MUTUAL LIMITED WAIVER
This MUTUAL LIMITED WAIVER (this "Waiver"), dated as of January 5,
2002, among Exodus Communications, Inc., a Delaware corporation ("Exodus"),
American Information Systems, Inc., an Illinois corporation, Arca Systems,
Inc., a Delaware corporation, Cohesive Technology Solutions, Inc., a
Delaware corporation, GlobalCenter Holding, Co., a Delaware corporation,
GlobalCenter, Inc., a Delaware corporation, and Service Metrics, Inc., a
Delaware corporation (each a "Seller" and, together with Exodus, the
"Sellers"); Digital Island Inc. (the "Buyer"); and Cable and Wireless plc,
a public limited company organized under the laws of England and Wales
("Parent"), is made with reference to that certain Asset Purchase
Agreement, dated as of November 29, 2001 (the "Agreement"), by and among
the Sellers, Parent and the Buyer. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the
Agreement.
WITNESSETH
WHEREAS, the Sellers, Buyer and Parent agree to a mutual limited
waiver of certain provisions contained in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and
conditions herein set forth, the parties hereto agree as follows:
ARTICLE I
LIMITED WAIVER
Section 1.1. Sellers' Waiver. The Sellers hereby waive compliance
by Parent and the Buyer with:
(a) the provision contained in the sixth
sentence of Section 2.1(a)(ii) of the Agreement that requires the
Parent and the Buyer to notify Exodus, on or before the seventh
Business Day prior to the date of the Primary Sale Hearing, of the
equipment listed on Part I or Part II of Schedule 2.1(a)(ii),
which the Buyer elects to acquire; and
(b) the provision contained in the sixth
sentence of Section 2.1(a)(iii) of the Agreement that requires the
Parent and the Buyer to notify Exodus, on or before the seventh
Business Day prior to the date of the Primary Sale Hearing, of the
Scheduled Operating Leases listed in Part I or Part II of Schedule
2.1(a)(iii), which the Buyer elects to acquire
solely to extent necessary to extend the time for performance of each such
obligation by Parent and the Buyer until 5:00 p.m. (Pacific time) on
January 10, 2002.
Section 1.2. Buyer and Parent's Waiver. The Buyer and Parent
hereby waive compliance by Exodus with:
(a) the provision contained in the sixth
sentence of Section 2.1(a)(ii) of the Agreement that requires
Exodus to provide notice of the Buyer's election by overnight mail
or facsimile to each relevant counterparty promptly upon receipt
of the notice of the election from the Buyer and Parent; and
(b) the provision contained in the final
sentence of Section 2.1(a)(iii) of the Agreement that requires
Exodus to provide notice of the Buyer's election by overnight mail
or facsimile to the relevant lessors promptly after receipt of the
notice of the election from the Buyer and Parent
solely to the extent necessary to extend the time for performance by Exodus
of each such obligation until 7:00 p.m. (Pacific time) on the Business Day
following the date of compliance by Parent and the Buyer with the
obligations referred to in Section 1.1 of this Waiver.
ARTICLE II
MISCELLANEOUS
Section 2.1. Full Force and Effect. Except as specifically
provided by this Waiver, the Agreement shall remain in full force and
effect. The execution, delivery and performance of this Waiver shall not,
except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of the Sellers,
Parent or the Buyer under the Agreement.
Section 2.2. Governing Law. Except to the extent the mandatory
provisions of the Bankruptcy Code apply, this Waiver shall be governed by,
and construed in accordance with, the laws of the State of New York
applicable to contracts made and to be performed entirely in such state
without regard to principles of conflicts or choice of laws or any other
law that would make the laws of any other jurisdiction other than the State
of New York applicable hereto.
Section 2.3. Headings. The section headings contained in this
Waiver are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
Section 2.4. Counterparts. This Waiver may be executed in one or
more counterparts, each of which shall be deemed to be an original by the
parties executing such counterpart, but all of which shall be considered
one and the same instrument.
IN WITNESS WHEREOF, this Waiver has been signed on behalf of each
of the parties hereto as of the date first written above.
GLOBALCENTER, INC. EXODUS COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer Title: Executive Vice President,
Finance, Chief
Administrative Officer
and Chief Financial
Officer
SERVICE METRICS, INC. AMERICAN INFORMATION SYSTEMS, INC
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
CABLE AND WIRELESS PLC ARCA SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- -----------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Deputy Group Finance Director Title: Chief Financial Officer
DIGITAL ISLAND INC. COHESIVE TECHNOLOGY SOLUTIONS, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chief Strategy Officer Title: Chief Financial Officer
GLOBAL CENTER HOLDING, CO.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
[SIGNATURE PAGE TO MUTUAL LIMITED WAIVER
TO ASSET PURCHASE AGREEMENT]
