CLAIM, DEMAND, WAIVER, CONSENT,
APPROVAL OR OTHER COMMUNICATION WHICH IS REQUIRED OR PERMITTED HEREUNDER SHALL
BE IN WRITING AND SHALL BE DEEMED GIVEN IF DELIVERED PERSONALLY, BY FACSIMILE
TRANSMISSION WITH RECEIPT OF DELIVERY (ONE BUSINESS DAY AFTER CONFIRMATION IN
THE CASE OF TRANSMISSIONS TO NON-U.S. RESIDENTS), OR SENT BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, OR BY INTERNATIONALLY
RECOGNIZED OVERNIGHT COURIER SERVICE (TWO BUSINESS DAYS AFTER DEPOSIT WITH SUCH
OVERNIGHT COURIER SERVICE IN THE CASE OF DELIVERIES TO NON-U.S. RESIDENTS), AS
FOLLOWS: IF TO THE BORROWERS, TO COGENT COMMUNICATIONS GROUP, INC. 1015 31ST
STREET, N.W., SUITE 330, WASHINGTON, DC 20007, ATTN:
DAVID SCHAEFFER, FAX
NUMBER (202) 338-8798, IF TO CISCO, TO CISCO SYSTEMS, INC., 170 WEST TASMAN DR.
SAN JOSE, CA 95134, ATTN. LEGAL DEPARTMENT, FAX NUMBER (408) 525-4757, TELEPHONE
NUMBER (800) 250-4800, AND IF TO CSCC, TO CISCO SYSTEMS CAPITAL CORPORATION,
9850 DOUBLE R BOULEVARD, PARK CENTER EAST, RENO NEVADA 89521, ATTN: LOAN
OPERATIONS, FAX NUMBER (775) 789-5866, TELEPHONE NUMBER (775) 789-5860.
20
SECTION 7.3.
EXPENSES.
EACH OF THE BORROWERS SHALL PAY ITS OWN EXPENSES IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER OR NOT SUCH
TRANSACTIONS SHALL BE CONSUMMATED.
BORROWERS SHALL REIMBURSE CSCC FOR ALL
REASONABLE FEES AND EXPENSES OF COUNSEL FOR CSCC INCURRED BY CSCC IN CONNECTION
WITH THE EXCHANGE, AND THE PREPARATION AND NEGOTIATION OF DOCUMENTS AND
AGREEMENTS IN CONNECTION WITH THE EXCHANGE.
SECTION 7.4.
ASSIGNMENT.
THE RIGHTS AND OBLIGATIONS OF CISCO AND CSCC UNDER
THIS AGREEMENT SHALL NOT BE ASSIGNABLE OR DELEGABLE WITHOUT THE WRITTEN CONSENT
OF THE BORROWERS.
THE RIGHTS AND OBLIGATIONS OF THE BORROWERS UNDER THIS
AGREEMENT SHALL NOT BE ASSIGNABLE OR DELEGABLE WITHOUT THE WRITTEN CONSENT OF
CISCO AND CSCC.
SECTION 7.5.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS
AND WARRANTIES MADE IN THIS AGREEMENT OR ANY OTHER INSTRUMENT OR DOCUMENT
DELIVERED IN CONNECTION HEREWITH OR THEREWITH, SHALL SURVIVE THE EXECUTION AND
DELIVERY HEREOF OR THEREOF.
SECTION 7.6.
PRIOR AGREEMENTS.
THIS AGREEMENT, TOGETHER WITH THE ESCROW
AGREEMENT, THE GENERAL RELEASE, THE LOAN DOCUMENTS, THE EQUITY DOCUMENTS (AS
DEFINED IN THE THIRD AMENDED AND RESTATED AGREEMENT)
AND THE OTHER DOCUMENTS
AND AGREEMENTS BEING DELIVERED PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT,
CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ANY PRIOR
UNDERSTANDINGS OR AGREEMENTS CONCERNING THE EXCHANGE.
SECTION 7.7.
GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.
SECTION 7.8.
CONSENT TO JURISDICTION AND SERVICE.
EACH OF THE BORROWERS, CISCO
AND CSCC HEREBY ABSOLUTELY AND IRREVOCABLY CONSENTS AND SUBMITS TO THE
JURISDICTION OF THE COURTS IN THE STATE OF NEW YORK AND OF ANY FEDERAL COURT
LOCATED IN THE STATE OF NEW YORK IN CONNECTION WITH ANY ACTIONS OR PROCEEDINGS
BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING TO THE EXCHANGE.
IN
ANY SUCH ACTION OR PROCEEDING, EACH PARTY HERETO HEREBY ABSOLUTELY AND
IRREVOCABLY (I) WAIVES ANY OBJECTION TO JURISDICTION OR VENUE, (II)