DATED: The 28th day of August, 1999
SPACEDEV
and
TECHNICAL & GENERAL
GUARANTEE COMPANY LIMITED
---------------------------
DEED OF COUNTER INDEMNITY 99/TG1246P
---------------------------
<PAGE>
DEED OF COUNTER INDEMNITY
-------------------------
DATE: The 25th day of August, 1999.
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PARTIES:
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(1) SPACEDEV whose registered office is situated at 13855 Stowe Drive,
Poway, California 92064 USA ("the Company")
(2) TECHNICAL & GENERAL GUARANTEE COMPANY LIMITED of 26 Boulevard Royal,
L-2449 Luxembourg ("the Guarantor")
OPERATIVE PROVISIONS:
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1. DEFINITIONS AND INTERPRETATION
------------------------------
In this Deed the following provisions of this Clause shall govern
interpretation.
1.1 "Performance Bond" means any and every contract performance
bond, guarantee or agreement granted or to be granted by the
Guarantor to any Third Party in connection with all or any of
the obligations of SPACE INNOVATIONS LIMITED, a subsidiary
company of the Company ("the Subsidiary") to any Third Party
to provide Performance Bonds to any Third Party.
"Performance Bond Fee" means such fee as shall be agreed
between the Guarantor and the Subsidiary by way of
consideration for the grant by the Guarantor of each
Performance Bond.
"Third Party" means the beneficiary under the Performance
Bond.
1.2 Unless the context otherwise requires, words denoting the
singular shall include the plural and vice versa; words
denoting any one gender shall include all genders; and words
denoting personal shall include bodies corporate,
unincorporated associations and partnerships.
1.3 Headings to clauses are included for ease of reference only
and shall not affect the construction of this Deed or the
Schedules hereto.
PERFORMANCE BOND AND COUNTER-INDEMNITY
--------------------------------------
2.1 (a) The Subsidiary shall pay the Performance Bond fee to
the Guarantor in consideration of the grant of each
Performance Bond to each Third Party.
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(b) The Performance Bond shall be in such form and shall
contain such terms and provisions as the Guarantor
and the Third Party may from time to time agree. The
guarantor and the Third Party may vary the terms and
conditions of the Performance Bond in such manner as
the Third Party and the Guarantor may in their
absolute discretion determine provided always that
any such variation shall not be to the detriment of
the Subsidiary.
(c) By way of consideration for the Company's obligations
hereunder the Company acknowledges the receipt of One
pound (pound)1.00 from the Guarantor.
2.2 In consideration of the Guarantor granting the Performance
Bond to the Third Party the Company hereby undertakes:
(a) to save and keep the Guarantor harmless and
indemnified against all actions proceedings losses
costs damages expenses claims and demands which the
Guarantor may incur or sustain by reason of or
arising in any way whatsoever in connection with the
Performance Bond and/or this Deed and to place the
Guarantor in cleared funds on demand sufficient in
amount to cover the Subsidiary's total actual and
contingent liability under or arising out of the
Performance Bond and/or this Deed.
(b) to save and keep the Guarantor harmless and
indemnified against all actions proceedings losses
costs damages expenses claims and demands in
connection with the enforcement or attempted
enforcement of this Deed.
(c) to pay on demand interest to the Guarantor on all
sums due and payable hereunder from the time each
such sum became due and until payment in full.
Interest shall be payable (as well after as before
judgment) at the rate of 5% per annum over Lloyds
Bank Plc base rate from time to time. Interest will
accrue from day to day and be calculated on the basis
of the actual numbers of days elapsed and a 365-day
year. Interest will be compounded monthly.
2.3 The Company hereby irrevocably authorises the Guarantor to
make any payments and comply with any demands which may be
claimed in accordance with the terms of the Performance Bond
from or made upon the Guarantor in connection with the
Performance Bond without any reference to or further authority
from the Company and the Company hereby agrees that it shall
not be incumbent upon the Guarantor to enquire or to take
notice whether or not any dispute exists between the
Subsidiary and the Third Party and the Company further agrees
that any payment which the Guarantor shall make in accordance
with or apparently or purporting to be in accordance with or
which the Guarantor believes is in
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accordance with the Performance Bond shall be binding upon the
Company and shall be accepted by the Company as conclusive
evidence that the Guarantor is liable to make such payments or
comply with such demand and further that the Guarantor may at
any time vary or determine the Performance Bond or make any
compromise or arrangement with the Third Party and in
particular without limitation take any action or make any
omission with respect to the Performance Bond that the
Guarantor may in the Guarantor's absolute discretion think
fit.
2.4 It shall not be a defense to a claim by the Guarantor against
the Company under this Deed that the Subsidiary could have
resisted any claim by the Third Party under or pursuant to the
Performance Bond. The Company requests and authorises the
Guarantor to make payments to the Third Party on demand by the
Third Party pursuant to the Performance Bond in the amount and
in the manner thereby required.
2.5 A certificate submitted by the Guarantor as to any amounts or
amounts due or to become due from the Company to the Guarantor
in connection with this Deed shall be conclusive and binding
on the Company.
2.6 The Company hereby waives any and all existing and future
counter-claims and set-offs against any payments due to the
Guarantor hereunder and agrees to make all such payments in
full irrespective of any equity or set-off or counter-claim of
the Company against the Guarantor.
2.7 The Company's obligations hereunder shall not be in any way
discharged or impaired by reason of any time or other
indulgence granted to the Subsidiary by the Third Party or any
other person or by any variation or determination of the
Performance Bond or any related insurance policy agreement or
arrangement or of the operations thereunder and shall exist
irrespective of any present or future total or partial
invalidity illegality or unenforceability of the Performance
Bond.
2.8 All payments to be made by the Company hereunder shall be made
without deduction or withholding unless (i) the Company is
required by law to make any deduction or withholding from any
sum due from the Company to the Guarantor hereunder or (ii)
the Guarantor is required by law to make any payment on or in
relation to any amount received or receivable by the Guarantor
hereunder on account of tax (other than tax on the
Guarantor's overall net income) or otherwise. In such
circumstances as are mentioned in (i) and (ii) above the sum
due from the Company to the Guarantor in respect of which such
deduction withholding or payment is required to be made shall
be increased to the extent necessary to ensure that after the
making of such deduction withholding or payment the Guarantor
receives remains in possession of and is beneficially entitled
to free from any such deduction withholding or payment as is
mentioned above a net sum equal to the sum which the Guarantor
would have received and to which the
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Guarantor would have been so entitled had no such deduction
withholding or payment been made.
2.9 This Deed shall remain in full force and effect until the
Guarantor confirms to the Company that the Company is released
from further obligations under this Deed.
NOTICES
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3.1 The Company and each of its officers and directors undertake
to notify the Guarantor immediately of any notice served by
the Company or on the Company pursuant to or in respect of the
Insolvency Act. Failure to provide such notification will
render the directors and officers of the Company personally
liable for any debts arising under this Deed.
3.2 Every notice which is required to be given hereunder shall be
in writing and shall be delivered personally or sent by first
class prepaid post telex or facsimile transmission to:
3.2.1 the address of the recipient set out herein or to
such other address as shall from time to time have
been notified to the sender in accordance with the
provisions of this Clause; or
3.2.2 the registered office for the time being of the
recipient.
3.3 Every such notice shall be marked in the case of the Guarantor
for the attention of the Company Secretary and in the case of
the Company for the attention of the Company Secretary.
3.4 Such notice shall be deemed to have been served:
3.4.1 if delivered personally when delivered;
3.4.2 if sent by first class post before the last scheduled
collection of letters from the place of posting on
any day, at 10:00 a.m. on the second business day
following posting (notwithstanding that it may
subsequently be returned undelivered); and
3.4.3 if sent by telex or facsimile transmission during
normal business hours when sent, or if outside normal
business hours, at 10:00 a.m. on the next business
day.
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4. SUCCESSORS
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This Deed shall be binding on and shall enure for the benefit of the
successors and assigns of each of the parties hereto.
5. FURTHER ASSURANCE
-----------------
The Company shall (and shall use all reasonable endeavours to procure
that any necessary third party shall) promptly do execute and perform
at the Company's expense all such further deeds documents assurances
acts and things as the Guarantor may reasonably require by notice in
writing to the Company in order to carry the provisions of this Deed
into full force and effect.
6. TIME OF THE ESSENCE
-------------------
Save that any date period or time limit mentioned in this Deed may be
extended or abridged by written agreement between the parties hereto
time shall be of the essence of this Deed.
7. VARIATION
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No variation or waiver of any of the provisions of this Deed shall be
valid or effective unless made in writing and signed by both parties
hereto.
8. WAIVER; REMEDIES CUMULATIVE
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No failure on the part of either party hereto to exercise and no delay
by either party in exercising any right power privilege or remedy under
this Deed shall operate as a waiver thereof nor shall any single or
partial exercise of any right power privilege or remedy preclude any
other or further exercise thereof or the exercise of any other right
power privilege or remedy. The rights and remedies provided in this
Deed are cumulative and are not exclusive of any other rights or
remedies otherwise available to a party at law or in equity.
9. SEVERABILITY
------------
Each of the provisions of this Deed is severable and distinct from the
others and notwithstanding that at any time one or more of such
provisions is or becomes or proves to be invalid illegal or
unenforceable the validity legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby.
10. GOVERNING LAW
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This Deed shall be governed by and construed in accordance with the
laws of England.
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11. JURISDICTION
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11.1 Each party hereto submits to the non-exclusive jurisdiction of
the Courts of England.
11.2 This Company hereby agrees that any legal action or proceeding
arising out of or in connection with this document may be
brought in the High Court of Justice in England and the
Company irrevocably submits to the non-exclusive jurisdiction
of such courts.
EXECUTED and DELIVERED as a Deed the 25 day of August, 1999.
THE COMMON SEAL of ) [Spacedev seal here]
SPACEDEV )
was hereunto affixed in the presence of. )
/s/ Jim Benson
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Director
/s/ Susan Benson
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Director/Secretary
THE COMMON SEAL of ) [Technical seal here]
TECHNICAL & GENERAL )
GUARANTEE COMPANY LIMITED )
was hereunto affixed in the presence of )
/s/ signature
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Authorised Signatory
/s/ signature
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Witness
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