COMMERCIAL SPACE LAUNCH FACILITY AGREEMENT
This Agreement is by and between The Cooperative Republic of Guyana (hereinafter called “Guyana”) and Beal Guyana Launch Services, L.L.C., a limited liability company formed under the laws of the State of Texas, United States (hereinafter referred to as "Beal").
WITNESSETH:
WHEREAS, Beal is a private, commercial company developing a new, commercial space launch vehicle to launch commercial and governmental satellites into space;
WHEREAS, as part of its commercial space launch program, Beal desires to develop, maintain and control a commercial space launch facility at a location that is near to the equator, that has clear launch azimuths to the north and to the east, that is a safe distance from populated areas, and that will not unduly disturb or disrupt the environment;
WHEREAS, Guyana has represented and warranted to Beal that it has locations that will satisfy Beal’s requirements; and
WHEREAS, both Parties desire for Beal to construct and operate a commercial space launch facility in Guyana;
WHEREAS, Beal desires to make a substantial investment in Guyana and thereby increase the infrastructure and capital resources within the country;
WHEREAS, Beal’s activities will further benefit Guyana by fostering an environment for the creation of new jobs – both as a result of direct hires by Beal and indirectly through the opportunity for increased tourism, support services, and their multiplier effect; and
WHEREAS, the Parties mutually desire to enter into this Agreement in order to provide for their respective rights and obligations arising out of, or in connection with, Beal's construction and operation of a commercial space launch facility.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties hereby covenant and agree as follows:
ARTICLE 1. INTERPRETATION.
1.1 Definition of Terms: In this Agreement (including the following Definitions) and in any amendments hereto, unless the context requires otherwise, the following terms shall have the following meanings:
1.1.1 "Additional Buffer Area" shall mean an area of land, swamp, and/or
water, in the shape of a circle with a radius of ten (10) statutory miles,
covering 75,000 acres more or less, with the same center point as the Primary
Site, but not including the Primary Site.
1.1.2 "AECA" shall mean the U.S. Arms Export Control Act, codified
at 22 U.S.C. 2278, that governs the export from the U.S. of some of the
goods, technology, and technical data that will be used by Beal at the
Facility.
1.1.3 "Affiliated Company" or “Affiliated Companies” shall mean any
one or more companies, partnerships, joint ventures, or other legal entities
(i) in which Beal has a controlling interest, either directly or indirectly;
(ii) allied to Beal by ownership by a third party, directly or indirectly,
of a controlling interest in Beal and in such other entity; or (iii) owning,
directly or indirectly, a controlling interest in Beal.
1.1.4 "Agreement" shall mean this Commercial Space Launch Facility
Agreement and any amendments to it [and the Annexes attached hereto and
made a part hereof].
1.1.5 "Article" shall mean any clause in this Agreement designated
at its beginning by the word "Article".
1.1.6 "Associates" shall include, but not be limited to, an Affiliated
Company, and Beal's shareholders, contractors (including suppliers of goods
and services), consultants, attorneys, Customers, financiers, directors,
officers, agents and employees, and the directors, officers, agents, representatives
and employees of all of the foregoing.
1.1.7 “CFR” shall mean the U.S. Code of Federal Regulations.
1.1.8 “Closing” shall mean an event occurring after Beal receives formal
written notification from the U.S. Department of State approving Beal’s
construction of the Facility and export of ITAR controlled items to Guyana.
The Closing shall occur at a date, time and place mutually agreeable to
the Parties, but in no event later than sixty (60) days following Beal’s
delivery to Guyana of written notice that Beal has received the necessary
approvals from the U.S. State Department.
1.1.9 “Customer” means any person or entity that procures launch services
from Beal or an Affiliated Company, or places or owns a payload launched
or to be launched on a Launch Vehicle; any person to whom the customer
has sold, leased, assigned, or otherwise transferred its rights to the
payload (or any part thereof) to be launched by Beal or an Affiliated Company,
including a conditional sale, lease, assignment, or transfer of rights;
any person who has placed property on board the payload for launch; and
any person to whom the Customer has transferred its rights to the launch
services.
1.1.10 "Day-to-Day Consumables" shall mean and be limited to only food,
fuel for the operation of the Facility (but not fuel for any Launch Vehicle,
any satellite, or any payload for any Launch Vehicle), and similar items.
Items excluded from the definition of Day-to-Day Consumables include, but
are not limited to, the following:
1.1.10.1 Any item comprising any portion of any Launch Vehicle;
1.1.10.2 Any item comprising any payload or any portion thereof for
any Launch Vehicle;
1.1.10.3 Any item used for the assembly, launch, guidance, or control
of any Launch Vehicle or any payload;
1.1.10.4 Tools;
1.1.10.5 Electronics, computers, and communication equipment;
1.1.10.6 Materials used in the construction of the Facility;
1.1.10.7 Fuel for the Launch Vehicle or for any payload; and
1.1.10.8 Any item not consumed on a regular and routine basis.
1.1.11 "Duty or duties" shall mean any tariff, duty, impost, levy,
fee, royalty, payment, subscription, tax or any other charge upon imported
or exported goods or services.
1.1.12 "EIA" shall mean the Environmental Impact Assessment required
under the laws of Guyana and the terms of this Agreement.
1.1.13 “EPA” shall mean the Guyana Environmental Protection Agency.
1.1.14 “FAA” shall mean the Federal Aviation Administration of the
U.S. Department of Transportation.
1.1.15 "Facility" shall mean the space launch facility which is the
subject matter of this Agreement, and shall include the Primary Site, the
Remote Site, the Additional Buffer Area, all Facility Equipment, and the
Infrastructure.
1.1.16 "Facility Equipment" shall mean all equipment, fixtures, buildings,
structures and all other improvements whatsoever at the Facility, whether
attached or not.
1.1.17 "Force Majeure" shall mean any cause not due to the fault, negligence,
or inaction of a Party, and beyond the reasonable control of that Party.
Examples of force majeure include, but are not limited to, Acts of God;
fire; unavoidable accidents; civil war or conditions arising out of or
attributable to war (declared or undeclared); floods, storms, earthquakes,
and other natural disturbances; and insurrections, riots, and other civil
disturbances.
1.1.18 "Government" shall mean the Government of the Cooperative Republic
of Guyana and all branches, divisions, political sub-divisions, instrumentalities,
authorities, and agencies thereof.
1.1.19 "Guyana" shall mean The Cooperative Republic of Guyana, including
its Government.
1.1.20 “Hereof,” “Herein,” “Hereto” and “Hereunder” and similar expressions
mean and refer to this Agreement and not to any particular Article.
1.1.21 "Infrastructure" shall mean all structures and improvements
relating to or connected with the Facility and Facility Equipment, including,
but not limited to, any type of the following: (a) employee housing; (b)
public welfare facilities (including, but not limited to, medical, educational
and recreational facilities); (c) power, water and sewerage facilities
(including, but not limited to, natural water, hydro-electric and/or thermal
power generating facilities, hydro-electric stations, transmission and
power lines, and/or other power facilities, dams, aqueducts, water drains,
water supply and sewerage systems, pumping stations and systems for disposing
of plant waste and sewage); (d) processing, storage and repair facilities,
engines, machines, furnaces, compressor stations; (e) administrative, laboratory
and research facilities; (f) transportation facilities (including, but
not limited to, roads, bridges, railroads, airports, landing strips and
landing pads for aircraft and/or helicopters, hangars and other airport
facilities, garages, canals, aerial tramways, pipelines, docks, harbors,
piers, jetties, breakwaters, terminal facilities and warehouses and loading
and unloading facilities); (g) communication facilities (including, but
not limited to, telephone, telegraph, radio, satellite, television and
telecommunications or other transmission facilities); and, (h) all other
movable and non-movable facilities and equipment affixed to, used as an
integral part of or used in relation to or in connection with the items
described in (a) through (g), inclusive.
1.1.22 "ITAR" shall mean the International Traffic in Arms Regulations
that implement the AECA and which are codified at 15 CFR Part 30 et seq.
1.1.23 "Launch Vehicle" shall mean any space launch vehicle including,
but not limited to, the Beal BA-2 commercial space launch vehicle.
1.1.24 "Law" shall mean any constitution, law, statute, decree, rule,
regulation, judicial act or decision, judgment, order, proclamation, directive,
executive order or other sovereign act of Guyana.
1.1.25 “Licensed Launch Activity” or “Licensed Launch Activities”
shall have the definition contained in 14 CFR §440.3, as amended.
However, notwithstanding anything in the foregoing regulation to the contrary,
a Licensed Launch Activity shall be deemed to begin only when a Launch
Vehicle is on the launch pad and has been fully fueled.
1.1.26 “Legal Goods” shall mean any goods brought into Guyana
by Beal or its Associates for construction, maintenance, or operation of
the Project or the Facility, including all Day-To-Day Consumables, any
Launch Vehicle or components of any Launch Vehicle, and payloads for a
Launch Vehicle.
1.1.27 “Minister” shall mean the Prime Minister of Guyana.
1.1.28 "Party" shall mean any one of the signatories to this Agreement,
their successors and permitted assigns, and "Parties" means all or any
combination of them.
1.1.29 "Person" shall mean any individual, employee, partnership, joint
venture, association, corporation, company, trust, estate, unincorporated
entity, government or state, and any branch, division, political sub-division,
instrumentality, authority or agency of any government or state.
1.1.30 "Primary Site" shall mean an area of land, swamp and/or water
(but excluding any part of the Atlantic Ocean or the Waini River) comprising
approximately 25,000 acres, more or less, between the Waini River and the
Atlantic Ocean in northwest Guyana. The area shall be in the shape
of a half-circle with a radius of five (5) statutory miles, the center
point of which is on the Atlantic coast where the shoreline meets the Atlantic
Ocean, and with the flat side of the half-circle facing the Atlantic Ocean.
The approximate global coordinates of the center point shall be N 08°
12' 611", W 059° 24' 075" (ref WGS84).
1.1.31 "Project" shall mean Beal's entire efforts, activities, projects
and operations in connection with the Facility and in connection with space
launch activities from the Facility, no matter where Beal's efforts, activities,
projects and operations may occur in Guyana.
1.1.32 "Remit" or “Remission”, when used with respect to any tax, shall
mean to waive such tax.
1.1.33 "Remote Site" shall mean an area of land, swamp, and/or water
comprising approximately ten (10) acres of land located along the Waini
River twenty-five (25) statutory miles southeast from the Primary Site.
The Remote Site is to be used by Beal as a radar and tracking site.
1.1.34 “Rocket Launch Facility” shall mean any and all facilities and
factories, including docks, that are used for or in conjunction with the
launching of rockets. Such facilities and factories, including docks, shall
include all things listed or described in Section 3(1) of the Guyana Factories
Act Chapter 95:02 which are used for, in conjunction with, or in connection
with, the launching of rockets. The Beal Facility and the operations
of Beal and its Affiliated Companies are specifically included within the
definition of a Rocket Launch Facility.
1.1.35 “Successful Launch” shall mean the launch of a Launch Vehicle
by Beal from the Primary Site, which places, on time and undamaged, all
spacecraft comprising the vehicle payload into the orbits specified in
the respective contracts between Beal and its Customers for each such spacecraft.
1.1.36 "Tax Authority" means any local, municipal, governmental, state,
federal or other fiscal, revenue customs or excise authority, body or official
in Guyana.
1.1.37 "Tax" or “Taxes” shall mean any and all direct and indirect
form of taxation, levy, duty, charge, contribution or impost of whatever
name (including any related fine, penalty, surcharge or interest) imposed
by a Tax Authority, including, but not limited to, corporate income taxes;
immovable property or land taxes; sales, use or value added taxes on imported
or exported goods; personal property taxes; or any other tax, charge, royalty,
fee, levy, impost, payment, subscription, charge, penalty, interest, or
any other requirement for payment.
1.1.38 "Term"shall mean the term of this Agreement as set forth in
Article 3 herein.
1.1.39 "U.S." shall mean the United States of America.
ARTICLE 2. DUTY OF GOOD FAITH AND FAIR DEALING.
Guyana and Beal recognize that this Agreement is entered into in good faith and that the success of Beal's proposed space launch facility is dependent on the co-operation of both Parties. Each Party agrees to treat the other and to act in good faith and with fair dealing in all aspects of its relationship with and obligations to the other, including those created by this Agreement. Guyana pledges its utmost cooperation with Beal in the implementation and enforcement of U.S. controls over goods, technology, and technical data used at the Facility. Each Party shall sign any additional documents, grant any additional authorizations, licenses and approvals, and take such other and further executive, administrative, or legislative actions as may be necessary to give full and complete effect to the provisions and purpose of this Agreement. This Article is intended by the Parties to create legally enforceable obligations and duties, and its importance is highlighted by its placement near the beginning of this Agreement. Wherever this Agreement requires the consent, permission, or approval of a Party, such consent, permission, or approval shall not be unreasonably withheld or delayed.
ARTICLE 3. TERM.
The term of this Agreement is ninety-nine (99) years from the date of the Agreement ("Term"), unless sooner terminated by one of the Parties pursuant to the provisions of this Agreement.
ARTICLE 4. GRANT OF RIGHTS
4.1 Launch and Other Basic Rights. Beal shall have, and Guyana hereby grants to Beal, the right to launch Launch Vehicles in and from Guyana at the Primary Site.
4.2 Incidental Rights. Subject to the terms and conditions of this Agreement, and only as necessary or desirable for the proper and efficient exercise of the rights granted to Beal under this Article 4, Beal shall have the right:
4.2.1 within the Facility, to construct, install, maintain and/or repair, at its own expense, Infrastructure, including the right to construct within the Facility such roads as Beal deems necessary or desirable to properly implement the Project which conform with substantive Law regarding safety and the environment;
4.2.2 to construct, establish and maintain roads and/or communications facilities connecting the Primary Site and the Remote Site. All such roads constructed pursuant to this Article, on land that is not owned by Beal, shall, upon completion, remain the property of Beal until the Termination of this Agreement, at which time they shall become property of Guyana. The public shall have free use of any such road on any portion of it that is not on Beal-owned land.
4.2.3 to transport goods required for, utilized in or incidental to implement the Project and the performance of the Project;
4.2.4 to plant, cut and utilize timber from the Primary Site and the Remote Site to the extent it deems necessary for the construction and maintenance of the Facility and of Infrastructure and for other Beal activities related to the Project. This activity shall not be considered to be forestry exploitation for purposes of this Agreement or under Law;
4.2.5 to take and use, free of charge, water, stones, rocks, sand, clay, gravel, and any other material within the Primary and Remote Sites which Beal may consider necessary or useful for its operations under this Agreement. This activity shall not be considered to be mining for purposes of any Law;
4.2.6 to travel between the Primary Site and the Remote Site by water or road (if Beal constructs a road connecting the two sites); and
4.2.7 to make any other use of, or to engage in any activity within, the Facility that is permitted by Law.
4.3 Exercise of Rights Beal may exercise any or all of its rights and privileges and perform any or all of its obligations under this Agreement through an Affiliated Company or the successors or assignees of an Affiliated Company.
4.4 No Mining Activities. Beal shall not engage in mining or otherwise remove natural resources from the Facility, except as provided otherwise in this Agreement.
ARTICLE 5. IDENTIFICATION AND TRANSFER OF LAND BY GUYANA TO BEAL.
5.1 Identification of Lands. Guyana shall perform a survey of the Primary Site, the Remote Site, and the Additional Buffer Area, providing written descriptions that comply with Law, and shall deliver the Survey to Beal no later than ninety (90) days after the date of this Agreement. Beal may participate in the supervision of the survey. Beal shall pay for the cost of the Survey.
5.2 Conveyances by Absolute Grant. At Closing, Guyana shall convey the Primary Site and the Remote Site to Beal, absolutely and forever, by absolute grant. Guyana shall ensure that all persons occupying any portion of the Primary Site and Remote Site have vacated it or have been relocated from it no later than by sixty (60) days after Beal delivers written notice to Guyana requesting such relocation. Guyana shall allow Beal free and complete access to and from the Primary Site and the Remote Site.
5.2.1 Restrictions regarding use of Primary and Remote Sites. The Primary and Remote Sites may be used by Beal only for the Project and related purposes as described in this Agreement.
5.2.2 Restrictions on the re-conveyance by Beal of the Primary and Remote Sites:
5.2.2.1 Guyana Approval of Sale. Beal may not sell, assign, lease or convey all or any portion of the Primary Site or the Remote Site, or any interest therein, to any Person (other than to an Affiliated Company, to which Beal may freely sell, assign, lease or convey such immovable property) without Guyana’s prior approval of such Person, which approval shall not be unreasonably withheld. Beal shall provide Guyana with ninety (90) days prior Notice of any proposed sale, assignment, lease or conveyance of such lands or interest therein. If Guyana approves or fails to object to the sale, assignment, lease or conveyance within ninety (90) days of its receipt of Notice from Beal, then Beal may proceed with such sale, assignment, lease or conveyance, unless Guyana exercises its right-of-first-refusal as provided below.
5.2.2.2 Guyana Right-of-First-Refusal.
5.2.2.2.1 Guyana shall also retain a right of first refusal to re-purchase from Beal the Primary and Remote Sites. If Beal receives a bona fide offer from a third party (other than from an Affiliated Company) for the purchase of all or any part of the Primary or Remote Sites, which offer Beal is willing to accept, Beal shall deliver written notice of the offer to Guyana, and shall deliver to Guyana a copy of the proposed contract of sale to such third party. Guyana shall have the right for ninety (90) days after the receipt of such notice to enter into a contract for the sale of the specified portions of the Primary or Remote Sites at the same price and upon the same terms as contained in the proposed contract of sale to the third party, which right of Guyana shall be paramount to the rights of the third party. Guyana shall exercise its right by providing written notice thereof to Beal. If Guyana fails to exercise any such right within the time specified, and if Guyana has not asserted a reasonable objection to the proposed Purchaser pursuant to paragraph 5.2.2.1, then Beal shall be at liberty to enter into and fulfill a contract for the sale of all or part of the Primary and/or Remote Sites with the third party at the same price and on the same terms as contained in the proposed contract of sale delivered to Guyana. The time periods for Guyana to either object to a proposed purchaser, or to exercise its right-of-first-refusal, may run concurrently.
5.2.2.2.2 Guyana’s right of first refusal shall expire after the conveyance by Beal to a third party of all or any portion of the Primary and/or Remote Sites pursuant to the preceding paragraph. Upon termination of Guyana’s right of first refusal, Guyana shall deliver to Beal a signed and acknowledged document stating that its right of first refusal has terminated and that Guyana expressly relinquishes all rights under this right of first refusal agreement.
5.3 Additional Buffer Area. Guyana shall grant to Beal a safety buffer in the form of an easement covering the Additional Buffer Area. The purpose of the safety buffer easement is to provide safety, to prevent encroachment upon the Facility, to prevent future complaints from individuals who may move near to the Facility, and to prevent any need for restrictions to be placed upon Beal's use of the Facility. The easement shall prohibit all construction, buildings, or human occupation or habitation within the Additional Buffer Area during the Term of the Agreement. Guyana shall ensure that all construction, buildings, or human occupation or habitation within the Additional Buffer have vacated it, have been relocated, or have been removed no later than one (1) year after Closing. However, Guyana may utilize the Additional Buffer Area for fishing and hunting by its citizens, and temporary structures and habitation for such purposes shall be allowed. Beal shall not have any liability for, or any responsibility for ensuring, the safety, protection, health or well-being of any person using, or for any temporary structure or habitation built within, the Additional Buffer Area
5.4 Documentation. All documents or instruments of conveyance necessary for Guyana to convey to Beal the immovable property, land, and interests in land specified above shall be in a form legally sufficient to convey title to Beal and shall be fully signed, acknowledged and in a form acceptable for recordation in the Deeds Registry in Georgetown. Such documents and instruments of conveyance shall be delivered to Beal at Closing. All such documents and instruments of conveyance shall be recorded in the Deed Registry located in Georgetown, Guyana. Pursuant to Section 3a of the State Lands Act of Guyana, all documents or instruments of conveyance to Beal shall be signed by the President of Guyana and shall otherwise conform with all applicable Law.
5.5 License to Own Land. Pursuant to Section 333 of the Guyana Companies Act, Guyana shall execute and deliver to Beal at Closing a license, signed by the President of Guyana, allowing Beal to own land within Guyana.
5.6 Easement for Road. The Government shall also grant an easement to Beal for any road constructed by Beal connecting the Primary Site to the Remote Site. Such easement shall be conveyed to Beal within sixty (60) days after Beal delivers written notification to the Government of its intention to begin construction of the road.
5.7 Reconveyance of Immovable Property to Guyana. In the event
that Beal terminates this Agreement within three years of the date of the
Agreement for any reason or for no reason as provided under Article 23.3(c),
Beal shall reconvey to Guyana the Primary Site, the Remote Site and the
easement covering the Additional Buffer Area upon reimbursement to it by
Guyana of the amounts paid by Beal for such immovable property.
ARTICLE 6. CONSIDERATION PAYABLE BY BEAL TO GUYANA.
As full and complete consideration for this Agreement and all of the rights and privileges granted to Beal herein, and as consideration for the waiver of Taxes, duties or tariffs on exports and imports, fees, and other payments by Beal to Guyana, as set forth herein, Beal shall make the following payments to Guyana and undertake the performance specified below:
6.1 Payment for Land. Beal shall pay to Guyana a one-time payment of Three U.S. Dollars (US$3.00) per acre, based upon the acreage determined by the survey, as full and complete consideration for the Primary Site and the Remote Site. The Parties estimate that the Primary Site and Remote Site contain approximately 25,010 acres. Based upon that estimate, Beal shall deliver the sum of US$75,030.00 to Guyana within thirty (30) days after the date of this Agreement. At Closing, however, Guyana shall reimburse any overpayment to Beal, and Beal shall pay any shortfall in payment to Guyana.
6.2 Payment for Easement. Beal shall pay to Guyana an annual payment of One U.S. Dollar (US$1.00) per acre, based upon the acreage determined by the survey, as full and complete consideration for the Additional Buffer Area Easement. Such annual payment shall be made to Guyana on February 28 of each year, commencing on the first February 28 following Closing
6.3 Compensation for Administrative Expenses and Fees. On February 28 of each year, commencing on the first February 28 following Closing, Beal shall pay the following sums to Guyana as full and complete consideration for all administrative expenses and fees incurred or chargeable by the Government in connection with the Project during that calendar year, including, but not limited to, the cost of stationing and housing customs and administrative officers at the Facility:
6.3.1 One Hundred Thousand U.S. Dollars (US$100,000); and
6.3.2 A graduated sum determined by the number of Successful Launches
Beal has conducted during the previous calendar year. The sum shall
be calculated as follows:
a. If Beal has no more than six (6) Successful Launches in a calendar
year - US$25,000 per Successful Launch.
b. If Beal has more than six (6) but no more than twelve (12) Successful
Launches in a calendar year - US$50,000 per Successful Launch.
c. If Beal has more than twelve (12) but no more than eighteen (18)
Successful Launches in a calendar year - US$75,000 per Successful Launch.
d. If Beal has nineteen or more Successful Launches in a calendar year
- US$100,000 per Successful Launch.
e. Notwithstanding anything in this paragraph 6.3.2 or in the Agreement
to the contrary, Beal's obligation to pay Guyana for a Successful Launch
shall not exceed one percent (1%) of the contract amount between Beal and
its Customer for any such launch.
6.4 Relocation Compensation. Guyana agrees to adequately compensate and to act equitably and humanely with regard to the individuals relocated from the Facility. Beal shall pay to Guyana the actual costs of relocating individuals from the Facility, up to a maximum total amount of Four Hundred Thousand U.S. Dollars (US$400,000) in the aggregate for all individuals so relocated. Beal shall make such payments to Guyana as Guyana incurs actual relocation expenses. Beal shall owe nothing further and shall have no further obligation to Guyana or to any person or individual for compensation, damages, or other expense or cost regarding their residence, occupation, use, building or utilization of or on any portion of the land comprising what will be contained in the Facility, and Guyana shall assume and agrees to discharge any obligations imposed upon Beal by any court, administrative body, or arbitral tribunal therefor.
6.5 Inflation. On every fifth anniversary of the date of this Agreement, all monetary amounts payable subsequent to such fifth anniversary by Beal to Guyana pursuant to this Agreement shall be adjusted for inflation based upon the U.S. Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items using the year 2000 as the base year. However, in no event shall the inflation adjustment made hereunder exceed six percent (6%) per annum.
6.6 Manner and Place of Payments. All payments due and payable by Beal to Guyana under this Agreement shall be paid by check or wire, drawn upon or from any bank of Beal’s choosing, payable to the "Government of Guyana" and shall be delivered to the Federal Reserve Bank of New York, Account No. 0210-84092, in the name of the Bank of Guyana in respect of the Accountant General of Guyana, or to such other location or bank as Guyana may hereafter notify Beal in writing.
ARTICLE 7. INSURANCE.
Beal shall maintain insurance or otherwise demonstrate adequate financial responsibility relating to Licensed Launch Activities. Such insurance or demonstrated financial responsibility shall be of the type, in the amounts, and containing the terms and conditions required by the Associate Administrator for Commercial Space Transportation of the FAA under 14 CFR Part 440. Beal shall have Guyana added as an additional named insured to the insurance policy or policies it obtains protecting the U.S. Government, and shall ensure that the terms of the financial responsibility protect Guyana to the same extent as the U.S. Government.
ARTICLE 8. EMPLOYMENT AND TRAINING.
To the maximum extent permitted by U.S. law, and in compliance with the conditions attached by the U.S. Government for the export of goods, technology, and technical data to the Facility, Beal shall make every reasonable effort to buy and employ within Guyana as follows:
8.1 Goods and Services. Beal shall give preference to purchasing goods and services from sources located within Guyana, so long as the cost, delivery, quantity, performance and quality of such goods and services are competitive with alternate sources available to Beal.
8.2 Employment. Beal shall give preference in employment to citizens
of Guyana, provided that they are suitably qualified and willing to work
at competitive wages, except in sensitive areas where they may be prohibited
from working because of U.S. export control laws and regulations.
However, notwithstanding anything in this Agreement to the contrary, Beal
shall have the right to hire technical and other key personnel of its choosing
from within or outside Guyana.
8.3 Region 1. Subject to the limitations contained in paragraphs
8.1 and 8.2, Beal may give preference in employment and to purchasing goods
and services to individuals and businesses residing or located within Region
1 of Guyana.
8.4 Training of Guyanese Work Force. Beal shall endeavor to train local workers employed by Beal to perform jobs involved in the construction, maintenance and operation of the Project.
ARTICLE 9. GUYANA GOVERNMENTAL APPROVALS.
Subject to, and with the exception of an EIA and any other necessary environmental approvals required by Law, Guyana hereby agrees to grant to, obtain for, and deliver to Beal all licenses, permits, waivers and approvals necessary for Beal to implement the Project and to exercise fully the rights granted to Beal under the Agreement, including this Article and Article 4 of the Agreement, including those required by Law from regional or municipal authorities. No right, license, permit, waiver or approval granted herein or otherwise by Guyana to Beal shall be revoked, canceled or modified by Guyana or by any public authority in Guyana during the Term of this Agreement. The promise to grant, obtain, deliver, and not cancel any or all such rights, licenses, permits, waivers and approvals is a material inducement for Beal to enter into and execute this Agreement. Except as specified below, all rights, licenses, permits, waivers and approvals necessary under Law for Beal to exercise fully its rights under the Agreement, this Article and Article 4 of this Agreement are hereby deemed granted to Beal.
9.1 Drainage and Clearing of Land. Subject to approval of the EIA and/or obtaining an interim permit from the EPA, Beal may commence draining and clearing the Primary Site and the Remote Site immediately following the date of this Agreement. Beal may construct trenches and ponds, place underground pipes and drainage systems, construct and operate pumps, construct berms, discharge excess water to rivers and surrounding land, and undertake any and all other construction and operations as it may deem necessary or appropriate to drain and clear the Primary Site and the Remote Site.
9.2 Construct and Operate a Commercial Space Launch Facility. Beal may immediately undertake, without any additional license, permit, waiver, or approval required, all actions necessary to construct and operate a commercial space launch facility, including but not limited to, construction of the Facility, employment of workers, operation of the Facility, fueling operations, space launch operations, and all other actions or operations deemed necessary or appropriate by Beal, including the following:
9.2.1 Install and operate electrical generators, system, lines and other equipment necessary to construct and operate an electrical generation and distribution system at the Facility;
9.2.2 operate telephone and other telecommunications links inside
and outside of Guyana (either direct satellite uplink access and/or connection
through Guyana Telephone & Telegraph or other telecommunications companies,
at Beal's discretion), including, but not limited to:
9.2.2.1 install and operate such communications systems as it deems
necessary for external and internal communications and communications with
Beal, an Affiliated Company and/or Associates, including, but not limited
to, radio, telecommunications, satellite networks, cellular systems, microwave
devices and other communications devices and systems;
9.2.2.2 use a number of broadcast, radar, communications and other frequencies for both domestic and international use for operations at the Facility or in connection with the Project. Beal and Government shall agree upon the specific frequencies to be assigned consistent with international regulations, the adequacy of such frequencies, and Guyana's own needs for such frequencies. Once assigned to Beal, Guyana shall not change such frequencies without good cause and after five (5) years written notice to Beal, nor shall Guyana authorize others to use such frequencies except after five (5) years written notice to Beal. Further, Guyana shall enforce frequency assignments to prevent unlawful interference with the frequencies assigned to Beal;
9.2.2.3 Guyana shall issue, obtain and deliver to Beal at Closing any and all licenses, permits and/or approvals necessary for Beal to install, construct and operate the telecommunications facilities, systems, and equipment set forth in this paragraph 9.2.2, including subparts;
9.2.3 Install and operate fuel storage systems, fuel lines, and fluid control systems;
9.2.4 Launch Launch Vehicles from the Facility (subject to the rights and obligations specified in Article 10.4);
9.2.5 Install and operate water purification, desalination and storage systems;
9.2.6 Install and operate waste disposal systems, including but not limited to, systems designed to dispose of non-hazardous wastes, human waste and hazardous wastes. Beal may dispose of such waste in any manner that complies with Law;
9.2.7 Construct and operate housing and hotels for employees, workers and visitors;
9.2.8 Construct and operate recreational facilities, such as a golf course, playing fields, nature preserves, and similar facilities;
9.2.9 Construct and operate a runway and airport at the Facility, including all landings and takeoffs;
9.2.9.1 Promptly following a request from Beal, Guyana shall issue, obtain and deliver to Beal any and all licenses, permits and/or approvals necessary for Beal to install, construct and operate the runway and airport set forth in this paragraph 9.2.9;
9.2.10 Allow aircraft owned or controlled by Beal, its Affiliated Companies, their Associates, their contractors, and/or their Customers to enter and depart Guyana's airspace and to land and take off from all airports of Guyana, in cooperation with Guyana Civil Aviation authorities, subject to approvals of flight plans as required by Law;
9.2.11 Subject to satisfying the requirements of Article 9.2.10 above, allow Beal, an Affiliated Company and/or their Associates to operate aircraft within Guyana's airspace; provided, however, that this does not constitute approval to operate a commercial aircraft service. For purposes of this Agreement, commercial aircraft service shall mean transporting for hire via aircraft passengers or cargo that are unrelated to the Project;
9.2.12 Install and operate radio and radar devices;
9.2.13 Construct and operate a dock or docks upon the Waini River to access the Primary Site and/or the Remote Site, subject, however, to the Government’s approval of the location of any dock located anywhere outside of the Primary Site or the Remote Site. Guyana shall issue, obtain and deliver to Beal at Closing any and all licenses, permits, orders and/or approvals necessary for Beal to install, construct and operate such dock(s), to bring any and all ships to such dock(s), and to load and offload cargo at such dock(s);
9.2.14 Create a port of entry at the Facility, including any dredging in Guyana waters or maintenance of waterways to ensure navigability that may be necessary or appropriate;
9.2.15 Farm and grow foodstuffs within the Facility for consumption by Beal and/or its Associates;
9.2.16 Construct and operate medical facilities on the Facility, and render medical treatment at the Facility. Medical personnel licensed abroad shall be permitted to practice at the Facility, subject to the sole requirement that they register with the appropriate professional organizations, if required by Law;
9.2.17 Construct and operate rocket engine test facilities at the Primary Site, and test rocket engines at the Primary Site;
9.2.18 Construct and operate the Facility, including all Infrastructure; and
9.2.19 Operate aircraft, boats, cars, trucks, and other motorized equipment on the Primary Site, the Remote Site, and any other property owned by Beal.
9.3 Customs, Customs Duties, Tariffs, and Immigration.
9.3.1 Guyana may place a customs and/or immigration officer(s) at the Facility as soon as Beal provides Notice to Guyana that it intends to import goods or bring non-citizens of Guyana to the Facility. Such officer(s) shall remain at the Facility for so long as necessary, after which they shall be removed.
9.3.2 In light of the material adverse business impact that would result to Beal and its Customers if goods are delayed in customs, Guyana agrees that all Legal Goods shall be cleared through customs expeditiously. Therefore, Legal Goods entering Guyana shall be cleared through customs within twelve (12) hours of arrival at the Facility. If any Legal Goods have not been cleared through customs within twelve (12) hours of arrival at the Facility because of a Force Majeure event or any reason outside of the control of Beal, then such goods shall be deemed cleared. In such case, Beal shall maintain a record of all such goods that are deemed cleared through customs and shall provide a copy of such record to Guyana's customs office at the Facility at the earliest reasonable opportunity. Payloads shall be cleared through Customs immediately upon arrival within Guyana. No customs inspection shall be permitted of any technical items or data if such inspection is objected to or prohibited by the U.S. Government.
9.3.3 Any goods that Beal brings into Guyana through a customs office other than at the Facility shall be cleared in the normal times and procedures applicable at such customs office.
9.3.4 All Beal Associates may enter Guyana at the dock or airstrip at the Facility, which Guyana hereby officially designates as a Port of Entry. If Guyana desires for such persons to pass through immigration, then Guyana shall place an immigration officer at the Facility. Any Associate not allowed through immigration within two (2) hours shall be deemed admitted into Guyana.
9.4 Security.
9.4.1 Security Service. Beal may operate its own private security service at the Facility or may hire a contractor to provide security services, including, but not limited to maintaining law, order and security, with power of detention (any detained person to be handed over to the appropriate Government authority as soon as practicable). Subject to the approval of the competent authority as designated by Law, Beal's security service or security contractor may carry and use firearms. Beal is authorized to import and export firearms, other weapons, and ammunition for its security service without tax, duty, or charge of any nature, subject to approval being granted by the Commissioner of Police. Guyana shall deliver all such necessary approvals to Beal at Closing.
9.4.2 Security Fences. Beal may construct security fences around the Primary Site and/or the Remote Site as it deems necessary to secure the Facility. Such fences shall not be electrified and shall conform to Law.
9.5 Responsibility for Ensuring Clear Guyana Airspace, Waters and Ground.
9.5.1 Beal shall deliver a Notice to the Minister and publish a notice to mariners and to airmen at least seventy-two (72) hours before the launch of any space Launch Vehicle from the Facility. It shall be the duty and responsibility of Guyana to ensure that Guyana airspace, waters and grounds around and downrange of the Facility are cleared, free from interference, and safe to conduct launches, in accordance with FAA requirements. If Guyana fails or is unable to fulfill its duty and responsibility, then Beal may take such actions as it deems appropriate to ensure that airspace, waters and grounds are clear, free from interference, and safe to conduct launches in accordance with FAA requirements.
9.5.2 It shall be the duty and responsibility of Guyana to take such steps and actions as might be necessary to make the Facility a restricted area and off-limits to all persons except those authorized by Beal. Beal may take such actions as it deems appropriate to ensure that no unauthorized persons enter the Facility.
9.5.3 Beal has apprised itself of the status, capabilities, and resources of Guyana's military and Coast Guard. If Beal desires greater capabilities and resources than those that are currently available, then Beal may make suitable financial arrangements with Guyana to obtain and deploy such additional capabilities and resources. Nothing in this section, however, shall impose any duty upon Beal to obtain, upgrade or improve any of Guyana's capabilities or resources.
9.5.4 Guyana shall also restrict the airspace over the Primary Site in order to prevent any aircraft from over-flying it at any time. Notwithstanding anything in this paragraph to the contrary, Guyana shall permit aircraft owned by or approved by Beal to over-fly the Primary Site and any time.
9.6 Work and Residence Permits. Guyana shall grant work and residence permits and visas (if necessary), promptly following the delivery to Guyana of the normal applications and other paperwork, for Beal's Associates. Such work and residence permits and visas shall be deemed granted seven (7) days after the delivery of applications therefore to Guyana. In the event of emergencies, Guyana shall process work permit applications within twenty-four (24) hours after delivery of the applications to it. Guyana shall not impose or require any limitation in the numbers, percentages or categories (or in any other manner whatsoever) of foreign Associates at the Facility or at any Beal location within Guyana. Guyana hereby exempts Beal and its Associates from any requirements for work permits or visas for any Associate who enters Guyana for less than forty-five (45) consecutive days. Guyana shall charge Beal its standard fee for any such work or residence permits or visas.
9.7 Access into Guyana. Beal shall have ingress and egress rights, dock rights and landing rights at all ports of entry and all airports within Guyana. Beal shall have the sole and exclusive right of control and access to any dock or airport which it might construct or operate in, on, or, in the case of a dock, adjacent to, the Facility.
9.8 Currency and Bank Account Issues. Beal and its non-Guyanese Associates may open bank accounts in their respective names in and outside Guyana. Beal may pay non-Guyanese Associates in either Guyana or foreign currency. Beal shall have no obligation to bring foreign currency into Guyana. Beal and its non-Guyanese Associates shall be entitled to receive funds outside of Guyana for activities conducted on and from the Facility, and shall have no obligation to bring any portion of such funds into Guyana. Beal's non-Guyanese Associates, and their non-Guyanese employees, shall have the same rights as Beal that are described in this Article 9.8.
9.9 Other Land. Beal may acquire by deed or lease, and may operate, offices, residences, lodgings, storage facilities, apartments, maintenance facilities and any other land in any location in Guyana that Beal may require subject to Law and to the same extent as any Guyanese corporation. Guyana shall grant to Beal any license that is required by Law in order for Beal to own or hold such land. Beal may sell, lease or otherwise dispose of any land that it might acquire.
9.10 Professional Licenses. Beal may hire, retain, and employ expatriate professionals exclusively for its own use. If such professionals are duly licensed to practice their professions in another country, they shall not be required to obtain licenses in Guyana, but shall register with the appropriate private professional organizations, if required by Law.
9.11 All Other Approvals. With the exception of approval of an EIA and any other necessary environmental approvals required by Law, all other necessary or required licenses, permits, waivers, approvals or grants relating to or connected to the Project and not otherwise specified herein are hereby granted by Guyana to Beal. Beal shall not be required to obtain any further governmental approvals in order to operate, construct or dispose of any aspect of the Project or the Facility.
9.12 Compliance with Guyana Law. Beal shall operate the Facility in conformance with this Agreement and the laws of Guyana, including all building laws, regulations, codes, health, safety and environmental standards of Guyana that are applicable to Beal as of the date of the Agreement.
ARTICLE 10. U.S. GOVERNMENT APPROVALS.
10.1 Compliance with U.S. Export Requirements. Guyana acknowledges and agrees that some or all of the goods, technology, and technical data used by Beal at the Facility pursuant to this Agreement in connection with the Project are subject to the U.S. export control regime, including, but not limited to, the AECA, the Export Administration Regulations, the International Traffic in Arms Regulations (“ITAR”), and the Missile Technology Control Regime (“MTCR”) (collectively, the "Export Regulations"). In addition, Guyana recognizes and acknowledges the U.S. Department of State may require Guyana and/or Beal to enter into and execute a Technology Transfer Control Plan (“TTCP”) that is satisfactory to the U.S. Department of State. Accordingly, Guyana agrees that it shall take every measure necessary or appropriate to ensure total compliance with the Export Regulations and any TTCP, and that such restricted goods, technology, and technical data, or any direct product thereof, are not released to any other person or entity in violation of the Export Regulations or any TTCP.
10.2 Export Security Requirements. Guyana recognizes the legitimate need that the U.S. Government has to protect the goods, technology, and technical data used at the Facility. Therefore, if required by U.S. law or regulation, or required or requested by a U.S. government agency, Guyana consents to the presence at the Facility of security personnel, composed of up to ten (10) individuals in the employ of or engaged by the U.S. Government, unless an increase in the number of such individuals is authorized by Guyana.
10.3 Guyana’s Access to the Facility. Guyana recognizes and acknowledges that its access to the Facility, and to any goods, technology, or technical data used at the Facility, shall be limited or restricted in order for Beal to comply with the Export Regulations and other applicable U.S. laws and regulations. Guyana agrees to abide by any restrictions or requirements imposed by the U.S. Government, and any of its agencies, departments or other authorities, regarding the Facility and/or Beal's use thereof, including but not limited to restrictions upon Guyana's ability to have access to any portions of the Facility or any goods, technology, or technical data owned by or in the possession of Beal or Beal's Associates. Subject to the foregoing, the Government shall have access to the Facility at all reasonable times to exercise its legitimate governmental powers authorized by Law. Guyana agrees that it shall not exercise its right of access or powers of inspection in a manner that will interfere with Beal's business or operations at the Facility, or in violation of restrictions imposed on Beal by the U.S. Government.
10.4 FAA Licenses. Beal shall obtain all required launch flight licenses from the FAA before it may launch any Launch Vehicle from the Facility. Beal shall deliver a copy of the cover page of such license (or other short document evidencing the issuance of a launch license from the FAA) to the Minister before the launch covered by the launch license, unless the license was received by Beal twelve (12) hours or less before the scheduled launch. For purposes of this Article 10.4 only, Beal may deliver the required documents to the Minister by fax without the necessity of a signed or written verification of receipt.
ARTICLE 11. CONDITIONS.
11.1 U.S. Government Approvals. The obligations of Beal under this Agreement are made expressly conditional upon Beal obtaining all necessary approvals, licenses, waivers and permits from the U.S. Government. Such approvals, licenses, waivers and permits include, but are not limited to, obtaining a launch license from the FAA and obtaining the appropriate export licenses from the U.S. Departments of State and Commerce. Beal shall apply for and use all reasonable efforts to obtain all such necessary approvals, licenses, waivers or permits. Guyana shall fully cooperate with Beal in its efforts to obtain such approvals, licenses, waivers and permits. If Beal is unable to obtain such approvals, licenses, waivers or permits in a timely manner, then this Agreement is terminable at Beal's option, which Beal may exercise by delivering written Notice thereof to Guyana, and Beal shall have no further obligations hereunder.
11.2 EIA Approval. Beal shall obtain an EIA at its own cost and deliver it to the EPA. Guyana shall satisfy itself as to any and all environmental issues with regard to the Project and all of the operations involved in it. The EIA, together with any mitigation factors and conditions specified therein, must be approved by Guyana before Beal may commence launch operations at the Facility. Beal may, however, commence preparatory work at the Facility upon obtaining an interim permit to do so from the EPA. If Guyana does not approve the EIA within six (6) months after its completion and delivery to Guyana, then this Agreement is terminable at Beal's option, which Beal may exercise by delivering written notice thereof to Guyana, and Beal shall have no further obligations hereunder.
11.3 Political Risk Insurance. This Agreement is conditional upon Beal being able to obtain Political Risk Insurance, from a source, in a form, and providing coverage that are acceptable to Beal, if Beal applies for such insurance. If Beal does apply for such insurance, Beal shall use its best efforts to obtain such insurance, and Guyana shall fully cooperate with Beal, use its best efforts, and take such further actions as might be necessary to enable Beal to obtain such insurance. If Beal applies for but is unable to obtain political risk insurance, then this Agreement is terminable at Beal's option, which Beal may exercise by delivering written notice thereof to Guyana, and Beal shall have no further obligations hereunder.
ARTICLE 12. NO NATIONALIZATION OR CONDEMNATION OF THE FACILITY.
12.1 Nationalization or Condemnation. Guyana agrees that it shall not take, nationalize, expropriate, confiscate, condemn, or acquire through eminent domain or by governmental or judicial action any of Beal's property, including immovable, personal, tangible, and intangible property at or related to the Facility or the Project.
12.2 Effect of Arbitral Decision. If any court or arbitral tribunal, whether constituted pursuant to the arbitration provisions of this Agreement or otherwise, ever determines or issues an award that (a) Guyana did take, nationalize, expropriate, confiscate, condemn, or acquire through eminent domain or by any executive, legislative, or judicial action all or any portion of Beal's property, including immovable, personal, tangible, and intangible property, or that (b) any of the rights or interests of Beal, including rights and interests granted, authorized, or provided for under this Agreement, have been altered, modified, or otherwise taken, then such court or arbitral tribunal shall award full, fair and prompt compensation for any such loss which shall include both actual damages and lost profits.
ARTICLE 13. RIGHT TO DESTROY OR REMOVE FACILITY.
Upon termination of this Agreement, the frustration of the purpose of this Agreement, or Beal's cessation of operations at the Facility, Beal shall have the right, but shall not be required, to destroy or remove any and all materials, supplies, Infrastructure, and improvements from the Facility. If requested to do so by the U.S. Government, Guyana agrees to enter into and sign a three-party agreement with the U.S. Government and Beal, in a form that is mutually acceptable to Guyana, the U.S. Government and Beal, granting to the U.S. Government the same right to destroy or remove any and all materials, supplies, Infrastructure and improvements if Beal elects not to destroy or remove such materials, supplies, Infrastructure, or improvements.
Notwithstanding anything in the foregoing provision to the contrary, Beal may remove but shall not destroy any housing, hotel buildings, roads, electrical power distribution systems, water distribution systems, sewage treatment and removal systems, runways, docks, and outdoor recreational areas, if not required to destroy them by the U.S. Department of State.
Notwithstanding anything to the contrary in this Article, Beal shall remove any and all hazardous materials in the event of termination of this Agreement, the frustration of the purpose of this Agreement, or Beal's cessation of operations at the Facility.
ARTICLE 14. TAXES.
14.1 Tax Exemption. Guyana acknowledges and agrees that it accepts the covenants and obligations made by Beal in this Agreement in lieu of, and as payment in full of, all taxes and charges that would otherwise be payable by Beal, its Affiliated Companies, and its Customers, during the term of this Agreement. During the Term of this Agreement, Beal, its Affiliated Companies, and its Customers shall not pay any Tax to or charge by Guyana, except as expressly stated in this Agreement. Such taxes include but are not limited to corporation, income, capital gains, property, and withholding taxes. At Closing, Guyana shall issue and deliver to Beal the following two letters:
14.1.1 a letter signed by the President of Guyana remitting the taxes under Section 105 of the Guyana Income Tax Act, Chapter 81:01. Such letter shall be in the form of the letter which is attached hereto as Attachment A and which is incorporated in this Agreement fully by reference; and
14.1.2 a letter signed by the Minister of Finance of Guyana pursuant to Section 6(1) of the Financial Administration and Audit Act, and all other applicable laws of Guyana, remitting all of the aforementioned taxes, except taxes remitted under Section 105 of the Income Tax Act, Chapter 81:01. Such letter shall be in the form of the letter which is attached hereto as Attachment B and which is incorporated in this Agreement fully by reference.
14.2 Duties and Tariffs. During the Term of this Agreement, Guyana shall not impose upon Beal or upon Beal's Associates, and Beal and its Associates shall be exempt from and shall not be required to pay, any consumption tax, duty or tariff on goods or services, including household goods, with the sole exception of duties and consumption taxes upon food and other Day-to-Day Consumables. All such duties, consumption taxes, and tariffs are hereby remitted. With regard to food and other Day-to-Day Consumables, Beal and its Associates shall pay the lowest duties, consumption taxes, or tariffs charged in Guyana to any Guyanese individual or business entity, or to any non-Guyanese individual or business entity doing business in Guyana.
14.3 No Taxes on Launch Service Agreements or Launch Services. Subject to Article 6.3.2, but notwithstanding anything else in this Agreement to the contrary, Guyana shall not impose upon or charge Beal, its Associates, its Affiliated Companies, or its Customers, any Tax upon any Launch Related Activities, any Launch Service Agreement between Beal and any of its Customers, or any launch service rendered by Beal or received by any of its Customers. All such taxes are hereby remitted.
14.4 Income Taxes on Beal Employees.
14.4.1 Beal’s Guyanese employees shall pay income taxes pursuant to
Guyana’s regular tax regime applicable to all Guyanese individuals.
14.4.2 Beal’s non-Guyanese employees shall pay income taxes on income
earned in Guyana pursuant to Guyana’s regular tax regime and shall not
be treated in a discriminatory manner.
14.6 Irrevocable Commitments. Guyana’s covenants, commitments, and obligations under this Article 14, including all subparts, are irrevocable and shall remain in full force and effect for the duration of the Agreement, including the exercise of any remedies under the Agreement by Beal.
ARTICLE 15. REPRESENTATIONS AND WARRANTIES BY THE PARTIES.
The Parties make the following express representations and warranties to each other, which supplement and add to any representations and warranties contained elsewhere in this Agreement:
15.1 Beal's Representations and Warranties. Beal hereby represents and warrants to Guyana and acknowledges that Guyana is relying upon such representations and warranties:
15.1.1 that it will register in Guyana as a foreign company (but only for purposes of performing under this Agreement), is validly subsisting as a company in good standing under U.S. law, and is duly licensed and qualified in all jurisdictions wherein the nature of its assets or the business transacted by it makes such licensing or qualification necessary;
15.1.2 that it has the power to own its assets, carry on its business as conducted as of the date hereof, and to enter into and perform its obligations under this Agreement;
15.1.3 that this Agreement has been dully authorized, executed and delivered by it and constitutes a valid and binding obligation enforceable against it in accordance with its terms;
15.1.4 that the execution, delivery and performance of this Agreement does not violate any provisions of any agreement or other instrument to which it is a party or by which it is bound or be in conflict with, result in a breach of, or constitute a default under any such, agreement or other instrument or, except as provided for herein, result in the creation or imposition of a lien, charge or encumbrance of any nature whatsoever upon any of its property or assets;
15.1.5 that there are no suits or proceedings pending, or to its knowledge threatened, in any court or before any regulatory commission, board or other administrative governmental agency against or affecting it which will have a material adverse effect on its financial condition or business;
15.1.6 it has not committed any act of bankruptcy, is not insolvent, has not proposed a compromising arrangement to its creditors generally, has not had any encumbrancer take possession of any of its property and has not had any execution or distress become enforceable upon any of its property; and
15.1.7 that it shall abide by and to comply with all orders and awards made by an or provisional awards as provided for under Article 24.6, and final awards.
15.2 Guyana Representations and Warranties. Guyana hereby represents and warrants to Beal and acknowledges that Beal is relying upon such representations and warranties:
15.2.1 it has duly obtained all such authorizations as may be necessary for the execution, delivery and performance of this Agreement;
15.2.2 that this Agreement has been duly authorized, executed and delivered by it and constitutes a valid and binding obligation enforceable against it in accordance with its terms;
15.2.3 that the execution, delivery and performance of this Agreement does not violate any provisions of any agreement or other instrument to which it is a party or by which it is bound or be in conflict with, result in a breach of, or constitute a default under any such indenture, agreement or other instrument;
15.2.4 that a site is located within Guyana that is suitable for Beal’s requirements for a commercial space launch facility;
15.2.5 that it has signed and ratified all treaties, conventions and other documents necessary to give full effect to the submission to arbitration set forth in Article 24 and that such submission is binding and enforceable against Guyana;
15.2.6 that it has the authority to grant in this Agreement all of the licenses, permits, waivers and approvals contained in this Agreement or to authorise Beal to exercise fully any of its rights set forth in this Agreement without such licenses, permits, waivers or approvals;
15.2.7 that nothing in this Agreement, or action by Beal allowed or contemplated by this Agreement, conflicts with or is prohibited by any Law or by the Constitution of Guyana;
15.2.8 that it will relocate all families and households from the Primary Site and the Remote Site no later than by sixty (60) days after Beal delivers written notice to Guyana requesting such relocation; and
15.2.9 that it will relocate and remove all construction, buildings, or human occupation or habitation within the Additional Buffer Area no later than one (1) year after Closing pursuant to the terms of Article 5.3.
15.3 Covenants of Guyana. Guyana hereby covenants to Beal:
15.3.1 that Guyana will ensure that Beal's rights under this Agreement are not affected by any action of Guyana (including, without limitation, the passage of any new Law or regulation) which would (i) materially diminish the value of, or materially impair or adversely affect the operation of the Project in a manner or to an extent which is materially different than the effect of such action on other businesses generally in Guyana, or (ii) annul, amend, revoke or modify the provisions of, or prevent, hinder or interfere with the due and effective performance of the terms of this Agreement;
15.3.2 that it shall abide by and to comply with all orders and awards made by an Arbitral Tribunal constituted pursuant to this Agreement, including but not limited to, interim or provisional awards or recommendations as provided for under Article 24.6, and final awards; and
15.3.3 if the rights of Beal under this Agreement are materially breached, materially denied or materially diminished by the action or inaction of any person or persons in Guyana through a breach of Law, Guyana will take all reasonable actions to obtain the compliance of such person or persons with such Law.
ARTICLE 16. INDEMNITY.
To the fullest extent permitted by Law, Beal shall indemnify, defend and hold Guyana harmless from and against any and all damages, claims, demands, suits, causes of action, judgments, and costs thereof, including reasonable attorney fees and expenses, for or on account of damage to property of any person, firm, corporation or governmental agency, or death of or injury to any person or persons, to the extent arising out of and caused by any Licensed Launch Activity conducted by Beal in connection with the Project at the Facility.
ARTICLE 17. FORCE MAJEURE.
In the event of either Party, being rendered unable, in whole or in part, by Force Majeure to carry out its obligations under this Agreement, such Party shall give Notice of the particulars of such Force Majeure in writing to the other Party as soon as practicable after the occurrence of the cause relied on. The obligation of the Party giving Notice, insofar as it is affected by such Force Majeure, shall be suspended during the continuance of any inability so caused, but for no longer period, and such inability shall as far as practicable, be remedied with all reasonable dispatch. All time periods specified in this Agreement for the performance of obligations or the enjoyment of rights that are affected by Force Majeure shall be extended by the period of time the inability caused by such Force Majeure exists. Sixty (60) days after giving Notice to Guyana, Beal shall have the right to terminate this Agreement without further obligations or costs to Guyana (except for obligations and costs that accrued prior to the commencement of Force Majeure) if a condition of Force Majeure has existed for a period of one (1) year or more which renders the Project or its operations impracticable or unprofitable, or prevents launches, or prevents the exercise of a substantial part of Beal's rights under this Agreement.
ARTICLE 18. EVENTS OF DEFAULT.
A Default shall be deemed to have occurred if:
18.1 Default by Beal. With regard to Beal, only if one or more of the following events occurs:
18.1.1 It commits a material breach of this Agreement and fails to cure such breach within sixty (60) days after receiving written notice from Guyana (however, if the breach cannot reasonably be cured within such sixty (60) day period, then Beal shall have such longer period of time as is reasonably necessary or required to cure such breach); or
18.1.2 It is adjudicated to be bankrupt by a court of competent jurisdiction.
18.2 Default by Guyana. With regard to Guyana, only if one or more of the following events occur:
18.2.1 It commits a material breach of this Agreement and it fails to cure such breach within sixty (60) days after receiving written notice from Beal (however, if the breach cannot reasonably be cured within such sixty (60) day period, then Guyana shall have such longer period of time as is reasonably necessary or required to cure such breach); or
18.2.2 It engages in any course of conduct that results in the defeat of any of the essential purposes of this Agreement or of any material term of this Agreement.
18.3 Effect of Force Majeure. Notwithstanding anything in the foregoing to the contrary, neither Party shall be in default if the action of the Party, failure to perform by the Party, or delay in performance by the Party that would otherwise constitute the default was caused by Force Majeure.
ARTICLE 19. REMEDIES IN THE EVENT OF DEFAULT.
19.1 Notice. Upon a default of this Agreement by either Party, the non-defaulting Party shall provide the defaulting Party with written Notice of such default and the opportunity to cure or remedy the default.
19.2 Remedies.
19.2.1 If a default by Beal occurs, then Guyana’s sole remedies shall be either to seek specific performance of this Agreement or damages from Beal through an arbitration proceeding as set forth in Article 24 herein.
19.2.2 If a default by Guyana occurs, then Beal shall be entitled to seek specific performance of this Agreement, to seek damages, or to terminate this Agreement by sending a Notice of termination to Guyana. In the case of termination, the termination shall be effective sixty (60) days from the delivery of such written Notice of termination.
19.3 Damages. Either in addition to or in lieu of any other remedy available under this Agreement, the non-defaulting Party shall have the right to recover damages incurred as a result of the default by the defaulting Party. Such damages shall only be recoverable through an arbitration proceeding as set forth in Article 24 herein. The damages permitted under this Article 19 may include, at the arbitrators' discretion, compensation for nationalization, expropriation, confiscation, condemnation, or invocation of eminent domain of property at the Facility.
19.4 Right to Arbitration. Notwithstanding the foregoing, if a Party receiving Notice of default or termination disputes whether there has been a default or whether grounds for termination exist, the allegedly defaulting Party may seek resolution of such dispute by instituting arbitration proceedings in accordance with Article 24 herein, in which case the termination shall not be effective or occur unless and until authorized by arbitral award.
19.5 Remedies are Cumulative. Any remedies specified herein are
cumulative and additional to any other remedies provided in the Agreement,
in Law, or in equity, unless expressly stated otherwise.
ARTICLE 20. ASSIGNMENT.
20.1 No assignment by Guyana. Neither this Agreement nor any of the rights, covenants, duties, or obligations contained in it may be assigned by Guyana without Beal's prior express written consent.
20.2 Assignment by Beal. Beal may freely assign this Agreement and its rights, covenants, duties, and obligations contained herein, in whole or in part, to one or more of its existing or future related, Affiliated, subsidiary, successor, or parent companies. Beal may make no other assignment of this Agreement or of its rights, covenants, duties, and obligations contained herein without the express written consent of Guyana.
ARTICLE 21. NOTICES.
21.1 Manner of Communication.
21.1.1 All orders, approvals, declarations and/or notices of any kind required, expressly authorized or provided under this Agreement, including Notices pertaining to or during arbitration (hereinafter each referred to as a "Notice"), between Guyana and Beal shall be in writing delivered by hand, by postage prepaid mail, by fax, or by any other means of communication agreed upon in writing by the Parties. Any Notice sent by Guyana shall be signed on behalf of Guyana by the Minister, or his or her duly authorized designee.
21.1.2 A delivery of a Notice to a Party shall be deemed to have occurred only if written and signed verification of receipt of the Notice has been obtained from the Party to whom the Notice is being delivered, except as expressly stated otherwise in this Agreement. IN THE CASE OF BEAL, SUCH VERIFICATION OF RECEIPT OF THE NOTICE MUST BE SIGNED BY ANDREW BEAL, PERSONALLY, OR HIS DESIGNEE APPOINTED BY HIM BY A WRITING SIGNED BY HIM. In the event of Andrew Beal’s death or disability declared by a court of law, verification of receipt of Notice may be signed by his legally appointed successor. Neither Party may intentionally withhold providing a signed verification of receipt of Notice for the purpose of frustrating the effectiveness of the delivery of such Notice.
21.1.3 All Notices from Guyana to Beal shall be sent or
delivered to the following addresses:
Beal Aerospace, L.L.C.
8000 Dallas N. Parkway
Frisco, Texas 75034
ATTENTION: ANDREW BEAL, PRESIDENT
21.1.4 All Notices from Beal to Guyana shall be addressed as follows:
The Prime Minister
Office of The Prime Minister
Wights Lane
Georgetown, Guyana
21.2 Change of Address. Either Party may, upon prior Notice to the other Party, at any time, change the designation of the Person named to receive Notices from the other Party, the address and/or facsimile number of the office in Guyana and the United States authorized to receive such Communications. However, any change of Beal’s designation of the Person authorized to receive Notices on its behalf may be accomplished only by a Notice signed by Andrew Beal.
ARTICLE 22. CHOICE OF LAW.
Subject to Article 24 (Arbitration), this Agreement shall be governed by and construed in accordance with the laws of Guyana that are not inconsistent with the terms of this Agreement or with international law, and are in effect as of the date of this Agreement without reference to subsequent amendments or changes, including amendments to Guyana’s Constitution or adoption of a new Constitution.
If any Law or order of Guyana is applied in a way which adversely affects any property rights, contract rights, acquired rights, or other economic interest of Beal under this Agreement and results in loss or damage to Beal, Guyana shall indemnify and hold harmless Beal from such loss and damage.
ARTICLE 23. TERMINATION.
23.1 Expiration of Term. Unless otherwise terminated pursuant to this Article 23, this Agreement shall terminate upon the expiration of the Term as set forth in Article 3 herein.
23.2 Termination by Guyana. This Agreement may be terminated by Guyana only in the event that: 1) an arbitration award of damages or specific performance is entered in favor of Guyana on the basis of an express written finding of the Arbitral Tribunal that Beal committed a material breach of a material term of this Agreement, and 2) Beal fails to pay the damages or begin the specific performance awarded by the Arbitral Tribunal within sixty (60) days of delivery of Notice of such award by the Arbitral Tribunal to Beal. Guyana may exercise this termination option by providing thirty (30) days written Notice to Beal following the expiration of the foregoing sixty day period. If Beal pays the damages or initiates the specific performance awarded during the thirty (30) day Notice period, then the termination by Guyana shall be ineffective.
23.3 Termination by Beal. Beal may terminate this Agreement: a) because of a Force Majeure pursuant to the conditions stated in Article 17; b) pursuant to Article 19 as a result of default by Guyana that has not been cured or remedied within the specified time; c) at its sole option, for any reason or no reason, on or before the third anniversary of the date of the Agreement by providing Guyana with thirty (30) days written notice; d) pursuant to Article 11.1 if it is unable to obtain any necessary approval, license, waiver or permit from the U.S. Government or any of its agencies; e) pursuant to Article 11.2 if both Parties do not approve the EIA within six (6) months after delivery of the EIA to Guyana; f) pursuant to Article 11.3 if it is unable to obtain political risk insurance acceptable to it; g) if the Parties are not able to agree as to the description of the lands to be conveyed by Guyana to Beal pursuant to Article 5.1; or h) if any event occurs or situation arises which would defeat the purpose of this Agreement.
If Beal terminates this Agreement under this Article 23.3, it shall have no further obligations under this Agreement.
ARTICLE 24. ARBITRATION.
24.1 Negotiation at First Instance. If any controversy or dispute arises between the Parties to this Agreement arising out of or relating to the Agreement, or any aspect of the relationship between the Parties, brought about by the formation, performance or enforcement of this Agreement (a “Dispute”), then each Party shall appoint persons (not to exceed three persons per Party) who shall be designated with authority to negotiate on that Party’s behalf, and to conduct such negotiations toward resolving the Dispute in good faith for a period not to exceed sixty (60) days. However, a Party may institute proceedings for Provisional Measures pursuant to Article 24.6 prior to the expiration of such sixty (60) day period, although the Parties shall still conduct negotiations toward resolving the Dispute in good faith as provided in this Article during such proceedings.
24.2 UNCITRAL Arbitration. If a Dispute is not resolved as contemplated under Article 24.1 hereof, the Parties hereby consent to submit all Disputes to be settled by arbitration according to the UNCITRAL Arbitration Rules in effect as of the date of this Agreement (the "UNCITRAL Rules"). To extent that the UNCITRAL Rules might differ from any provision of this Agreement, then the provision of this Agreement shall prevail. The language of the arbitration shall be English.
24.3 Constitution of Tribunal. Any arbitral tribunal constituted pursuant to this Agreement (the “Arbitral Tribunal”) shall consist of three arbitrators, one appointed by each Party to the Dispute, and an arbitrator, who shall be President of the Arbitral Tribunal, and who is appointed by the two arbitrators, or failing such agreement, by the International Chamber of Commerce (the “ICC”) acting in accordance with the rules adopted by it for the appointment of a presiding arbitrator. A decision of a majority of the members of the Arbitral Tribunal is required to resolve a dispute.
24.4 Application of Laws of Guyana. Any Arbitral Tribunal constituted pursuant to this Agreement, or any court or other adjudicative body interpreting this Agreement or resolving a dispute between the Parties, shall in all circumstances apply the Constitution and laws of Guyana relating to substantive matters, other than the laws of Guyana relating to arbitration, except to the extent that said Constitution or laws may materially breach, materially deny, or materially diminish:
24.4.1 the obligations of Guyana under this Agreement, including without
limitation the covenants of Guyana pursuant to Article 15.3 hereof;
24.4.2 the rights of Beal under this Agreement (including, but not
limited to, Beal’s rights under Article 25);
24.4.3 any of the terms of this Agreement; or
24.4.4 any generally accepted principle of international law, including
those which have been applied by international tribunals.
24.5 Authority of Tribunal Any Arbitral Tribunal constituted pursuant to this Agreement shall not have the authority, power or right to alter, change, amend, modify, add, or subtract from any provision of this Agreement. Subject to the limitations on remedies contained elsewhere in this Agreement, the Arbitral Tribunal shall also have the power to award any remedy to which either Party might be entitled, including but not limited to declaratory orders; damages; specific performance; interim procedural, provisional, and other orders and awards as provided for in Article 24.6; attorney’s fees; costs; and expenses.
24.6 Provisional Measures. Notwithstanding any other provision in this Agreement or in Article 24 to the contrary, either Party may obtain interim or provisional measures with respect to the other party on an accelerated basis by filing its arbitration request pursuant to the following procedures:
24.6.1 Procedures for Provisional Measures on an Accelerated Basis.
24.6.1.1 The Party requesting interim or provisional measures on an
accelerated basis(the “Requesting Party”) shall simultaneously serve a
written Request for Interim or Provisional Measures (the “Request”) upon
the other Party (the “Responding Party”) and upon the ICC containing (i)
a request for arbitration and statement of claim as required by the UNCITRAL
rules, (ii) a description of the claims of the Requesting Party, (iii)
a written request for, including an itemization and description of, the
interim or provisional measures requested and why they are needed on an
accelerated basis, with papers in support thereof, and (iv) the name of
the arbitrator appointed by the Requesting Party. The Requesting
Party shall also simultaneously serve a copy of this Agreement upon the
ICC with the papers described above and a written request to the ICC that
it place itself in readiness to carry out the appointment of the third
arbitrator contemplated by Article 24.6.1.3.
24.6.1.2 Within five (5) working days after service of the Request,
the Responding Party shall serve its Response thereto upon the Requesting
Party and upon the ICC. The Response shall provide a brief description
of the Responding Party’s position and any requests for relief that the
Responding Party might have in response to the Request, and shall appoint
the Responding Party’s arbitrator. If the Responding Party fails
to appoint an arbitrator after said period of five (5) working days, the
Requesting Party may, after giving written notice of its intention to do
so to the Responding Party, appoint the second arbitrator within three
(3) working days of the delivery of such notice. Provided,
however, that if the Responding Party appoints an arbitrator within such
three (3) day period and notifies the Requesting Party in writing within
that period of time of such appointment, the arbitrator so appointed by
the Requesting Party shall serve as the second arbitrator.
24.6.1.3 The two arbitrators so appointed shall provide written notice
to the ICC, within three (3) working days after the after the appointment
of the second of them, as to whom they have selected as the third arbitrator,
who is to serve as President of the Arbitral Tribunal. In the event
that such notice is not provided to the ICC within twelve (12) working
days of the service of the Request upon the ICC, the ICC shall appoint
the third arbitrator within eighteen (18) working days after the service
upon it of the Request.
24.6.1.4 Within ten (10) working days following the appointment of
the last member of the Arbitral Tribunal, the Arbitral Tribunal shall hold
a hearing, which may be either in person, by electronic means, or by such
other means as it may determine, at which it shall rule on all requests
for interim/provisional measures. To the maximum extent possible
the Arbitral Tribunal shall require or encourage the use of electronic
mail and/or facsimile communications. Upon request by any Party,
the Arbitral Tribunal may recommend interim/provisional measures for the
preservation of the rights of any Party.
24.6.1.5 The Arbitral Tribunal shall issue its orders or awards of
provisional measures or interim relief within ten (10) working days after
the hearing provided for herein, or at such earlier time as it may determine.
24.6.2 Continuation of Authority. After any Arbitral Tribunal appointed pursuant to this Article 24.6 issues an order or award on a Request, it may also consider and decide any other Dispute between the Parties pursuant to the procedures and provisions of this Article 24.
24.7 Payment of Arbitrators. Within three (3) working days of its service of a request for arbitration, the party initiating the arbitration shall deposit the sum of US$200,000 with the arbitrator first appointed or with such other person or institution as the Arbitral Tribunal may order. The arbitrator, person or institution with whom the funds are deposited shall hold them in trust exclusively for payment of the reasonable fees and expenses of the Arbitral Tribunal. The funds may be disbursed only at the direction of the Arbitral Tribunal, and written accountings of expenditures made from the trust funds (including time expended by the arbitrators) shall be made monthly by the Arbitral Tribunal to the Parties. The Arbitral Tribunal may thereafter issue such orders and awards as it may deem appropriate concerning payment of the arbitrator’s fees and costs by the Parties. The Arbitral Tribunal shall require that the total amount of all fees and costs of the arbitration be borne equally by the Parties, although any Party may, in the interest of speed or otherwise, make payments of amounts required to be paid by the other Party. The Arbitral Tribunal shall take any such payments on behalf of another Party into account in its orders and awards.
24.8 Place of Arbitration. The Parties hereto hereby agree that any arbitration proceeding conducted pursuant to this Agreement shall be held in Port of Spain, Trinidad and Tobago.
24.9 Sovereign Immunity. Guyana hereby expressly and irrevocably waives the right to any claim for sovereign immunity against jurisdiction, enforcement and execution of any provisional or final arbitral award or order, or any judgment thereon entered in any court having jurisdiction.
24.10 Binding Effect. The Parties hereto consent and agree that all interim/provisional or final measures ordered or awarded under this Article 24 shall, in the absence of fraud or manifest disregard of law or of this Agreement, be conclusive, binding and enforceable, to the extent not already paid, otherwise complied with, or satisfied in full, in the courts of any nation according to its laws. Each Party agrees to abide by and to comply with any recommendation, order or award of an interim/provisional or final nature made by an Arbitral Tribunal constituted pursuant to this Agreement.
24.11 Exemption from Guyana Arbitration Act. For greater certainty, but not so as to restrict the generality of the foregoing, it is hereby expressly agreed that the Guyana Arbitration Act shall not apply to this Agreement or to any other dispute between the Parties. All disputes between the Parties that they are not capable of reconciling between themselves shall be resolved through arbitration pursuant to the provisions of this Article 24.
24.12 Discovery. All documents, materials, and information in the possession of each Party that are in any way relevant to the claims(s) or dispute(s) shall be made available to the other Party for review, inspection and copying no later than sixty (60) days after the notice of arbitration is served. In addition, for the purpose of carrying out its responsibilities under Article 24.6, the Arbitral Tribunal may order the production of all, or less than all, of such documents within a shorter time period.
24.13 Obligation to Continue Performance. During the course of any arbitration proceeding, both Parties shall continue to perform their obligations to each other under this Agreement.
24.14 Cooperation. The absence or default of any Party to the arbitration shall not prevent or hinder the arbitration from proceeding or an award from being entered by the arbitrator(s).
24.15 Enforcement. Judgment on the arbitration award may be entered in any court having proper jurisdiction, and application may be made in such court for a judicial acceptance of the award and an order of enforcement.
24.16 Reservation of Rights. The right to refer a claim or dispute to arbitration hereunder shall not be affected by the fact that a claimant or respondent has received full or partial compensation from another Person for a loss or injury that is the object of the claim or dispute.
ARTICLE 25. BEAL'S MAXIMUM LIABILITY TO GUYANA.
25.1 MAXIMUM LIABILITY. WITH THE EXCEPTION OF ANY LIABILITY ARISING UNDER ARTICLE 16, BEAL'S MAXIMUM LIABILITY TO GUYANA SHALL NOT EXCEED THE AMOUNTS SPECIFIED BELOW UNDER ANY CIRCUMSTANCES, INCLUSIVE OF ATTORNEYS' FEES, COSTS, AND EXPENSES. POTENTIAL CLAIMS AND CAUSES OF ACTION COVERED BY THIS ARTICLE 25 INCLUDE, BUT ARE NOT LIMITED TO, CLAIMS FOR BREACH OF CONTRACT, NEGLIGENCE, AND GROSS NEGLIGENCE.
25.1.1 LIABILITY RELATING TO LICENSED LAUNCH ACTIVITIES – BEAL’S MAXIMUM LIABILITY FOR CLAIMS AND CAUSES OF ACTION, INDIVIDUALLY OR IN THE AGGREGATE, ARISING FROM OR RELATING TO ANY SINGLE LICENSED LAUNCH ACTIVITY SHALL NOT EXCEED THE AMOUNT OF THE INSURANCE SPECIFIED IN ARTICLE 7 HEREIN.
25.1.2 ENVIRONMENTAL LIABILITY – BEAL’S MAXIMUM LIABILITY FOR ALL ENVIRONMENTAL-RELATED CLAIMS AND CAUSES OF ACTION, INDIVIDUALLY OR IN THE AGGREGATE, ARISING FROM OR RELATING TO A SINGLE INCIDENT OR ACCIDENT, OTHER THAN THOSE ARISING FROM OR RELATING TO A LICENSED LAUNCH ACTIVITY, SHALL NOT EXCEED THE SUM OF US$25,000,000.
25.1.3 ALL OTHER LIABILITY – BEAL’S MAXIMUM LIABILITY FOR ANY AND ALL OTHER CLAIMS OR CAUSES OF ACTION (EXCLUDING ONLY CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO LICENSED LAUNCH ACTIVITIES OR ENVIRONMENTALLY-RELATED CLAIMS), INDIVIDUALLY OR IN THE AGGREGATE, SHALL NOT EXCEED THE SUM OF US$200,000,000.
25.2 ADDITIONAL LIMITATIONS ON DAMAGES – NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR ARTICLE 16, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING SECTIONS OF THIS ARTICLE 25, BEAL SHALL NOT BE LIABLE TO GUYANA FOR INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, MULTIPLIED, CONSEQUENTIAL, LOST PROFITS, ECONOMIC, LOST INCOME, OR ADDITIONAL DAMAGES FOR ANY REASON WHATSOEVER. NO ARBITRAL TRIBUNAL SHALL HAVE THE RIGHT TO MAKE AN AWARD OF SUCH DAMAGES AGAINST BEAL.
25.3 Enforceability. The Parties agree that this Article 25 shall be fully enforceable, without any limitation whatsoever, by any court or arbitral tribunal, regardless of the effect, interpretation, or applicability of Guyana law. If and to the extent that the law of Guyana fails to provide full effect to and enforcement of Article 25, then in that event the Parties agree that the laws of the State of Texas, U.S., shall apply to the interpretation, construction and applicability of this Article 25, including all subparts, without reference to any conflicts of law rules.
ARTICLE 26. GENERAL.
26.1 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered a true and original Agreement.
26.2 Entireties. This Agreement constitutes the entire agreement between the Parties hereto. No agreements, representations, or warranties, other than those specifically set forth in this Agreement, and no amendments to the Agreement, shall be binding on any of the Parties unless set forth in writing and signed by both Parties. This Agreement supersedes any other prior agreements, either oral or in writing, between the Parties with respect to matters set forth herein. Each Party to this Agreement acknowledges that no inducements or promises, oral or otherwise, have been made by any Party, or anyone acting on behalf of any Party, that are not explicitly stated in this Agreement.
26.3 Amendments . This Agreement may only be modified if such modification is in writing and signed by a duly authorized representative of each Party hereto. ANDREW BEAL (OR, IN THE EVENT OF HIS DEATH OR DISABILITY DECLARED BY A COURT OF LAW, HIS LEGALLY APPOINTED SUCCESSOR) IS THE ONLY DULY AUTHORIZED REPRESENTATIVE FOR BEAL.
26.4 No Waiver. Any failure or delay in the part of either Party to exercise any remedy or right under this Agreement shall not operate as a waiver. No forbearance by either Party in exercising any rights or privileges belonging to it under this Agreement shall be construed as a waiver, but all rights and privileges shall continue in effect as if no forbearance had occurred. No covenant or condition of this Agreement may be waived except by the written consent of the waiving Party, and such consent may be given on behalf of Beal by Andrew Beal, only. Any such waiver of any term of this Agreement shall be effective only in the specific instance and for the specific purpose given.
26.5 Time of the Essence. Time is of the essence in the performance of all of the terms, covenants, promises and obligations stated in this Agreement.
26.6 Survival. Notwithstanding Termination of this Agreement for any reason, Articles 1, 5.1, 5.2, 12, 13, 16, 19, 21, 22, 24, 25 and this Article 26 (including all subparts of each such Article) shall survive such Termination and shall remain effective as to any matters which are the subject of this Agreement or which arise out of, in relation to or in connection with this Agreement. Moreover, any such Termination shall be without prejudice to rights and obligations that have accrued prior to Termination and, notwithstanding such Termination, such provisions of this Agreement as are reasonably necessary for the full enjoyment and enforcement of such rights and obligations shall survive such Termination for the period necessary.
26.7 No Partnership or Joint Venture ? Nothing in this Agreement shall be deemed in any way or for any purpose to constitute any Party a partner of, or a member of a joint venture or joint enterprise with, any other Party to this Agreement in the conduct of any business or otherwise.
26.8 Gender and Number ? In this Agreement, wherever the singular and masculine are used, they shall be construed as if the plural or the feminine or the neuter had been used, where the context or the Party or Parties so requires, and the rest of the sentence shall be construed as if the grammatical and terminological changes thereby rendered necessary had been made.
26.9 Successors and Assigns ? This Agreement shall inure to the benefit of and be binding upon the Parties hereto, successors and permitted assigns and any reference to a right or an obligation of a Party hereto shall be deemed to include a reference to successors and permitted assigns to the extent that the context requires.
26.10 Division, Headings, Index ? The division of this Agreement into Articles, Sections and subsections and the insertion of headings and of an index are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
26.11 No Third-Party Beneficiary ? The Parties agree that nothing in this Agreement shall create any third-party beneficiary rights for any Person.
26.12 Attorneys’ Fees In the event that either Party brings an arbitration in order to enforce or interpret the terms of this Agreement, then the prevailing Party shall recover its reasonable attorney's fees, expert witness fees, and all other costs and expenses incurred in resolving the suit or arbitration from the non-prevailing Party.
26.13 Severability If any provision in this Agreement is held by a court or Arbitral Tribunal to be invalid, void, or unenforceable, then such court or Arbitral Tribunal shall interpret such provision in such a way as to give effect to the apparent intent of the Parties in a way that will make such interpretation valid, effective, and enforceable to the maximum extent possible. If the provision cannot be interpreted in a manner that would both accomplish the intent of the Parties and make the provision valid, effective, and enforceable, then the remaining provisions of this Agreement shall remain in full force and effect, as if this Agreement had been executed without any such invalid provision having been included.
IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives
to set their hands to execute this Agreement effective as of ______________________,
1999:
COOPERATIVE REPUBLIC OF GUYANA
By: __________________________________
Rt. Hon. Samuel L. Hinds
Prime Minister
BEAL GUYANA LAUNCH SERVICES, L.L.C.
By:__________________________________
Andrew Beal
Chairman of the Board of Managers
ATTACHMENT A
[TO BE ISSUED ON OFFICE OF THE PRESIDENT LETTERHEAD]
[Date]
To: Beal Guyana Launch Services, L.L.C.
8000 Dallas N. Parkway
Frisco, Texas 75034
Attention: Andrew Beal, President
Re: Tax waivers for Beal Guyana Launch Services, L.L.C. and others
Dear Sirs:
This letter is issued to you in compliance with the obligations of the Cooperative Republic of Guyana under a Commercial Space Launch Facility Agreement dated ______________, 2000 (the “Agreement”) between the Cooperative Republic of Guyana (acting through the Government of Guyana) (“Guyana”) and Beal Guyana Launch Services, L.L.C. (“Beal”). Capitalised terms used but not defined in this letter shall have the same meanings as those set forth in the Agreement.
Under the Agreement, Guyana has covenanted that Beal and its Affiliated Companies, Associates and Customers will not be liable for certain Taxes for the duration of the Agreement.
In exercise of my powers under the Income Tax Act Cap. 81:01 and all other applicable laws of Guyana, I hereby direct:
(1) the remission of any Tax that might otherwise be payable by Beal, its Affiliated Companies and its Customers. Such taxes shall include, but are not limited to, Income and Withholding Taxes under the Income Tax Act Cap. 81:01, Corporation Taxes under the Corporation Tax Act Cap 81:01, Capital Gains Taxes under the Capital Gains Tax Act Cap 81:20, Property Taxes under the Property Tax Act Cap 81:21.
(2) the remission of any and all Taxes chargeable under the Income Tax Act upon Beal or its Affiliated Companies, Associates or Customers upon any Launch Related Activities, any Launch Service Agreement between Beal and any of its Customers, or any launch service rendered by Beal or received by any of its Customers, except as set forth in Article 6.3 of the Agreement.
I am aware that the delivery of this letter is an essential condition of the operations of Beal, and I undertake to issue such letters and other documents and to do such other things as may be necessary or desirable to carry out the obligations and undertakings of the Government under the Agreement.
This letter is irrevocable and shall remain in full force and effect for the duration of the Agreement, including the exercise of any remedies under that Agreement by Beal.
Yours faithfully,
Bharrat Jagdeo
President
ATTACHMENT B
[TO BE ISSUED ON THE LETTERHEAD
OF THE MINISTER IN THE OFFICE OF THE PRESIDENT
RESPONSIBLE FOR FINANCE]
[Date]
To: Beal Guyana Launch Services, L.L.C.
8000 Dallas N. Parkway
Frisco, Texas 75034
Attention: Andrew Beal, President
Re: Tax waivers for Beal Guyana Launch Services, L.L.C. and others
Dear Sirs:
This letter is issued to you in compliance with the obligations of the Cooperative Republic of Guyana under a Commercial Space Launch Facility Agreement dated _______________, 2000 (the “Agreement”) between the Cooperative Republic of Guyana (acting through the Government of Guyana) (“Guyana”) and Beal Guyana Launch Services, L.L.C. (“Beal”). Capitalised terms used but not defined in this letter shall have the same meanings as those set forth in the Agreement.
Under the Agreement, Guyana has covenanted that Beal and its Affiliated Companies, Associates and Customers will not be liable for certain Taxes for the duration of the Agreement.
I have read the Agreement, and I am satisfied that it is just, equitable and convenient for all such Taxes to be remitted.
In exercise of my powers under the Section 6.1 of the Financial Administration and Audit Act, Cap. 73:01 and all other applicable laws of Guyana I hereby direct:
(a) the remission of any tax that might otherwise be payable by Beal, its Affiliated Companies and its Customers, including but not limited to fuel tax, consumption tax, customs duty or tariff; and any ad valorem duty, process fees or other fees and charges on transfer of movable or immovable property to Beal from the State, the Government or any other entity under the Agreement; and any other duties, fees or other taxes imposed by the Tax Act Cap. 80:01, the Companies Act 1991 or any other Act.
(b) the waiver and remission of any and all Taxes upon Beal or its Affiliated Companies, Associates or Customers upon any Launch Related Activities, any Launch Service Agreement between Beal and any of its Customers, or any launch service rendered by Beal or received by any of its Customers, except as set forth in Article 6.3 of the Agreement;
I am aware that the delivery of this letter is an essential condition of the operations of Beal, and I undertake to issue such letters and other documents and to do such other things as may be necessary or desirable to carry out the obligations and undertakings of the Government under the Agreement.
This letter is irrevocable and shall remain in full force and effect for the duration of the Agreement, including the exercise of any remedies under that agreement by Beal.
Yours faithfully,
Sasenarain Kowlessar
Minister in the Office of the President
with responsibility for Finance