Exhibit 10.1

Certain information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.

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DARK FIBER IRU AGREEMENT

Between

WILLIAMS COMMUNICATIONS, INC. (“Williams”)

and

COGENT COMMUNICATIONS, INC. (“Cogent”)

Dated: April 14, 2000

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TABLE OF CONTENTS

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EXHIBITS

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DARK FIBER IRU AGREEMENT

THIS DARK FIBER IRU AGREEMENT (this “Agreement”) is made on this 14^th day of April, 2000 (the “Effective Date”), by and between WILLIAMS COMMUNICATIONS, INC., a Delaware corporation (“Williams”), and COGENT COMMUNICATIONS, INC., a Delaware corporation (“Cogent”).

W I T N E S S E T H:

WHEREAS, Williams has constructed or acquired, or will construct or acquire, a fiber optic communication system along the route segments described and/or depicted in Exhibits A-1 and A-2 attached hereto;

WHEREAS, Cogent desires to acquire from Williams, and Williams desires to provide to Cogent, rights to use certain optical fibers in the System (hereinafter defined) upon the terms and conditions set forth below; and

WHEREAS, the parties desire to establish additional ongoing obligations and rights that will be in effect during the term of this Agreement;

NOW, THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

In addition to other terms defined elsewhere in this Agreement, where capitalized, the following words and phrases shall be defined as follows:

“Acceptance” and all capitalized derivations of the word shall have the definition set forth in Exhibit C.

“Acceptance Date” shall have the definition set forth in Exhibit C.

“Acceptance Standards” means the standards set forth in Exhibit C with respect to the testing and condition of the Cogent Fibers.

“Additional Fibers” shall have the definition set forth in Section 2.4(c).

“Affiliate” means, with respect to any entity, any other entity controlling, controlled by or under common control with such entity, whether directly or indirectly through one or more intermediaries. “Control” and its derivatives mean legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting capital stock (or other ownership interest, if not a corporation) of an entity, or management or operational control over such entity.

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“As-builts” shall have the definition set forth in Section 4.6.

“Cable” means the fiber optic cable and fibers contained therein, including the Cogent Fibers, and associated splicing connections, splice boxes and vaults, and conduit.

“Claim” means any claim, action, dispute, or proceeding of any kind between Cogent (or any of its Affiliates, successors or assigns) and Williams (or any of its Affiliates, successors, or assigns) and any other claim, transaction, occurrence, loss, liability, expense or other matter arising out of, in connection with, or in any way related to, the Cogent Lease/IRU Rights, the Cable, the System, this Agreement or any other instrument, arrangement or understanding related to the Cogent Lease/IRU Rights.

“Cogent” means Cogent Communications, Inc., a Delaware corporation.

“Cogent Equipment” shall mean optronics (opto-electrical), electronics, or optical equipment, or materials, facilities, or other equipment owned, possessed, or utilized (other than the System) by Cogent.

“Cogent Fibers” means the Initial Cogent Fiber and the Additional Fibers.

“Cogent IRU” shall have the definition set forth in Section 2.2.

“Cogent Lease/IRU Rights” shall have the definition set forth in Section 2.3.

“Collocation Provisions” means the collocation provisions for Transmission Sites or POP Collocation Sites as set forth in Exhibits B-1 and B-3, as applicable.

“Connecting Point” means a point where the network or facilities of Cogent will connect to the System (subject to the provisions of Section 5.1 and as more particularly defined in Exhibit H.

“Contract Price” shall have the definition set forth in Section 3.1.

“Costs” means actual, direct costs incurred and computed in accordance with the established accounting procedures used by Williams to bill third parties for reimbursable projects and U.S. generally accepted accounting principles. Such costs include the following:

“Dark Fibers” means optical fiber provided without electronics or optronics, and which is not “lit” or activated.

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“Effective Date” means the date defined in the introductory paragraph to this Agreement above.

“Estimated Completion Dates” means the dates defined in Section 4.3 below.

“Facility Owners/Lenders” means any entity (other than Williams): (a) owning any portion of the System or any property or security interest therein, (b) leasing to Williams, or providing an IRU to Williams in, any portion of the System, or (c) that is a Lender with respect to Williams or any Affiliates of Williams.

“Fiber Acceptance Testing” means the fiber acceptance testing described in Exhibit C.

“Fiber Miles” means the number of Route Miles in a Major Segment multiplied by the relevant number of Cogent Fibers in such Major Segment. For example, if there are four Cogent Fibers in a Major Segment with 100 Route Miles, there would be 400 Fibers Miles of Cogent Fibers in such Major Segment.

“Fibers” means any optical fibers contained in the System including the Cogent Fibers, the fibers of Williams and the fibers of any third party in the System excluding, however, any fibers granted (whether through ownership, IRU, lease or otherwise) to governmental entities in exchange for allowing use of streets, rights-of-way or other property under the jurisdiction of such entity.

“Force Majeure Event” shall have the definition set forth in Section 20.1.

“Indefeasible Right of Use” or “IRU” means an exclusive, indefeasible right to use the optical fibers or other specified property; provided that the granting of the same does not convey legal title to such fibers or other property. Notwithstanding the above, “Cogent Lease/IRU Rights” refers to both Cogent’s lease rights set forth in Section 2.1 and the Cogent IRU granted pursuant to Section 2.2 or Subsection 2.4(c).

“Indemnified Parties” shall have the definition set forth in Section 13.1.

“Indemnitor” shall have the definition set forth in Section 13.1.

“Initial Cogent Fiber” means that certain one (1) strand of Dark Fiber designated by Williams in the Cable on each Major Segment of the type set forth in Exhibit A-2 and further described in Exhibit D in which Cogent shall be granted the Cogent Lease/IRU Rights hereunder as set forth in Section 2.1.

“Initial Term” shall have the definition set forth in Section 7.1.

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“Major Segments” means the individual identified portions of the Route between each of the city pairs listed on Exhibit A-2.

“Non-Routine Maintenance” shall have the definition set forth in the Section 8.1.

“Per Mile Rate” shall have the definition set forth in Section 3.1.

“POPs” shall mean Williams’ designated points of presence at the locations along the Route listed in Exhibit A-2.

“POP Collocation Sites” shall mean those specific Williams POPs in which Cogent is granted collocation rights hereunder as listed in Exhibit B-2.

“Pro Rata Share” means a proportion equal to a fraction, the numerator of which is the number of Cogent Fibers and the denominator of which is: (a) during the Initial Term of a Major Segment all Fibers in the Cable and (b) during any renewal term of a Major Segment all Fibers in the Cable that are in service for Williams, Cogent and/or any third party as of the date such share is being computed. If this fraction varies over a particular Segment, then the Pro Rata Share shall be equal to the weighted average (weighted by length as set forth in Williams’ As-Built Drawings) of the relevant portions. For example, if the fraction for 100 feet of the affected Segment is 0.1 and the fraction for the remaining 50 feet of the affected Segment is 0.07, the weighted average for the entire Segment would be 0.09.

“Rack Space” means space for a standard non-enclosed equipment rack with outside dimensions measuring twenty-six inches (26”) in width, twenty-four inches (24”) in depth and either seventy-eight inches (78”) or eighty-four inches (84”) in height, in Transmission Sites and POP Collocation Sites which are of type, size and quality standard in the telecommunications industry.

“Released Party” means each of the following:

“Renewal Terms” shall have the definition set forth in Section 7.2 below.

“Representatives” shall have the definition set forth in Section 18.1 below.

“Required Rights” shall have the definition set forth in Section 4.2 below.

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“Right-of-Way Agreements” means agreements with right of way owners, property owners, utilities, railroads, government entities or other parties that Williams has entered into, or will enter into, to obtain some or all of the Required Rights.

“Route” shall mean the route, including spurs, upon which the System will be constructed and installed consisting of the Major Segments.

“Route Miles” means the actual miles traversed by the Cable along the Route (including spurs) based on the As-builts.

“Routine Maintenance” shall have the definition set forth in Section 8.1.

“Segment” means a discrete portion of the System and may refer to a Span, a portion between two POPs or a POP and a System end point, or a portion of the System affected by a relocation or other circumstance.

“Span” means a portion of the System between (a) a Transmission Site, a Williams-designated POP, or a System end point and (b) the next closest Transmission Site, Williams-designated POP, or a System end point along the Route from such site.

“System” means Williams’ fiber optic communications system constructed or to be constructed along the Route which will contain the Cogent Fibers including, but not limited to, the Cable, fibers, conduits, handholes, manholes and all other appurtenances and components of said communications system.

“Taking” shall have the definition set forth in Section 20.2.

“Term” means the Initial Term and any Renewal Term(s) of this Agreement as defined in Sections 7.1 and 7.2.

“Transmission Sites” shall mean Williams’ designated optical amplifier, regenerator or junction sites along the Route as specified in Exhibit B-1.

“Williams” means Williams Communications, Inc., a Delaware corporation, formerly known as Vyvx, Inc..

ARTICLE II

GRANT OF LEASE/IRU RIGHTS

2.1Lease/IRU. Effective as of the Acceptance Date for each Major Segment (or with respect to Additional Fibers, the Acceptance Date of such Additional Fibers), provided that Cogent has made all payments previously due pursuant to Sections 3.2 and 3.3, Williams grants to Cogent (a) an exclusive, but defeasible, lease of the Cogent Fibers on such Major Segment and (b) an associated non-exclusive, but defeasible, lease, for the purposes of and subject to the terms and conditions set forth herein, of the tangible and intangible property needed for the operation of the Cogent Fibers, including, but not limited to, the System and Required Rights, subject to underlying

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real property and contractual limitations and restrictions and excluding any electronic or optronic equipment, all on the terms and subject to the conditions set forth herein. The parties agree that the lease shall constitute a true lease and not a disguised sale for all purposes. Such lease shall terminate upon the first to occur of (x) an event of default and resulting termination of such lease under the terms of Article XII below, or (y) with respect to the affected Cogent Fibers, when Cogent obtains an IRU in such fibers pursuant to Section 2.2 or Subsection 2.4(c).

2.2Grant of IRU in Initial Cogent Fiber. After Williams’ receipt of all payments required under Subsections 3.2(a) through 3.2(d) (including any interest and as adjusted pursuant to Section 3.7), or with respect to Additional Fibers after Williams’ receipt of all payments required under Section 3.3, Williams shall grant Cogent (a) an IRU in the Initial Cogent Fiber and Additional Fibers, if applicable, without further action required, for the purposes described herein and (b) an associated non-exclusive but Indefeasible Right of Use, for the purposes of and subject to the terms and conditions set forth herein, in the tangible and intangible property needed for the operation of the Initial Cogent Fiber and Additional Fibers, if applicable, including, but not limited to, the System and Required Rights, subject to underlying real property and contractual limitations and restrictions and excluding any electronic or optronic equipment; all on the terms and subject to the conditions set forth herein (the “Cogent IRU”) effective as of (x) the Acceptance Date for each such Major Segment subsequently Accepted by Cogent hereunder, or (y) the date on which final payment, as described above, is received by Williams with respect to each Major Segment previously Accepted by Cogent.

2.3Cogent Lease/IRU Rights. Cogent’s lease rights and the Cogent IRU granted under this Article II shall collectively be referred to as the “Cogent Lease/IRU Rights.” Upon the effective date of the Cogent IRU under Section 2.2, Cogent’s IRU shall replace Cogent’s lease of such Fibers. The Cogent Lease/IRU Rights:

2.4Right to Request Lease/IRU Rights in Additional Dark Fibers. Cogent may order rights in additional Fibers as follows:

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days after receipt of Cogent’s notice requesting Cogent Lease/IRU Rights in additional Dark Fibers under this Subsection 2.4(a), Williams shall either (i) inform Cogent in writing that Dark Fiber is available in all Major Segments, or (ii) provide Cogent with a written list of all Major Segments in which there are no Dark Fibers available. In the event Williams notifies Cogent under clause (ii) that Dark Fibers are not available in all Major Segments but that the Major Segments in which Dark Fiber is available total [*] Route Miles or more, Cogent shall give further written notice to Williams indicating its intent to obtain Cogent Lease/IRU rights in additional Dark Fibers with respect to the Major Segments identified as available by Williams. Alternatively, Cogent may elect to withdraw its prior notice requesting Cogent Lease/IRU Rights in additional Dark Fibers under this Subsection 2.4(a) after which Cogent’s rights hereunder shall expire and be of no further force or effect. In the event Cogent fails to provide such further notice to Williams within thirty (30) days after Williams’ notice under clause (ii) above, Cogent’s rights under this Subsection 2.4(a) shall expire and be of no further force or effect. If Williams notifies Cogent under clause (ii) above that there are no Dark Fibers available in any Major Segment or that the Major Segments in which Dark Fiber is available total less than [*] Route Miles within the above-described 60-day period, then Cogent’s rights to obtain Additional Fibers under this Subsection 2.4(a) shall expire and be of no further force or effect.

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parties. For purposes of this Section 2.4, Williams may consider intended or planned uses of Fibers which are not consistent with granting Cogent an IRU and not only whether such Fibers are then currently in use in determining “availability” of fibers in any Major Segment under this Section 2.4.

ARTICLE III

CONSIDERATION

3.1Consideration for Cogent IRU. Subject to performance by Williams of its obligations hereunder and in addition to any other consideration provided for in this Agreement, Cogent agrees to pay to Williams for the Cogent IRU in the Cogent Fibers, a non-recurring payment in the amount of [*] (the “Contract Price”) which equals [*] per Fiber Mile for the Initial Cogent Fiber constructed, installed, tested and Accepted hereunder (the “Per Mile Rate”).

3.2Payment Terms. The Contract Price for all Major Segments shall be paid by Cogent to Williams as follows:

Cogent may, at its option, prepay any or all of the payments under (a) through (d) above at any time prior to the applicable due date(s) without penalty.

3.3Charges for Rights in Additional Fibers. The price for Cogent Lease/IRU Rights in Additional Fibers provided under Subsection 2.4(b) shall be negotiated between Williams and Cogent at the time Williams agrees to grant a request for Additional Fibers submitted by Cogent. The total price for Cogent Lease/IRU Rights in Additional Fibers obtained by Cogent under Subsection 2.4(a) shall be computed based upon a [*] per Fiber Mile rate. The charge for Routine Maintenance under Section 3.4 shall not be separately charged or changed for Major Segments in which Cogent obtains Additional Fibers. The total price determined for the Cogent Lease/IRU Rights in any Additional Fibers provided hereunder shall be paid by Cogent to Williams as follows:

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3.4Charges for Routine Maintenance. Cogent shall pay Williams [*] per Route Mile per month throughout the Term (beginning on the Acceptance Date for each Major Segment) for Routine Maintenance, subject to the adjustments set forth below. Until Williams determines the actual Route Miles, Cogent shall pay estimated Routine Maintenance charges based on the estimated Route Miles set forth in Exhibit A-2. The [*] amount shall be increased annually on a date selected by Williams by two percent (2%) of the charges for Routine Maintenance applicable to the immediately preceding annual period. Cogent shall pay such amounts for each Major Segment on or before the first day of each calendar month following the Acceptance Date (with the first payment including amounts accrued during the month in which the Acceptance Date occurs as well as the payment for the first full month after Acceptance). Payments shall be prorated, as necessary, for partial months in which the Acceptance Date occurs or the Term expires.

3.5Charges for Non-Routine Maintenance and Relocations. Cogent shall pay its Pro Rata Share of Williams’ Costs of performing Non-Routine Maintenance and relocations (except voluntary relocations, as described in Section 8.2), if the gross cost of such work relating to any single event or multiple, closely related events is greater than [*]. Notwithstanding the foregoing: (a) Williams shall repair any damage caused by the negligence or willful misconduct of Cogent or its employees, contractors or agents, at Cogent’s sole expense and at Williams’ then-prevailing rates, and (b) to the extent Cogent is obligated to reimburse Williams for all or a portion of the Costs incurred pursuant to other Articles of this Agreement (including the Collocation Provisions), such alternative reimbursement obligations shall apply instead of the obligations set forth in this Section.

To the extent a third party not having an interest in the System or fibers in the System reimburses some or all of Williams’ gross Costs of performing Non-Routine Maintenance or relocations, Williams shall reduce the gross Costs by the amount of such reimbursement for purposes of computing Cogent’s Pro Rata Share of Costs; provided that Williams: (a) shall be entitled to reduce such amount by legal and collection costs incurred; and (b) shall have the right to prorate such reimbursement among itself, Cogent and other owners of an IRU or other ownership interest in Fibers within the System. Williams shall either reflect such reduction in its invoice or shall promptly refund such reduction when it receives such reimbursement.

3.6Charges for Collocation. The charges for collocation space provided to Cogent in Transmission Sites and POP Collocation Sites hereunder shall be as set forth in the Collocation Provisions.

3.7Method of Payment. Except for monthly collocation and Routine Maintenance charges, all payments to Williams set forth in this Article III shall be made by wire transfer of immediately available funds to the account or accounts designated by Williams. In addition to any other remedies set forth in this Agreement, all late payments shall bear interest accruing from the date due until paid at a rate equal to eighteen percent (18%) per annum or, if lower, the highest rate allowed by applicable law. All payments required under this Agreement shall be made in United States Dollars.

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3.8True-Up of Contract Price. In the event the actual Route Miles for any Major Segment, as shown by the As-builts, differ from the estimated Route Miles set forth on Exhibit A-2, the Contract Price for such Major Segment shall be recomputed using the actual Fiber Miles based upon the Per Mile Rate. With respect to each Major Segment, any excess of such recomputed Contract Price for such Major Segment over the portion of the Contract Price allocable to such Major Segment previously paid by Cogent shall be paid by Cogent to Williams within thirty (30) days after receipt of the As-builts from Williams. Likewise, any excess of the portion of the Contract Price allocable to such Major Segment previously paid by Cogent over such recomputed Contract Price for such Major Segment shall be refunded by Williams to Cogent within thirty (30) days after delivery of the As-builts to Cogent. Neither Williams nor Cogent shall be liable for interest on such difference prior to the end of such thirty-day period. Notwithstanding the foregoing, the parties agree that for purposes of recomputing the Contract Price under this Section 3.8, the aggregate actual Route Miles of all of the Major Segments shall not be more than 105% or less than 95% of the aggregate estimated Route Miles as set forth in Exhibit A-2. If, after delivery of the As-builts for the last Major Segment to be delivered to and Accepted by Cogent hereunder, either party notifies the other that the aggregate actual Route Miles for all Major Segments is greater than 105%, or less than 95%, of the aggregate estimated Route Miles set forth in Exhibit A-2, then Williams shall refund, or Cogent shall pay, as appropriate, the difference between the Contract Price actually paid by Cogent and 105% or 95%, as applicable, of the estimated Contract Price set forth in Exhibit A-2.

3.9Adjustment of Maintenance Charges. When Williams provides the As-builts pursuant to Section 4.6, it shall also provide Cogent a statement of the actual Route Miles of the Major Segment and beginning with the next monthly payment of Routine Maintenance charges due hereunder, Cogent shall pay the adjusted amount for such Major Segment for the remainder of the Term. Cogent shall not be required to pay, and Williams shall not be required to refund, amounts underpaid or overpaid by Cogent for periods prior to the adjustment under this Section.

3.10Time of Payment. Where no due date is specified for any payment obligation under this Agreement, each party shall pay such amounts within thirty (30) calendar days after the invoice delivery date, as determined by Section 17.2.

ARTICLE IV

CONSTRUCTION

4.1Fiber Acceptance Testing. Exhibit C sets forth Fiber Acceptance Testing procedures and test deliverables Williams shall provide to Cogent, and procedures for determining the Acceptance Date of a Major Segment.

4.2Acceptance Date Obligations. As of the Acceptance Date of any Major Segment:

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The rights Williams is required to obtain pursuant to Subsections (a) and (b) above as are necessary for Williams to grant to Cogent the Cogent Lease/IRU Rights are referred to as “Required Rights.” Williams shall obtain and maintain in full force and effect all Required Rights through at least the Initial Term of each Major Segment subject to Cogent’s obligations specified below in this paragraph and except as provided in and subject to the provisions of Section 8.2 (Relocation Procedures) and Section 20.1 (Excused Performance). In the event title to the System or Required Rights is contested during the Initial Term, or if any third party or government authority contests the property rights or the rights of the parties to use the System for any reason, Williams shall proceed to take all necessary steps to perfect title including, but not limited to, contesting the claims of any such third party or government authority; provided that, if such contest does not result from the negligent acts of Williams, Cogent shall reimburse Williams for its Pro Rata Share of all Costs incurred by Williams in perfecting title as described above.

Notwithstanding any other provision herein to the contrary, Cogent shall be solely responsible for obtaining, at its sole cost and expense, any and all necessary franchises, authorizations or permits specifically required in addition to the Required Rights as a result of Cogent’s, as opposed to Williams’, use, operation, access or connection of or with the Cogent Fibers and its operation, maintenance, repair, and replacement of all Cogent Equipment associated therewith.

4.3Prior Construction. Cogent acknowledges that some or all of said design, engineering, installation, construction, splicing and testing described above has previously been completed.

4.4Estimated Completion Dates.

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for each Major Segment. Williams shall give notice to Cogent as early as reasonably possible of any known events that could reasonably be expected to delay completion of any Major Segment hereunder.

4.5Alteration of Construction Specifications. Notwithstanding any other provision of this Agreement, Williams may, in its sole discretion, alter the construction specifications as construction progresses to facilitate actual construction needs. Any such alteration shall be consistent with standard telecommunications practices, shall not alter the location of the endpoints of or intermediate POPs within any Major Segment, shall not cause a substantial deviation from the Transmission Site spacing requirements hereunder, and shall not result in a modification of Cogent’s rights under this Agreement that could reasonably be expected to interfere with Cogent’s use of the Cogent Fibers hereunder.

4.6Provision of As-Built Drawings. Within one hundred eighty (180) days after Cogent’s Acceptance of each Major Segment, Williams shall provide Cogent with as-built drawings

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for the portion of the System in such Major Segment complying with the specifications for as-built drawings set forth in Exhibit F (the “As-builts”). If there is a material change in the As-builts as a result of maintenance or relocation, Williams shall deliver updated As-builts to Cogent with respect to the relevant Segment within one-hundred eighty (180) calendar days following the completion of such change.

ARTICLE V

CONNECTION AND ACCESS TO THE SYSTEM

5.1Connections. Cogent shall have the right to access Transmission Sites and POP Collocation Sites in accordance with the terms and conditions specified in the Collocation Provisions. Subject to the provisions herein, Cogent shall pay for and arrange all connections of its facilities with the Cogent Fibers which connections shall be made by Williams only at Connecting Points in accordance with the terms and procedures set forth in Exhibit H. Cogent shall reimburse Williams for any and all Costs incurred as a result of making such connections including, but not limited to, the Costs of obtaining any rights to access, connect, install, or maintain such connections or the spur connecting to the System and shall pay all any other applicable charges or fees as specified in Exhibit H.

5.2No Unauthorized Access to System. Cogent shall not access any physical part of the System (other than pursuant to the Collocation Provisions) without the prior written consent of Williams, and then only upon the terms and conditions specified by Williams.

ARTICLE VI

COLLOCATION; FUTURE AGREEMENTS

6.1Transmission Sites. Williams agrees to provide to Cogent and Cogent agrees to accept and utilize collocation space in each of Williams’ Transmission Sites along the Route as listed and described in Exhibit B-2 at the rates and in accordance with the terms and conditions set forth in Exhibit B-1. Transmissions Sites have been or shall be constructed by Williams at approximately forty (40) mile intervals along the Route except where geographic or other factors require or allow different spacing in accordance with generally accepted practices in the telecommunications industry.

6.2POP Collocation Sites. Williams agrees to provide and Cogent agrees to accept and utilize collocation space in each of POP Collocation Sites as described in Exhibit B-2 at the rates and subject to the terms and conditions set forth in Exhibit B-3.

6.3Preferred Provider. During the Term of this Agreement, Cogent will first seek to obtain its interLATA transport requirements (including dark fiber, data, voice and video circuits) from Williams; provided, however, that this Section 6.3 shall not apply to collocation space requirements at points of presence. When Cogent has a need for such transport services, Cogent will request a quote from Williams, which request will identify the desired services and indicate whether quality, availability, provisioning date or price are most important to Cogent for the particular request. Williams will respond to Cogent’s request for such products within five (5) business days after Williams’ receipt of such request and will provide to Cogent information regarding quality,

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pricing, availability, whether or not the product is “on-net” (i.e. available on Williams operated fiber optic network between Williams’ POPs), and what date Williams expects the product to be provisioned. Cogent may order such products from Williams based on the terms of the quote provided by Williams or Cogent may obtain a competitive, bona fide quote for comparable transport products in the marketplace. In the event Cogent receives a similar, bona fide offering of equivalent or better quality, provisioning date, or price, Cogent will provide Williams with an opportunity to match such third party offer by notifying Williams, in writing, which notice shall include a summary of the material terms of such third party offer, including, without limitation, the term, quality, provisioning date, and price of the services to be provided. In the event Williams notifies Cogent, in writing, that it has the ability and agrees to match such offer within a reasonable time after receiving the notice described in the preceding sentence from Cogent, Cogent will be obligated to order such products from Williams. Notwithstanding the foregoing, Cogent may order such products from a third party if Williams is unable to provide such services or products on a physically diverse route if such diversity was part of Cogent’s request described above. In the event Williams does not agree to match such offer, Cogent may order such products from the third party that provided the quote.

6.4Carrier Services Agreement. The Parties agree that within thirty (30) days after the Effective Date, they will negotiate and enter into a carrier services agreement upon mutually agreeable terms and conditions (the “Carrier Services Agreement”). Such Carrier Services Agreement will govern the Parties respective rights and obligations with respect to any capacity services ordered by Cogent under Section 6.3 or otherwise and/or other services described in the Carrier Services Agreement.

ARTICLE VII

TERM

7.1Initial Term. This Agreement shall be in force and effect between the parties on and after the Effective Date. The term of the Cogent Lease/IRU Rights for each Major Segment shall commence on each such Major Segment’s Acceptance Date and shall end on the twentieth (20^th) anniversary of such date unless earlier terminated pursuant to the terms hereof (the “Initial Term”).

7.2Renewal Terms. This Agreement and the Cogent IRU may be renewed by Cogent for two (2) additional terms of five (5) years each (the “Renewal Term(s)”) (the Initial Term and Renewal Term(s) collectively, the “Term”); provided, however, that such rights to renew shall be subject to Section 7.3 below and to the right of Williams to require Cogent to pay its Pro Rata Share of Williams’ Costs of extending or replacing Required Rights for such Renewal Term as a condition to Cogent’s rights to renew. If Cogent elects to renew the Cogent IRU pursuant to this Section 7.2, such payments shall be payable by Cogent both before and during the Renewal Term(s) as Williams incurs such Costs and within thirty (30) days after receipt of Williams’ invoice therefor. Except as provided in the preceding sentences and except for maintenance, collocation or other recurring and non-recurring charges specified in this Agreement, Cogent shall not be charged additional consideration for the renewal of this Agreement under this Section 7.2. Cogent may renew this Agreement by giving written notice to Williams at least one (1) year prior to the expiration of the Initial Term or then effective Renewal Term. All terms and conditions of this Agreement shall be applicable during any Renewal Terms.

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7.3Conditions on Renewal. Notwithstanding any other provision herein to the contrary, Cogent may not exercise its right to renew this Agreement with respect to any Major Segment(s) if Williams (a) determines, in its sole and absolute discretion, not to continue operation of such Major Segment(s) and/or to abandon the same and (b) gives notice of such determination to Cogent at least six (6) months prior to expiration of the Initial Term or then current Renewal Term.

7.4Effect of Termination. No termination of this Agreement shall affect the rights or obligations of any party hereto:

ARTICLE VIII

MAINTENANCE AND RELOCATION

8.1Maintenance. During the Term, Williams shall perform all required Routine Maintenance and Non-Routine Maintenance. “Non-Routine Maintenance” means maintenance and repair work that Williams is obligated to provide under this Agreement and described in Exhibit G other than:

“Routine Maintenance” means maintenance and repair work that is described in Subsections 8.1(a) or 8.1(b).

8.2Relocation Procedures.

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8.3Maintenance of Cogent Equipment Excluded. Williams shall have no obligation under this Agreement to maintain, repair, or replace Cogent Equipment. The parties may, but shall not be obligated to, enter into a separate agreement under which Williams will agree to maintain the Cogent Equipment and perform other managed services for Cogent for the consideration and upon terms and conditions mutually agreed upon between the parties.

ARTICLE IX

USE OF THE SYSTEM

9.1Compliance with Law. Cogent warrants that its use of the Cogent Fibers and the System shall comply in all material respects with applicable government codes, ordinances, laws, rules, regulations and restrictions and shall not have an adverse effect on the System or its use by Williams or third parties.

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9.2Cogent’s Rights Exclusive. Cogent may use the Cogent Fibers for any lawful purpose. Williams shall have no right to use the Cogent Fibers during the Term of any Major Segment except in the event of a Cogent default pursuant to the terms hereof.

9.3Notice of Damage. Cogent shall promptly notify Williams of any matters pertaining to any damage or impending damage to or loss of the use of the System that are known to it and that could reasonably be expected to adversely affect the System. Williams shall promptly notify Cogent of any matters pertaining to any damage or impending damage to or loss of the Cogent Fibers that are known to it and that could reasonably be expected to adversely affect the Cogent Fibers.

9.4Preventing Interference with Other Fibers. Neither Cogent nor Williams shall use equipment, technologies, or methods of operation that interfere in any way with or adversely affect the System or the use of the System by the other party or third parties or their respective Fibers, equipment, or facilities associated therewith. Each party shall take all reasonable precautions to prevent damage to the System or to fibers used or owned by the other party or third parties. Notwithstanding the above, the provisions of this Section shall not prevent a party from using commercially reasonable equipment, technologies, or methods of operation if the interference or adverse effect on the other party or a third party results primarily from such other party or third party’s use of equipment, technologies, or methods of operation that are not commercially reasonable or that are not standard in the telecommunications industry.

9.5Liens. Cogent shall not cause or permit any part of the System to become subject to any mechanic’s, materialmen’s, or vendor’s lien, or any similar lien. Williams shall not cause or permit any of Cogent’s rights under this Agreement or any Cogent Equipment to become subject to any mechanic’s, materialmen’s, or vendor’s lien, or any similar lien. If a party breaches its obligations under this Section, it shall immediately notify the other party in writing, shall promptly cause such lien to be discharged and released of record without cost to the other party, and shall indemnify the other party against all costs and expenses (including reasonable attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing such lien.

9.6Precautionary Financing Statement. Prior to payment in full of all Contract Price payments under Section 3.2 and Section 3.3, if applicable, Williams shall have the right, at its own expense, to file precautionary financing statements (including renewals or extensions thereof) to secure Williams’ rights set forth in Section 12.2, including the right thereunder to terminate Cogent’s rights in any Cogent Fibers in which Cogent does not have an IRU. Such financing statements shall be in a form reasonably limited to such purpose and shall not apply to any assets other than Cogent’s rights under this Agreement. Cogent shall promptly execute such documents and take such additional actions as are necessary to allow Williams to perfect and maintain perfection of the precautionary security interest to be created by such financing statements. It is the parties’ intent that the Cogent Lease/IRU Rights with respect to the Cogent Fibers shall not be considered to be fixtures and the parties further agree that no fixture filings are necessary to perfect Williams’ security interest therein. Upon payment in full of the Contract Price by Cogent in accordance with the terms of Section 3.2 and 3.3, if applicable, Williams shall file termination statements with respect to any and all filed financing statements under this Section.

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ARTICLE X

AUDIT RIGHTS

10.1Right to Audit. Each party shall keep such books and records (which shall be maintained on a consistent basis and substantially in accordance with U.S. generally accepted accounting principles) as shall readily disclose the basis for any charges (except charges fixed in advance by this Agreement or by separate agreement of the parties) or credits, ordinary or extraordinary, billed or due to the other party under this Agreement and shall make them available for examination, audit, and reproduction by the other party and its agents for a period of one (1) year after such charge or credit is billed or due.

ARTICLE XI

WARRANTIES

11.1Warranties Relating to Agreement Validity. In addition to any other representations and warranties contained in this Agreement, each party hereto represents and warrants to the other that:

11.2EXCLUSION OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, WILLIAMS MAKES NO WARRANTY TO COGENT OR ANY OTHER ENTITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE INSTALLATION, DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE, FUTURE ECONOMIC VIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY FIBERS, THE SYSTEM, OR ANY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.

11.3NO THIRD-PARTY WARRANTIES. NO FACILITY OWNERS/LENDERS HAVE MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO COGENT CONCERNING WILLIAMS, THE COGENT FIBERS, THE CABLE, OR THE SYSTEM OR AS TO ANY OF THE MATTERS SET FORTH IN SECTIONS 11.1 OR 11.2. NO COGENT LENDERS HAVE MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO WILLIAMS CONCERNING COGENT, THE

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COGENT FIBERS, THE CABLE, OR THE SYSTEM OR AS TO ANY OF THE MATTERS SET FORTH IN SECTIONS 11.1 OR 11.2 OR AS TO ANY OTHER MATTER.

ARTICLE XII

DEFAULT

12.1Default and Cure. Cogent’s sole remedies for any failure of Williams to complete all Major Segments by the applicable Estimated Completion Dates shall be as specified in Section 4.4 above. Otherwise, except as set forth in Section 12.2, a party shall not be in default under this Agreement unless and until the other party provides it written notice of such default and the first party shall have failed to cure the same within thirty (30) calendar days after receipt of such notice; provided, however, that where such default cannot reasonably be cured within such thirty (30) day period, if the first party shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such default shall be extended for such period of time as may be necessary to complete such curing, but in any event such period of time shall not exceed ninety (90) days. Any event of default may be waived at the non-defaulting party’s option. Upon the failure of a party to timely cure any such default after notice thereof from the other party and expiration of the above cure periods or upon a payment default in the amount of [*] or more under the terms of the Carrier Services Agreement which shall be considered a default under this Agreement, then the non-defaulting party may, subject to the terms of Articles XIV (Limitation of Liability) and XXI (Arbitration), pursue any legal remedies it may have under applicable law or principles of equity relating to such breach.

12.2Failure to Pay Contract Price. If Cogent fails to fully pay any of the Contract Price payments described in Section 3.2(a) through (d) within ten (10) days after the due date or fails to pay any other amount(s) payable hereunder totaling more than [*] for a period in excess of thirty (30) days beyond the applicable due date(s) specified herein (excluding in either case amounts paid into escrow pursuant to Section 21.4), or if a court of competent jurisdiction in bankruptcy or receivership proceedings brought by or against Cogent determines that Cogent’s lease rights under this Agreement are in the nature of a disguised sale rather than a true lease, Williams may, in addition to any other remedies that it may have under this Agreement or by law, in its sole discretion, take some or all of the following actions upon ten (10) business days’ notice to Cogent if such payment (together with applicable interest) is not made within such ten-day period:

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12.3Interest. If either Williams or Cogent fails to make any payment under this Agreement when due, such amounts shall accrue interest, from the date such payment is due until paid, including accrued interest, at the rate specified in Section 3.6 or, if lower, the highest percentage allowed by law.

ARTICLE XIII

INDEMNIFICATION

13.1Indemnification. Each party (“Indemnitor”) hereby releases and shall indemnify, defend, protect, and hold harmless the other party, its employees, members, managers, officers, directors, shareholders, agents, contractors, Facility Owners/Lenders, and Affiliates and the employees, members, managers, officers, directors, shareholders, agents and contractors of such Affiliates (collectively and individually, “Indemnified Parties”), from and against, and assumes liability for:

13.2Claims of Customers. In addition to the foregoing indemnities, with respect to third parties that use services provided over the Cogent Fibers, Cogent shall defend, indemnify and hold

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harmless Williams and its Indemnified Parties against any claims by such third parties for damages arising or resulting from any defect in or failure of the Cogent Fibers or the System.

13.3Material and Continuing Obligation. Each party’s obligation to indemnify, defend, protect, and save the Indemnified Parties harmless is a material obligation to the continuing performance of the other party’s obligations hereunder.

ARTICLE XIV

LIMITATION OF LIABILITY

14.1EXCLUSION OF CONSEQUENTIAL DAMAGES. EXCEPT AS PROVIDED IN SECTION 4.4(b) ABOVE, NEITHER PARTY NOR ANY INDEMNIFIED PARTIES (AS DEFINED ABOVE) OF A PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR DAMAGES AS A RESULT OF THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, OR ITS ACTS OR OMISSIONS RELATED TO THIS AGREEMENT OR ITS USE OF THE SYSTEM, WHETHER OR NOT ARISING FROM SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, OR VIOLATION OF LAW.

14.2Indemnity Provisos. Notwithstanding the provisions of Section 14.1 or any other provision of this Agreement:

14.3No Recourse Against Released Parties. Neither party shall have any recourse of any kind against any Released Party or any assets of a Released Party in respect of any Claim, it being expressly agreed and understood that no liability whatsoever shall attach to or be incurred by any Released Party in respect of any Claim under or by reason of this Agreement or any other instrument, arrangement or understanding related to the Cogent Lease/IRU Rights. Each party waives all such recourse to the extent set forth in this Section on behalf of its successors, assigns, and any entity claiming by, through, or under such party.

14.4Pursuit of Actions Against Third Parties. Except as provided in Subsection 13.1(c) and Section 13.2 nothing contained in this Agreement shall operate as a limitation on the right of either Williams or Cogent to bring an action or claim for damages against any third party (other than Indemnified Parties of the other party or any third party who has a right of indemnification or contribution resulting from such action or claim by Williams or Cogent, as applicable, against such other party hereto to the extent of such indemnification or right of contribution). Each of Williams and Cogent shall assign such rights of claims, execute such documents, and do whatever else may

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be reasonably necessary to enable the other (at such other party’s sole expense) to pursue any such action or claim against such third party.

14.5Customer Contracts. Cogent, in any contract or tariff offering of service, capacity, or rights of use that in any of the preceding instances involves use of the System, shall include in such contract or tariff a written limitation of liability that is binding on Cogent’s customers and in all material respects at least as restrictive as the limitations set forth in Sections 14.1 and 14.3.

ARTICLE XV

INSURANCE

15.1Obligation to Obtain. During the Term, the parties shall each obtain and maintain not less than the following insurance:

The limits set forth above are minimum limits and shall not be construed to limit the liability of either party.

15.2Policy Requirements. Each party shall obtain and maintain the insurance policies required above with companies rated A- or better by Best’s Key Rating Guide or with a similar rating by another generally recognized rating agency. The other party, its Affiliates, officers, directors, and employees, and any other party entitled to indemnification hereunder shall be named as additional insureds to the extent of such indemnification. Each party shall provide the other party with an insurance certificate confirming compliance with the insurance requirements of this Article. The insurance certificate shall indicate that the other party shall be notified not less than thirty (30) calendar days prior to any cancellation or material change in coverage. If either party provides any of the foregoing coverages through a claims-made policy basis, that party shall cause such policy or policies to be maintained for at least three (3) years beyond the expiration of this Agreement.

15.3Waiver of Subrogation. The parties shall each obtain from the insurance companies providing the coverages required by this Agreement a waiver of all rights of subrogation or recovery in favor of the other party and, as applicable, its members, managers, shareholders, Affiliates,

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assignees, officers, directors, and employees or any other party entitled to indemnity under this Agreement to the extent of such indemnity.

15.4Blanket Policies. Nothing in this Agreement shall be construed to prevent either party from satisfying its insurance obligations pursuant to this Agreement under a blanket policy or policies of insurance that meet or exceed the requirements of this Article. Williams retains the right to self-insure the above requirements.

ARTICLE XVI

TAXES AND GOVERNMENTAL FEES

16.1Cogent Obligations. Cogent shall timely report, make filings for, and pay any and all sales, use, income, gross receipts, excise, transfer, ad valorem, or other taxes, and any and all franchise fees or similar fees assessed against it due to its ownership of the Cogent Lease/IRU Rights, its use of the Cogent Fibers, including the provision of services over the Cogent Fibers, its use of any other part of the System, or its ownership or use of facilities connected to the Cogent Fibers. The above obligation applies to sales and excise taxes applicable to the grant of the Cogent Lease/IRU Rights or to charges for maintenance, collocation, or other Williams services provided pursuant to this Agreement.

16.2Williams Obligations. The parties acknowledge that a material premise of this Agreement is that during the Initial Term, Williams shall obtain and maintain all Required Rights at its own cost. Williams shall timely pay all (i) taxes, franchise, license and permit fees based on the physical location of the System and/or the construction thereof in or on public roads, highways or other public right-of-way and (ii) all payments with respect to Required Rights. Williams shall timely report, make filings for and pay any and all sales, use, income, gross receipts, excise, transfer, ad valorem or other taxes, and any and all franchise fees or similar fees assessed against it due to its construction, ownership, physical location or use of the System, provided that Cogent shall reimburse Williams for its Pro Rata Share of property taxes (including ad valorem, use, property, or similar taxes, franchise fees, or assessments that are based on the value of property or of a property right) attributable to the System, including taxes based on the value, operation, or existence of the System.

16.3Reimbursement of Taxes Paid on Cogent’s Behalf. If Williams is assessed for any taxes or fees related to Cogent’s ownership of the Cogent Lease/IRU Rights or Cogent’s use of the Cogent Fibers or that Cogent is obligated to pay pursuant to Sections 16.1 or 16.2, Cogent shall reimburse Williams for any payment of such taxes or fees.

16.4Cooperation. The parties shall cooperate in any contest of any taxes or fees and in making tax-related reports and filings, so as to avoid, to the extent reasonably possible, prejudicing the interests of the other party.

16.5Unexpected Fee Increases. If the charges for Required Rights payable to governmental or quasi-governmental agencies or for use of governmental or quasi-governmental rights of way during a calendar year for any Major Segment exceed twice the amount payable during

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the first full calendar year after the Acceptance Date, then Cogent shall pay its Pro Rata Share of such excess.

16.6Reseller Certificate. Within sixty (60) days of the Acceptance Date for any Major Segment, Cogent shall provide Williams a reseller certificate for any United States jurisdiction where the Cogent Fibers on the Major Segment are located. Cogent shall, upon Williams’ written request, provide Williams additional reseller certificates or similar documentation for any U.S. jurisdiction to assist Williams in avoiding charging Cogent sales, use, excise, or other taxes on any Cogent Fibers or any other product or service Williams provides under this Agreement.

ARTICLE XVII

NOTICE

17.1Notice Addresses. Unless otherwise provided in this Agreement, all notices and communications concerning this Agreement shall be in writing and addressed to the other party as follows:

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or at such other address as may be designated in writing to the other party.

17.2Notice and Invoice Delivery. Unless otherwise provided herein, notices and invoices shall be hand delivered, sent by registered or certified U.S. Mail, postage prepaid, or by commercial overnight delivery service, or transmitted by facsimile, and shall be deemed served or delivered to the addressee or its office when received at the address for notice specified above when hand delivered, upon confirmation of sending when sent by facsimile, on the day after being sent when sent by overnight delivery service, or three (3) United States Postal Service business days after deposit in the mail when sent by U.S. mail.

ARTICLE XVIII

CONFIDENTIALITY

18.1Confidentiality Obligation. If either party provides confidential information to the other or, if in the course of performing under this Agreement or negotiating this Agreement a party learns confidential information regarding the facilities or plans of the other, the receiving party shall (a) protect the confidential information from disclosure to third parties with the same degree of care accorded its own confidential and proprietary information, but in any case with at least reasonable care and (b) refrain from using such confidential information except in negotiating or performing under this Agreement. Notwithstanding the above, a party may provide such confidential information to its directors, officers, directors, members, managers, employees, agents, contractors, consultants, advisors, attorneys and accountants (“Representatives”), and Affiliates, financial institutions, underlying facility owners, potential assignees of this Agreement (provided and on condition that such potential assignees are bound by a written agreement restricting use and disclosure of confidential information), and Representatives of Affiliates, in each case whose access is reasonably necessary. Each such recipient of confidential information shall be informed by the party disclosing confidential information of its confidential nature, and shall be directed to treat such information confidentially and shall agree to abide by these provisions. In any event, each party shall be liable (with respect to the other party) for any breach of this provision by any entity to whom that party discloses confidential information. The terms of this Agreement (but not its execution or existence) shall be considered confidential information for purposes of this Article, except as set forth in Section 18.3. The obligations set forth in this Section shall survive expiration or termination of this Agreement for a period of two (2) years, except that, with respect to any confidential information designated by the disclosing party as a trade secret, and entitled to protection as such, the obligations set forth in this Section shall survive such expiration or termination indefinitely.

18.2Permitted Disclosures. Notwithstanding any other provision herein, neither Williams nor Cogent shall be required to hold confidential any information that:

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18.3Goodwill and Publicity. Neither party shall use the name, trade name, service mark, or trademark of the other in any promotional or advertising material without the prior written consent of the other. The parties shall coordinate and cooperate with each other when making public announcements related to the terms of this Agreement and each party shall have the right to promptly review, comment upon, and approve any publicity materials, press releases, or other public statements by the other party that refer to, or that describe any aspect of, this Agreement. Notwithstanding the above, either party may, without the other party’s approval but after allowing the other party a reasonable opportunity to comment on a proposed press release, issue a press release announcing execution of this Agreement. Such release may disclose the route of the Cogent Fibers, the estimated revenues/payments under this Agreement, and the identity of the other party as long as such release does not disclose any per-Fiber Mile or other per-unit price under this Agreement.

18.4Enforcement of Confidentiality Obligation. Each party agrees that the disclosing party would be irreparably injured by a breach of this Article XVIII by the receiving party or its Representatives or other parties to whom the receiving party discloses confidential information of the disclosing party and that the disclosing party may be entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Article XVIII. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Article XVIII, but shall be in addition to all other remedies available at law or in equity.

ARTICLE XIX

PROHIBITION ON IMPROPER PAYMENTS

Neither party shall use any funds received under this Agreement for illegal or otherwise “improper” purposes. Neither party shall pay any commission, fees or rebates to any employee of the other party. If either party has reasonable cause to believe that one of the provisions in this Article has been violated, it, or its representative, may audit the books and records of the other party for the sole purpose of establishing compliance with such provisions.

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ARTICLE XX

FORCE MAJEURE; EMINENT DOMAIN

20.1Excused Performance. Neither Williams nor Cogent shall be in default under this Agreement with respect to any delay in its performance (other than a failure to make payments when due) caused by any of the following conditions (each a “Force Majeure Event”): (a) act of God; (b) fire; (c) flood; (d) material shortage or unavailability not resulting from the responsible party’s failure to timely place orders or take other necessary actions therefor; (e) government codes, ordinances, laws, rules, regulations, or restrictions; (f) war or civil disorder; or (g) any other cause beyond the reasonable control of such party. The party claiming relief under this Article shall promptly notify the other in writing of the existence of the Force Majeure Event relied on, the expected duration of the Force Majeure Event, and the cessation or termination of the Force Majeure Event. The party claiming relief under this Article shall exercise commercially reasonable efforts to minimize the time for any such delay.

20.2Eminent Domain. Should any portion of the System or any other interest belonging to Williams be acquired by eminent domain, nationalization, or expropriation (each of which, a “Taking”) by any authority or entity possessing such power, then each party shall be excused from performance of its obligations to the extent provided in Section 20.1. In the proceeding for any such Taking or an involuntary discontinuance of the use of a portion of the System in anticipation of a Taking, the interests of Cogent and Williams in the affected portion shall be severed. Any awards resulting from the proceeding or otherwise provided shall be allocated between Cogent and Williams in accordance with such interests. In addition, Cogent and Williams shall each be entitled to claim and receive the portion of the total award attributable to its interest in the System and may claim damages payable on account of relocation or re-routing expenses relating to the System. Except to the extent set forth in this Section, the provisions of Sections 3.4 and 8.2 shall apply to any relocation resulting from a Taking.

ARTICLE XXI

ARBITRATION AND DISPUTE RESOLUTION

21.1Binding Arbitration. Any dispute arising between Williams and Cogent in connection with this Agreement that is not settled to their mutual satisfaction within the applicable notice or cure periods provided in this Agreement, shall be settled by arbitration in Houston, Texas in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date that a party gives notice of its demand for arbitration under this Article. The submitting party shall submit such dispute to arbitration by providing a written demand for arbitration to the other party. If the parties cannot agree on a single arbitrator within fifteen (15) calendar days after the applicable notice or cure period has expired, Williams and Cogent shall each select an arbitrator within such fifteen (15) day period and the two (2) arbitrators shall select a third arbitrator within ten (10) calendar days. If the parties fail to appoint arbitrators or the arbitrators cannot agree on a third arbitrator, then either party may request that the American Arbitration Association select and appoint a neutral arbitrator who shall act as the sole arbitrator. The parties shall be entitled to submit expert testimony and/or written documentation in such arbitration proceeding. The decision of the arbitrator or arbitrators shall be final and binding upon Williams and

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Cogent and shall include written findings of law and fact, and judgment may be obtained thereon by either Williams or Cogent in a court of competent jurisdiction. Williams and Cogent shall each bear the cost of preparing and presenting its own case. The cost of the arbitration, including the fees and expenses of the arbitrator or arbitrators, shall be shared equally by Williams and Cogent unless the award otherwise provides. The arbitrator or arbitrators shall be instructed to establish procedures such that a decision can be rendered within sixty (60) calendar days of the appointment of the arbitrator or arbitrators. In no event shall the arbitrator or arbitrators have the power to award any damages described in and limited by Article XIV (Limitation of Liability) which Article shall be binding on the arbitrator(s).

21.2Exceptions to Arbitration Obligation. The obligation to arbitrate shall not be binding upon any party with respect to (a) requests for preliminary injunctions, temporary restraining orders, specific performance, or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute or (b) actions to collect payments not subject to a bona fide dispute.

21.3Arbitrator Confidentiality Obligation. Any arbitrator appointed to act under this Article must agree to be bound to the provisions of Article XVIII (Confidentiality) with respect to the terms of this Agreement and any information obtained during the course of the arbitration proceedings.

21.4Payment Disputes. Cogent and Williams shall attempt in good faith to resolve any bona fide dispute arising out of or relating to any monetary obligation under this Agreement as expeditiously as possible by negotiations between a Vice President of Cogent or his or her designated representative with sufficient authority to negotiate a resolution of the dispute and an executive of Williams with similar authority. Either Cogent or Williams may give the other party written notice of any such payment dispute which notice shall include documentation substantiating the dispute. In the event the amount in dispute is in excess of [*] and is not resolved on or before its actual or purported due date hereunder, then the amount in dispute shall be deposited with an escrow agent mutually acceptable to the parties who shall hold said sum along with all interest earned thereon, in escrow, pending resolution of the dispute hereunder and shall distribute said sums in accordance with the resolution of the parties under this Section or the decision of the arbitrator under Section 21.1. All other payments shall be paid in accordance with the due date set forth herein regardless of any dispute hereunder. Within twenty (20) days after delivery of notice of a payment dispute as described above, the designated executives shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to exchange information and to attempt to resolve the dispute. If the matter has not been resolved within thirty (30) days after the first meeting, either Cogent or Williams may demand arbitration in accordance with the provisions of Section 21.1. To the extent any payment dispute described hereunder is resolved in favor of a party, whether pursuant to the provisions of this Section or pursuant to arbitration, the escrow agent shall pay all or a portion, if appropriate, of the sums previously placed in escrow under this Section plus a proportionate amount of the interest earned (net of any account charges) thereon while in escrow (with any amount remaining in escrow, if any, returned to the party who deposited same). All negotiations conducted pursuant to this Section shall be confidential.

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ARTICLE XXII

RULES OF CONSTRUCTION

22.1Interpretation. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement or as amplifying or limiting any of its content. Words in this Agreement that import the singular connotation shall be interpreted as plural, and words that import the plural connotation shall be interpreted as singular, as the identity of the parties or objects referred to may require. References to “person” or “entity” each include natural persons and legal entities, including corporations, limited liability companies, partnerships, sole proprietorships, business divisions, unincorporated associations, governmental entities, and any entities entitled to bring an action in, or that are subject to suit in an action before, any state or federal court of the United States. The word “including” means “including, but not limited to.” “Days” refers to calendar days, except that references to “banking days” exclude Saturdays, Sundays and holidays during which nationally chartered banks in Tulsa, Oklahoma are authorized or required to close. Unless expressly defined herein, words having well-known technical or trade meanings shall be so construed.

22.2Cumulative Remedies; Insurance. Except as set forth to the contrary herein, any right or remedy of Williams or Cogent shall be cumulative and without prejudice to any other right or remedy, whether contained herein or not. The provisions of Article XV (Insurance) shall not be construed as limiting the Indemnitor’s obligations pursuant to Article XIII (Indemnification) or other provisions of this Agreement.

22.3No Third-Party Rights. Nothing in this Agreement is intended to provide any legal rights to anyone not an executing party of this Agreement except under the indemnification and insurance provisions and except that (a) the Released Parties shall have the benefit of Sections 14.3, 23.1, and 24.2 and (b) the Facility Owners/Lenders shall be entitled to rely on and have the benefit of Sections 11.2 and 24.2.

22.4Agreement Fully Negotiated. This Agreement has been fully negotiated between and jointly drafted by Williams and Cogent.

22.5Document Precedence. In the event of a conflict between the provisions of this Agreement and those of any Exhibit, the provisions of this Agreement shall prevail and such Exhibits shall be corrected accordingly.

22.6Industry Standards. Except as otherwise set forth herein, for the purpose of this Agreement the normal standards of performance within the telecommunications industry in the relevant market shall be the measure of whether a party’s performance is reasonable and timely.

22.7Cross References. Except as the context otherwise indicates, all references to Exhibits, Articles, Sections, Subsections, Clauses, and Paragraphs refer to provisions of this Agreement.

22.8Limited Effect of Waiver. The failure of either Williams or Cogent to enforce any of the provisions of this Agreement, or the waiver thereof in any instance, shall not be construed as

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a general waiver or relinquishment on its part of any such provision, but the same shall nevertheless be and remain in full force and effect.

22.9Applicable Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York without reference to its choice of law principles. The laws of such state shall govern all disputes referred to arbitration and the statute of limitations and the remedies for any wrongs that may be found.

22.10Severability. If any term, covenant or condition in this Agreement shall, to any extent, be invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall not be affected thereby, and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law and, if appropriate, such invalid or unenforceable provision shall be modified or replaced to give effect to the underlying intent of the parties hereto and to the intended economic benefits of the parties.

22.11No Partnership Created. The relationship between Williams and Cogent shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including federal income tax purposes. Williams and Cogent, in performing any of their obligations hereunder, shall be independent contractors or independent parties and shall discharge their contractual obligations at their own risk.

22.12Payment Plan not a Loan. The parties agree that neither the payment plan set forth in Section 3.1, the payment schedule set forth in Section 3.2 for Additional Fibers, nor any other provision of this Agreement constitutes a loan by Williams or the incurrance of debt by Cogent but that the obligations of both parties represent ongoing obligations under this Agreement.

ARTICLE XXIII

ASSIGNMENT

23.1Conditions to Effective Assignment. An assignment (or other transfer) of this Agreement or a party’s rights or obligations hereunder to any other party shall not be effective without (a) either the prior written consent of the non-assigning party, or, if such consent is not required pursuant to specific terms in this Article XXIII, written notice to the non-assigning party, (b) the written agreement of the assignee to be bound by all terms and conditions of this Agreement including, without limitation, the indemnification provisions and limitations on liability and recourse set forth in this Agreement (including those benefiting the Released Parties), and (c) such assignee’s agreement to cure all prior defaults of the assigning party under this Agreement.

23.2Impermissible Assignments. Except as set forth in Section 23.4 or 23.9, the non-assigning party may withhold consent to an assignment in its sole discretion, if the assignment:

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23.3Consent not to be Unreasonably Withheld. Except to the extent Section 23.2 provides the non-assigning party the right to withhold its consent in its sole discretion and except as set forth in Section 23.5, the non-assigning party shall not unreasonably withhold its consent to an assignment if neither the assigning party nor the proposed assignee is in material default under this Agreement or any other agreement with the non-assigning party. For purposes of this Section, Williams’ consent to a requested assignment or transfer shall not be considered unreasonably withheld if such requested assignment or transfer is to a party which does not have the technical ability or financial capability to perform Cogent’s obligations under this Agreement.

23.4Assignments to Particular Classes of Entities. The provisions of Section 23.2 notwithstanding:

23.5Restriction on Transfer of Dark Fiber Rights. Cogent shall not convey any interest in the rights granted herein with respect to any Cogent Fibers except by means of the provision of

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CONFIDENTIAL AND PROPRIETARY

-31-

capacity or a permitted assignment of this Agreement. Without limiting the generality of the foregoing, Cogent is expressly prohibited from providing IRU grants, sales, leases, assignments, or other grants of rights in the Cogent Fibers. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall be construed to prohibit or restrict Cogent’s ability to provide capacity services to its customers including, without limitation, selling optical waves or “lambdas”.

23.6Agreement Binds Successors. This Agreement and the rights and obligations under this Agreement (including the limitations on liability and recourse set forth in this Agreement benefiting the other party and the Released Parties) shall be binding upon and shall inure to the benefit of Williams and Cogent and their respective permitted successors and assigns.

23.7Change in Control Not an Assignment. Notwithstanding any presumptions under applicable state law that a change in control of a party constitutes an assignment of an agreement, a change in control of a party, not made for purposes of circumventing restrictions on assignment or of depriving the other party of rights under this Agreement, shall not be deemed an assignment for purposes of this Agreement.

23.8Right to Subcontract. Williams may subcontract for testing, maintenance, repair, restoration, relocation, or other operational and technical services it is obligated to provide hereunder or may have the underlying facility owner or its contractor perform such obligations, provided that Williams shall remain liable for all of its obligations hereunder.

23.9Financing Arrangements. Either party shall have the right, directly or through an Affiliate, to enter into financing arrangements (including secured loans, leases, sales with lease-back, or leases with lease-back arrangements, purchase-money or vendor financing, conditional sales transactions, or other arrangements) with or to collaterally assign its rights hereunder to one or more financial institutions, vendors, suppliers or other financing sources (individually and collectively, “Lenders”), that, with respect to Williams, relate to the System and, with respect to Cogent, relate to the Cogent Lease/IRU Rights (and not to any property right in the System).

23.10Right of First Refusal. In the event that at any time prior to Cogent’s payment in full of the Contract Price, Cogent attempts to assign its interests in this Agreement and fails to obtain Williams’ consent (if such consent is required), or if Cogent seeks to assign this Agreement in a manner which requires Williams’ consent under the terms of this Article 23 (whether such assignment is voluntary or involuntary), then Williams shall have a right of first refusal to acquire all of the Cogent Lease/IRU Rights with respect to the Cogent Fibers. Upon Williams’ request, Cogent will provide detailed information regarding the proposed assignment including, without limitation, the amount of consideration to be paid by the proposed assignee. Williams may exercise its right of first refusal by matching the highest bona fide assignment offer received and accepted by Cogent, but, if Cogent is in default under the terms of this Agreement, then Williams may exercise its option to purchase the Cogent Lease/IRU Rights in accordance with the terms of Section 12.2(d) above.

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CONFIDENTIAL AND PROPRIETARY

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ARTICLE XXIV

ENTIRE AGREEMENT; AMENDMENT; EXECUTION

24.1Integration; Exhibits. This Agreement constitutes the entire and final agreement and understanding between Williams and Cogent with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits referred to herein are integral parts hereof and are made a part of this Agreement by reference.

24.2No Parole Amendment. This Agreement may only be amended, modified, or supplemented by an instrument in writing executed by duly authorized representatives of Williams and Cogent. No such amendment, modification, or supplement shall result in any modification of (a) any indemnity benefiting any Facility Owners/Lenders or their respective Affiliates or (b) any limitation of liability or recourse benefiting any Released Parties that is adverse to such Released Parties.

24.3Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument.

24.4Facsimile Delivery. This Agreement may be duly executed and delivered by a party by execution and facsimile delivery of the signature page of a counterpart to the other party, provided that, if delivery is made by facsimile, the executing party shall promptly deliver, via overnight delivery, a complete original counterpart that it has executed to the other party.

IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions contained in this Agreement and intending to be legally bound hereby, Williams and Cogent have executed this Agreement as of the Effective Date.

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CONFIDENTIAL AND PROPRIETARY

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EXHIBIT A-1

MAP OF MAJOR SEGMENTS

[OBJECT OMITTED]

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EXHIBIT A-2

MAJOR SEGMENT LISTING

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[*] Indicates confidential treatment requested.

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Exhibit A-2, Page 1

CONFIDENTIAL AND PROPRIETARY

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

EXHIBIT A-2 (Continued)

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Exhibit A-2, Page 2

CONFIDENTIAL AND PROPRIETARY

EXHIBIT B-1

COLLOCATION PROVISIONS

(Transmission Sites)

1.General.

A.Types of Transmission Sites and Collocation Arrangements. Williams shall designate each Transmission Site as an optical amplifier site, a regenerator site, or a junction. Williams may provide, either as Basic Services or Additional Services as defined below, collocation services at Transmission Sites through:

Subject to the terms of these Collocation Provisions, Cogent shall have the right to locate, install, maintain, and operate Cogent Equipment at the Transmission Sites during the Term. The nature of Cogent’s rights and the applicable charges shall depend on the type of Transmission Site and the type of arrangement (JUCA or non-JUCA) at such sites.

B.No Property Rights Conveyed. No use of Transmission Sites required or permitted under these Collocation Provisions shall create or vest in Cogent any easements, leasehold interests, or other ownership or property rights of any nature in Williams’ real or personal property.

C.Compliance with Industry Standards. Williams shall construct and operate such space, and Cogent shall cause the Cogent Equipment to be installed and operated, in accordance with telecommunications industry standards for similar collocation arrangements.

D.No Restrictions. Williams’ right to maintain and operate its facilities in such a manner as will best enable it to fulfill its own service requirements is in no manner limited by these Collocation Provisions, except as specifically set forth in these Collocation Provisions or the Agreement.

E.Services Subject to Availability. Until Williams accepts a firm Cogent order for collocation services, and except for the Basic Services set forth in Section 3 of this Exhibit, such services are subject to availability of appropriate space, power, and other infrastructure requirements. Except for Basic Services, Williams may decline to accept an order that would impose operational difficulties or result in inefficient use of space or power.

F.Spacing. Williams generally designs Spans with an approximate length of 40 miles.

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 1

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

2.Types of Arrangements.

A.JUCA Space. When Williams provides collocation services by means of JUCA space, Cogent shall not access such space without a Williams-designated escort. Williams shall provide such escort pursuant to Subsection 8.A of these Collocation Provisions.

B.Non-JUCA Space. If Williams provides collocation services by means of Non-JUCA space, Williams shall provide Cogent secure, separate, unescorted twenty-four hour access to the Cogent Equipment. Such Non-JUCA space shall be outside of (or separated by caging/barriers from) Williams backbone or JUCA area.

3.Basic Services.

A.Space and Power. The services provided pursuant to this Subsection shall be referred to as the “Basic Services.” At each Transmission Site, Williams shall provide, and Cogent shall pay for, the number of Rack Spaces designated in Exhibit B-2 in JUCA space, HVAC, and 20 amps of –48v DC power per Rack Space for the Cogent Equipment.

Each “Rack Space” shall be adequate to contain a standard equipment rack (with outside dimensions of twenty-six inches (26”) (width) x twenty-four inches (24”) (depth) x seventy-eight (78”) or eighty-four inches (84”) (height)). The total linear inches for Cogent Rack Space within each Transmission Site shall not exceed the sum of the number of Rack Spaces for the specified Transmission Site multiplied by twenty-six (26”) inches.

Notwithstanding the above provisions of this Subsection3(A), with respect to Transmission Sites for which no address or location description is specified in Exhibit B-2, Cogent shall have the right to cancel Basic Services for any such Transmission Site if the location thereof is not compatible with Cogent’s network plan by giving written notice to Williams within the fifteen (15) day period after receipt of Williams’ test results for the Major Segments on which such Transmission Sites are located as described in Section 7(A) of Exhibit C to the Agreement. In addition, Cogent may change the number of Rack Spaces to be provided as part of the Basic Services from one (1) Rack Space to two (2) Rack Spaces, or from two (2) Rack Spaces to one (1) Rack Space, in any Transmission Site along the applicable Major Segment by giving written notice to Williams within the above-described 15-day period.

B.Charges for Basic Services. Cogent shall pay Williams [*] per Rack Space per month per Transmission Site for JUCA space throughout the Term (beginning on the earlier of the Transmission Site Ready Date or Access Date for each Transmission Site) for the Basic Services. The above-described monthly fees shall be increased annually throughout the Term by two percent (2%) of the charges payable during the immediately preceding annual period on a date selected by Williams. Cogent shall pay such amounts on or before the first day of each calendar month during the Term. Payments shall be prorated, as necessary, for the first and last months such charges apply. Charges for Basic Services shall begin to apply when the Transmission Site Ready Date occurs.

4.Additional Services.

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 2

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

A.Procedures for Requesting Additional Services. Cogent may request in writing installation services, AC power or additional DC power, technical assistance or additional space or racks (collectively referred to as the “Additional Services”) at any Transmission Site. Within fifteen (15) business days after receiving such written request, Williams shall notify Cogent whether the Additional Services are available and, if they are, Williams’ then current standard rates for the Additional Services and Williams’ estimate of any upgrade or expansion Costs. Cogent shall provide written notice to Williams confirming its request for such Additional Services at the quoted rates (and estimates, if applicable) prior to Williams providing such Additional Services. If upgrades or expansions to Transmission Sites or its facilities are necessary to accommodate Cogent’s request, Williams may include the entire Cost of such upgrades or expansions in the Cost to Cogent.

B.Charges for Additional Services. If Cogent chooses to receive the Additional Services, Cogent shall pay any and all (initial and continuing) Costs reasonably incurred by Williams in providing and/or mutually agreed upon charges for such Additional Services or, if Williams has standard rates for such service, then at such standard rates. Upon at least thirty (30) days’ notice to Cogent, Williams may adjust recurring charges for the Additional Services once each calendar year to equal its then-current standard charges.

5.Establishing Collocations.

A.Physical Access to Transmission Sites. Williams shall allow Cogent reasonable access to each Transmission Site for purposes of installing Cogent Equipment beginning on or before the Acceptance Date for the relevant Major Segment, provided that, if a Transmission Site is not ready for installation of equipment other than security, alarm, HVAC, power, back-up power or other common systems on such date, Williams shall allow such access within five (5) days of the first date such Transmission Site is ready for such installation. The date on which Cogent is granted access to a Transmission Site under this Section shall be the “Access Date” for such Transmission Site.

B.Notice to Collocate. No later than sixty (60) days prior to Cogent’s planned installation of its Cogent Equipment at any Transmission Site, Cogent shall provide to Williams the “Collocation Notice.” The Collocation Notice shall include notice of Cogent’s desire to collocate in a particular Transmission Site, a copy of Cogent’s construction design drawings and installation schedule. The Collocation Notice shall also include: (i) Cogent’s requested installation date(s); (ii) any excess cable storage requirements; (iii) identification of all Cogent Equipment to be installed; (iv) a diagram of the desired location of the Cogent Equipment and power feeds; (v) the space, power, environmental, and other requirements for the Cogent Equipment; (vi) all other information reasonably required by Williams. Within twenty-one (21) days of receiving the Collocation Notice, Williams shall respond to Cogent’s Collocation Notice with its acceptance or objections to Cogent’s proposal in the Collocation Notice.

6.Transmission Site Ready Date. The “Transmission Site Ready Date” shall be the Acceptance Date for the Cogent Fibers connected to such Transmission Site provided that the Transmission Site Ready Date shall be deferred beyond the Acceptance Date as set forth below:

A.Failure to Provide Access. If Williams fails to provide physical access to the Transmission Site pursuant to the Subsection entitled Physical Access to Transmission Sites, the

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 3

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

Transmission Site Ready Date shall be delayed until the earlier of the date Williams provides such physical access or the date Cogent’s Equipment is installed.

B.Failure to Provide Power. If Williams fails to provide power as required for the Basic Services, the Transmission Site Ready Date shall be delayed until it provides such power, unless such failure is due to Cogent’s failure to properly and timely provide information pursuant to the Subsection 5.B of this Exhibit.

C.Cogent may elect by written notice to delay the Transmission Site Ready Date for any Transmission Site until the Transmission Site Ready Date has occurred for all Transmission Sites on a Major Segment.

7.Cogent Equipment.

A.Interface. Interface points between the Cogent Fibers and facilities wholly within Transmission Sites shall be at fiber distribution panels or digital cross-connect (DSX-N) panels located in the Transmission Sites and designated by Williams. Such panels shall be the demarcation to establish each party’s operational and maintenance responsibilities. All cables placed to interface such panels shall conform to all applicable Williams standards.

B.Power Use. Cogent shall not install any electrical or other equipment that overloads any electrical paneling, circuitry, or wiring.

C.Racks. Cogent shall supply its own racks or may request that Williams provide such racks as an Additional Service at its standard rates.

D.Standards. Cogent shall ensure that the Cogent Equipment (including racks) is delivered, installed, operated, and maintained to meet or exceed any reasonable requirements of Williams, any requirements of Williams’ building management or insurance underwriters, and any applicable local, state and federal codes and public health and safety laws and regulations (including fire regulations and the National Electric Code).

E.Intervention. If any part of Cogent’s fiber or Cogent Equipment is not placed and maintained in accordance with the terms and conditions of these Collocation Provisions and Cogent fails to correct the violation within thirty (30) days from receipt of written notice thereof from Williams, then Williams may, at its option, without further notice to Cogent, correct the deficiency at Cogent’s expense without liability for damages to the fiber, Interconnect Facilities or Cogent Equipment or for any interruption of Cogent’s services. As soon as practicable thereafter, Williams shall advise Cogent in writing of the work performed or the action taken. Cogent shall reimburse Williams for all Costs reasonably incurred by Williams associated with any work or action performed by Williams pursuant hereto.

F.Removal of Cogent Equipment. Within thirty (30) days after the end of the Term (or other termination of the Lease/IRU Rights in the Cogent Fibers), Cogent shall remove all Cogent Equipment from the System or any other Williams facilities at Cogent’s sole cost under Williams’ supervision. Cogent shall provide Williams with at least thirty (30) days’ notice prior to such removal. If Cogent fails to remove the same within said thirty-day period, Williams shall either:

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 4

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

8.Access to Transmission Site.

A.Common and JUCA Space. If Cogent requires access to Williams’ common space or JUCA space, Williams shall make commercially reasonable efforts to provide escorted access within seventy-two (72) hours of Cogent’s request (or at its option shall waive the escort requirement on a case-by-case basis). In the event of a service-affecting fault, Williams shall use commercially reasonable efforts to provide access as soon as practicable. Cogent shall pay Williams’ reasonable charges for such access, which may include minimum call-out times, and night, weekend, and holiday differentials or multipliers. In no case shall Cogent enter Williams’ common space or JUCA space without a Williams escort, except that a Cogent employee or Cogent contractor certified by Williams pursuant to Subsection 8(b) may enter JUCA space unescorted.

B.Certification of Cogent Employees and Contractors. Only Cogent employees and Cogent contractors certified by Williams shall enter JUCA space unescorted. Williams shall grant certification to a Cogent employee or contractor if Cogent demonstrates that such employee or contractor has sufficient knowledge and experience in the installation and maintenance of telecommunications equipment. Each certified employee or contractor shall abide by Williams’ Maintenance and Safety Manual, as updated from time-to-time. The manual contains Williams’ access policy, safety, engineering, and equipment installation standards. Cogent, in turn, shall supply each employee or contractor that seeks certification with a copy of the manual and, subsequent to certification, with any updates thereto which are provided to Cogent by Williams. Until such time as Williams provides the manual to Cogent, certified Cogent employees and Cogent contractors shall conduct activities in JUCA space in accordance with telecommunications industry practices. The procedures for certification are as follows:

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 5

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

Safety Manual and the contractor agrees to abide by the reasonable policies contained therein and to those contained in any updated manuals provided to Cogent by Williams. If Cogent has not received a copy of Williams’ Maintenance and Safety Manual by the time it submits a letter of authorization, the contractor shall state in the letter that it will abide by the policies and rules contained in the manual when it is provided. Cogent contractors shall be deemed certified seventy-two (72) hours after the latter of Williams’ receipt of the letter of authorization or Williams’ receipt of all additional requested qualification information, unless Williams notifies the applicant that more information is reasonably required or that the applicant is denied certification in Williams reasonable discretion.

Once certified, Cogent’s employees or contractors must call Williams’ Network Control Center at (800)348-6925 (alternate number (800) 582-9069) prior to entering or exiting the space. Cogent shall provide Williams’ Network Control Center with a list of “certified” employees or contractors that have passed Williams’ certification process. It shall be Cogent’s duty to notify Williams of any changes in Cogent’s list of certified employees and contractors or if a certified Cogent employee or contractor leaves Cogent’s or the contractor’s employ.

C.Single Point of Contact. Within thirty (30) days after the Effective Date of the Agreement, Cogent shall designate a single point of contact for all future communications regarding common and JUCA space which shall be available twenty-four (24) hours a day, seven (7) days a week. Cogent’s single point of contact shall be responsible for distributing information to Cogent’s certified employees and contractors. Williams shall have no obligation to provide information regarding JUCA space to any technician other than the aforementioned single point of contact.

D.Security. Cogent shall abide by Williams’ reasonable security requirements. When Williams’ reasonable security requirements have been met, Cogent employees, customers, contractors, or representatives shall be issued passes or visitor identification cards which must be presented upon request before entry to Transmission Sites. Such passes or other identification shall be issued only to persons meeting any reasonable security criteria applicable at the relevant Transmission Site for such purpose. Williams shall provide Cogent’s single point of contact, discussed in Subsection 8(c), with the access devices (e.g., access codes, card keys, keys, visitor identification cards) necessary for Cogent’s certified employees and contractors to gain access to Cogent Equipment in JUCA space. Cogent’s single point of contact shall be responsible for distributing access devices to Cogent’s employees and contractors certified pursuant to Subsection 8(b) and shall distribute access devices only to such persons. Access devices will be provided by Williams to Cogent with Williams’ Costs thereof to be reimbursed by Cogent within thirty (30) days after receipt of an invoice therefor. Cogent’s certified employees and contractors shall not disseminate access codes or devices to any other person. Cogent shall be liable for any losses caused by use or misuse of such access devices and shall surrender access devices upon demand for cause or upon termination of the Agreement. Nothing in this Subsection shall be construed as preventing Cogent from having twenty-four hour, seven days per week unescorted access to any of its Non-

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 6

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

JUCA space. Cogent acknowledges that third parties will have access to the JUCA or common space in which Cogent’s Rack Spaces are located and agrees that Williams shall in no event be liable for the acts or omissions of such third parties.

E.Right to Terminate Individual’s Access. Notwithstanding any other provision of these Collocation Provisions, Williams shall, without threat of liability, have the right to immediately terminate the right of access of any Cogent personnel or representative should it determine in its reasonable discretion for any lawful reason that termination of such access is necessary or reasonably advisable in order to assure the security of its facilities and/or to prevent damage to the System or to the Equipment of Williams or third parties. Williams shall promptly notify Cogent of any such termination, and Cogent shall have a reasonable opportunity to demonstrate that the terminated rights of access should be reinstated. Any termination of a specific individual’s access shall remain in effect pending Williams’ final determination as to the advisability of such reinstatement.

F.Subcontractors. For purposes of Section 8 of this Exhibit, the word “contractor” shall also include subcontractors of Cogent.

9.Relocation. In the event relocation of Cogent’s Interconnect Facilities or any Cogent Equipment is reasonably requested by Williams for bona fide operational reasons, then Cogent shall, at Williams’ expense, relocate its fiber, Interconnect Facilities and Cogent Equipment within Transmission Site upon Williams’ written request and in the reasonable (under the circumstances) time frame required by Williams. Williams’ shall make commercially reasonable efforts to allow and coordinate such relocation so that it may be conducted at a time and in a manner which minimizes interruption to Cogent’s service. If the entire Transmission Site is relocated, Article VIII (Maintenance and Relocation) of the Agreement shall govern such relocation.

10.Transmission Site Specifications and Monitoring.

A.Redundant HVAC. All Transmission Sites shall have redundant HVAC (heating, ventilation, and air conditioning) units each capable of handling the site’s full HVAC load.

B.Backup Power. All unattended (unmanned) Transmission Sites shall have a minimum of eight (8) hours’ battery reserve. All attended Transmission Sites without an on-site generator shall have a minimum of eight (8) hours’ battery reserve. All attended Transmission Sites with an on-site generator shall have a minimum of four (4) hours’ battery reserve. All on-site generators shall be capable of powering the total site for a minimum of twenty-four (24) hours.

C.Alarms. Williams shall continuously monitor Transmission Site security, environmental, and power alarms at one or more manned monitoring centers. At Cogent’s request, Williams shall, as an Additional Service, establish procedures to allow Cogent, at Cogent’s expense, to share or (at Williams’ option) indirectly receive security and environmental alarm information.

11.Interconnections. Exhibit H governs interconnections at Transmission Sites with facilities outside or extending outside such sites.

12.Inspections.

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 7

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

A.Williams’ Right to Inspect. Williams reserves the right to make periodic inspections of any part of the Fiber, Interconnect Facilities, or Cogent Equipment located within or physically attached to the Transmission Sites. Williams shall give Cogent advance notice of such inspections and Cogent shall have the right to have one or more of its employees or representatives present during the time of any such inspection, except in those instances where Williams determines that safety considerations justify the need for such an inspection without the delay of providing notice. The making of periodic inspections or the failure to do so shall not operate to impose upon Williams any liability of any kind whatsoever nor relieve Cogent of any responsibility, obligation, or liability allocated to it in these Collocation Provisions.

B.Williams Access. Cogent shall not directly or indirectly prevent Williams from having twenty-four hour access to Cogent’s assigned Non-JUCA space.

13.Threat to Persons or Property. If Williams determines that Cogent’s actions or failure to fulfill an obligation of these Collocation Provisions, or its Interconnect Facilities or Cogent Equipment poses an immediate threat to the safety of Williams’ employees or the public, interferes with the performance of Williams’ service obligations, or poses an immediate threat to the physical integrity of Williams’ facilities, Williams may perform such work and/or take such action that it deems necessary without notice to Cogent and without subjecting itself to any liability (except to the extent the Agreement permits recovery for Williams’ gross negligence) for damage to the fiber, Interconnect Facilities or the Cogent Equipment or for any interruption of Cogent’s services. As soon as practicable thereafter, Williams shall advise Cogent in writing of the work performed or the action taken. Cogent shall reimburse Williams for all Costs reasonably incurred by Williams associated with any work or action performed by Williams pursuant hereto.

14.Liens and Encumbrances. Cogent shall not have the power, authority or right to create and shall not permit any lien or encumbrance, including, without limitation, tax liens, mechanics’ liens, or other liens or encumbrances with respect to work performed, in connection with the delivery, installation, repair, maintenance, or operation of its Cogent Equipment, Interconnect Facilities or other property installed within the Transmission Site.

15.Subordination. Cogent’s rights under these Collocation Provisions shall be totally subordinate to any bona fide mortgages, loans, deeds of trust, or any other borrowing upon the real or personal property which may be incurred by Williams. Cogent shall sign any such reasonable documents as are necessary to satisfy any lender, private or institutional, to reflect said subordination; provided such lender agrees not to disturb Cogent’s rights hereunder so long as Cogent is not in default of the Agreement under the terms hereof.

16.Independent Parties. The presence of a Williams or Cogent employee or representative (as an inspector or otherwise) while an employee or representative of the other party is at the Transmission Site or performing work pursuant to these Collocation Provisions shall not make either party liable for the actions of the other party and shall not be deemed to waive the responsibility of either party to perform its obligations in a safe and workmanlike manner.

17.Compliance with Agreement. Each party shall comply with the provisions of the Agreement relating to Transmission Sites, including:

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 8

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

A.Williams’ obligations to provide as-built drawings of Transmission Sites showing Cogent rack placement and assignment within one hundred eighty (180) days after Acceptance of the applicable Major Segment;

B.the Operations Specifications set forth in Exhibit G; and

C.the Interconnection provisions set forth in Exhibit H.

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-1, Page 9

EXHIBIT B-2

Description of Transmission Sites and Pop Collocations Sites; Cogent Racks

See attached.

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-2, Page 1

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

CONFIDENTIAL AND PROPRIETARY

Exhibit B-2, Page 2

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

CONFIDENTIAL AND PROPRIETARY

Exhibit B-2, Page 3

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

CONFIDENTIAL AND PROPRIETARY

Exhibit B-2, Page 4

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

CONFIDENTIAL AND PROPRIETARY

Exhibit B-2, Page 5

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.

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CONFIDENTIAL AND PROPRIETARY

Exhibit B-2, Page 6

FOIA CONFIDENTIAL TREATMENT

REQUESTED BY COGENT COMMUNICATIONS, INC.