Common use of Agreement to Exchange Clause in Contracts

Agreement to Exchange. (a) At the Closing (as defined in the Merger Agreement) and subject only to (i) the simultaneous consummation of the Merger and of the transactions contemplated by the Note and Warrant Modification Agreement, the Elite Option Modification Agreement, the Plicom Option Modification Agreement and the News Letter Agreement (each, as defined in the Merger Agreement) (collectively, the "Transactions"), each on the economic terms contemplated by the forms of such agreements attached as exhibits to the Merger Agreement and (ii) the declaration by the Securities and Exchange Commission (the "SEC") of the effectiveness of the Exchange Offer Registration Statement (as defined below) or, alternatively, of the Shelf Registration Statement (as defined below) if the Company determined under Section 8.1 that the Registered Exchange Offer (as defined below) is not available or may not be consummated, each Noteholder hereby agrees to, and to direct its nominee to, exchange all of such Noteholder's Old Notes listed on Schedule I hereto, together with any other Old Notes the beneficial ownership (as defined below) of which is acquired by such Noteholder during the period from and including the date hereof through and including the date on which this Agreement is terminated pursuant to Section 10.9 hereof (collectively, the "Subject Debentures"), for New Notes with the terms and provisions specified in the Summary of Terms. For purposes of this Agreement, "beneficial ownership" or "beneficially owned" shall have the meaning ascribed to those terms by Section 13 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"). The New Notes will be issued pursuant to an indenture between the Company and a Trustee reasonably satisfactory to the Noteholders and will set forth the Summary of Terms and such other terms and conditions as are reasonably agreed to by the Company and the Noteholders. (b) Delivery of the New Notes to each Noteholder under this Agreement shall be made on the Closing Date (as defined in the Merger Agreement).

Agreement to Exchange. (a) At the Closing (as defined in the Merger Agreement) and subject only to (i) the simultaneous consummation of the Merger and of the transactions contemplated by the Note and Warrant Modification Agreement, the Elite Option Modification Agreement, the Plicom Option Modification Agreement and the News Letter Agreement (each, as defined in the Merger Agreement) (collectively, the "Transactions"), each on the economic terms contemplated by the forms of such agreements attached as exhibits to the Merger Agreement Consent and (ii) the declaration by the Securities and Exchange Commission (the "SEC") of the effectiveness of the Exchange Offer Registration Statement (as defined below) or, alternatively, of the Shelf Registration Statement (as defined below) if the Company determined under Section 8.1 that the Registered Exchange Offer (as defined below) is not available or may not be consummated), each Noteholder hereby agrees to, and to direct its nominee to, exchange all of such Noteholder's Old FaciliCom Notes listed on Schedule I hereto, together with any other Old FaciliCom Notes the beneficial ownership (as defined below) of which is acquired by such Noteholder during the period from and including the date hereof through and including the date on which this Agreement is terminated pursuant to Section 10.9 hereof (collectively, the "Subject DebenturesNotes"), for New Notes with (A) Exchange Notes, which shall have terms substantially similar to the terms and provisions of the FaciliCom Notes, except that such Exchange Notes shall contain the terms specified in the Summary of TermsTerms attached hereto as Exhibit B, (B) for Exchange Shares and (C) for the Cash Payment, each on the basis set forth above in the second Whereas clause of this Agreement. For purposes of this Agreement, "beneficial ownership" or "beneficially owned" shall have the meaning ascribed to those terms by Section 13 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"). The New Exchange Notes and the Exchange Shares will be registered under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement on Form S-4 (the "Exchange Offer Registration Statement") and the Exchange Notes will be issued pursuant to an indenture (the "Exchange Indenture") between the Company and a Trustee reasonably satisfactory trustee (the "Trustee"), which indenture will be substantially similar to the Noteholders and will set forth FaciliCom Indenture, except that it shall reflect the Summary of Terms and Terms. The exchange offer as described in this paragraph (a) shall be referred to as the "Registered Exchange Offer." All holders of FaciliCom Notes will be eligible to participate in the Registered Exchange Offer, notwithstanding that not all such other terms and conditions as holders are reasonably agreed parties to by the Company and the Noteholdersthis Agreement. (b) Delivery The number of the New Exchange Shares that each holder of FaciliCom Notes to each Noteholder under this Agreement shall be made on entitled to receive shall be calculated by multiplying the Closing Date aggregate principal amount of such holder's tendered and accepted FaciliCom Notes by 0.05 and by dividing such product by the Market Price (as defined in below) of the Merger Agreement)Exchange Shares and rounding to the nearest whole number. "Market Price" shall mean the average closing price of the Exchange Shares on Nasdaq over the five consecutive trading days up to and including the trading day prior to the last full trading day before Closing.