Each Lease shall be an “absolutely triple net,” “hell or high water,” “bondable” type of Lease, under which Lessee shall bear absolutely all rights, obligations, and expenses related to the Property; CS and Lessor shall have absolutely no obligations or liabilities of any kind (except Lessor’s obligation to deliver a quitclaim deed in connection with a Buyout for which Lessee has timely satisfied all conditions under the Lease, and any other covenants expressly set forth in the Lease, including a covenant not to encumber the Properties); and the Rent shall be absolutely free and clear of any and all costs related to the Property.
Expiration Date Obligations; Buyout	Provided Lessee has not theretofore exercised its Early Buyout Option (defined below), starting at least three months before the expiration date of each Lease, Lessee shall undertake a diligent marketing program for the Property demised under that Lease and seek to arrange a sale of such Property at the best possible price, with a closing to occur simultaneously with the expiration date of such Lease. If such program is unsuccessful, or if the sales price of the Property is less than Lessor’s Investment, then on the expiration date of such Lease (including an expiration date arising from early termination of such Lease) the following shall occur as to the Property demised under such Lease (a “Buyout”):

• If such Property is sold to a third party, Lessee shall pay Lessor, as additional rent, an amount equal to Lessor’s Investment less the sales price of the Property;

• If such Property is not sold to a third party, Lessee shall purchase such Property from Lessor for an amount equal to Lessor’s Investment;

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• Lessee and Sponsor shall pay Lessor all unpaid sums (including accrued but unpaid Rent) then due under such Lease;

• Provided that Lessee has paid and performed all its obligations in connection with the Buyout when and as the Lease requires by its express terms, Lessor shall convey the Property by quitclaim deed, to Lessee or Lessee’s designee, entirely at Lessee’s cost and expense (including payment of any applicable transfer taxes), subject to no liens or encumbrances created by Lessor;

• If Lessee does not timely perform its Buyout obligations for a Property, then Lessee’s Buyout rights shall terminate, and Lessor shall have the unrestricted right to sell such Property to a third party, in full or partial satisfaction of Lessee’s obligations under the Lease, and Lessee (and Sponsor under its guaranty) shall continue to be liable for an amount (the “Net Payment”) equal to the difference between the actual net sales proceeds, if any, of such Property (the “Proceeds”) and Lessor’s Investment for such Property, and all other sums due under the Lease (collectively, “Leasehold Obligations”); and Lessee shall be entitled to receive any Proceeds that exceed the Leasehold Obligations;

• If Lessor has not actually sold the Property when Lessor demands the Net Payment, then Lessor shall reasonably determine the fair market value of the Property based on a third party appraisal and recalculate the Net Payment to give Lessee and Sponsor credit for the Proceeds Lessor would have realized if Lessor had sold the Property for such fair market value; and

• Sponsor’s guaranty shall extend to Lessee’s obligations upon any Buyout.

	If there exists more than one Lease, then Lessee and Lessor shall consummate any Buyout simultaneously for each and every Property, and not for one Property only (except in the case of a Buyout for a single Property initiated by Lessee).
	The total amount payable by Lessee upon a Buyout is referred to as the “Buyout Payment.”
Early Buyout	If any Lease terminates before its scheduled expiration date for any reason (including Lessee’s default beyond applicable cure periods or the occurrence of any casualty or condemnation for which Lessee does not with reasonable promptness satisfy ordinary and customary restoration conditions), then at Lessee’s or Lessor’s option a Buyout shall occur under such Lease effective 20 days after the giving of notice to such effect.
	In addition, Lessee may elect at any time, on 20 days written notice, to consummate a Buyout under any Lease(s) as Lessee designates.

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General Covenants, Representations, Warranties, and Events of Default	Substantially equivalent to those contained in Sponsor’s existing second-lien term loan facility, subject to such exceptions and modifications as CS (or Lessor) and Sponsor shall agree.
Lease Covenants, Representations, Warranties, and Events of Default	In addition, the Lease documents shall contain Lease-specific covenants, representations, warranties, and Events of Default as CS or Lessor requires. These will include at least the following provisions:

• Property Costs. Lessee shall pay all real estate taxes, operating expenses, insurance premiums, construction costs, maintenance and repair costs, utilities, and all other Property-related costs of any kind or character whatsoever. Lessee shall give CS and Lessor such evidence of payment of such costs as CS and Lessor reasonably require from time to time.

• Legal Compliance. Lessee shall be solely responsible for legal compliance, even if applicable laws require “capital” or “structural” improvements or repairs to the Property.

• Easement Grants. Lessor shall cooperate with Lessee in granting ordinary and customary easements and other development-related rights (collectively, the “Easements”), provided that: (a) the Easements are on reasonable and customary terms; (b) Lessee gives Lessor reasonable prior notice of any Easement; and (c) Lessee gives CS and Lessor a certificate executed by an officer of Lessee stating that the granting of such Easement will not impair the fair market value of the Property in any material respect.

• Trade Fixtures. Lessee’s trade fixtures (including fixtures, machinery and equipment) remain Lessee’s property. Lessee may remove them from the Property at any time during the Lease term, provided that Lessee repairs any damage to the Property resulting from such removal.

• Alterations. Lessee may perform the following (“Approved Construction”), in compliance with law: (i) non-structural alterations, modifications or improvements, without any notice to or consent of Lessor, (ii) any structural alteration, modification or improvement, without Lessor’s consent, provided that Lessee gives CS and Lessor a certificate from a structural engineer and a certificate of an officer of Lessee stating that the proposed changes will not adversely affect the structural integrity of the Property or impair the revenue production potential (in Sponsor’s business) of the Property in any material respect; and (iii) certain specified construction work (to be pre-approved in the Lease) enabling Lessee and Sponsor to use the Property in Sponsor’s business.

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• Ownership. Lessee shall own (and be entitled to depreciation on) any improvements it constructs, but such improvements shall revert to Lessor if the Lease terminates and Lessee does not acquire the Property through a Buyout. Lessee shall not damage or destroy any improvements.

• Lessee’s Assignment and Subletting. Lessee may not sublease or assign except as this paragraph allows. Lessee may collaterally assign a Lease solely to secure the Notes and Sponsor’s obligations to any creditor that the Notes allow to hold a lien senior to the lien securing the Notes (the “Approved Leasehold Financing”). Any Approved Leasehold Financing shall attach solely to the leasehold under the Lease and not to Lessor’s fee estate (and hence shall be subordinate to Lessor’s estate). Lessor shall have no obligation to “subordinate the fee” or join in any Approved Leasehold Financing. Lessee may sublease to any entity that is directly or indirectly wholly owned by Sponsor (as necessary or appropriate for the operation of Sponsor’s business), or in connection with any merger, acquisition, or consolidation of Sponsor or the acquisition of all or substantially all of the assets of Sponsor. Lessee may without Lessor’s consent sublease or license any part(s) or all of any Property on arm’s length terms in the ordinary course of Lessee’s and Sponsor’s business operations.

• Mortgagee Protections. Any party providing Approved Leasehold Financing (an “Approved Leasehold Mortgagee”) shall have the rights, subject to the terms of the Approved Leasehold Financing, to: (a) cure Lessee’s defaults under the Lease (within an additional cure period of up to 30 days); (b) after an Event of Default under, and foreclosure of, the Approved Leasehold Financing, elect to exercise Lessee’s Buyout rights, provided that such Approved Leasehold Mortgagee also timely performs Lessee’s Buyout obligations (without prejudice to its rights against Lessee); (c) consent to any amendment of the economic terms of the Lease; (d) receive an assignment of the Lease without Lessor’s consent (but this may at Lessor’s option trigger a Buyout); and (e) obtain a new lease if the Lease terminates because Lessor exercises its remedies under the Lease after Lessee’s default, provided that within 30 days after such termination (and as a condition to receiving a new lease) the Approved Leasehold Mortgagee pays Lessor the Buyout Payment. Any foreclosure under Approved Leasehold Financing shall terminate only Lessee’s estate and shall have no effect on Lessor’s fee estate or right to receive any payments under the Lease.

• Lessor’s Assignment. Lessor may assign (or grant participations in) its interest in the Property(ies) and the Lease. Lessee will at Lessee’s expense (including its attorneys’ fees) provide such cooperation as Lessor reasonably requests to facilitate the foregoing.

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• Operation and Use. Lessee will develop the Property as a “web hotel” and collocation facility for Internet services and connections. Any changes in or suspension of use will be permitted provided it causes no material adverse impact on the value of the Property.

• Repairs. Lessee will be responsible for all structural and nonstructural repairs and maintenance to the Property, including without limitation all capital repairs, such that Lessor will retain no repair, maintenance, or other operating expenses or performance obligations of any kind or nature for the Property.

• No Lessor Liability. Neither CS nor Lessor shall have any liability whatsoever for any matter relating to the Property. Neither CS nor Lessor shall make any representations whatsoever. Lessee and Sponsor shall indemnify CS and Lessor against all costs, risks, burdens, claims, and obligations relating to or arising from the Property, save only for those arising out of CS or Lessor’s own gross negligence, wrongful acts or material breach of its specific and express obligations under the Lease.

• Insurance. As CS or Lessor requires, consistent with similar transactions, provided however that CS and Lessor shall have absolutely no obligation or liability for payment of any premiums. Lessor shall be named as a loss payee under any property insurance covering the Properties.

• Loss Proceeds. Fee mortgagees and permitted leasehold mortgagees may participate in adjustment or settlement of any insurance proceeds or condemnation award (“Loss Proceeds”). If Lessee elects a Buyout upon any casualty or condemnation (or if Lessee fails to satisfy ordinary and typical restoration conditions with reasonable promptness, and Lessor thereupon elects a Buyout), then Loss Proceeds (except any attributable to Approved Construction) up to the Buyout Payment shall go to Lessor, with credit against the Buyout Payment. Pending restoration or Buyout, a creditworthy depository (which may be the fee mortgagee, if an institutional lender) shall hold Loss Proceeds, applying them first to pay current monetary obligations under the Lease (other than accrued and unpaid PIK Rent), second to restore and fully pay for restoration (under ordinary and customary restoration and disbursement procedures) or toward the Buyout payment (if a Buyout occurs), and third to release any balance to Lessee or its leasehold mortgagee.

• Fee Mortgages. If Lessor grants a mortgage on its fee estate, then such mortgage shall be junior and subordinate to the Lease, including Lessee’s rights under any Buyout. Fee mortgagees shall have cure rights and other ordinary mortgagee protections.

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• Environmental. Lessee shall bear, and shall indemnify the Indemnified Persons from and against, any and all environmental risks related to the Property, including pre-existing environmental conditions, conditions on adjacent property affecting any Property, and conditions caused by third parties.

• Transaction Taxes. Lessee shall pay all transfer, stamp, conveyancing, leasehold, personal property, sales, and other taxes imposed on the creation of each Lease and the consummation of any Buyout.

Guaranty	Sponsor shall fully guaranty all payment and performance obligations of Lessee under each Lease, under a form of guaranty satisfactory to CS and Lessor.
Transfers	The Lease Documents shall prohibit any transfer (or encumbrance) of Lessee’s interest in the Property or of interests in Lessee, without CS’s and Lessor’s approval in their sole and absolute discretion, except as expressly permitted above.
Indebtedness	The Lease Documents shall prohibit Lessee from incurring any indebtedness whatsoever except accrued but unpaid Rent; current liabilities for expenditures for operation and maintenance of the demised Property that the Lease requires Lessee to pay or incur; and contracts and other obligations arising from Approved Construction affecting the demised Property. This restriction shall not apply to existing indebtedness of Lessee as of the date of this Commitment or to the Convertible Debt and Debt Transactions being entered into contemporaneously with this Commitment.
Regulatory Change; Withholding, Illegality	The Lease Documents shall contain customary provisions on increased costs, capital adequacy protection, withholding and other taxes, unavailability of LIBOR, and illegality.
Conditions Precedent	As customary for a transaction of this nature, including CS’s receipt of the following (the “Closing Deliveries”), all of which shall be satisfactory to CS, and Sponsor’s satisfaction of the following additional conditions:

• Completion and execution of Lease documents by Sponsor, Lessee, Lessor, and other parties as necessary in form and substance satisfactory to CS and Lessor and their counsel (the “Lease Documents”);

• The full and simultaneous funding from sources other than CS and its affiliates of the entire purchase price and closing costs for Lessor’s acquisition of each Property, to the extent that such purchase price and closing costs exceed Lessor’s Investment applied for such purpose;

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• Other conditions precedent as stated in the Commitment Letter to which this Term Sheet is annexed;

• The Notes shall remain outstanding and not be in default in any way;

• In the case of the second Closing, if any, the Lease shall be in full force and effect and not in default as to the Property already demised, and such Lease shall not have expired or terminated;

• Lessee’s organizational documents;

• Evidence that the Property is assessed separate and apart from any other property for local property tax purposes and a tax bill or tax search clearly identifying the property taxes for the Property;

• Payment of Lessor’s and CS’s Costs and Expenses (to be funded at Closing from additional Lessor’s Investment, subject to the dollar limitation on Lessor’s Investment as stated in this Term Sheet);

• Identification, background information, and documents necessary for CS to comply with the USA PATRIOT Act;

• Insurance coverage and certificates;

• On-site Property inspection by CS;

• Opinions of counsel as CS’s counsel requires;

• Phase I environmental report and Phase II, if indicated (including asbestos and mold);

• PZR zoning report;

• Seismic report (if applicable), including calculation of probable maximum loss;

• Survey, no more than 60 days old, certified to “Credit Suisse and its affiliates, successors and assigns”;

• Title insurance policy from Chicago, Fidelity, First American, LandAmerica, or Stewart (or another company CS approves);

• UCC, judgments, litigation, bankruptcy, real estate tax, and other searches as CS requires; and

• Such other closing deliveries and documents as CS, Lessor, and their counsel reasonably require.

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CS’s Counsel	Latham & Watkins LLP 885 Third Avenue, Suite 1000 New York, New York 10022-4802 Attention: Joshua Stein, Esq.
Governing Law	New York

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EX-10.47

Exhibit 10.47

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 JANUARY 5, 2007 (THE “PURCHASE AGREEMENT”), AMONG TERREMARK WORLDWIDE, INC. (THE “COMPANY”), THE GUARANTORS NAMED THEREIN, THE AGENT AND THE PURCHASERS NAMED THEREIN. A COPY OF SUCH PURCHASE AGREEMENT IS AVAILABLE AT THE OFFICES OF THE COMPANY.

THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE COMPANY AGREES TO PROVIDE PROMPTLY TO HOLDERS OF NOTES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE NOTES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT THE FOLLOWING ADDRESS: 2601 S. BAYSHORE DRIVE, 9^TH FLOOR, MIAMI, FLORIDA 33133.

THE SECURITY REPRESENTED BY THIS CERTIFICATE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATED IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT (THE “SUBORDINATION AGREEMENT”) DATED AS OF JANUARY 5, 2007 AMONG TERREMARK WORLDWIDE, INC. AS THE ISSUER, THE SUBSIDIARY GUARANTORS NAMED THEREIN, FMP AGENCY SERVICES, LLC, AS THE SENIOR AGENT TO THE SENIOR CREDITORS NAMED THEREIN, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, THE SUBORDINATED AGENT TO THE SUBORDINATED CREDITORS NAMED THEREIN AND EACH HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.

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SENIOR SUBORDINATED SECURED NOTES DUE 2009

$10,000,000

CUSIP: 881448 AD 6

No. 1

     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 Credit Suisse, Cayman Islands Branch, or registered assigns, the principal sum of $10,000,000 Dollars (as such amount may be increased from time to time in accordance with Paragraph 2 on the reverse of this Note) on June 30, 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.

     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

     Dated: January 5, 2007

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TERREMARK WORLDWIDE, INC.
By:
	Name:
	Title:

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          1. General. This Note is one of a duly authorized issue of Notes of the Company designated as its Senior Subordinated Secured Notes due 2009 (herein called the “Notes”), limited in aggregate principal amount to the sum of (a) $10,000,000 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 January 5, 2007 (herein called the “Purchase Agreement”), among the Company, the Guarantors named therein, the Agent 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 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 the last Business Day of each March, June, September and December in each year commencing March 30, 2007 (each, an “Interest Payment Date”) and at Stated Maturity at the Applicable Rate, until the principal hereof is paid. On each such Interest Payment Date the Company shall pay such interest by adding the amount thereof to the principal amount of this Note on such Interest Payment Date, and shall within five (5) Business Days of each relevant Interest Payment Date deliver to the Noteholder of this Note written notice stating the amount of interest so added to the principal of this Note and the new principal amount of this Note.

     “Applicable Rate” means the Eurodollar Rate plus 8.00%, provided that from and after January 1, 2009 through the Stated Maturity Date, the Applicable Rate shall be equal to the Eurodollar Rate plus 9.00%.

     “Eurocurrency Reserve Requirements” means, for any day, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves under any regulations of the Board of Governors of the Federal Reserve System of the United States (or any successor) (the “Board”) or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the Federal Reserve System.

     “Eurodollar Base Rate” means, with respect to each day during each Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the commencement of such Interest Period

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by reference to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “Eurodollar Base Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period.

     “Eurodollar Rate” means, with respect to each day during each Interest Period, a rate per annum determined for such day in accordance with the following formula:

          Eurodollar Base Rate           
1.00 — Eurocurrency Reserve Requirements

     “Interest Payment Date” means the last day of each Interest Period.

     “Interest Period” means an interest period (i) initially, commencing on January 5, 2007 and ending on March 30, 2007; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires and ending on the immediately succeeding day that is the last Business Day of each March, June, September and December occurring thereafter.

     To the extent that the payment of such interest shall be legally enforceable, any principal of, or premium or installment of interest on, this Note which is overdue shall bear interest at the rate of 2% per annum in excess of the rate of interest then borne by the Notes (“default interest”) from the date such amounts are due until they are paid, and the entire amount of such default interest shall be payable in cash.

     Interest on this Note shall be computed on the basis of the actual number of days elapsed over a year of 360 days.

     All interest payable, on any Interest Payment Date will, as provided in the Purchase Agreement, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the “Regular Record Date” for such interest, which shall be the fifteenth calendar day (whether or not a Business Day) immediately preceding such Interest Payment Date. Notwithstanding the foregoing, if this Note is issued after a Regular Record Date and prior to an Interest Payment Date, the record date for such Interest Payment Date shall be the original issue date.

          3. Redemption. The Company may, at its option, redeem the Notes, in whole or in part at any time prior to the Stated Maturity, at the then outstanding balance of such Note (including interest that has accreted to principal) plus accrued but unaccreted interest.

          4. Procedures for Redemption. If less than all the Notes are to be redeemed, the Notes shall be redeemed pro rata from each Noteholder.

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     In the event of redemption or purchase pursuant to an offer to purchase this Note in part only, a new Note or Notes for the unredeemed or unpurchased portion hereof will be issued in the name of the Noteholder hereof upon the cancellation hereof.

          5. Events of Default. If an Event of Default shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Purchase Agreement.

          6. Offers to Purchase Notes. The Purchase Agreement provides that, subject to certain conditions, if (i) certain Excess Proceeds are available to the Company as a result of Asset Sales, (ii) a Change of Control occurs, or (iii) if there is an exercise of an early buy-out option granted in connection with the Contemplated Lease Financings, the Company shall be required to make an offer to purchase all or a specified portion of the Notes as provided for in the Purchase Agreement.

          7. Amendments, Modifications and Waivers. The Purchase Agreement permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and certain rights of the Noteholders under the Purchase Agreement at any time by the Company with the consent of the holders of a majority in aggregate principal amount of the Notes at the time outstanding. The Purchase Agreement also contains provisions permitting the Noteholders of specified percentages in the aggregate principal amount of the Notes at the time outstanding, on behalf of the Noteholders of all the Notes, to waive compliance by the Company with certain provisions of the Agreement and certain past defaults under the Agreement and their consequences. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

          8. Registration of Transfer. As provided in the Purchase Agreement and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the principal offices of the Company, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company duly executed by, the holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

     The Notes are issuable only in registered form without coupons in denominations authorized under the Purchase Agreement. As provided in the Purchase Agreement and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Noteholder surrendering the same.

     No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any Tax or other governmental charge payable in connection therewith.

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     Prior to due presentment of this Note for registration of transfer, the Company and any agent of the Company may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.

          9. Subordination. The indebtedness evidenced by this Note is, to the extent provided in the Subordination Agreement, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Note is issued subject to the provisions of the Purchase Agreement and Subordination Agreement with respect thereto. Each Noteholder, by accepting the same, agrees to and shall be bound by such provisions.

          10. Miscellaneous. All terms used in this Note which are defined in the Purchase Agreement shall have the meanings assigned to them in the Purchase Agreement. The Company and the Noteholder agree that, unless otherwise required by law or the good faith resolution of an examination or audit by the Internal Revenue Service, they shall treat the Notes as not subject to the provisions of Treasury Regulations 1.1275.4.

     THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

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EX-10.48

Exhibit 10.48

CUSIP NUMBER: 881448 AE 4

TERREMARK WORLDWIDE, INC.
0.50% SENIOR SUBORDINATED CONVERTIBLE NOTE DUE 2009

     THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT (THE “SUBORDINATION AGREEMENT”) DATED AS OF JANUARY 5, 2007 AMONG TERREMARK WORLDWIDE, INC. AS THE ISSUER, THE TRUSTEE, FMP AGENCY SERVICES, LLC, AS THE AGENT TO THE SENIOR CREDITORS NAMED THEREIN, AND CREDIT SUISSE, INTERNATIONAL, AS THE SUBORDINATED CREDITOR NAMED THEREIN, AND EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AND INTERCREDITOR AGREEMENT.

     THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE COMPANY AGREES TO PROVIDE PROMPTLY TO HOLDERS OF NOTES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE NOTES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT THE FOLLOWING ADDRESS: 2601 S. BAYSHORE DRIVE, 9^TH FLOOR, MIAMI, FLORIDA 33133.

     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN “IAI”); (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (D) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATION AND AGREEMENTS RELATING TO THE TRANSFER OF THE NOTES (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), (E) IN ACCORDANCE

WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.

     THIS SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THAT CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED JANUARY 5, 2007, AMONG TERREMARK WORLDWIDE, INC., CREDIT SUISSE INTERNATIONAL AND THE OTHER PARTIES NAMED THEREIN.

1. INTEREST.

     Terremark Worldwide, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Security at 0.50% per annum for the first 24 months that the Note is outstanding, and therafter at a rate of 1.50% per annum until maturity. The Company will pay interest upon the maturity of the Securities. All interest payable hereunder shall be payable in kind by adding such amount to the aggregate principal amount of the Securities. Interest on the Securities will accrue on the principal amount from, and including, January 5, 2007, to, but excluding, the Maturity Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months, and accrued interest shall compound and be added to outstanding principal on each July 1 and January 1 (of if such date is not a Business Day, the immediately succeeding Business Day, such dates, the “Interest Payment Date”), as well as on June 30, 2009.

2. MATURITY.

     The Securities will mature on June 30, 2009.

3. METHOD OF PAYMENT.

     Except as provided in the Indenture (as defined below), the Company will pay interest on the Securities to the persons who are Holders of record of Securities at the close of business on June 30, 2009. Holders must surrender Securities to a Paying Agent to collect the principal amount, Redemption Price, Repurchase Price of the Securities, plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Redemption or Repurchase Upon Change in Control, as the case may be. The Company will pay, in money of the United States that at the time of payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid (A) in the case this Security is in global form, by wire transfer of immediately available funds to the account specified by the Holder hereof and (B) in the case this Security is held in other than global form, by wire transfer of immediately available funds to the account specified by the Holder hereof or, if no such account is specified, by mailing a check to such Holder’s address shown in the Note Register.

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4. PAYING AGENT, REGISTRAR, CONVERSION AGENT.

     Initially, The Bank of New York Trust Company, N.A., a national banking association (the “Trustee”), will act as Paying Agent, Registrar and Conversion Agent. The Company may change any Paying Agent, Registrar or Conversion Agent without notice.

5. INDENTURE.

     The Company issued the Securities under an Indenture dated as of January 5, 2007 (the “Indenture”) between the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 as amended and in effect from time to time (the “TIA”). The Securities are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. The Securities are general unsecured senior subordinated obligations of the Company limited to $4,000,000 aggregate principal amount, except as otherwise provided in the Indenture (except for Securities issued in substitution for destroyed, mutilated, lost or stolen Securities). Terms used herein without definition and which are defined in the Indenture have the meanings assigned to them in the Indenture.

6. OPTIONAL REDEMPTION.

     The Company shall have the right, at the Company’s option, on any Interest Payment Date that is six months following the date of this Indenture, upon no less than fifteen (15) days prior written notice to the Trustee and the Initial Purchaser, to redeem (the “Redemption”) all of the Securities at a redemption price equal to (i) the amount set forth below (expressed as percentages of the principal amount outstanding on the date of redemption), plus (ii) the amount (if any) by which the fair market value of on such date of the Common Stock into which the Security is then convertible exceeds the principal amount of the Security on such date, plus (iii) accrued, but unpaid Interest (the “Redemption Payment” or “Redemption Price”), if redeemed during the following monthly periods following the closing date:

Monthly Period	Percentage
After Month Six and Before Month Twelve		113.00	%
On or After Month Twelve and Before Month Eighteen		112.40	%
On or After Month Eighteen and Before Month Twenty Four		111.30	%
On or After Month Twenty Four		108.80	%

7. NOTICE OF REDEMPTION.

     Notice of Redemption will be mailed at least twenty (20) days but not more than sixty (60) days before the Redemption Date to each Holder of Securities to be redeemed at its address appearing in the Note Register. Securities in denominations larger than $1,000 principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.

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8. REPURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL.

     Subject to the terms and conditions of the Indenture, in the event of a Change in Control, each Holder of the Securities shall have the right, at the Holder’s option, to require the Company to repurchase such Holder’s Securities including any portion thereof which is $1,000 in principal amount or any integral multiple thereof on a date selected by the Company (the “Repurchase Date”), which date is no later than forty five (45) days after the date of the Change in Control, at a price payable in cash equal to one hundred percent (100%) of the principal amount of such Security, plus accrued and unpaid interest to, and including, the Repurchase Date.

     Within twenty five (25) days after the occurrence of the Change in Control, the Company must mail, or cause to be mailed, notice of the occurrence of such Change in Control to each Holder. Such notice shall include, among other things, a description of the procedure which a Holder must follow to exercise the Repurchase Right. To exercise the Repurchase Right, a Holder of Securities must, in accordance with the provisions of the Indenture, (i) deliver, no later than the close of business on the Business Day immediately preceding the Repurchase Date, a Purchase Notice to the Company (if it is acting as its own Paying Agent) or to the Paying Agent; and (ii) deliver, at any time after the delivery of such Purchase Notice, the Securities with respect to which the Holder is exercising its Repurchase Right (together with all necessary endorsements).

     A “Change In Control” shall be deemed to have occurred at such time as:

     (i) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder, is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the total voting power of all classes of the Company’s Capital Stock entitled to vote generally in the election of directors calculated on a fully-diluted basis; or

     (ii) the Company consolidates with, or merges with or into, another Person or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction where the Persons that “beneficially owned,” directly or indirectly, the shares of the Company’s Voting Stock immediately prior to such transaction, “beneficially own,” directly or indirectly, immediately after such transaction, shares of the continuing, surviving or acquiring corporation’s Voting Stock representing at least a majority of the total voting power of all outstanding classes of the Voting Stock of the continuing, surviving or acquiring corporation; or

     (iii) the sale, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act;

provided, however, that a Change in Control will not be deemed to have occurred if at least eighty percent (80%) of the consideration (other than cash payments for fractional shares or pursuant to statutory appraisal rights) in the merger or consolidation otherwise constituting the Change in Control consists of common stock, depositary receipts or other certificates representing common equity interests and any associated rights traded on a U.S. national

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securities exchange or quoted on The Nasdaq National Market (or which will be so traded or quoted when issued or exchanged in connection with such Change in Control), and, as a result of such transaction or transactions, the Securities become convertible solely into such common stock, depositary receipts or other certificates representing common equity interests and associated rights.

9. CONVERSION.

     The Securities shall be convertible into shares of Common Stock at any time on or after the earlier of (x) the Registration Date or (y) 270 days following the Issue Date but prior to the close of business on the Maturity Date, in accordance with the terms of the Indenture and as set forth below.

     The initial Conversion Price is $8.14 per share, subject to adjustment in the event of certain circumstances as specified in the Indenture. The Company will deliver a check in lieu of any fractional share. On conversion, no payment or adjustment for any unpaid and accrued interest on, or additional interest with respect to, the Securities will be made, except as specified in the Indenture.

     To convert a Security, a Holder must (1) complete and sign the Conversion Notice attached to this Note, with appropriate signature guarantee, on the back of the Security, (2) surrender the Security to a Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent and (4) pay any tax or duty if required pursuant to the Indenture. A Holder may convert a portion of a Security if the portion is $1,000 principal amount or an integral multiple of $1,000 principal amount.

     Any shares of Common Stock issued upon conversion of a Security shall bear the Private Placement Legend until such shares are sold pursuant to an effective registration statement or after the second anniversary of the later of the Issue Date and the last date on which the Company or any Affiliate was the owner of such shares or the Security (or any predecessor security) from which such shares were converted (or such shorter period of time as permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such longer period of time as may be required under the Securities Act or applicable state securities laws, as set forth in an Opinion of Counsel, unless otherwise agreed by the Company and the Holder thereof).

10. INTENTIONALLY OMITTED.

11. SUBORDINATION.

     All obligations under the Notes will be subordinate to the extent set forth in the Subordination Agreement. A Holder by its acceptance of a Security agrees to be bound by the terms and provisions of Article XI of the Indenture and the terms and provisions of the Subordination Agreement and authorizes and expressly directs the Trustee, on its behalf, to take such action as may be necessary or appropriate to effectuate the subordination between the Holders and the holders of Senior Indebtedness (as defined in the Subordination Agreement) of the Company (including, but not limited to, the execution of the Subordination Agreement) and appoints the Trustee as attorney-in-fact for any and all such purposes.

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12. DENOMINATIONS, TRANSFER, EXCHANGE.

     The Securities are in registered form, without coupons, in denominations of $1,000 principal amount and integral multiples of $1,000 principal amount. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or similar governmental charge that may be imposed in connection with certain transfers or exchanges. The Company, the Trustee and the Registrar shall not be required to register the transfer of or exchange any Security (i) during a period beginning at the opening of business fifteen (15) days before the mailing of a notice of redemption of the Securities selected for Redemption under Section 3.4 of the Indenture and ending at the close of business on the day of such mailing or (ii) that has been selected for Redemption or for which a Purchase Notice has been delivered, and not withdrawn, in accordance with the Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or repurchased in part.

13. PERSONS DEEMED OWNERS.

     The registered Holder of a Security may be treated as the owner of such Security for all purposes.

14. MERGER OR CONSOLIDATION.

     The Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially all of the property or assets of the Company to, another person, whether in a single transaction or series of related transactions, unless (i) such other person is a corporation organized under the laws of the United States, any State thereof or the District of Columbia; (ii) such person assumes by supplemental indenture all the obligations of the Company under the Securities and the Indenture; and (iii) immediately after giving effect to the transaction, no Default or Event of Default shall exist.

15. AMENDMENTS, SUPPLEMENTS AND WAIVERS.

     Subject to certain exceptions and to the provisions of the Indenture, the Indenture and the Securities may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities, and certain existing Defaults or Events of Default may be waived with the consent of the Holders of a majority in aggregate principal amount of the Securities then outstanding. In accordance with the terms of the Indenture, the Company, with the consent of the Trustee, may amend or supplement the Indenture or the Securities without notice to or the consent of any Securityholder: (i) to evidence the assumption of the Company’s obligations by a successor; (ii) to evidence the acceptance of appointment by a successor trustee; (iii) to make any changes or modifications to the Indenture necessary to cure and ambiguity or correct any error in the Indenture, so long as such action will not adversely affect the interests of the Holders; (iv) to qualify or maintain the qualification of the Indenture under the TIA; (v) to secure the obligations of the Company in respect of the

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Securities; (vi) to establish the forms or terms of the Securities; (vii) to add to the covenants of the Company described in the Indenture for the benefit of Securityholders; or (viii) to make other changes to the Indenture or forms or terms of the Securities, provided no such change individually or in the aggregate with all other such changes has or will have a material adverse effect on the interests of the Holders. In accordance with the terms of the Indenture, certain amendments, supplements and waivers cannot be made without the consent of each Holder of each outstanding Security affected.

16. DEFAULTS AND REMEDIES.

     Subject to the provisions of the Indenture, an “Event of Default” occurs if: (i) the Company fails to pay the principal of any Security when the same becomes due and payable, whether at maturity, upon Redemption, on a Repurchase Date with respect to a Repurchase Upon Change in Control or otherwise; (ii) the Company fails to pay Interest on any Security when due, if such failure continues for thirty (30) days after the date when due; (iii) the Company fails to timely provide a Change in Control Notice, as required by the provisions of this Indenture; (iv) the Company defaults in its obligation to convert the Securities into shares of Common Stock, cash or a combination of cash and Common Stock upon exercise of a Holder’s conversion right and such default continues for ten (10) days; (v) the Company defaults in its obligation to repurchase any Security on a Repurchase Date with respect to a Repurchase Upon Change in Control or otherwise; (vi) the Company defaults in its obligation to redeem any Security after exercise of its option to redeem; (vii) the Company fails to perform or observe any of the covenants in Article IV of the Indenture for sixty (60) days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least fifty percent (50%) in the aggregate principal amount of the Securities then outstanding; (viii) there occurs an event of default with respect to the Company’s or any of its Subsidiaries’ Indebtedness having a principal amount then outstanding, individually or in the aggregate, of at least fifteen million ($15,000,000), whether such Indebtedness now exists or is hereafter incurred, which default or defaults: (a) shall have resulted in such Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable; or (b) shall constitute the failure to pay such Indebtedness at the final stated maturity thereof (after expiration of any applicable grace period); (ix) any final judgment or judgments for the payment of money in excess of fifteen million ($15,000,000) shall be rendered against the Company and shall not be discharged for any period of sixty (60) consecutive days during which time a stay of enforcement shall not be in effect or during which time an appeal has not been filed; or (x) certain events of bankruptcy, insolvency or reorganization involving the Company.

     If an Event of Default (excluding an Event of Default specified in Section 6.1(x) of the Indenture (but including an Event of Default specified in Section 6.1(ix) of the Indenture)) occurs and is continuing, the Trustee by notice to the Company or the Holders of at least fifty percent (50%) in aggregate principal amount of the Securities then outstanding by notice to the Company and the Trustee, may declare the Securities to be immediately due and payable in full. Upon such declaration, the principal of, premium, if any, and any accrued and unpaid interest on, all Securities shall be due and payable immediately. If an Event of Default specified in Section 6.1(x) of the Indenture occurs, the principal of, and accrued and unpaid interest on, all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate

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principal amount of the Securities then outstanding by written notice to the Trustee may rescind or annul an acceleration and its consequences if (A) the rescission would not conflict with any order or decree, (B) all existing Events of Default, except the nonpayment of principal or interest that has become due solely because of the acceleration, have been cured or waived and (C) all amounts due to the Trustee under Section 7.7 if the Indenture have been paid.

     Holders may not enforce the Indenture or the Securities except as provided in the Indenture. The Holders of a majority in aggregate principal amount of the Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability unless the Trustee is offered indemnity reasonably satisfactory to it; provided, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

     If a Default or Event of Default occurs and is continuing, the Trustee shall mail to Holders of Securities a notice of the Default or Event of Default within ninety (90) days after such Event of Default becomes known to the Trustee. Except in the case of a Default in payment on any Security (including the failure to make a mandatory repurchase pursuant hereto), the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities.

17. REGISTRATION RIGHTS.

     The Holders are entitled to registration rights as set forth in the Registration Rights Agreement. The Holders shall be entitled to receive additional interest in certain circumstances, all as set forth in the Registration Rights Agreement.

18. TRUSTEE DEALINGS WITH THE COMPANY.

     The Trustee under the Indenture, or any banking institution serving as successor Trustee thereunder, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for, the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee.

19. NO RECOURSE AGAINST OTHERS.

     No past, present or future director, officer, employee or shareholder, as such, of the Company shall have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder, by accepting a Security, waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.

20. AUTHENTICATION.

     This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent in accordance with the Indenture.

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21. ABBREVIATIONS.

     Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).

     The company will furnish to any holder upon written request and without charge a copy of the indenture. Requests may be made to:

Terremark Worldwide, Inc.
2601 South Bayshore Drive
Miami, Florida 33133
Attn: Chief Financial Officer

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EX-99.1

Exhibit 99.1

Terremark Secures Initial Financing to Pursue Expansion Strategy

Company to Secure Properties in Silicon Valley and the Washington D.C. Area and Begin Signing Customers

MIAMI—(BUSINESS WIRE)—Jan. 8, 2007—Terremark Worldwide, Inc. (AMEX:TWW) today announced that it has secured financing of $27.25 million from Credit Suisse to fund its previously announced expansion plans. The proceeds from this financing will allow the Company to secure two properties, one in Silicon Valley and one in the Washington D.C. area, and begin signing customer contracts for the new facilities. In addition, a portion of the proceeds will be used to build-out the remaining 10,000 square feet at its current Silicon Valley facility.

“We are excited to have this financing in place, which will allow us to move forward with our expansion strategy and leverage the significant customer demand we are seeing in these two markets,” said Manuel D. Medina, Chairman and CEO of Terremark Worldwide, Inc. “With this funding we can begin contracting with both new and current customers for the two facilities, which will provide a solid foundation to lower our cost of capital as we secure the balance of the financing.”

The financing is composed of 3 facilities, each having a maturity date of June 30, 2009. All interest under each facility will be payable in kind and will be due and payable in cash at maturity. The table below shows the details for each facility.

Facility	Amount		Initial Rate			Conversion
Subordinated Debt	$	10,000,000	LIBOR + 8.0%				n/a
Convertible Debt	$	4,000,000		0.50	%	$	8.14
Lease Commitment	$	13,250,000	LIBOR + 5.5%				n/a

Approximately $8.0 million of the debt proceeds will be used to fund the final build-out of the existing facility in Silicon Valley and the remaining $6.0 million will be primarily used towards the development of the new facilities.

The $13.25 million under the lease commitment will be used towards the purchase of the new properties in Silicon Valley and the Washington D.C. area. Under the lease commitment, Credit Suisse will purchase each parcel of land and lease it to Terremark. Terremark maintains the option to purchase the properties from Credit Suisse at the original purchase price plus accrued interest.

In connection with this transaction, the Company agreed to a 1% increase in the interest rate of its senior secured notes in consideration for a six month acceleration of its prepayment premium. This increase is subject to a minimum amount of $300,000 and additional future rate increases that will not exceed 1%. The prepayment premium on the senior secured notes, which had been scheduled to reset on June 30, 2007, will immediately decrease to 5.0% from 7.5%.

Mr. Medina concluded, “We are very pleased to have Credit Suisse directly invest in our expansion and provide funding for this initial step in our financing plan. This liquidity and the lowered prepayment premium on our existing senior notes significantly increases our ability to improve our capital structure. We will begin working immediately on replacing this interim funding with permanent expansion financing.”

About Terremark Worldwide, Inc.

Terremark Worldwide, Inc. (AMEX:TWW) is a leading operator of integrated Tier-1 Internet exchanges and a global provider of managed IT infrastructure solutions for government and private sectors. Terremark delivers its portfolio of services from seven locations in the U.S., Europe and Latin America and from four service aggregation and distribution locations, which aggregate network traffic and distribute network-based services in Europe and Asia to meet specific customer needs. Terremark’s flagship facility, the NAP of the Americas, is the model for the carrier-neutral Internet exchanges the company has in Santa Clara, California (NAP of the Americas/West), in Sao Paulo, Brazil (NAP do Brasil) and in Madrid, Spain (NAP de las Americas — Madrid). The carrier-neutral NAP of the Americas is a state-of-the-art facility that provides exchange point, colocation and managed services. Terremark is headquartered at 2601 S. Bayshore Drive, 9th Floor, Miami, Florida USA, 305-856-3200. More information about Terremark Worldwide can be found at http://www.terremark.com.

Statements contained in this press release may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Terremark’s actual results may differ materially from those set forth in the forward-looking statements due to a number of risks, uncertainties and other factors, as discussed in Terremark’s filings with the SEC. These factors include, without limitation, Terremark’s ability to obtain funding for its business plans, uncertainty in the demand for Terremark’s services or products and Terremark’s ability to manage its growth. Terremark does not assume any obligation to update these forward-looking statements.

CONTACT: Terremark Worldwide, Inc., Miami
Jose Segrera, 305-860-7817
jsegrera@terremark.com
or
Market Street Partners
JoAnn Horne, 415-445-3233
joann@marketstreetpartners.com

SOURCE: Terremark Worldwide, Inc.