EX-10.1






Exhibit 4.1




EXECUTION COPY




$420,000,000




TERREMARK WORLDWIDE, INC.




12.00% Senior Secured Notes due 2017




PURCHASE AGREEMENT




June 17, 2009




Credit Suisse Securities (USA) LLC

As representative (“Representative”) of the Several Purchasers,

      c/o Credit Suisse Securities (USA) LLC (“Credit Suisse”)

           Eleven Madison Avenue,

           New York, N.Y. 10010-3629




Dear Sirs:




     1. Introductory. Terremark Worldwide, Inc., a Delaware corporation (the “Company”), agrees
with the several initial purchasers named in Schedule A hereto (the “Purchasers”) subject to the
terms and conditions stated herein, to issue and sell to the several Purchasers U.S.$420,000,000
principal amount of its 12.00% Senior Secured Notes due 2017 (the “Notes”) to be issued under an
indenture, to be dated as of the Closing Date (the “Indenture”), between the Company and The Bank
of New York Trust Company, N.A., as Trustee. The Notes will be unconditionally guaranteed as to
the payment of principal and interest by the subsidiary guarantors of the Company named in Schedule
C hereto (the “Guarantors” and such guarantees, the “Guarantees”). The Notes and the Guarantees
are collectively referred to herein as the “Offered Securities.”



     The holders of the Offered Securities will be entitled to the benefits of a Registration
Rights Agreement among the Company, the Guarantors and the Purchasers (the “Registration Rights
Agreement”), to be dated as of the Closing Date, pursuant to which the Company and the Guarantors
will agree to file with the Commission under the circumstances set forth therein, a registration
statement under the Securities Act relating to an offer to exchange the Notes for a like principal
amount of debt securities of the Company with terms identical in all material respects (except for
terms concerning additional interest and transfer restrictions) (the “Exchange Offer”) and if
required by the Registration Rights Agreement, a shelf registration statement under the Securities
Act relating to the resale of the Notes by certain holders thereof.



     The Notes and the Guarantees will be secured by first-priority liens over substantially all
present and after-acquired property of the Company (including the Company’s interest in its
subsidiaries) and each Guarantor, as described in the Preliminary Offering Circular (the
“Collateral”) pursuant to the Security Agreement, dated June 24, 2009 (the “Security Agreement”),
the Intellectual Property Security Agreement, dated June 24, 2009 (the “Intellectual Property
Security Agreement”), the Collateral Trust Agreement, dated June 24, 2009 (the “Collateral Trust
Agreement”) and certain other security deposits, assignments,



 









 







pledges, and other agreements or instruments evidencing or creating security in favor of the
Collateral Trustee (collectively, the “Security Documents”).



     Each of the Company and the Guarantors hereby agrees with the several Purchasers as follows:



     2. Representations and Warranties of the Company and each Guarantor. The Company and each
Guarantor represents and warrants to, and agrees with, the several Purchasers that:




     (a) Offering Circulars; Certain Defined Terms. The Company has prepared or will
prepare a Preliminary Offering Circular and a Final Offering Circular.



     For purposes of this Agreement:



     “Applicable Time” means 12:30 pm (New York time) on the date of this Agreement.



     “Closing Date” has the meaning set forth in Section 3 hereof.



     “Commission” means the Securities and Exchange Commission.



     “Exchange Act” means the United States Securities Exchange Act of 1934, as amended.



     “Final Offering Circular” means the final offering circular relating to the Offered Securities
to be offered by the Purchasers that discloses the offering price and other final terms of the
Offered Securities and is dated as of the date of this Agreement (even if finalized and issued
subsequent to the date of this Agreement).



     “Free Writing Communication” means a written communication (as such term is defined in Rule
405 of the Securities Act) that constitutes an offer to sell or a solicitation of an offer to buy
the Offered Securities and is made by means other than the Preliminary Offering Circular or the
Final Offering Circular.



     “General Disclosure Package” means the Preliminary Offering Circular together with any Issuer
Free Writing Communication existing at the Applicable Time and the information in which is intended
for general distribution to prospective investors, as evidenced by its being so specified in
Schedule B to this Agreement.



     “Issuer Free Writing Communication” means a Free Writing Communication prepared by or on
behalf of the Company, used or referred to by the Company or containing a description of the final
terms of the Offered Securities or of their offering, in the form retained in the Company’s
records.



     “Preliminary Offering Circular” means the preliminary offering circular, dated June 9, 2009,
relating to the Offered Securities to be offered by the Purchasers.



     “Rules and Regulations” means the rules and regulations of the Commission.



     “Securities Act” means the United States Securities Act of 1933, as amended.



     “Securities Laws” means, collectively, the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”), the
Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles,



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rules, standards and practices applicable to auditors of “issuers” (as defined in
Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and, as
applicable, the rules of the New York Stock Exchange and the NASDAQ Stock Market (“Exchange
Rules”).



     “Supplemental Marketing Material” means any Issuer Free Writing Communication other than any
Issuer Free Writing Communication specified in Schedule B hereto. Supplemental Marketing Materials
include, but are not limited to, the electronic Bloomberg roadshow slides and the accompanying
audio recording.



     “Subsidiary” has the meaning set forth in Rule 405 of the Rules and Regulations.



     Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Securities Act.




     (b) Disclosure. As of the date of this Agreement, the Final Offering Circular does
not, and as of the Closing Date, the Final Offering Circular will not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading. At the Applicable Time, and as of the Closing Date, neither (i) the General
Disclosure Package, nor (ii) any individual Supplemental Marketing Material, when
considered together with the General Disclosure Package, included, or will include, any
untrue statement of a material fact or omitted, or will omit, to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding two sentences do not apply to
statements in or omissions from the Preliminary or Final Offering Circular, the General
Disclosure Package or any Supplemental Marketing Material based upon written information
furnished to the Company by any Purchaser through Credit Suisse specifically for use
therein, it being understood and agreed that the only such information is that described as
such in Section 8(b) hereof. Except as disclosed in the General Disclosure Package, on the
date of this Agreement, the Company’s Annual Report on Form 10-K most recently filed with
the Commission and all subsequent reports (collectively, the “Exchange Act Reports”) which
have been filed by the Company with the Commission or sent to stockholders pursuant to the
Exchange Act do not include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the Exchange Act and
the Rules and Regulations.




     (c) Good Standing of the Company and the Guarantors. The Company and each Guarantor
has been duly incorporated (or, with respect to any Guarantor that is not a corporation,
duly organized and formed) and is validly existing as a corporation (or such other entity,
as applicable), in good standing under the laws of its jurisdiction of incorporation (or
organization and formation, as applicable), is duly qualified to do business and is in good
standing (to the extent such concept is applicable) as a foreign corporation (or other
entity) in each jurisdiction in which its respective ownership or lease of property or the
conduct of business requires such qualification, and has all power and authority necessary
to own or hold its respective properties and to conduct its respective business, as
described in the General Disclosure Package.



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     (d) Subsidiaries. Each Subsidiary (as defined in Section 2 hereof) of the Company and
each Subsidiary of the Guarantors (i) has been duly incorporated (or, with respect to
Subsidiaries that are not corporations, duly organized and formed) and (ii) except for the
Inactive Subsidiaries (as defined below), is validly existing as corporation (or such other
entity, as applicable) and in good standing (to the extent such concept is applicable)
under the laws of its jurisdiction of incorporation (or organization and formation, as
applicable), is duly qualified to do business and is in good standing (to the extent such
concept is applicable) as foreign corporation in each jurisdiction in which its ownership
or lease of property or the conduct of its business requires such qualification, and has
all power and authority necessary to own or hold its properties and to conduct the business
in which it is engaged, as described in the General Disclosure Package, except where the
failure to so qualify or have such power or authority would not have, individually or in
the aggregate, a material adverse effect on the condition (financial or otherwise), results
of operations, business, properties or prospects of the Company, the Guarantors and their
respective Subsidiaries taken as a whole (a “Material Adverse Effect”). The Company owns
or controls, directly or indirectly, only the following corporations, partnerships, limited
liability partnerships, limited liability companies, associations or other entities: NAP
West, LLC, Terremark North America, Inc., Park West Telecommunications Investors, Inc.,
TECOTA Services Corp., Terremark Trademark Holdings, Inc., TerreNAP Data Centers, Inc.,
TerreNAP Services, Inc., Technology Center of the Americas, LLC, Terremark Asia Company,
Ltd., Terremark Latin America, Inc., Terremark Europe, Inc., Terremark Financial Services,
Inc., Terremark Fortune House #1, Inc., Terremark Management Services, Inc., Terremark
Realty, Inc., Terremark Technology Contractors, Inc., Spectrum Telecommunications Corp.,
Terremark Latin America de Argentina, S.A., Terremark Latin America de Mexico, S.A. de
C.V., Terremark do Brasil Ltda., Terremark NV, Terremark UK, Ltd., Terremark West Africa
Canary Islands, S.L.U., Terremark Federal Group, Inc., NAP de las Americas — Madrid, S.A.,
Terremark del Caribe, Inc., Terremark Colombia Inc. and NAP of the Capital Region, LLC.
None of Terremark Asia Company, Ltd., Terremark Latin America de Argentina, S.A. or
Terremark Latin America de Mexico, S.A. de CV (collectively, the “Inactive Subsidiaries”),
each being entities organized under the laws of Bermuda, Argentina, and Mexico,
respectively, has any assets nor has any of them carried on business activities since
January 1, 2003 nor is any of them a party to any material agreement.




     (e) Indenture; Offered Securities. The Indenture has been duly authorized by the
Company and the Guarantors; the Notes have been duly authorized by the Company; the
Guarantees have been duly authorized by each of the Guarantors; and when the Offered
Securities are delivered and paid for pursuant to this Agreement and the Indenture and
assuming authentication and issuance of the Offered Securities in accordance with the terms
of the Indenture, on the Closing Date, the Indenture will have been duly executed and
delivered by the Company and the Guarantors, the Notes and the Guarantees will be in the
forms contemplated by the Indenture, the Notes will have been duly executed and issued by
the Company, the Guarantees will have been duly executed and delivered by each of the
Guarantors, the Notes and the Guarantees will conform in all material respects to the
descriptions thereof contained in the General Disclosure Package and the Final Offering
Circular, the Offered Securities will be entitled to the benefits of the Indenture and the
Indentures and such Offered Securities will constitute valid and legally binding
obligations of the Company and the Guarantors, as applicable, enforceable against the
applicable party in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws



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of general applicability relating to or affecting creditors’ rights and to general
equity principles.




     (f) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor.




     (g) Security Documents. The Security Documents have been duly authorized by the
Company and the Guarantors (to the extent each is a party thereto), and on the Closing
Date, the Security Agreement, the Intellectual Property Security Agreement and the
Collateral Trust Agreement will have been duly executed and delivered by the Company and
the Guarantors (to the extent each is a party thereto), will conform to the description
thereof contained in the Disclosure Package and the Final Offering Circular and will
constitute legal, valid and binding instruments enforceable against the Company and the
Guarantors (to the extent each is a party thereto) in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors’ rights and to general equity
principles. The Company and the Guarantors (to the extent each is a party thereto) have
taken reasonable best efforts to prepare, execute and deliver the other Security Documents,
and will duly execute and deliver such Security Documents no later than 60 days following
the Closing Date. Upon the execution and delivery of the other Security Documents, such
Security Documents will constitute legal, valid and binding instruments enforceable against
the Company and the Guarantors (to the extent each is a party thereto) in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.




     (h) Validity and Enforceability of Security Documents. The Security Documents, upon
their execution and delivery by the Company and the Guarantors (to the extent each is a
party thereto), will create a legally valid, enforceable and continuing security interest
in the Collateral under each jurisdiction of organization in favor of the Collateral
Trustee for the benefit of the Trustee and the holders of the Offered Securities, among
others, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors’ rights and to
general equity principles.




     (i) Disclosure of Security Interests. At the Closing Date, the applicable pledging
entity under each Security Document will own the relevant Collateral covered by such
Security Document, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim (“Liens”), except (i) for any Liens securing the Collateral for the
benefit of the holders of the Notes, (ii) where such Lien would be a Permitted Lien under
the terms of the Indenture, or (iii) any Liens that will be discharged at or prior to the
Closing Date.




     (j) Perfection of Security Interest. The Company and each Guarantor have used their
reasonable best efforts to complete all filings, registrations with any governmental or
judicial office in the relevant jurisdiction of organization necessary to ensure the
validity, legality and enforceability of the Security Documents and other actions necessary
to perfect and protect the security interest in the Collateral to be created under the
Security Documents, and when (i) financing statements and other filings in appropriate form
describing the Collateral with respect to which a security interest may



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be perfected by filing or recordation are filed or recorded with the appropriate
governmental authority and (ii) upon the taking of possession or control by the Collateral
Trustee of the Collateral with respect to which a security interest may be perfected only
by possession or control, the Liens created by the Security Documents shall constitute
fully perfected Liens on, and security interests in, all right, title and interest of the
Company and the Guarantors in the Collateral to the extent such security interests can be
perfected by such filing, recordation, possession or control with the priority required by
the Security Documents.




     (k) Capitalization. The Company has an authorized capitalization as set forth in the
General Disclosure Package, and all of the issued and outstanding shares of capital stock
of the Company, have been duly and validly authorized by the board of directors of the
Company and are validly issued, fully paid and non-assessable, and have been offered, sold
and issued in compliance with federal and state securities laws, and conform to the amount
thereof contained in the General Disclosure Package.




     (l) Outstanding Stock. All of the outstanding shares of capital stock or other equity
interests of each Subsidiary (except the Inactive Subsidiaries) of the Company have been
duly authorized and validly issued, are fully paid and nonassessable and, except to the
extent set forth in the General Disclosure Package, are owned by the Company directly or
indirectly through one or more wholly-owned Subsidiaries, free and clear of any Liens,
restriction upon voting or transfer or any other claim of any third party, except (i) where
such Lien would be a Permitted Lien under the terms of the Indenture, or (ii) any Liens
that will be discharged at or prior to the Closing Date.




     (m) No Finder’s Fee. Except as disclosed in the General Disclosure Package and the
Final Offering Circular, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company or any
Purchaser for a brokerage commission, finder’s fee or other like payment in connection with
this offering.




     (n) Registration Rights Agreement. The Registration Rights Agreement has been duly
authorized by the Company and each Guarantor; and, when the Offered Securities are
delivered and paid for pursuant to this Agreement on the Closing Date, the Registration
Rights Agreement will have been duly executed and delivered and will be the valid and
legally binding obligations of the Company and each Guarantor, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.




     (o) Exchange Notes. On the Closing Date, the securities to be offered in exchange for
the Notes pursuant to the Registration Rights Agreement (the “Exchange Notes”) will have
been duly authorized by the Company; and when the Exchange Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the Indenture, the
Exchange Notes will conform in all material respects to the description thereof contained
in the General Disclosure Package and the Final Offering Circular, will be entitled to the
benefits of the Indenture and will be the valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.



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     (p) Exchange Guarantees. The guarantee of the Exchange Notes by each Guarantor,
(each, an “Exchange Guarantee”) has been duly authorized by such Guarantor; and, when
issued, will have been duly executed and delivered by each such Guarantor and will conform
in all material respects to the description thereof contained in the General Disclosure
Package and the Final Offering Circular. When the Exchange Notes have been issued,
executed and authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Exchange Guarantee of each Guarantor will constitute valid and legally
binding obligations of such Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity
principles.




     (q) No Registration Rights. Except as disclosed in the General Disclosure Package and
the Final Offering Circular, there are no contracts, agreements or understandings between
the Company or any Guarantor and any person granting such person the right to require the
Company or such Guarantor to file a registration statement under the Securities Act with
respect to any securities of the Company or such Guarantor or to require the Company or
such Guarantor to include such securities with the Notes and Guarantees registered pursuant
to any registration statement.




     (r) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement by the Company and
the consummation of the transactions contemplated by this Agreement, the Indenture, the
Registration Rights Agreement and the Security Documents in connection with the offering,
issuance and sale of the Notes and the Guarantees by the Company and the Guarantors, except
for (i) the order of the Commission declaring effective the Exchange Offer Registration
Statement or, if required, the Shelf Registration Statement (each as defined in the
Registration Rights Agreement), and (ii) approval, authorization, actions, notices and
filings that have been (or contemporaneously herewith will be) duly obtained, taken, given
or made and are (or, upon obtaining, taking, giving or making any such approval,
authorization, action, notice or filing, will be) in full force and effect and, in the case
of any approvals, authorizations, actions, notices or filings by, to or with any
governmental authority (excluding filings of financing statements under the Uniform
Commercial Code, filings in the U.S. Patent and Trademark Office and filings with respect
to any mortgage in connection with perfecting security interests granted under the Security
Documents).




     (s) Title to Property. Except as disclosed in the General Disclosure Package, the
Company, the Guarantors and each of their respective Subsidiaries have good and marketable
title in fee simple to all items of real property and good title to all personal property
which they own and are material to the business of the Company and its Subsidiaries taken
as a whole free and clear of all liens, encumbrances, claims and defects that would
materially affect the value thereof or materially interfere with the use made or to be made
thereof by them. The Company, the Guarantors and each of their respective Subsidiaries
have valid rights to lease or otherwise use all items of real or personal property which
they lease and are material to the business of the Company and its Subsidiaries taken as a
whole, except such as are described in the General Disclosure Package or such as could not
reasonably be expected to have a Material Adverse Effect.



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     (t) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of this Agreement, the Indenture, the Registration Rights
Agreement and the Security Documents, and the issuance and sale of the Offered Securities
and Guarantees and compliance with the terms and provisions hereof and thereof will not
conflict with or result in a breach or violation of any of the terms and provisions of,
result in the imposition of any lien, charge or encumbrance upon any property or assets of
the Company, the Guarantors or any of their respective Subsidiaries, or constitute a
default or a Debt Repayment Triggering Event (as defined below) under any indenture,
mortgage deed, deed of trust, loan agreement or other agreement or instrument to which the
Company, the Guarantors or any of their respective Subsidiaries is a party or by which the
Company, the Guarantors or any of their respective Subsidiaries is bound or to which any of
the property or assets of the Company, the Guarantors or any of their respective
Subsidiaries is subject, nor will such action result in any violation of the provisions of
the charter or by-laws (or other organizational documents, as applicable) of the Company,
the Guarantors or any of their respective Subsidiaries, or any statute or any order, rule
or regulation of any court or governmental agency or body, having jurisdiction over the
Company, the Guarantors or any of their respective Subsidiaries or any of their respective
properties or assets, except for such defaults, conflicts, breaches or violations (other
than with respect to the charter or by-laws of the Company, the Guarantors or any of their
respective Subsidiaries) as could not reasonably be expected to have a Material Adverse
Effect; a “Debt Repayment Triggering Event” means any event or condition that gives, or
with the giving of notice or lapse of time would give, the holder of any note, debenture,
or other evidence of indebtedness (or any person acting on such holder’s behalf) the right
to require the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company, the Guarantors or any of their respective Subsidiaries.




     (u) Absence of Existing Defaults and Conflicts. None of the Company, the Guarantors
or any of their respective Subsidiaries, except for the Inactive Subsidiaries (i) is in
violation of their respective charter or by-laws (or other organizational documents, as
applicable), (ii) is in default in any respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party or by which
it is bound or to which any of its property or assets is subject or (iii) is in violation
in any respect of any law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject, except any violations or defaults (other
than with respect to the charter or by-laws of the Company, the Guarantors or their
respective Subsidiaries) which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.




     (v) Possession of Licenses and Permits. The Company, the Guarantors and their
respective Subsidiaries possess and are in compliance with the terms of all licenses,
certificates, authorizations and permits (“Licenses”) issued by, and have made all
declarations and filings with, the appropriate state, federal or foreign regulatory
agencies or bodies which are necessary or desirable for the ownership of their respective
properties or the conduct of their respective businesses as described in the General
Disclosure Package, except where any failures to possess or make the same, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and
none of the Company or any Guarantor has received notification of any revocation or



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modification of any such license, authorization or permit and has no reason to believe
that any such license, certificate, authorization or permit will not be renewed.




     (w) Absence of Labor Dispute. No labor disturbance by the employees of the Company,
the Guarantors or any of their respective Subsidiaries exists or is imminent which could
reasonably be expected to have a Material Adverse Effect. To the best of the knowledge of
the Company or the Guarantors, no key employee or significant group of employees of the
Company, the Guarantors, or their respective Subsidiaries plans to terminate employment
with the Company, the Guarantors or any of their respective Subsidiaries.




     (x) Possession of Intellectual Property. The Company, the Guarantors and their
respective Subsidiaries own or possess the right to use all patents, trademarks, trademark
registrations, service marks, service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets and rights (collectively, “intellectual property
rights”) necessary to conduct the business now operated by them, and neither the Company
nor any Guarantor is aware of any claim to the contrary or any challenge by any other
person to the rights of the Company, the Guarantors and their respective Subsidiaries with
respect to the foregoing. The business of the Company and the Guarantors as now conducted
and as proposed to be conducted does not and will not infringe or conflict with any
patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses or
other intellectual property or franchise right of any person. Except as described in the
General Disclosure Package, no claim has been made against the Company or any Guarantor
alleging the infringement by the Company or any Guarantor of any patent, trademark, service
mark, trade name, copyright, trade secret, license or other intellectual property right or
franchise right of any person.




     (y) Environmental Laws. There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission, or other release of any kind of toxic
or other wastes or other hazardous substances by, due to, or caused by the Company, the
Guarantors or any of their respective Subsidiaries (or, to the best knowledge of the
Company and the Guarantors, any other entity for whose acts or omissions the Company or any
of its Subsidiaries is or may be liable) upon any of the property now or previously owned
or leased by the Company, the Guarantors or any of their respective Subsidiaries, or upon
any other property, in violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit (collectively, “environmental laws”) or which would, under any
statute or any ordinance, rule (including rule of common law), regulation, order, judgment,
decree or permit, give rise to any liability, except for any violation or liability which
could not reasonably be expected to have, individually or in the aggregate with all such
violations and liabilities, a Material Adverse Effect; there has been no disposal,
discharge, emission or other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other hazardous substances with
respect to which the Company, the Guarantors or any of their respective Subsidiaries have
knowledge, except for any such disposal, discharge, emission, or other release of any kind
which could not reasonably be expected to have, individually or in the aggregate with all
such discharges and other releases, a Material Adverse Effect.




     (z) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Offering Circular under the headings “Certain U.S. Federal Income Tax
Considerations,” “Description of Other Indebtedness,” and “Plan of Distribution” insofar



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as such statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters, agreements,
documents or proceedings and present the information required to be shown.




     (aa) Absence of Manipulation. None of the Company, the Guarantors and their
respective affiliates has, either alone or with one or more other persons, bid for or
purchased for any account in which it or any of its affiliates had a beneficial interest
any Offered Securities or attempt to induce any person to purchase any Offered Securities.




     (bb) Statistical and Market-Related Data. Any third-party statistical and
market-related data included in a Preliminary Offering Circular, Final Offering Circular or
any Issuer Free Writing Communication are based on or derived from sources that the Company
and the Guarantors believe to be reliable and accurate.




     (cc) Internal Controls and Compliance with the Sarbanes-Oxley Act. The Company and
its boards of directors are in compliance with Sarbanes-Oxley and all applicable Exchange
Rules. Except as set forth in the General Disclosure Package, the Company maintains a
system of internal controls, including, but not limited to, internal controls over
accounting matters and financial reporting and legal and regulatory compliance controls
(collectively, “Internal Controls”) that comply with the Securities Laws and are sufficient
to provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with U.S. Generally
Accepted Accounting Principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management’s general or specific authorization
and (iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. The
Internal Controls are overseen by the audit committee of the Company’s board of directors
in accordance with Exchange Rules. The Company has not publicly disclosed or reported to
the audit committee or its board of directors, and within the next 90 days the Company does
not reasonably expect to publicly disclose or report to its audit committee or its board of
directors, material weakness (including significant deficiencies that, when aggregated,
raise to the level of a material weakness), change in Internal Controls or fraud involving
management or other employees who have a significant role in Internal Controls, any
violation of, or failure to comply with, the Securities Laws, or any matter which, if
determined adversely, would have a Material Adverse Effect.




     (dd) Disclosure Controls and Procedures. The Company has established and maintains
disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-14
under the Exchange Act); such disclosure controls and procedures are designed to ensure
that material information relating to the Company and its Subsidiaries is made known to the
chief executive officer and chief financial officer of the Company by others within the
Company or any of its Subsidiaries, and such disclosure controls and procedures are
reasonably effective to perform the functions for which they were established subject to
the limitations of any such control system; the Company’s auditors and the audit committee
of the board of directors of the Company have been advised of: (i) any significant
deficiencies or material weaknesses in the design or operation of internal controls which
could adversely affect the Company’s ability to record, process, summarize, and report
financial data; and (ii) any fraud, whether or not material, that involves management or
other employees who have a role in the Company’s internal controls; and since the date of
the most recent evaluation of such disclosure controls and



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procedures, there have been no significant changes in internal controls or in other
factors that could significantly affect internal controls, including any corrective actions
with regard to significant deficiencies and material weaknesses.




     (ee) Litigation. Except as set forth in the General Disclosure Package, there is no
legal or governmental proceeding pending to which the Company, the Guarantors or their
respective Subsidiaries is a party or of which any property or assets of the Company, the
Guarantors or their respective Subsidiaries is the subject, which, individually or in the
aggregate, if determined adversely to the Company, the Guarantors or any of their
respective Subsidiaries, could reasonably be expected to have a Material Adverse Effect or
would prevent or adversely affect the ability of the Company or the Guarantors to perform
its obligations under this Agreement, the Indenture, the Registration Rights Agreement and
the Security Documents; and to the best knowledge of the Company and the Guarantors, no
such proceedings are threatened or contemplated by governmental authorities or threatened
by others.




     (ff) Financial Statements. The financial statements, together with the related notes
and schedules, included in the General Disclosure Package and the Final Offering Circular
fairly present the financial position and the results of operations and changes in
financial position of the Company, the Guarantors and their respective consolidated
Subsidiaries at the respective dates or for the respective periods therein specified. Such
statements and related notes and schedules have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis except as may be set forth in
the Registration Statement and the General Disclosure Package. The financial statements,
together with the related notes and schedules, included in the General Disclosure Package
and the Final Offering Circular comply in all material respects with the Securities Act and
the Rules and Regulations thereunder.




     (gg) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company, the
Guarantors and their respective Subsidiaries, taken as a whole that is material and
adverse, (ii) except as disclosed in or contemplated by the General Disclosure Package,
there has been no dividend or distribution of any kind declared, paid or made by the
Company or the Guarantors on any class of their capital stock and (iii) except as disclosed
in or contemplated by the General Disclosure Package, there has been no material adverse
change in the capital stock, short-term indebtedness, long-term indebtedness, net current
assets or net assets of the Company, the Guarantors and their respective Subsidiaries; none
of the Company, the Guarantors or any of their respective Subsidiaries has sustained, since
the date of the latest audited financial statements included in the General Disclosure
Package, any material 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, other than as set forth in the General Disclosure
Package.




     (hh) Investment Company Act. None of the Company, the Guarantors or any of their
respective Subsidiaries is and, after giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as described in the General



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Disclosure Package, will be an “investment company” as defined in the Investment
Company Act of 1940 (the “Investment Company Act”).




     (ii) ERISA. None of the Company or any Guarantor has or has ever had any “defined
benefit plans” (as defined in Section 3(35) of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations thereunder
(“ERISA”)), plans subject to Title IV of ERISA, “multiemployer plans” (as defined in
Section 3(37) of ERISA) or “multiple employer welfare arrangements” (as defined in Section
3(4) of ERISA). No “prohibited transaction” (as defined in Section 406 of ERISA, or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the
“Code”)) has occurred with respect to any employee benefit plan which could reasonably be
expected to have a Material Adverse Effect; each employee benefit plan is in compliance in
all material respects with applicable law, including ERISA and the Code; none of the
Company or any Guarantor has incurred or expects to incur liability under Title IV of ERISA
with respect to the termination of, or withdrawal from, any “pension plan”; and each
employee benefit plan for which the Company or any Guarantor would have any liability that
is intended to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to act, which
could cause the loss of such qualification.




     (jj) Tax Returns. The Company, the Guarantors and each of their respective
Subsidiaries (i) have filed all required federal, state and foreign income and franchise
tax returns except for those where the failure to file could not reasonably be expected to
have a Material Adverse Effect, (ii) have paid all federal state, local and foreign taxes
due and payable for which it is liable, and (iii) do not have any tax deficiency or claims
outstanding or assessed or, to the best of the Company’s knowledge, proposed against it
which could not reasonably be expected to have a Material Adverse Effect.




     (kk) Insurance. The Company, the Guarantors and each of their respective Subsidiaries
carry, or are covered by, insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in similar industries. The
Company, the Guarantors and each of their respective Subsidiaries reasonably believes that
it will be able to renew its existing insurance as and when such coverage expires or will
be able to obtain replacement insurance adequate for the conduct of its business and the
value of its properties at a cost that could not reasonably be expected to have a Material
Adverse Effect.




     (ll) Unlawful Contributions. None of the Company, the Guarantors or any of their
respective Subsidiaries nor, to the best knowledge of the Company and the Guarantors, any
employee or agent of the Company, the Guarantors or their respective Subsidiaries, has made
any contribution or other payment to any official of, or candidate for, any federal, state
or foreign office in violation of any law.




     (mm) Transactions with Unconsolidated Entities. There are no transactions,
arrangements or other relationships between and/or among the Company, the Guarantors or any
of their respective affiliates (as such term is defined in Rule 405 of the Securities Act)
and any unconsolidated entity, including, but not limited to, any structure finance,
special purpose or limited purpose entity that could reasonably be expected to materially



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affect the liquidity or the availability of or requirements for capital resources of the
Company or any Guarantor.




     (nn) Money Laundering. The operations of the Company and the Guarantors and, to the
actual knowledge of the Company and the Guarantors, any of their affiliates, have been
conducted at all times in compliance with the applicable federal and state laws relating to
terrorism or money laundering (“Anti-Terrorism Laws”), including the financial
recordkeeping and reporting requirements of The Bank Secrecy Act of 1970, as amended,
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the
“Executive Order”), the Foreign Corrupt Practices Act and the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56, and, none of the Company, the Guarantors nor, to the actual
knowledge of the Company and the Guarantors, any of their affiliates is (i) a person that
is listed in the annex to, or is otherwise subject to the provisions of, the Executive
Order, (ii) a person owned or controlled by, or acting for or on behalf of, any person that
is listed in the annex to, or is otherwise subject to the provisions of, the Executive
Order, (iii) a person with which the Purchasers are prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law, (iv) a person that commits,
threatens or conspires to commit or supports “terrorism” as defined in the Executive Order
or (v) a person that is named as a “specially designated national and blocked person” on
the most current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any replacement website or other replacement
official publication of such list or any other person (including any foreign country and
any national of such country) with whom the United States Treasury Department prohibits
doing business in accordance with OFAC regulations. No action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the
Company or any Guarantor with respect to the Anti-Terrorism Laws is pending or, to the
knowledge of the Company and the Guarantors, threatened.




     (oo) Other Transactions. None of the Company, the Guarantors nor, to the actual
knowledge of the Company and the Guarantors, any director, officer, broker, employee,
affiliate or other agent of the Company or the Guarantors acting in any capacity in
connection with the offering hereunder (i) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for the benefit of any person
described in paragraph (oo) above, (ii) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to the Executive Order
or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has
the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set
forth in any Anti-Terrorism Law.




     (pp) Regulations T, U, X. Neither the Company nor any Guarantor nor any of their
respective subsidiaries nor any agent thereof acting on their behalf has taken, and none of
them will take, any action that might cause this Agreement or the issuance or sale of the
Offered Securities to violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.




     (qq) Ratings. No “nationally recognized statistical rating organization” as such term
is defined for purposes of Rule 436(g)(2) (i) has imposed (or has informed the Company or
any Guarantor that it is considering imposing) any condition (financial or otherwise) on
the Company’s or any Guarantor’s retaining any rating assigned to the



-13-









 







Company or any
Guarantor or any securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering any of the actions described in Section
7(b)(ii) hereof.




     (rr) Class of Securities Not Listed. No securities of the same class (within the
meaning of Rule 144A(d)(3)) as the Offered Securities are listed on any national securities
exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.




     (ss) No Registration. The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof and Regulation S thereunder; and it is not
necessary to qualify an indenture in respect of the Offered Securities under the United
States Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).




     (tt) No General Solicitation; No Directed Selling Efforts. Neither the Company, nor
any Guarantor, nor any of their respective affiliates, nor any person acting on its or
their behalf (i) has, within the six-month period prior to the date hereof, offered or sold
in the United States or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act) the Offered Securities or any security of the same class or series as
the Offered Securities or (ii) has offered or will offer or sell the Offered Securities (A)
in the United States by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S (“Regulation S”) under the Securities Act, by means of
any directed selling efforts within the meaning of Rule 902(c) of Regulation S. The
Company, the Guarantors, their respective affiliates and any person acting on its or their
behalf have complied and will comply with the offering restrictions requirement of
Regulation S. Neither the Company nor any Guarantor has entered and neither the Company
nor any Guarantor will enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.




     (uu) Reporting Status. The Company is subject to Section 13 or 15(d) of the Exchange
Act.




     (vv) No Substantial U.S. Market Interest. There is no “substantial U.S. market
interest” as defined in Rule 902(n) of Regulation S in the Company’s debt securities.



     3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the several Purchasers, and each of the Purchasers agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 92.134% of the principal amount
thereof, the respective principal amounts of Securities set forth opposite the names of the several
Purchasers in Schedule A hereto.



     The Company will deliver against payment of the purchase price the Offered Securities to be
offered and sold by the Purchasers in reliance on Regulation S (the “Regulation S Securities”) in
the form of one or more permanent global securities in registered form without interest coupons
(the “Offered Regulation S Global Securities”) which will be deposited with the Trustee as
custodian for The Depository Trust Company (“DTC”) for the respective accounts



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of the DTC
participants for Morgan Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream,
Luxembourg”) and registered in the name of Cede & Co., as nominee for DTC. The Company will deliver
against payment of the purchase price the Offered Securities to be
purchased by each Purchaser hereunder and to be offered and sold by each Purchaser in reliance
on Rule 144A (the “144A Securities”) in the form of one permanent global security in definitive
form without interest coupons (the “Restricted Global Securities”) deposited with the Trustee as
custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. The Regulation S
Global Securities and the Restricted Global Securities shall be assigned separate CUSIP numbers.
The Restricted Global Securities shall include the legend regarding restrictions on transfer set
forth under “Transfer Restrictions” in the Final Offering Circular. Until the termination of the
distribution compliance period (as defined in Regulation S) with respect to the offering of the
Offered Securities, interests in the Regulation S Global Securities may only be held by the DTC
participants for Euroclear and Clearstream, Luxembourg. Interests in any permanent global
Securities will be held only in book-entry form through Euroclear, Clearstream, Luxembourg or DTC,
as the case may be, except in the limited circumstances described in the Final Offering Circular.



     Payment for the Regulation S Securities and the 144A Securities shall be made by the
Purchasers in Federal (same day) funds by wire transfer to an account at a bank acceptable to
Credit Suisse drawn to the order of the Company at the office of Shearman & Sterling LLP, 599
Lexington Avenue, New York, New York 10022, at 10:00 A.M., New York time, on June 24, 2009, or at
such other time not later than seven full business days thereafter as Credit Suisse and the
Company determine, such time being herein referred to as the “Closing Date”, against delivery to
the Trustee as custodian for DTC of (i) the Regulation S Global Securities representing all of the
Regulation S Securities for the respective accounts of the DTC participants for Euroclear and
Clearstream, Luxembourg and (ii) the Restricted Global Securities representing all of the Offered
144A Securities. The Regulation S Global Securities and the Restricted Global Securities will be
made available for checking at the above office of Shearman & Sterling LLP at least 24 hours prior
to the Closing Date.



     4. Representations by Purchasers; Resale by Purchasers. (a) Each Purchaser severally
represents and warrants to the Company and the Guarantors that it is an “accredited investor”
within the meaning of Regulation D under the Securities Act.



          (b) Each Purchaser severally acknowledges that the Offered Securities have not been registered
under the Securities Act and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities, and will offer and sell
the Offered Securities (i) as part of its distribution at any time and (ii) otherwise until 40 days
after the later of the commencement of the offering and the Closing Date, only in accordance with
Rule 903 or Rule 144A. Accordingly, neither such Purchaser nor its affiliates, nor any persons
acting on its or their behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser, its affiliates and all persons acting on its
or their behalf have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to confirmation of sale of the
Offered Securities, other than a sale pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other remuneration that
purchases the Offered Securities from it during the restricted period a confirmation or notice to
substantially the following effect:




-15-









 








“The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the “Securities Act”) and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the date of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meanings given to them by Regulation S.”


Terms used in this subsection (b) have the meanings given to them by Regulation S.




          (c) Each Purchaser severally agrees that it and each of its affiliates has not entered and
will not enter into any contractual arrangement with respect to the distribution of the Offered
Securities except for any such arrangements with the other Purchasers or affiliates of the other
Purchasers or with the prior written consent of the Company and the Guarantors.




          (d) Each Purchaser severally agrees that it and each of its affiliates will not offer or sell
the Offered Securities in the United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered Securities, to deliver
either with the confirmation of such resale or otherwise prior to settlement of such resale a
notice to the effect that the resale of such Offered Securities has been made in reliance upon the
exemption from the registration requirements of the Securities Act provided by Rule 144A.




     5. Certain Agreements of the Company and each Guarantor. The Company and each Guarantor
agrees with the several Purchasers that:




     (a) Amendments and Supplements to Offering Circulars. The Company and the Guarantors
will promptly advise the Representative of any proposal to amend or supplement the
Preliminary or Final Offering Circular and will not effect such amendment or
supplementation without the Representative’s consent. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers, there occurs an event
or development as a result of which any document included in the Preliminary or Final
Offering Circular, the General Disclosure Package or any Supplemental Marketing Material,
if republished immediately following such event or development, included or would include
an untrue statement of a material fact or omitted or would omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, the Company and the Guarantors promptly will notify
Credit Suisse of such event and promptly will prepare and furnish, at its own expense, to
the Purchasers and the dealers and to any other dealers at the request of the
Representative, an amendment or supplement which will correct such statement or omission.
Neither Credit Suisse’s consent to, nor the Purchasers’ delivery to offerees or investors
of, any such amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 7.




     (b) Furnishing of Offering Circulars. The Company and the Guarantors will furnish to
the Representative copies of the Preliminary Offering Circular, each other



-16-









 







document
comprising a part of the General Disclosure Package, the Final Offering Circular, all
amendments and supplements to such documents and each item of Supplemental Marketing
Material, in each case as soon as available and in such quantities
as the Representative request. At any time when the Company is not subject to Section
13 or 15(d), the Company and the Guarantor will promptly furnish or cause to be furnished
to the Representative and, upon request of holders and prospective purchasers of the
Offered Securities, to such holders and purchasers, copies of the information required to
be delivered to holders and prospective purchasers of the Offered Securities pursuant to
Rule 144A(d)(4) (or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered Securities. The
Company will pay the expenses of printing and distributing to the Purchasers all such
documents.




     (c) Blue Sky Qualifications. The Company and the Guarantors will arrange for the
qualification of the Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United States and Canada as the
Representative designates and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Purchasers, provided that the
Company will not be required to qualify as a foreign corporation or to file a general
consent to service of process in any such state.




     (d) Reporting Requirements. For so long as the Offered Securities remain outstanding,
the Company and the Guarantors will furnish to the Representative and, upon request, to
each of the other Purchasers, as soon as practicable after the end of each fiscal year, a
copy of their respective annual reports to stockholders for such year; and the Company and
the Guarantors will furnish to the Representative and, upon request, to each of the other
Purchasers (i) as soon as available, a copy of each report and any definitive proxy
statement of the Company and the Guarantors filed with the Commission under the Exchange
Act or mailed to stockholders (ii) from time to time, such other information concerning the
Company and the Guarantor the Representative may reasonably request. However, so long as
the Company is subject to the reporting requirements of either Section 13 or Section 15(d)
of the Exchange Act and is timely filing reports with the Commission on its Electronic Data
Gathering, Analysis and Retrieval system (“EDGAR”), it is not required to furnish such
reports or statements to the Purchasers or the Representative.




     (e) Transfer Restrictions. During the period of two years after the Closing Date, the
Company will, upon request, furnish to the Representative, each of the other Purchasers and
any holder of Offered Securities a copy of the restrictions on transfer applicable to the
Offered Securities.




     (f) No Resales by Affiliates. During the period of two years after the Closing Date,
the Company will not, and will not permit any of its affiliates (as defined in Rule 144)
to, resell any of the Offered Securities that have been reacquired by any of them.




     (g) Investment Company. During the period of two years after the Closing Date,
neither the Company nor any Guarantor will be or become, an open-end investment company,
unit investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.



-17-









 






     (h) Payment of Expenses. The Company and the Guarantors will pay all expenses
incident to the performance of their respective obligations under this Agreement, the
Indenture, Registration Rights Agreement and Security Documents
including but not limited to (i) the fees and expenses of the Trustee, the Collateral
Trustee and their respective professional advisers; (ii) all expenses in connection with
the execution, issue, authentication, packaging and initial delivery of the Offered
Securities, including any stamp or transfer taxes in connection with the original issuance
and sale of the Offered Securities, and, as applicable, the Exchange Notes (as defined in
the Registration Rights Agreement), the preparation and printing of this Agreement, the
Registration Rights Agreement, the Security Documents the Offered Securities, the
Indenture, the Preliminary Offering Circular, any other documents comprising any part of
the General Disclosure Package, the Final Offering Circular, all amendments and supplements
thereto, each item of Supplemental Marketing Material and any other document relating to
the issuance, offer, sale and delivery of the Offered Securities and as applicable, the
Exchange Notes; (iii) the cost of any advertising approved by the Company in connection
with the issue of the Offered Securities; (iv) any expenses (including fees and
disbursements of counsel to the Purchasers) incurred in connection with qualification of
the Offered Securities or the Exchange Notes for sale under the laws of such jurisdictions
in the United States and Canada as the Representative designates and the preparation and
printing of memoranda relating thereto, (v) any fees charged by investment rating agencies
for the rating of the Securities or the Exchange Notes, and (vi) expenses incurred in
distributing the Preliminary Offering Circular, any other documents comprising any part of
the General Disclosure Package, the Final Offering Circular (including any amendments and
supplements thereto) and any Supplemental Marketing Material to the Purchasers. The
Company and the Guarantors will also pay or reimburse the Purchasers (to the extent
incurred by them) for reasonable costs and expenses of the Purchasers and the Company’s
officers and employees and any other expenses of the Purchasers, the Company and the
Guarantors relating to investor presentations on any “road show” in connection with the
offering and sale of the Offered Securities including, without limitation, any travel
expenses of the Company’s and the Guarantors officers and employees and any other expenses
of the Company and the Guarantors including the chartering of airplanes.




     (i) Stamp Tax. The Company will pay all stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in connection with the
execution and delivery of this Agreement, the issuance or sale by the Company and the
Guarantors of the Offered Securities and the filing or recordation of the Security
Documents.




     (j) Use of Proceeds. The Company will use the net proceeds received in connection
with this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package and, except as disclosed in the General Disclosure Package, the Company
does not intend to use any of the proceeds from the sale of the Offered Securities
hereunder to repay any outstanding debt owed to any affiliate of any Purchaser.




     (k) Absence of Manipulation. In connection with the offering, until Credit Suisse
shall have notified the Company and the other Purchasers of the completion of the resale of
the Offered Securities, neither the Company the Guarantor nor any of their affiliates will,
either alone or with one or more other persons, bid for or purchase for any account in
which it or any of its affiliates has a beneficial interest any Offered Securities



-18-









 







or attempt to induce any person to purchase any Offered Securities; and neither it nor any of
their affiliates will make bids or purchases for the purpose of creating actual, or
apparent, active trading in, or of raising the price of, the Offered Securities.




     (l) Restriction on Sale of Securities. For a period of 120 days after the date
hereof, neither the Company nor any Guarantor will, directly or indirectly, take any of the
following actions with respect to any United States dollar-denominated debt securities
issued or guaranteed by the Company or such Guarantor and having a maturity of more than
one year from the date of issue or any securities convertible into or exchangeable or
exercisable for any of such debt securities (“Lock-Up Securities”): (i) offer, sell,
issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer,
sell, issue, contract to sell, contract to purchase or grant any option, right or warrant
to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement
that transfers, in whole or in part, the economic consequences of ownership of Lock-Up
Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a
call equivalent position in Lock-Up Securities within the meaning of Section 16 of the
Exchange Act or (v) file with the Commission a registration statement under the Securities
Act relating to Lock-Up Securities, or publicly disclose the intention to take any such
action, without the prior written consent of the Representative, except grants of employee
stock options pursuant to the terms of a plan in effect on the date hereof, issuances of
Lock-Up Securities pursuant to the exercise of warrants, options or preferred stock
(including issuances in lieu of cash dividend payments) or the exercise of any other
employee stock options outstanding on the date hereof, issuances of Lock-Up Securities
pursuant to the Company’s dividend reinvestment plan, and the filing of one or more
registration statements under the Securities Act pursuant to the Registration Rights
Agreement. None of the Company or any Guarantor will at any time directly or indirectly,
take any action referred to in clauses (i) through (v) above with respect to any securities
under circumstances where such offer, sale, pledge, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S
thereunder to cease to be applicable to the offer and sale of the Offered Securities.



     6. Free Writing Communications. (a) Issuer Free Writing Communications. The Company and
each Guarantor each represents and agrees that, unless it obtains the prior consent of Credit
Suisse, and each Purchaser represents and agrees that, unless it obtains the prior consent of the
Company and Credit Suisse, it has not made and will not make any offer relating to the Offered
Securities that would constitute an Issuer Free Writing Communication.



          (b) Term Sheets. The Company consents to the use by any Purchaser of a Free Writing
Communication that (i) contains only (A) information describing the preliminary terms of the
Offered Securities or their offering or (B) information that describes the final terms of the
Offered Securities or their offering and that is included in or is subsequently included in the
Final Offering Circular, including by means of a pricing term sheet in the form of Annex A hereto,
or (ii) does not contain any material information about the Company or any Guarantor or their
securities that was provided by or on behalf of the Company or any Guarantor, it being understood
and agreed that the Company and each Guarantor shall not be responsible to any Purchaser for
liability arising from any inaccuracy in such Free Writing Communications referred to in clause (i)
or (ii) as compared with the information in the Preliminary Offering Circular, the Final Offering
Circular or the General Disclosure Package.




-19-









 








     7. Conditions of the Obligations of the Purchasers. The obligations of the several Purchasers
to purchase and pay for the Offered Securities will be subject to the accuracy of the
representations and warranties of the Company and the Guarantors herein (as though made on the
Closing Date), to the accuracy of the statements of officers of the Company and the Guarantors made
pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their
obligations hereunder and to the following additional conditions precedent:




     (a) Accountants’ Comfort Letter. The Representative shall have received letters,
dated (A) the date hereof of (i) KPMG LLP, in form and substance satisfactory to the
Representative and (B) the Closing Date, of KPMG LLP, in form and substance satisfactory to
the Representative, which letters shall each contain confirming statements and information
of the type ordinarily included in “accountants’ comfort letters” to underwriters with
respect to the financial statements and certain financial information contained or
incorporated by reference in the General Disclosure Package and Final Offering Circular,
except that the specific date referred to therein for the carrying out of procedures shall
be no more than 3 business days prior to the date of such letter.




     (b) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company, the Guarantors and their
respective Subsidiaries taken as a whole which, in the judgment of the Representative, is
material and adverse and makes it impractical or inadvisable to market the Offered
Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of
the Company by any “nationally recognized statistical rating organization” (as defined for
purposes of Rule 436(g)), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred stock of the Company
(other than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in U.S. or
international financial, political or economic conditions or currency exchange rates or
exchange controls the effect of which is such as to make it, in the judgment of the
Representative, impractical to market or to enforce contracts for the sale of the Offered
Securities, whether in the primary market or in respect of dealings in the secondary
market; (iv) any suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum or maximum prices for trading on
such exchange; (v) or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (vi) any banking moratorium declared by any
U.S. federal or, New York authorities; (vii) any major disruption of settlements of
securities, payment, or clearance services in the United States or any other country where
such securities are listed or (viii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of the
Representative, the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it impractical or inadvisable to market the
Offered Securities or to enforce contracts for the sale of the Offered Securities.




     (c) Opinion of Counsel for Company. The Purchasers shall have received an opinion,
dated the Closing Date, of Greenberg Traurig, P.A. (“Greenberg Traurig”), counsel for the
Company to the effect that:



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     (i) Good Standing of the Company. The Company has been duly incorporated and
is validly existing as a corporation, in good standing under the laws of the State
of Delaware, is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of property or the
conduct of its business (based on information from the Company as to such
ownership, lease or conduct) requires such qualification, and has all power and
authority necessary to own or hold its properties and to conduct
the business in which it is engaged and as described in the General Disclosure
Package.




     (ii) Good Standing of the Guarantors. Each Guarantor has been duly
incorporated (or, with respect to any Guarantor that is not a corporation, duly
organized and formed) and is validly existing as a corporation (or such other
entity, as applicable) in good standing, to the extent such concept is applicable,
under the laws of its jurisdiction of incorporation (or organization and formation,
as applicable), is duly qualified to do business and is in good standing (to the
extent such concept is applicable) as a foreign corporation (or such other entity,
as applicable) in each jurisdiction in which its respective ownership or lease of
property or the conduct of its business (based on information from the Company as
to such ownership, lease or conduct) requires such qualification, and has all power
and authority necessary to own or hold its properties and to conduct the business
in which it is engaged and as described in the General Disclosure Package, except
where the failure to so qualify or have such power or authority could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.




     (iii) Indenture; Offered Securities. The Indenture has been duly authorized,
executed and delivered by the Company and the Guarantors; the Notes have been duly
authorized, executed, authenticated, issued and delivered by the Company; the
Guarantees have been duly authorized, executed and delivered by each Guarantor; and
the Indenture and the Offered Securities constitute valid and legally binding
obligations of the Company and the Guarantors enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles and entitled to the benefits
provided by the Indenture.




     (iv) Exchange Notes; Exchange Guarantees. The Exchange Notes have been duly
authorized by the Company; the Exchange Guarantees have been duly authorized by
each Guarantor; and when the Exchange Notes and the Exchange Guarantees are issued,
executed and authenticated in accordance with the terms of the Exchange Offer and
the Indenture, the Exchange Notes and the Exchange Guarantees will be entitled to
the benefits of the Indenture and will be the valid and legally binding obligations
of the Company and the Guarantors, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.




     (v) Outstanding Stock of Guarantors. All of the outstanding shares of capital
stock of the Guarantors (i) have been duly authorized and validly



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issued, (ii) are
fully paid and nonassessable, and (iii) except to the extent set forth in the
General Disclosure Package, are owned by the Company (A) directly or indirectly
through one or more wholly-owned Subsidiaries, (B) free and clear of any Liens,
restriction upon voting or transfer or any other claim of any third party, except
as to such Liens as is disclosed in the General Disclosure Package.




     (vi) No Registration Rights. To the best of our knowledge, except as
disclosed in the General Disclosure Package, there are no contracts, agreements or
understandings between the Company or any Guarantor and any person granting such
person the right to require the Company or such Guarantor to file a registration
statement under the Securities Act with respect to any securities of the Company or
such Guarantor or to require the Company or such Guarantor to include such
securities with the Securities and Guarantees registered pursuant to any Registered
Statement.




     (vii) Authorization of Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized, executed and delivered by the Company and the
Guarantors and constitutes the valid and legally binding obligations of the Company
and the Guarantors enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles and entitled to the benefits provided by the Registration
Rights Agreement.




     (viii) Investment Company. None of the Company, the Guarantors, or any of
their respective Subsidiaries is and, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds thereof as described
in the General Disclosure Package, will be an “investment company” as defined in
the Investment Company Act.




     (ix) Absence of Further Requirements. No consent, approval, authorization or
order of, or filing with, any person (including any governmental agency or body or
any court) is required for (i) the consummation of the transactions contemplated by
this Agreement, the Indenture, the Registration Rights Agreement and the Security
Documents in connection with the offering, issuance and sale of the Notes by the
Company, except such as may be required under state securities laws; (ii) the
grant by the Guarantor of the security interest or other lien granted under any of
the Security Documents or for the execution, delivery or performance of any of the
Security Documents by the Guarantor, as applicable; (iii) the perfection or
maintenance of the security interest and other lien created under any of the
Security Documents; or (iv) the exercise by the Collateral Trustee of its rights
and remedies in respect of the Collateral under the Security Documents; except for
(x) the order of the Commission declaring effective the Exchange Offer Registration
Statement or, if required, the Shelf Registration Statement (each as defined in the
Registration Rights Agreement), and (y) approval, authorization, actions, notices
and filings that have been (or contemporaneously herewith will be) duly obtained,
taken, given or made and are (or, upon obtaining, taking, giving or making any such
approval, authorization, action, notice or filing, will be) in full force and
effect and, in the case of any approvals, authorizations, actions, notices or
filings by, to or with any governmental authority (excluding filings of financing
statements under the



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Uniform Commercial Code, filings in the U.S. Patent and
Trademark Office and filings with respect to any mortgage in connection with
perfecting security interests granted under the Security Documents).




     (x) Litigation. To our knowledge and except as set forth in the General
Disclosure Package, there is no legal or governmental proceeding
pending to which the Company or the Guarantors is a party or of which any
property or assets of the Company or the Guarantors is the subject which,
individually or in the aggregate, if determined adversely to the Company or any of
such Guarantors, could reasonably be expected to have a Material Adverse Effect or
would prevent or adversely affect the ability of the Company or the Guarantor to
perform their obligations under this Agreement, the Indenture, the Registration
Rights Agreement or the Security Documents; and to the best of such counsel’s
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.




     (xi) Absence of Defaults and Conflicts Resulting from Transaction. The
execution, delivery and performance of this Agreement, the Indenture, the
Registration Rights Agreement and the Security Documents, and the issuance and sale
of the Offered Securities by the Company and the Guarantors and the issuance of the
Guarantees by the Guarantors and compliance with the terms and conditions thereof
will not conflict with or result in a breach or violation of any of the terms and
provisions of, result in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or the Guarantors (except for any Liens securing
the Collateral for the benefit of the holders of the Notes) or constitute a default
or a Debt Repayment Triggering Event (as defined below) under any indenture,
mortgage deed, deed of trust, loan agreement or other agreement or instrument filed
as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended
March 31, 2009 nor will such action result in any violation of the provisions of
the charter or by-laws (or other organizational documents, as applicable) of the
Company or the Guarantors, or any statute or any order, rule or regulation of any
court or governmental agency or body, having jurisdiction over the Company or the
Guarantors or any of their respective properties or assets; a “Debt Repayment
Triggering Event” means any event or condition that gives, or with the giving of
notice or lapse of time would give, the holder of any such note, debenture, or
other evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or the Guarantors.




     (xii) Accurate Disclosure. The statements in the General Disclosure Package
and the Final Offering Circular under the headings “Certain U.S. Federal Income Tax
Considerations”, “Description of the Notes”, “Description of Other Indebtedness”,
“Business — Legal Proceedings” and “Plan of Distribution”, insofar as such
statements summarize matters of law, regulation, legal conclusions, documents or
proceedings discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings in all material respects and present
the information required to be shown in all material respects.



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     (xiii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by each of the Company and the Guarantors.




     (xiv) Absence of Existing Defaults and Conflicts. To such counsel’s
knowledge, neither the Company nor the Guarantors (i) is in violation of its
charter or by-laws (or other organizational documents, as applicable), (ii) is in
default in any respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument filed as an exhibit
to the Company’s Annual Report on Form 10-K for the fiscal year ended March 31,
2009 or (iii) is in violation in any respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be
subject, except, in the case of clauses (ii) and (iii), any violations or defaults
which, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.




     (xv) No Registration. It is not necessary in connection with (i) the offer,
sale and delivery of the Offered Securities and Guarantees by the Company and the
Guarantors to the several Purchasers pursuant to this Agreement or (ii) the resales
of the Offered Securities and Guarantees by the several Purchasers in the manner
contemplated by this Agreement, to register the Offered Securities under the
Securities Act or to qualify an indenture in respect thereof under the Trust
Indenture Act, assuming the accuracy of and compliance with the Purchasers’
representations and agreements contained in this Agreement.




     (xvi) Security Documents. The Security Documents have been duly authorized by
the Company and the Guarantors (to the extent each is a party thereto), and the
Security Agreement, the Intellectual Property Security Agreement and the Collateral
Trust Agreement have been duly executed and delivered by the Company and the
Guarantors (to the extent each is a party thereto), conform to the description
thereof contained in the General Disclosure Package and the Final Offering Circular
and constitute legal, valid and binding instruments enforceable against the Company
and the Guarantors (to the extent each is a party thereto) in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles. The Company and the Guarantors
(to the extent each is a party thereto) have taken reasonable best efforts to
prepare, execute and deliver the other Security Documents to which they are a
party, and upon the execution and delivery of the other Security Documents, such
Security Documents will constitute legal, valid and binding instruments enforceable
against the Company and the Guarantors (to the extent each is a party thereto) in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.




     (xvii) Security Interest. The Security Documents create a legally valid and
enforceable security interest in favor of the Collateral Trustee for the benefit of
the Trustee and the holders of the Offered Securities, in those items of Collateral
in which a security interest may be created under Article 9 of the



-24-









 







Uniform
Commercial Code as currently in effect in the State of New York, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles.




     (xviii) Perfection of Security Interest. When (i) financing statements and
other filings in appropriate form describing the Collateral with respect to
which a security interest may be perfected by filing or recordation are filed
or recorded with the appropriate governmental authority and (ii) upon the taking of
possession or control by the Collateral Agent of the Collateral with respect to
which a security interest may be perfected only by possession or control, the Liens
created by the Security Documents shall constitute perfected Liens on, and security
interests in, all right, title and interest of the Company and the Guarantors in
the Collateral to the extent such security interests can be perfected by such
filing, recordation, possession or control.




     (xix) Disclosure. Such counsel has acted as counsel to the Company in
connection with the preparation of the General Disclosure Package and the Final
Offering Circular, participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company and Representatives of the Purchasers, during which the
contents of the General Disclosure Package and the Final Offering Circular and
related matters were discussed, and, although such counsel are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the General Disclosure Package and Final Offering
Circular (except to the extent specified otherwise in one of the other opinions
above), on the basis of the information that was developed in the course of the
performance of such counsel’s services, nothing came to such counsel’s attention
that caused them to believe that (i) the General Disclosure Package (other than the
financial statements, the related schedules and notes thereto and other financial
data derived from the internal financial records of the Company included therein,
as to which such counsel need express no belief), as of the Applicable Time or as
of such Closing Date contained or contains an untrue statement of material fact or
omitted or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (ii) the Final Offering Circular, or any amendment or supplement
thereto, (other than the financial statements, the related schedules and the notes
thereto and other financial data derived from the internal financial records of the
Company included therein, as to which such counsel need express no belief), as of
the date of this Agreement or as of the Closing Date contained or contains an
untrue statement of material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.




The opinion of Greenberg Traurig described above shall be furnished to the Representative
and addressed to the Purchasers at the request of the Company and shall so state therein.




     (d) Opinion of Local Counsel. The Purchasers shall have received an opinion, dated
the Closing Date, of local counsel for NAP West, LLC, Technology Center of the Americas,




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LLC, and NAP of the Capital Region LLC, in states in which the real property is located,
with respect to the enforceability and perfection of the mortgages and any related fixture
filings and otherwise in form and substance satisfactory to the Purchaser and the
Collateral Trustee.




     (e) Opinion of Foreign Counsel. The Purchasers shall have received an opinion, dated
the Closing Date, of foreign counsel for the foreign subsidiaries of the
Company named in Schedule D hereto (each, an “Active Foreign Subsidiary”), with
respect to the organization, existence and capitalization of, and certain defaults,
conflicts and pending proceedings with respect to each Active Foreign Subsidiary and
otherwise in form and substance satisfactory to the Purchaser and the Collateral Trustee,
with such qualifications, assumptions and exceptions as are customary for the respective
jurisdictions.




     (f) Opinion of Counsel for Purchasers. The Purchasers shall have received from
Shearman & Sterling LLP, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Representatives may require, and the
Company and the Guarantors shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.




     (g) Officers’ Certificate. The Purchasers shall have received certificates, dated the
Closing Date, of an executive officer of the Company and the Guarantors and a principal
financial or accounting officer of the Company and the Guarantors in which such officers
shall state that the representations and warranties of the Company and the Guarantors in
this Agreement are true and correct, that the Company and the Guarantors have complied with
all agreements and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the respective dates of
the most recent financial statements in the General Disclosure Package, there has been no
material adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Company, the Guarantors and their respective Subsidiaries
taken as a whole except as set forth in the General Disclosure Package or as described in
such certificate.




     (h) Chief Financial Officer and Senior Vice President, Finance. The Representative
shall have received a certificate, dated as of the date hereof, of the Company’s Chief
Financial Officer and the Company’s Senior Vice President, Finance, in form and substance
satisfactory to the Representative, among others with respect to certain financial
information contained in the General Disclosure Package.




     (i) Security Documents. At the Closing Date, the Security Agreement, the
Intellectual Property Security Agreement and the Collateral Trust Agreement, in form and
substance satisfactory to the Purchaser, shall have been duly executed and delivered and be
in full force and effect. The Company and the Guarantors (to the extent each is a party
thereto) have taken reasonable best efforts to prepare, execute and deliver the other
Security Documents, and will duly execute and deliver such Security Documents no later than
60 days following the Closing Date. Upon the execution and delivery of the other Security
Documents, such Security Documents will constitute legal, valid and binding instruments
enforceable against the Company and the Guarantors (to the extent each is a party thereto)
in accordance with their terms, subject to bankruptcy, insolvency,



-26-









 







fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.




     (j) Release of Existing Liens. At the Closing Date, any existing Lien on the
Collateral shall have been released, other than any Permitted Liens as defined in the
Indenture.



     The Company and the Guarantors will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative reasonably requests.
Credit Suisse may in its sole discretion waive on behalf of the Purchasers compliance with any
conditions to the obligations of the Purchasers hereunder, whether in respect of an Optional
Closing Date or otherwise.



     8. Indemnification and Contribution. (a) Indemnification of Purchasers. The Company and the
Guarantors will indemnify and hold harmless each Purchaser, its partners, members, directors,
officers, employees, agents, affiliates and each person, if any, who controls such Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an
“Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several,
to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act,
other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the Preliminary Offering
Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer
Free Writing Communication (including without limitation, any Supplemental Marketing Material), or
arise out of or are based upon the omission or alleged omission of a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending against any loss,
claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection
with the enforcement of this provision with respect to any of the above as such expenses are
incurred; provided, however, that the Company and the Guarantors 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 in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished to the Company by
any Purchaser through the Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Purchaser consists of the information
described as subsection (b) below.



          (b) Indemnification of Company. Each Purchaser will severally and not jointly indemnify and
hold harmless the Company, the Guarantors, each of their respective directors and each of their
respective officers and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (each, a “Purchaser Indemnified Party”),
against any losses, claims, damages or liabilities to which such Purchaser Indemnified Party may
become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or
regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in
each case as amended or supplemented, or any Issuer Free Writing Communication, or arise out of or
are based upon the omission or the alleged



-27-









 






omission of a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
in each case to the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Purchaser through the Representative specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred by such Purchaser
Indemnified Party in connection with investigating or defending against any such loss, claim,
damage, liability, action, litigation,
investigation or proceeding whatsoever (whether or not such Purchaser Indemnified Party is a
party thereto), whether threatened or commenced, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists of the following
information in the Preliminary Offering Circular and Final Offering Circular furnished on behalf of
each Purchaser: the information contained in the thirteenth full paragraph under the caption “Plan
of Distribution”, in respect with stabilizing and other transactions, and the second sentence of
the eleventh full paragraph under the caption “Plan of Distribution”, in respect with market making
by the Purchasers; provided, however, that the Purchasers shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Company’s failure to perform its
obligations under Section 5(a) of this Agreement.




          (c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying 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 under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any claims that are the
subject matter of such action 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 an indemnified party.




          (d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company and
the Guarantors on the one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is



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not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Guarantors on the one hand and
the Purchasers on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors on the one hand and the Purchasers on
the other shall be deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the
Company and the Guarantors bear to the total discounts and commissions received by the
Purchasers. 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 Company and the Guarantors or the
Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities purchased by it were resold exceeds the amount of any damages
which such Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Purchasers’ obligations in this
subsection (d) to contribute are several in proportion to their respective purchase obligations and
not joint. The Company, the Guarantors and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation
(even if the Purchasers 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 in this Section
8(d).




     9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to
purchase Offered Securities hereunder and the aggregate principal amount of Offered Securities that
such defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the
total principal amount of Offered Securities, Credit Suisse may make arrangements satisfactory to
the Company for the purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the non-defaulting Purchasers
shall be obligated severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total principal amount of
Offered Securities and arrangements satisfactory to Credit Suisse and the Company for the purchase
of such Offered Securities by other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 10. As used in this Agreement, the term “Purchaser”
includes any person substituted for a Purchaser under this Section. Nothing herein will relieve a
defaulting Purchaser from liability for its default.



     10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Guarantors or
their respective officers and of the several Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation, or



-29-









 




statement as to
the results thereof, made by or on behalf of any Purchaser, the Company, the Guarantors or any of
their respective representatives, officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to
Section 9 or if for any reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company and the Guarantor shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the Company, the
Guarantors and the Purchasers pursuant to Section 8 shall remain in effect. If the
purchase of the Offered Securities by the Purchasers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 9 or the occurrence of
any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(b), the Company and
the Guarantors will reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.




     11. Notices. All communications hereunder will be in writing and, if sent to the Purchasers
will be mailed, delivered or telegraphed and confirmed to the Purchasers at c/o Credit Suisse
Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if
sent to the Company or the Guarantors, will be mailed, delivered or telegraphed and confirmed to it
at Terremark Worldwide, Inc., 2 S. Biscyane Blvd., Suite 2800, Miami, Florida 33131, Attention:
Chief Legal Officer; provided, however, that any notice to a Purchaser pursuant to Section 8 will
be mailed, delivered or telegraphed and confirmed to such Purchaser.



     12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder, except
that holders of Offered Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.



     13. Representation of Purchasers. You will act for the several Purchasers in connection with
this purchase, and any action under this Agreement taken by you will be binding upon all the
Purchasers.



     14. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.



     15. Absence of Fiduciary Relationship. The Company and the Guarantors acknowledge and agree
that:




     (a) No Other Relationship. The Representative has been retained solely to act as
initial purchaser(s) in connection with the initial purchase, offering and resale of the
Offered Securities and that no fiduciary, advisory or agency relationship between the
Company or the Guarantors and the Representative has been created in respect of any of the
transactions contemplated by this Agreement or the Preliminary or Final Offering Circular,
irrespective of whether the Representatives has advised or is advising the Company or the
Guarantors on other matters;




     (b) Arm’s-Length Negotiations. The purchase price of the Offered Securities set forth
in this Agreement was established by the Company and the Guarantors following discussions
and arms-length negotiations with the Representative and the



-30-









 







Company and the Guarantors are
capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement;




     (c) Absence of Obligation to Disclose. The Company and the Guarantor have been
advised that the Representative and its affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company or the
Guarantors and that the Representative has no obligation to disclose such interests
and transactions to the Company or the Guarantors by virtue of any fiduciary, advisory or
agency relationship; and




     (d) Waiver. The Company and the Guarantors waive, to the fullest extent permitted by
law, any claims it may have against the Representative for breach of fiduciary duty or
alleged breach of fiduciary duty and agree that the Representative shall have no liability
(whether direct or indirect) to the Company or the Guarantors in respect of such a
fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in
right of the Company, including stockholders, employees or creditors of the Company or the
Guarantors.



     16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.



     The Company and the Guarantors hereby submit to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby. The Company
and the Guarantors irrevocably and unconditionally waive any objection to the laying of venue of
any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York
and irrevocably and unconditionally waive and agree not to plead or claim in any such court that
any such suit or proceeding in any such court has been brought in an inconvenient forum.



-31-









 





          If the foregoing is in accordance with the Purchasers’ understanding of our agreement, kindly
sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement
between the Company, the Guarantors and the several Purchasers in accordance with its terms.




	 	 	 	 	 
	 	Very truly yours,



Terremark Worldwide, Inc.

 	 
	 	By:  	/s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	NAP of the Capital Region LLC

 	 
	 	By:  	                     /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	NAP West, LLC

 	 
	 	By:  	                       /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Park West Telecommunications Investors, Inc.

 	 
	 	By:  	               /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Spectrum Telecommunications Corp.

 	 
	 	By:  	                    /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 



Purchase Agreement





 









 





	 	 	 	 	 
	 	TECOTA Services Corp.

 	 
	 	By:  	                       /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Technology Center of the Americas, LLC

 	 
	 	By:  	                  /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Terremark Europe, Inc.

 	 
	 	By:  	                       /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Terremark Federal Group Inc.

 	 
	 	By:  	                     /s/ Nelson Fonseca
 	 
	 	 	Name:  	Nelson Fonseca 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Terremark Financial Services, Inc.

 	 
	 	By:  	                    /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Terremark Fortune House #1, Inc.

 	 
	 	By:  	                    /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 



Purchase Agreement







 









 








	 	 	 	 	 
	 	Terremark Latin America, Inc.

 	 
	 	By:  	                     /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Terremark Management Services, Inc.

 	 
	 	By:  	                   /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Terremark North America, Inc.

 	 
	 	By:  	                     /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Terremark Realty, Inc.

 	 
	 	By:  	                       /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Terremark Technology Contractors, Inc.

 	 
	 	By:  	                  /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary 	 
	 
	 	Terremark Trademark Holdings, Inc.

 	 
	 	By:  	                    /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary` 	 
	 



Purchase Agreement







 









 








	 	 	 	 	 
	 	TerreNAP Data Centers, Inc.

 	 
	 	By:  	                     /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary` 	 
	 
	 	TerreNAP Services, Inc.

 	 
	 	By:  	                      /s/ Adam T. Smith
 	 
	 	 	Name:  	Adam T. Smith 	 
	 	 	Title:  	Secretary` 	 
	 



Purchase Agreement







 









 








The foregoing Purchase Agreement

      is hereby confirmed and accepted

      as of the date first above written.




	 	 	 	 	 
	Credit Suisse Securities (USA) LLC

 	 
	      By 	/s/ Jerald Slowik
 	 
	 	Name:  	Jerald Slowik 	 
	 	Title:  	Director 	 
	 



Acting on behalf of itself and as the Representative

of the several Purchasers




Purchase Agreement





 









 








SCHEDULE A




	 	 	 	 	 
	 	 	Principal Amount of	 
	Purchaser	 	Offered Securities	 
	Credit Suisse Securities (USA) LLC
	 	$	252,000,000	 
	 
	Jefferies & Company, Inc.
	 	 	73,500,000	 
	 
	RBC Capital Markets Corporation
	 	 	63,000,000	 
	 
	TD Securities (USA) LLC
	 	 	21,000,000	 
	 
	Piper Jaffray & Co.
	 	 	10,500,000	 
	 
	 	 	 
	 
	Total
	 	$	420,000,000	 
	 
	 	 	 






Schedule A




 









 








SCHEDULE B




Issuer Free Writing Communications (included in the General Disclosure Package)





	1.	 	Final term sheet, dated June 17, 2009, a copy of which is attached hereto as Exhibit A





Schedule B




 









 








SCHEDULE C




	 	 	 
	Guarantor	 	Jurisdiction of Incorporation or Formation
	NAP of the Capital Region LLC

	 	Florida
	NAP West, LLC

	 	Delaware
	Park West Telecommunications Investors, Inc.

	 	Florida
	Spectrum Telecommunications Corp.

	 	Delaware
	TECOTA Services Corp.

	 	Delaware
	Technology Center of the Americas, LLC

	 	Delaware
	Terremark Europe, Inc.

	 	Florida
	Terremark Federal Group Inc.

	 	Delaware
	Terremark Financial Services, Inc.

	 	Florida
	Terremark Fortune House #1, Inc.

	 	Florida
	Terremark Latin America, Inc.

	 	Florida
	Terremark Management Services, Inc.

	 	Florida
	Terremark North America, Inc.

	 	Florida
	Terremark Realty, Inc.

	 	Florida
	Terremark Technology Contractors, Inc.

	 	Florida
	Terremark Trademark Holdings, Inc.

	 	Nevada
	TerreNAP Data Centers, Inc.

	 	Florida
	TerreNAP Services, Inc.

	 	Florida






Schedule C




 









 






SCHEDULE D




	 	 	 
	Active Foreign Subsidiary	 	Foreign Counsel
	Terremark, N.V. (Belgium)

	 	Squire, Sanders & Dempsey L.L.P.
	Terremark do Brasil Ltda. (Brazil)

	 	Vieira, Rezende, Barbosa E Guerreiro Advogados
	Terremark West Africa Canary Islands, S.L.U. (Spain)

	 	Uria Menendez
	NAP de las Americas — Madrid, S.A. (Spain)

	 	Uria Menendez
	Terremark Colombia, Inc. (BVI)

	 	Price, Findlay & Co.
	Terremark del Caribe, Inc. (BVI)

	 	Price, Findlay & Co.
	Terremark UK, Limited (UK)

	 	Squire, Sanders & Dempsey L.L.P.






Schedule D