EX-10.45 Subordination Agreement, International



 





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.



-11-









 





     (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,



-12-









 






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,



-13-









 




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






-14-









 






	 	 	 	 	 
	 

	 	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.



-15-









 





     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



-16-









 




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



-17-









 




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



-18-









 







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