SECURITY INTERESTS GRANTED TO
CSCC, AS COLLATERAL AGENT FOR THE LENDERS.
8.16
JOINT AND SEVERAL LIABILITY.
THE LIABILITY OF BORROWER AND ADDITIONAL
BORROWER SHALL BE JOINT AND SEVERAL AND, EXCEPT AS THE CONTEXT OTHERWISE
REQUIRES, EACH REFERENCE HEREIN TO "BORROWER" SHALL MEAN AND BE A REFERENCE TO
EACH BORROWER AND ADDITIONAL BORROWER.
BORROWER AND ADDITIONAL BORROWER AGREE
THAT ANY AND ALL OF THE OBLIGATIONS SHALL BE THE JOINT AND SEVERAL
RESPONSIBILITY OF EACH OF THEM NOTWITHSTANDING ANY ABSENCE HEREIN OR IN ANY
OTHER LOAN DOCUMENT OF A REFERENCE SUCH AS "JOINTLY AND SEVERALLY" WITH RESPECT
TO SUCH OBLIGATION.
THE COMPROMISE OF ANY CLAIM WITH, OR THE RELEASE OF,
BORROWER SHALL NOT CONSTITUTE A COMPROMISE WITH, OR A RELEASE OF, ADDITIONAL
BORROWER, AND THE COMPROMISE OF ANY CLAIM WITH, OR THE RELEASE OF, ADDITIONAL
BORROWER SHALL NOT CONSTITUTE A COMPROMISE WITH, OR A RELEASE OF, BORROWER.
ADDITIONAL BORROWER HEREBY IRREVOCABLY APPOINTS, DESIGNATES AND AUTHORIZES
BORROWER TO ACT ON ADDITIONAL BORROWER'S BEHALF, AND THE ACTION OF BORROWER IN
THE NAME OF ADDITIONAL BORROWER SHALL IN EACH CASE BIND ADDITIONAL BORROWER.
AGENT AND LENDERS SHALL BE FULLY ENTITLED TO RELY UPON AND ACT FOLLOWING RECEIPT
OF ANY NOTICE, REQUEST OR INSTRUCTIONS BY BORROWER ON BEHALF OF ADDITIONAL
BORROWER.
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42
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
CISCO SYSTEMS CAPITAL CORPORATION,
as Agent and as a Lender
By:
/s/D.A. Rogan
Name:
David A. Rogan
Title:
President, Cisco Capital
COGENT COMMUNICATIONS, INC., as
Borrower
By:
/s/David Schaeffer
Name:
David Schaeffer
Title:
President
COGENT INTERNET, INC.,
as Additional Borrower
By:
/s/David Schaeffer
Name:
David Schaeffer
Title:
President
Acknowledged and Agreed:
COGENT COMMUNICATIONS GROUP, INC.,
as Holdings
By:
/s/David Schaeffer
Name:
David Schaeffer
Title:
President
43
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As of
, 2003
SCHEDULE OF INFORMATION
This Schedule of Information (this "Schedule") is an integral part of the Third
Amended and Restated Agreement dated as of
, 2003 (as amended,
modified, renewed or extended from time to time, the "Agreement") among Cogent
Communications, Inc., ("Borrower"), Cogent Internet, Inc. ("Additional
Borrower"), the several financial institutions from time to time party thereto
("Lenders") and Cisco Systems Capital Corporation, as administrative agent for
itself and the other Lenders (in such capacity, "Agent").
Capitalized terms
used but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Third Amended and Restated Agreement.
1.
SUBSIDIARIES AND GUARANTORS:
SEE
EXHIBIT A HERETO.
UNLESS OTHERWISE NOTED ON EXHIBIT A, EACH SUBSIDIARY IS ALSO
A GUARANTOR.
2.
GOVERNMENTAL LICENSES AND PERMITS:
NONE.
3.
OTHER REQUIRED CONSENTS:
[Consent of Shareholders of Holdings and Borrower to the Loan Documents and such
other consents of each Guarantor as Agent may reasonably require.]
4.
ADDRESSES FOR NOTICES:
(a)
Borrower:
Cogent Communications, Inc.
1015 31st Street, NW
Washington, D.C.
20007
Attn: Mr. David Schaeffer
Fax No.: (202) 342-8269
(b)
Additional Borrower:
Cogent Internet, Inc.
1015 31st Street, NW
Washington, D.C.
20007
Attn: Mr. David Schaeffer