CLOSING DATE AGREEMENT
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THIS CLOSING DATE AGREEMENT made this 6th day of March 2003 by and among Cogent Communications Group, Inc., a Delaware corporation (the "Company"), Allied Riser Communications Corporation, a Delaware corporation ("Allied Riser"), the several noteholders (the "Noteholders") party to the Exchange Agreement and the Settlement Agreement (each as defined below), and Xxxx Xxxxx as representative for the Noteholders (the "Noteholder Representative"). The Company, Allied Riser, and the Noteholders are sometimes referred to herein together collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, the Noteholders hold in the aggregate $106,789,000 face value of the 7.5% Convertible Subordinated Notes Due 2007 of Allied Riser (the "Notes").
WHEREAS, the Company, Allied Riser and Noteholders have entered into that certain Exchange Agreement dated as of the date hereof (the "Exchange Agreement") pursuant to which the Noteholders have agreed to surrender to Allied Riser 100% of the Notes in exchange for a cash payment by Allied Riser (the "Cash Payment") and the delivery by Allied Riser to the Noteholders of shares of the Company's Series D Preferred Stock and Series E Preferred Stock (the "Shares") on the terms and subject to the conditions set forth therein (such transaction is referred to herein as the "Note Exchange").
WHEREAS, the Company, Allied Riser and Noteholders have entered into that certain Settlement Agreement dated as of the date hereof (the "Settlement Agreement") pursuant to which the Noteholders have agreed to dismiss with prejudice certain claims asserted by them in a litigation pending in the Court of Chancery of the State of Delaware (the "Litigation") against Allied Riser and certain of its former directors and to release all claims against Allied Riser and the Company in exchange for a cash payment by Allied Riser (the "Settlement Payment") and the Company and Allied Riser have agreed to release all claims against the Noteholders by the Company and Allied Riser on the terms and conditions set forth therein (such transaction is referred to herein as the "Settlement").
WHEREAS, the Stipulation of Dismissal (as defined in the Settlement Agreement) related to the dismissal of the Litigation has been filed in the Court of Chancery of the State of Delaware in and for New Castle County.
WHEREAS, in order to effect the release of claims in connection with the Settlement, each of the Noteholders, Allied Riser, the Company and certain of Allied Riser's former directors (the "Allied Riser Directors") have executed a mutual general release (the "General Release").
WHEREAS, pursuant to the terms of the Exchange Agreement and the Settlement Agreement, the Cash Payment, the Settlement Payment, the Notes and the General Release are to be placed in escrow upon the execution of the Exchange Agreement and the Settlement Agreement.
WHEREAS, pursuant to the terms of the Exchange Agreement and the Settlement Agreement upon the filing with the Delaware Secretary of State of the Third Amended and Restated Certificate of Incorporation of the Company authorizing the Shares (the "Charter Amendment"), Allied Riser is to place the Shares into the escrow.
WHEREAS, the Charter Amendment has been filed with the Secretary of State of the State of Delaware.
WHEREAS, the parties desire to enter into this Closing Date Agreement to provide for a closing of the Note Exchange and the Settlement without first placing the Cash Payment, the Settlement Payment, the Notes, the General Release or the Shares into Escrow.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and in the Exchange Agreement and the Settlement Agreement, the Parties agree as follows:
On the date hereof:
a) Allied Riser shall (i) wire to the account of the Noteholder Representative set forth in Schedule A hereto the Cash Payment of $4,997,725 and the Settlement Payment of $4,880,256, (ii) deliver to the Noteholder Representative duly executed certificates, in the names of each of the Noteholders, representing the number of duly authorized, validly issued, fully paid and non-assessable Shares set forth opposite each Noteholders name under the headings "Series D Preferred" and "Series E Preferred" on Schedule 1.1 to the Exchange Agreement and (iii) deliver to the Noteholder Representative the General Release executed by Allied Riser and the Allied Riser Directors.
b) The Company shall deliver to the Noteholder Representative the General Release executed by the Company.
c) The Noteholders shall (i) instruct their respective brokers to instruct the Depository Trust Company ("DTC") to transfer the Notes from the account of each Noteholder to the account of Allied Riser set forth in Schedule B hereto, and (ii) deliver to Allied Riser the General Release executed by each Noteholder and Xxxxxx, Xxxxxx & Co. L.P. The Noteholder Representative shall provide a certification to Allied Riser that all of the Noteholders have duly instructed their respective brokers to instruct the DTC to transfer the Notes and such instructions have not be rescinded or amended and remain in full force and effect.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this CLOSING DATE AGREEMENT to be executed as of the date first written above.
| ALLIED RISER COMMUNICATIONS CORPORATION | |||
/s/ XXXXX XXXXXXXXX |
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| By: | Xxxxx Xxxxxxxxx | ||
| Title: | Chief Executive Officer | ||
COGENT COMMUNICATIONS GROUP, INC. |
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/s/ XXXXX XXXXXXXXX |
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| By: | Xxxxx Xxxxxxxxx | ||
| Title: | Chief Executive Officer | ||
/s/ XXXXXX X. XXXXXXXX XXXXXX X. XXXXXXXX |
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/s/ R. XXXXX XXXXXX R. XXXXX XXXXXX |
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/s/ XXXXXX XXXXX XXXXXX XXXXX |
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/s/ XXXXX X. XXXXXXXX XXXXX X. XXXXXXXX |
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ANDA PARTNERSHIP By it Partners |
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THE XXX ONLY TRUST |
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/s/ XXXX XXXXXX |
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| By: Xxxx Xxxxxx | |||
| Title: Co-Trustee | |||
THE XXX AND DESCENDANTS TRUST |
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/s/ XXXX XXXXXX |
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| By: Xxxx Xxxxxx | |||
| Title: Co-Trustee | |||
CRT CAPITAL GROUP, LLC |
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/s/ C. XXXXXXX XXXXXX |
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| By: | C. Xxxxxxx Xxxxxx | ||
| Title: | Member | ||
GUARDFISH, LLC |
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/s/ XXXX X. XXXXXXX |
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| By: | Xxxx X. Xxxxxxx | ||
| Title: | Principal of its Manager, Providence Asset Management LLC | ||
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HBV MASTER REDISCOVERY OPPORTUNITIES FUND, L.P. |
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/s/ XXXXXX X. XXXXXXX |
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| By: | Xxxxxx X. Xxxxxxx | ||
| Title: | Portfolio Manager | ||
JMG CAPITAL PARTNERS, L.P. |
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/s/ XXXXXXXXX XXXXXX |
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| By: | Xxxxxxxx Xxxxxx | ||
| Title: | Managing Member | ||
JMG TRITON OFFSHORE FUND, LTD. |
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/s/ XXXXXXXXX XXXXXX |
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| By: | Xxxxxxxx Xxxxxx | ||
| Title: | Managing Member | ||
MARKETUS VALUE PARTNERS, L.P. |
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/s/ XXXXXX X. XXXXX |
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| By: | Xxxxxx X. Xxxxx | ||
| Title: | Managing Member of its General Partner, Marketus, L.L.C. | ||
LA POLICE AND FIRE PENSION FUND By its Manager, XX XXXX & CO. |
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/s/ XXXXXXX X. XXXXXXXXX |
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| By: | Xxxxxxx X. XxXxxxxxx | ||
| Title: | Portfolio Manager | ||
PENINSULA INVESTMENT PARTNERS, L.P. |
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/s/ R. XXX XXXXXXXX |
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| By: | R. Xxx Xxxxxxxx | ||
| Title: | Managing Member of its Investment Advisor and General Partner | ||
SAGAMORE HILL HUB FUND LTD. |
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/s/ XXXX XXX |
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| By: | Xxxx Xxx | ||
| Title: | |||
LC CAPITAL MASTER FUND, LTD. |
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/s/ XXXXX XXXXX |
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| By: | Xxxxx Xxxxx | ||
| Title: | Managing Member | ||
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CLOSING DATE AGREEMENT
