Joint Venture Agreement

JOINT VENTURE AGREEMENT
RELATING TO
EXODUS ASIA-PACIFIC LTD.


DATED AS OF SEPTEMBER 27, 2000


SHAREHOLDERS:


1. EXODUS EXODUS COMMUNICATIONS, INC., a Delaware corporation
with offices located at 2831 Mission College Blvd.,
Santa Clara, California 95054, United States of
America; and


2. ASIA GLOBAL ASIA GLOBAL CROSSING, LTD., a company organized under
CROSSING the laws of Bermuda, with offices located at Wessex
House, 45 Reid Street, Hamilton HM12, Bermuda. 2
TABLE OF CONTENTS


RECITALS


ARTICLE 1: DEFINITIONS


ARTICLE 2: OBJECT OF THE COMPANY; NAME


ARTICLE 3: COMPLETION


ARTICLE 4: APPOINTMENT OF DIRECTORS


ARTICLE 5: ADDITIONAL FUNDING


ARTICLE 6: COVENANTS, REPRESENTATIONS AND WARRANTIES


ARTICLE 7: CONDUCT OF THE COMPANY'S AFFAIRS


ARTICLE 8: DISPUTE RESOLUTION


ARTICLE 9: INDEMNIFICATION; LIMITATIONS ON DAMAGES; CONTRACTUAL
LIMITATIONS


ARTICLE 10: CONFIDENTIAL INFORMATION; PUBLIC ANNOUNCEMENTS


ARTICLES 11: TRANSFERS OF INTERESTS AND ISSUANCE OF ADDITIONAL INTERESTS


ARTICLE 12: VOTING AGREEMENT


ARTICLE 13: DISSOLUTION AND WINDING UP


ARTICLE 14: INDEPENDENT VALUATION


ARTICLE 15: MISCELLANEOUS PROVISIONS


ARTICLE 16: WAIVER OF CONFLICT OF INTEREST


i 3 SCHEDULES:


Schedule 1.48 Network Agreement


Schedule 6.4 No Conflict


Schedule 6.10 Encumbrances on Joint Venture Interest


Schedule 6.13 Business Interests in the Territory


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JOINT VENTURE AGREEMENT
RELATING TO
EXODUS ASIA-PACIFIC LTD.


THIS JOINT VENTURE AGREEMENT ("JOINT VENTURE AGREEMENT") relating to EXODUS ASIA-PACIFIC LTD., a company with limited liability organized under the laws of Bermuda made as of this 27th day of September, 2000.


RECITALS


A. EXODUS is in the business of providing mission critical Internet
hosting, managed and professional services and content distribution
services to business customers.


B. ASIA GLOBAL CROSSING is in the business of providing pan-Asian Internet
and long distance telecommunications facilities and services utilizing
a network of undersea digital fiber optic cable systems and associated
terrestrial backhaul capacity.


C. EXODUS and ASIA GLOBAL CROSSING desire to enter into a joint venture
(the "JOINT VENTURE") which shall operate through a company organized
under the laws of Bermuda to be known as "Exodus Asia-Pacific Ltd."
(the "COMPANY") on the terms and conditions set out below.


D. The Shareholders desire to set out the rights, duties and obligations
of the Shareholders in connection with the formation, ownership and
operation of the Company.


NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Shareholders hereto, intending to be legal bound hereby, agree as follows:


ARTICLE 1
DEFINITIONS


Terms defined in the preamble, in the recitals and in the text hereof shall have their respective meanings when used herein, and the following terms used in this Joint Venture Agreement, whether singular or plural, shall (unless otherwise expressly provided herein or unless the context otherwise requires) have the following respective meanings:


1.1 "ACCEPTANCE" is defined in Section 5.35.3.


1.2 "ACCEPTANCE PERIOD" is defined in Section 11.2.


1.3 "AFFILIATE" means any corporation, company, partnership, joint venture, firm and/or entity which Controls, is Controlled by, or is under common Control with a Shareholder, except that such term shall not include the Company.


1.4 "AGREED PROPORTIONS" initially means 67% in respect of EXODUS and 33% in respect of ASIA GLOBAL CROSSING and thereafter the percentages which the nominal value


1 5 of the Shares beneficially owned by each Shareholder respectively bears to the combined nominal value of the fully issued and paid-up Shares of the Company.


1.5 "ASIA GLOBAL CROSSING" means Asia Global Crossing Ltd., a company organized under the laws of Bermuda.


1.6 "ASIA GLOBAL CROSSING DIRECTOR" is defined in Section 4.2(b).


1.7 "BANKRUPTCY" means the entry of an order for relief with respect to a Shareholder in proceedings under any bankruptcy, insolvency or similar law of the jurisdiction of organization of such Shareholder.


1.8 "BOARD" means the Board of Directors of the Company.


1.9 "BUSINESS" is defined in Section 2.1(a).


1.10 "BUSINESS COMBINATION" is defined in Section 7.4(a).


1.11 "BUY-OUT EVENT" means:


(a) The filing of an application by a Shareholder for, or its
consent to, the appointment of a trustee, receiver, custodian or
similar person under the applicable laws of the jurisdiction of
organization of such Shareholder, for the assets of a Shareholder;


(b) The entry of a final order, judgment or decree by any
court of competent jurisdiction appointing a trustee, receiver,
custodian or similar person under the applicable laws of the
jurisdiction of organization of such Shareholder, for the assets of a
Shareholder;


(c) The failure by a Shareholder generally to pay its debts as
they become due or a Shareholder's admission in writing of its
inability to pay its debts as they become due;


(d) A Shareholder's Joint Venture Interest in the Company
becoming subject to the enforcement of any rights of a creditor of a
Shareholder, whether arising out of an attempted charge upon that
Shareholder's Joint Venture Interest by judicial process or otherwise,
if that Shareholder fails to effectuate the release of those
enforcement rights, whether by legal process, bonding, or otherwise,
within one hundred eighty (180) days; or


(e) The Bankruptcy of a Shareholder.


1.12 "BUY-OUT EVENT DATE" means the date of an occurrence of a Buy-Out Event.


1.13 "CLOSING" shall mean the "Closing" as defined in the Merger Agreement.


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1.14 "COMPANY" means "Exodus Asia-Pacific Ltd.", a company formed pursuant to this Joint Venture Agreement and organized under the laws of Bermuda and any successor thereto.


1.15 "CONFIDENTIAL INFORMATION" means any intellectual property of non-public technical or business information written or orally disclosed or delivered by one Shareholder or any of its Affiliates (the "DISCLOSING PARTY") to another Shareholder or any of its Affiliates (the "RECEIVING Party"). Notwithstanding anything to the contrary in this Joint Venture Agreement, Confidential Information shall not include:


(i) any information or material that is publicly known or
available, or becomes publicly known or available,
without any act or omission of the Receiving Party;


(ii) any information or material which prior to disclosure
was rightfully in the possession of the Receiving
Party without restriction on use or disclosure;


(iii) any information or material that is rightfully
received by the Receiving Party from a non-party
without an obligation of confidence; or


(iv) any information or material that is independently
developed by the Receiving Party without use or
reference to any Confidential Information of the
Disclosing Party.


1.16 "CONTRIBUTED ASSETS" is defined in Section 3.1(c)(ii).


1.17 "CONTROL", "CONTROLLED" or "CONTROLLING" means the control of a person exercised through the direct or indirect ownership of greater than fifty percent (50%) of the stock, shares or other voting interest of such person.


1.18 "DEDICATED PRIVATE EXTRANET NETWORK" shall mean a private IP Network connecting communities of interests.


1.19 "DEFAULTING SHAREHOLDER" is defined in Section 11.9.


1.20 "DIRECTOR" means a director of the Company including, where applicable, an alternate director.


1.21 "DISPOSITION," "DISPOSE" or "DISPOSING" refers to and means the sale, assignment, transfer, exchange, pledge or encumbrance or other disposition of all or any part of such Shareholder's Joint Venture Interest in the Company or of some other specified property, in any manner, whether, voluntarily or involuntarily, or by operation of law or otherwise; provided, however, that a merger or other business combination of EXODUS or ASIA GLOBAL CROSSING shall not be deemed a Disposition for purposes of this Joint Venture Agreement.


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1.22 "DISPUTE" is defined in Section 8.1.


1.23 "DOLLAR" or "$." means U.S. Dollars.


1.24 "EFFECTIVE TIME" means the Closing.


1.25 "ENTITLEMENT" is defined in Section 5.3.


1.26 "EQUITY SHARE CAPITAL" means all of the fully issued and
paid up Shares of the Company.


1.27 "EXODUS" means EXODUS COMMUNICATIONS, INC., a Delaware
corporation.


1.28 "EXODUS CORE TECHNOLOGIES" means the "EXODUS Core
Technologies" as defined in the Licensing Agreement.


1.29 "EXODUS DIRECTOR" is defined in Section 4.2(a).


1.30 "EXODUS SERVICES" means all technical, professional and
other services required in connection with the design, development,
construction and operation of data centers and the conduct of the
Company's Business furnished to the Company by Exodus.


1.31 "EXODUS STANDARD BUSINESS PRACTICES AND METHODOLOGIES"
means the standard business practices and methodologies as executed by
EXODUS globally as part of EXODUS' global operations, as adapted to
local conditions if necessary.


1.32 "EXODUS TECHNICAL SPECIFICATIONS AND STANDARDS" means the
EXODUS technical specifications and standards as promulgated by EXODUS
globally as part of EXODUS' global operations, as adapted to local
conditions if necessary. The Exodus Technical Specifications and
Standards shall be applicable to the distribution of the Company's
Services pursuant to reseller agreements to be entered into between the
Company and its customers.


1.33 "EXPORT ADMINISTRATION ACT" is defined in Section 6.11.


1.34 "FISCAL YEAR" means the annual accounting period of the
Company, which is the twelve months ended December 31, except that for
2000, it is the period from the date of the Company's incorporation and
ending on December 31, 2000.


1.35 "GLOBAL CROSSING" means GLOBAL CROSSING LTD., a company
organized under the laws of Bermuda.


1.36 "INDEMNITEES" is defined in Section 9.1.


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1.37 "INTELLECTUAL PROPERTY RIGHTS" means all patent rights,
copyright rights (including, but not limited to, rights in music and
audiovisual works and Moral Rights), trademark rights, trade secret
rights, design rights and confidentiality rights and any other
intellectual property rights recognized by the law of each applicable
jurisdiction.


1.38 "INTERNET" means a series of interconnected networks
linked together by a globally unique address space based on the
Internet Protocol (or a subsequent amendment or replacement protocol)
and which supports the exchange of data and other messages using
Transmission Control Protocol/Internet Protocol (TCP/IP) (or a
subsequent amendment or replacement protocol).


1.39 "INTERNET BACKBONE" means a wireline or wireless network
which: (i) can or does (a) assign IP addresses or manage IP address
assignments for machines or networks to which it is connected, (b)
accept or deliver IP datagrams from machines or networks to which it is
connected, or (c) maintain IP packet traffic to other machines or
networks; and (ii) provides IP connectivity on a regional, national or
international basis.


1.40 "INTERNET DATA CENTER SERVICES" means services such as
hosting, co-location and content distribution for the Internet.


1.41 "INTERNET PROTOCOLS" or "IP" means the Internet Protocols
as defined by the document titled RFC-91, by John Postell of the
University of Southern California, dated 1981, or subsequent revisions
thereof.


1.42 "INTERNET WEB HOSTING" means the provision of Internet
connectivity interconnected with servers, located within data centers
used for the purpose of accessing content and applications.


1.43 "JOINT VENTURE" means the joint venture entered into
pursuant to this Joint Venture Agreement.


1.44 "JOINT VENTURE AGREEMENT" means this Joint Venture
Agreement, as originally executed and as amended from time to time in
accordance with the terms hereof.


1.45 "JOINT VENTURE INTEREST" means, with respect to each
Shareholder, the Shares that are owned by such Shareholder and all
rights appurtenant thereto as a Shareholder of the Company under the
Company's Memorandum of Association and as provided under the
applicable provisions of the laws of Bermuda.


1.46 "LICENSING AGREEMENT" means the Licensing Agreement to be
entered into by and between EXODUS and/or any of its Affiliates and the
Company on or prior to the Effective Time in a form to be mutually
agreed upon by the parties hereto which, at a minimum, shall grant to
the Company an exclusive license in the Territory to all


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Intellectual Property Rights of EXODUS necessary for the Company to
pursue the Business and for the use of all trademarks owned by EXODUS
in connection with the Business in consideration for the payment by the
Company to EXODUS of a reasonable royalty not less favorable than that
granted to unaffiliated third parties which royalty shall begin to
accrue and be payable as measured from the first fiscal quarter that
the Company becomes profitable.


1.47 "LOCAL PARTICIPANT" is defined in Section 6.14(c).


1.48 "LOSSES" shall mean any claims, losses, liabilities,
damages, penalties, costs and expenses, including reasonable legal fees
and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the
imposition thereof, or in enforcing any indemnity.


1.49 "MEMORANDUM OF ASSOCIATION" means the Memorandum of
Association of the Company and related By-laws of the Company.


1.50 "MERGER AGREEMENT" means the Agreement and Plan of
Merger, dated as of the date hereof, among EXODUS and GLOBAL CROSSING
and certain affiliated companies, as the same may from time to time be
amended, modified or supplemented.


1.51 "MORAL RIGHTS" shall mean any right of paternity or
integrity, any right to claim authorship, to object to or prevent any
distortion, mutilation or modification of, or other derogatory action
in relation to the subject work whether or not such would be
prejudicial to the author's honor or reputation, to withdraw from
circulation or control the publication or distribution of the subject
work, and any similar right, existing under judicial or statutory law
of any country in the world, or under any treaty, regardless of whether
or not such right is denominated or generally referred to as a "moral"
right.


1.52 "NETWORK AGREEMENT" means the Network Services Agreement,
Marketing and Cooperation Agreement, as amended, supplemented or
otherwise modified from time to time, and to be executed by such
parties in the form attached as Schedule 1.48 hereto on or prior to the
Effective Time.


1.53 "NOTICE OF PROPOSED SALE" is defined in Section 11.2.


1.54 "PERSON" shall mean any individual, sole proprietorship,
corporation, partnership, company with limited liability,
unincorporated society or association, trust, or other legal entity.


1.55 "QUALIFIED INITIAL PUBLIC OFFERING" is defined in Section
11.12.


1.56 "QUORUM" is defined in Section 7.2(e).


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1.57 "RELATED AGREEMENTS" means the Licensing Agreement, the
Network Agreements and the Services Agreement.


1.58 "REPRESENTATIVES" is defined in Section 10.1.


1.59 "REQUIRED ADDITIONAL EQUITY SHARE CAPITAL" is defined in
Section 5.1.


1.60 "RESTRICTED BUSINESS" shall mean the provision of
physical space with Internet connectivity interconnected with servers
or other types of data processing equipment (other than solely data
communications/networking equipment).


1.61 "SALE NOTICE" is defined in Section 11.10(b).


1.62 "SELLER" is defined in Section 11.10(a).


1.63 "SELLING SHAREHOLDER" is defined in Section 11.2.


1.64 "SERVICES" means the web hosting services provided by the
Company directly or through one or more of its subsidiaries in the
Territory.


1.65 "SERVICES AGREEMENT" means the Services Agreement to be
entered into by and between EXODUS and the Company on or prior to the
Effective Time in a form to be mutually agreed upon by the parties
hereto for the provision of the EXODUS Services to the Company and
which shall provide for the reimbursement by the Company of EXODUS'
fully-burdened costs of providing such EXODUS Services.


1.66 "SHAREHOLDER" means each of EXODUS and ASIA GLOBAL
CROSSING and each other Person that from time to time becomes a
Shareholder pursuant to the terms of this Joint Venture Agreement.


1.67 "SHARES" means ordinary shares of par value $0.01 each in
the capital of the Company with the rights, preferences and
designations set out in the Company's Memorandum of Association.


1.68 "SUBSIDIARY" or "SUBSIDIARIES" means with respect to any
Person (other than a natural individual), any other Person Controlled
by such Person.


1.69 "TAG-ALONG RIGHT" is defined in Section 11.10(a).


1.70 "TAG-ALONG NOTICE" is defined in Section 11.10(b).


1.71 "TAX" and "TAXES" shall mean any and all national, local
and foreign taxes, assessment and other governmental charges, duties,
impositions and liabilities including taxes based upon or measured by
gross receipts, income, profits, sales, use or occupation, and value
added, ad valorem, transfer, franchise, withholding, payroll,
recapture, employment, excise and property taxes, together with all
interest, penalties and additions imposed with respect to such amounts.


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1.72 "TECHNICAL DATA" means all documentation and other
technical information provided by any Shareholder and/or its Affiliates
pursuant to this Joint Venture Agreement or the Related Agreements.


1.73 "TERM" means the Term of this Joint Venture Agreement as
set out in Section 3.3.


1.74 "TERMINATION NOTICE" is defined in Section 3.3.


1.75 "TERRITORY" means the collective reference to Brunei,
Burma, Cambodia, China (including Hong Kong), Fiji, Indonesia, Japan,
Kiribati, Laos, Macau, Malaysia, Marshall Islands, Federated States of
Micronesia, Mongolia, Nauru, North Korea, Palau, Papua New Guinea,
Philippines, Samoa (formerly Western Samoa), Singapore, Solomon
Islands, South Korea, Taiwan, Thailand, Tonga, Tuvalu, Vanuatu and
Vietnam.


1.76 "TRANSFER TAXES" is defined in Section 3.1(c)(ii).


1.77 "TRIGGER EVENT" is defined in Section 3.3.


1.78 "VALUATION DATE" is defined in Section 14.3.


ARTICLE 2
OBJECT OF THE COMPANY; NAME


2.1 Business. The Shareholders are entering into the Joint Venture and forming the Company under the laws of Bermuda for the purpose and scope as follows:


(a) Purpose. The purpose of the Joint Venture is to directly
or indirectly through one or more subsidiaries provide EXODUS' existing
and future services made available to customers including, without
limitation, Internet Data Center Services and Internet connectivity for
data centers, managed service offerings, professional services and
content distribution in accordance with EXODUS' Standard Business
Practices and Methodologies in the Territory (the "BUSINESS").


(b) Other Activities. Subject to Section 7.4, the Shareholders
may expand the scope of the Business as provided herein and will
determine appropriate business models covering any expanded businesses.


2.2 Name. The name of the Company shall be "Exodus Asia-Pacific Ltd." in English, and all business of the Company shall be conducted under such name or any other name approved at a general meeting of the Shareholders of the Company, but in any case only to the extent permitted by applicable law and only to the extent that the license granted to the Company for the use of the "EXODUS" trade name and all associated Intellectual Property Rights is permitted under the terms and conditions of the Licensing Agreement.


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2.3 Principal Place of Business. The registered office of the Company shall be in Hamilton, Bermuda and the principal place of business of the Company at which the records required to be maintained by the laws of Bermuda are to be kept shall be in such place or places as the Board shall specify.


ARTICLE 3
COMPLETION


3.1 Formation of the Company. As soon as practicable following the full execution of this Joint Venture Agreement and in accordance with all applicable law:


(a) Organization. The Shareholders shall cause the Company to
be established under the laws of Bermuda, or such other jurisdiction of
organization as may be mutually agreed by the Shareholders, on the
following basis:


(i) the Company shall be a company limited by Shares;


(ii) the name of the Company shall be "Exodus
Asia-Pacific Ltd." in English or such other name as agreed by
the Shareholders;


(iii) the registered head office of the Company will
be as specified in Section 2.3; and


(iv) the authorized share capital of the Company
shall be $10.00 divided into 1,000 Shares of $0.01 each.


(b) Subscription of Shares. Upon the Closing, or on a
subsequent date to be mutually agreed by the Shareholders, the
Shareholders shall subscribe for their respective Shares as set out
below and pay to the Company (into a designated bank account at in
Bermuda) in full in cash:


SHAREHOLDER NO. OF SHARES CONSIDERATION
----------- ------------- -------------
EXODUS 670 U.S. $ 67,000,000


ASIA GLOBAL CROSSING 330 U.S. $ 33,000,000


Total 1000 U.S. $100,000,000


(c) In-Kind Capital Contributions.


(i) Except for the Intellectual Property Rights
licensed pursuant to the Licensing Agreement and subject to
Section 6.14 concurrent with the subscription of Shares
provided for in subsection (b) above, each of the Shareholders
shall contribute to the Company, free and clear of all liens,
security interests, mortgages


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or other encumbrances, all tangible and intangible assets,
real and personal, necessary to the conduct of the Business in
the Territory now owned or hereafter acquir ...