PURCHASE AGREEMENT

Exhibit 10.39

EXECUTION VERSION

PURCHASE AGREEMENT

among

TERREMARK WORLDWIDE, INC., as Issuer,

The Guarantors named herein,

The Agent named herein

and

The Purchasers named herein

Dated as of January 5, 2007

Relating to:

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

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

EXECUTION VERSION

TABLE OF CONTENTS

EXHIBITS

EXECUTION VERSION

PURCHASE AGREEMENT

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

RECITALS

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

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

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

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

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

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

          NOW, THEREFORE, the parties hereto agree as follows:

SECTION 1

DEFINITIONS AND ACCOUNTING TERMS

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

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

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

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

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

          “ Agreement ” is defined in Section 15.04.

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

          “ Applicable Rate ” is defined in Exhibit A .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          “ Closing Time ” is defined in Section 2.03.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          “ Contract ” is defined in Section 4.05.

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

          “ Custodian ” is defined in Section 10.01.

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

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

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

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

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

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

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

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

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

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

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

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

          “ Eurocurrency Reserve Requirements ” is defined in Exhibit A .

          “ Eurodollar Base Rate ” is defined in Exhibit A .

          “ Eurodollar Rate ” is defined in Exhibit A .

          “ Event of Default ” is defined in Section 10.01.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          “ Interest Payment Date ” is defined in Exhibit A .

          “ Interest Period ” is defined in Exhibit A .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

               “ Net Cash Proceeds ” means

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

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

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

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

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

               “ NPL ” means the National Priorities List under CERCLA.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          “ Permitted Indebtedness ” is defined in Section 8.04.

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

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

          “ Permitted Liens ” is defined in Section 8.07.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          “ Purchase Price ” is defined in Section 2.02.

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

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

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

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

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

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

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

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

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

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

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

          “ Regular Record Date ” is defined in Section 9.05.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          “ Standard Rate ” is defined in Exhibit A.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SECTION 2

AUTHORIZATION, ISSUANCE AND SALE OF SECURITIES

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

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

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

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

SECTION 3

CONDITIONS TO CLOSING

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

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

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

          SECTION 3.03. Compliance Certificates .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          SECTION 3.12. Consummation of the Transactions .

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

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

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

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

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

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

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

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

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

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

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

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

SECTION 4

REPRESENTATIONS AND WARRANTIES OF THE ISSUERS

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

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

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

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

          SECTION 4.03. Equity Interests and Subsidiaries .

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

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

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

          SECTION 4.04. Due Authorization, Execution and Delivery .

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

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

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

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

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

          SECTION 4.06. Company Financial Statements; Company Reports .

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

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

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

          SECTION 4.07. Absence of Undisclosed Liabilities or Events .

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

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

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

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

          SECTION 4.09. Properties .

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

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

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

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

          SECTION 4.10. Intellectual Property .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SECTION 5

REPRESENTATIONS OF THE PURCHASERS

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

          SECTION 5.01. Purchase for Investment .

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

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

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

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

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

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

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

SECTION 6

COVENANTS TO PROVIDE INFORMATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SECTION 7

OTHER AFFIRMATIVE COVENANTS

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

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

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

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

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

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

          SECTION 7.04. Taxes.

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

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

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

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

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

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

          SECTION 7.07. Insurance .

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

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

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

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

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

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

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

          SECTION 7.08. Offer to Repurchase upon Change of Control .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          SECTION 7.12. Additional Collateral; Additional Guarantors.

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

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

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

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

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

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

          SECTION 7.14. Information Regarding Collateral .

          (a) The Company shall not and shall not permit any of its Subsidiaries to effect any change (i) in any Issuer’s legal name, (ii) in the location of any Issuer’s chief executive office, (iii) in any Issuer’s identity or organizational structure, (iv) in any Issuer’s Federal Taxpayer Identification Number or organizational identification number, if any, or (v) in any Issuer’s jurisdiction of organization (in each case, incl