CONCESSION AGREEMENT

FOR

NELAMANGALA - TUMKUR BQT PROJECT

P'rom Km 29.5 1'0 Km 62.0

Of NH - 4, in the State of Karnataka

Signed on June 28,2001 - - m - V - t a P - - 'ZPtl- . r.. - _ J = " - ? - ? ~ * _ _ - -- ; =yp?T"r"*v, 9. * - Between

National 1 Iighways Authority Of India

And

JAS Toll Road Company Limited.

- - 0 - /

0 0

1

0 TABLE OF COrjTENTS a

CHAPTER - I PRELIMINARY

Preamble

Definitions And lriterpretation

Scope Of Project

CHAPTER - II GRANT OF CONCESSION

Grant Of Concession

Conditions Precedent

Performance Security

Fees

Concession Fee

Additional Toll-wc..

CHAPTER - Ill OBLIGATIONS AND UNDERTAKINGS

0 ' Of The Concesslonalre . - -= - L " r n- QUS27'T -*-lIi1

10 Oblrgatlons Of NHAl 33

0 hi 11 Representat~ons And Warrantres 34

0 ;i 12. Drscla~mer 37

CHAPTER - IV PROJECT DEVELOPMENT AND OPERATIONS

o".,' + 13 Use And Development Of The S~te

0 ; 38

14. Monitoring And Supervision Of Construction 0 f 40

15 Completion 42 0 t 16. Tests 42

0 : 17. Change Of Scope 44 18 Operation And Maintenance

19. '- Mon~toring And Superv~sron During Operations 0: 0 5 0 .

I n

' 0 0".

1 ./

Irrdeperideni Eng~r~ecr

Traffic Sampling

CHAPTER - V FINANCING ARRANGEMENTS

Financial Close

Grants

Revenue Shottfall Loan

Escrow Account

State Support Agreement

Insurance

Accounts And Audit

CHAPTER - VI FORCE MAJEURE

Foice Majeure 65

CHAPTER - VII SUSPFNSION AND TERMINATION

" b 30 Materlal Breach And Suspens~on m - - - .I*--'++-

72 I I " - * . ~ p ~ * X P I T ~ ~ . C y - ~ ~ * ~ - . - ~ - d I"= - * - " a 31. Compensation For Breach Of Agreement 73

32. Termlnat~on 73 I

33 Divestment Of Rlghts And Interests 79 I

CHAPTER - Vlll MISCELLANEOUS

34. Defects L~abillty

35. Assignments And Charges 9 1 0 .!j 36. Change In Law I 1 on*k 37 Liability And Indemnity

103 38 Rights And T~tle OverThe Slte I 39. ' 0 '"4 Dispute Resolution

1 9 40 Disclosure

Redressal Of Public Grievances

Advertisir~g On The Sits

Governing 1-aw Arid Jurisdiction

Miscellaneous

reernent of Nelarnangala-Surnkur BOT Project ,

0 0 i

0 , schedules: Volume 2

0 * SCHEDULE NO.

r, ' PARTICULARS 0 O

f _i. 4 1.

A SITE OF THE PROJECT

d &+ B SCOPE OF THE PROJECT

0 4 , . C PROJECT FACILITIES : & D SPECIFICATION & STANDARDS

0 I E APPLICABLE PERMITS

0 J F BANK GUARANTEE FOR PERFORMANCE 1

8 g SECURITY

G SCHEDULE OF USER FEE H PROJECT COMPLETION SCHEDULE I DkAWlNGS J TESTS K COMPLETION CERTIFICATE L OPERATION & MAINTENANCE REQUIREMENTS M MONTHLY FEE STATEMENT COLLECTION

STATEMENT

wN SELECTION CRITERIA FOR INDEPENDENT ENGINEER

do TERMS OF REFERENCE OF INDEPENDENT ENGINEER

0 [ - * h . + ' . * % I

P TP4FFIC SAMPLING *!I.' +- r l - ~ w . - * r r ~ ~ ~ ~ o ~ . -_ .-**pa r *

Q 0 k t

ESCROW AGREEMENT L R STATE SUPPORT AGREEMENT

0 S SAFETY REQUIREMENTS Q 8 T CRITERIA FOR SHORTLISTING OF CHARTERED 4 € 3 : ACCOUNTANTS

0 1 U SUBSTITUl ION AGREEMENT V VESTING CERTIFICATE

0 W PASSENGER CAR UNIT FACTORS

0 X REPORTING AND RECORD REQUIREMENTS

0 0

8 $$

(L2 . . . ..... ......... -7w.2 Wo Date Rs - $3:' .....,..................................... T~ *J (' mc fc . c c - Name

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CONCESSION AGREEMENT

* . * T * n " I S . f l * - T - - - - wtl - m w n - x " 7-7

This Agreement IS entered into on thrs the 28Ih day of June 2001 BETWEEN

0 'T 1. NATIONAL HIGHWAYS AUTHORITY OF INDIA, a statutory body constrtuted under

0 *'I 4 the provrsrons of the National Hrghways Authority of lnd~a Act, 1988, and having its

J pr~nclpal off~ce at No.1, Eastern Avenue, Maharani Bagh, New Delh~ 110 065 (hereinafter referred to as "NHAI'. which expressron shall unless repugnant to the

0 t. context or meaning thereof rnclude its adrninrstrators, successors and assigns) of One Part,

AND

2 JAS TOLL ROAD COMPANY LIMITED, a company rnmmorated under the provrsions of the Companres Act, 1956 and having rts reg~stered office at F-8. MlDC lndustrlal Area, Hingna, Nagpur - 440 016 (hereinafter referred to as the "Concesslona~re" or r'Comp- i y " which expresston shall unless repugnant to the context or meaning thereof include ~ t s successors and Other Part

Concession Agreement of Nelamangala-Tumkur BOT Project

0 9 'WHEREAS 0 9

i, 0

3% .* A, The Government of lndla in the Mlnrstry of Road Transport & Hrghways

0 (herernafter referred to as "MORT&H") had author~sed EJHAI for wrdenrng and

;+ , f rehabilitation of the exlstlng 2-Lanes from km 29.5 to km. 62 on the

0 I Nelarnangala-Tumkur Section of the Natlonal Hrghway No 4 ("NH-4") in

0 "? Karnataka, lndla to four lane dlvlded carrlageway and ~ t s operation and ; 4 malntenance through a concession on b~~ l ld , operate and transfer ("BOY) baas

0 '7. > . and has by its Notifrcatron no. S 0.78 (E) dated 4Ih February, 1999. rssued :

0 , . pursuant to Section 11 of the Natlonal Highways Authority of India Act. 1988 h : Q vested the said stretch of NH-4 in NHAl as set forth in the sard Notif~catron dated f

0 % 4Ih February, 1999

.# ..' *- C..

NHAl had accordtngly invrted Proposals for shortlrsting of brdders for the aforesad under ti5 Notice invitlng Proposals datea 31" October2000 ("the Global Tender Notrce"), rnter a h , for the desrgn, engrneering. f~nancing, procurement, construction, operatlon and maintenance of the above sectron of NH-4 on BOT basis Subject to and on the terms and cond~tions contarned rn the Tender Notrce and had pursuant thereto shortlrsted certain brdders rncludlng, rnter aha, the consortium comprising Jayaswals Neco Lrmited, SREl lnternatronal Flnance L~mlted and Jayaswals Ashoka Infrastructure Pr~vate Llmited (collectrvely the "Consortium") w~ th Jayaswals Neco Lrmlted and SREl lnternatlonal Flnance ~ lml ted as its Lead Technical Member and as the Lead Financial Member respectively.

.NHAl.had:pursuant to the TenderaNotice:laid down'and presb~5ed?Reetmii~dB~h~' "" *

and commercial terms and condltlons and had lnvlted b~ds from rhe bidders shortlisted pursuant to ' ? Tender Notlce for undertaking, inter alia, the work referred to in Recltal 'A' above on BOT basrs

After evaluatron of the bids so received NHAl accepted the Brd of the Consonlum and issued ~ t s Letier of Acceptance No NHAI/13011/20/97-PINol II, dated May 02, 2001 ("LOA) to the Consortium requlrrng, rnter aha, the executron of th~s Concession Agreement

0 E. The Consortium has promoted and incorporated the Concessionaire as a lrmrted I

0 liabil~ty company to enter into thls Concession Agreement pursuant to the LOA ( l i for undertakrng, rnter alia, the deslgn, englneerlng, financrng, procurement,

0 :f construction, operation and maintenance of the Project Highway, as def~ned

0 i heremafter, on BOT b,-~s as referred to In Rec~tal 'A' and to fulf~ll other J

0 ' obllgatlons of the Concessionarre pursuant to the LOA and has requested NHAl to accept the Concessionaire as the entlty wh~ch shall undertake and fulfill and - .__

BOT Project 0 i

I

O ! ;

perform the obl~gat~ons and exercise the rrytits of the Consortiulr~ under tlie LOA, lncludlng the obl~gation to enter Into thls Cor~cess~on Agreement for the design, engineerrng, iinancrng, procurement, consiruct~on, operation and maintenance of the Project Hrghway on L'JT basrs

NHAl has agreed to the sard request of the Consortrum and has accordrngly agreed to enter ~n to this Concess~on Agreement with the Concess~ona~re pursuant to the LOA for, inter aha, the des~gn, engineenng, financing, procurement, constructron, operat~on and ma~ntenance of the sa~d Project Highway on BOT basis

It is deemed necessary and exped~ent to enter into this Agreement to record the terms of the said Agreement between the Parties.

:! 0 5

G NOW THEREFORE IN CONSluERATlON OF THE PREMISES AND THE MUTUAL 0 2 COVENANTS HEREINAFTER CONTAINED, THE PARTIES HERETO HEREBY

0 f AGREE AND THIS AGREEMENT WITNESSETH AS FOLLOWS

0 ' B O $

4: 0 4 0 3

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$ ' . _ % ' DEFINITIONS AND INTERPRETATION

0 $>

~

a .I= s, ,a . In thls Agreement, the follow~ng words and expressions shall, unless repugnant 8 i8 to the context or meaning thereof, have the meanrng hereinafter respectively

0 h % assigned to them: t ci ~5

y r . "Accountrng Year" means the financial year commencing from 1" April of any

0 . ' .f - calendar year and endlng on 31"' March of the next calendar year st ,

d "Addrtlonal Factlit~es" means the facilit~es whlch the Concessiona~re may provide

0 1" or procure for the benef~t of the users of the Project H~ghway and whrch are (I) In

d addrtlon to the Project Facrlrties, and (11) not sltuated on the Site

= ' g - "Affected Party" shall have the meaning set out in Clause 29.1.

"Agreement" means this Agreement, the Schedules 'A' through 'X' hereto and any amendments thereto made in accordance with the provisions contained in this Agreement.

"Applicable Laws" means all laws, promulgated or brought into force and effect by GO1 or GOK including regulatrons and rules made thereunder, and judgements, decrees, in!- ~ctions, writs and orders of any court of record, 2s may be in force and effect during the s u ~ , s _ i s t ~ ? c , e & f ~ i s , A g r e ~ m ~ t e ~ ~ ~ ~ - ~ -..**r*

* rrg-a"*P"T1"TB Y . "Applicable Permits" means all clearances, permits, authorlsatlons, corlsents and approvals requrred to be obtained or maintained under Applicable Laws In connection wlth the design, englneerlng, financing, procurement, constructron, operation and maintenance of the Project Highway dur~ng the subsrstence of this Agreement

"Appointed Date" means the date on which Financial Close is achieved in accordance with Article MI1 and shall be deemed to be the date of commencement of the Concession Period.

"Arbitration Act" means the Arbitration and Conciliation Act, 1996 and shall include modifications to or any re-enactment thereof as in force from time to time

"Associates" means in relation to either Party andlor Consortium Members, a person who controls, is controlled by, or is under the common control with such

b :" 4 - . v * C I L $" --.+ $%" "

patty or Con3ortlunl Member. As lrsed In th~s deflnltlon, t l ~ e expression "cor~trol"

?f ., means wlth respect to a person wiwh 1s a corporation, the ownersh~p, dlrectly or

A aY ~ndlrectly, Of more than 50% of the voting shares of such person, and wlth .*

.' % respect to a PersGn vjhlch 1s not a corporat~on, the power to dtrect the

@ management and policies of such person, whether by operatioil of law or by 3+ - iu . -y contract or otherwise .- r -x p Jt P, "Bank means a bank Incorporated ~n India and havlng a minimum net worth of -

Rs 10, 000 m~llron (Rupees ten thousand mlll~on) and havlng a branch ~n the proximity of the Project or at any other place acceptable to NHAl

9-- "Bid" means the documents ~n the~r entlrety comprised ~n the b ~ d submitted by the B~dder In response to the Tender Notlce in accordance wlth the provlslons thereof

"B~dder" means the Consortium referred to In Rectal 'D' above

' C O D means the commerc~al operat~ons date of the Project Hlghway and shall be the date on whlch the Independent Engineer has Issued the Completion Certlflcate or the Prov~s~onal Certif~cate upon complet~on of four-laning of the

0 Project Highway in accordance with the Agreement.

/change ~n Law" means '9e occurrence of any of the following after the date of Z

th~s Agreement I. the enactment of any new Indian law,

It the repeal, mod~f~cat~on or re-enactment of any exlstlng lnd~an law, I 0 li w * " f n " l F y T : .,, ,,.n-~*wz.=6 " C-? - rn "A. d ' r * - v - sr% - ~ t r a $ r p e i r 7 -

$ r III the commencement of any Indian law which has not entered into effect

0 4 , until the date of this Agreement

0 4 ''8 iv a change ~n the ~nterpretat~on or application of any lnd~an law by a court

0 .-- of record as compared to such lnterpretat~on or appl~cat~ori by a court of 2 record pnor to the date of this Agreement; or

0 f$$

v. any change in the rates of any of the Taxes

"Change of Scope" shall have the meaning ascribed thereto in Clause 17.1

"Company" means the Company actlng as the Concessionaire under this Agreement.

"Completion Certif~cate" means the Certificate issued by the Independent Englneer pursuant to Clause 16.4.

"Cor~cession" shall have the meaning ascribed thereto in Article Ill.

"Concession Fee" shall have the meaning ascnbed thereto in Article V11.

"Concession Period" means the period beginning from the Appointed Date and ending on the Termination Date.

"Concessionaire" means JAS Toll Road Company Limited and ~ t s successors and substitutes expressly approved in writing by NHAI.

"Consort~um" shall have the rneanlng set forth in Recltal '0' above

"Consort~urn Members" means Jayaswals Neco Llm~ted, SREl lntemat~onal Finance Llmited and Jayaswals Ashoka Infrastructure Prlvate Limlted

"Construction Period" means the period beginning from the Appointed Date and endlng on the COD.

"Construction Works" means all works and things necessary to complete the Project Highway for use of the traffic and other users thereof in accordance with this Agreement

"Contractor" means the contractor or contractors, if any, w~th whom the. uir T.*- r.7 r r ~o'nce~s~oh%ii 'e~Phte?ed ~rito all zWfi7"of th?~rijlEt%gzeii%%t--

"Cure Period" means the period specified in this Agreement for curing any breach or default of any provision of th~s Agreement by the Party responsible for such breach or default and upon falling of which the Agreement may be termmated by the other Party.

"Damages" shall have the meaning ascribed thereto in Clause I.Z(p).

"Debt Due" means the aggregate of the following sums expressed In lndlan Rupees or ~n the currency of debt, as the case may be, outstanding and payable to the Senlor Lenders under the F~nancing Documents

(i) the principal amount of the debt provided by the Senior Lenders under the .... Financing Documents for financing the Project (the " p r i n ~ i p a / F ) : ~ i $ ; , ~ ~ outstanding as on the Termination Date but excludifib <i;.biii"b?th$,.. 1,

/ ,$.? " . . \L - Nelamannala-Tumkur BOT Project

0 %

2 0

t I I " principal that had kl len due for repayment one year prior to rhe Termination Date unless such repayment had been resctieduled wlth the

d prior conselnt of NHAI, and

0 4 t:

(li) all accrued Interest, financing fees and charges payable on or In respect

0 B . % ". of the debt referred to ~n sub-clause (I) above upto the date preceding

0 the Termlnat~on Date but excludrng (a) any interest, fees or charges that

$? * " had fallen due ~ , , e year prior to the Termination Date, and (b) penal 9.. 0 3% Interest or charges, payable under the Flnanclng Documents to any 8 '

0 $ Senlor Lender.

"Debt Service Payments" means the sum of all princ~pal and interest payments due and payable In an Accounting Year to the Senior Lenders under the Financing Documents

"Development Period means the ~er iod from the date of this Agreement until the Appointed Date.

"Dispute" shall have the meaning set forth in Clause 39.l(a).

"Dispute Resolut~on Procedure" means the procedure for D~spute resolution set forth in Artlcle XXXlX.

0 I "Divestment Requ~rements" means the obllgatlons of the Concess~onalre and

0 & NHAl for and in respect of the Termmation of thls Agreement as set forth in

0 @ Article XXXlll

$4 ---T=-y-?p=-m-* -a il* 7 - -. '0 f * ;rw-*11?.ii '

"Document" or "Documentation" means documentation printed or in wrltten form, .

0 tapes, discs, drawrngs, computer programmes, writings, reports, photographs, cassettes, or expressed in any other wr~tten, audio or visual form.

0

0 3 "Drawings" means all the drawings, calculat~ons and documents pertalnlng to the Project Highway as set forth in Schedule 'I' and shall Include "as built" drawings

0 4 of the Project Hlghway

0 .:{ 1

? I "EPC Contract" means contract or contracts entered into by the Concessionaire with one or more Contractors for the design, engineering, procurement of materials and equipment, construction, and completion of the Project Highway in accordance with the'provisions of this Agreement.

0 ;t "Emergency" means a condition or situation that is of the individuals on or about the Project Highway

0 3 0 ..;

of Nelamangaia-Tumkur BOT Project

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o d 0 '

P

, &y <,. &".,-; q " . . which poses an immedia:~ lhreat of material damage to any of the Project

&, ,%% *-a" .< e-. ' Assets .- <#- & .$. .a.

P. . $ ,r "TP* -1 :, "Encumbrances" means any encumbrances s~lch as mortgage, charge, pledge,

;f.+ .f. ,#

Ilen, hypothecation, securlty interest, assignment, prlvllege or priorlty of any kind 6 :bb ;-eu having the effect of securlty or other such oblrgatlons and shall Include wlthout & -,,-.. l~rnrtatron any designahon of loss payees or beneftuanes or any srmrlar :$ z F G

arrangement under any Insurance pol~cy pertaining to the Project Hlghway,

p physical encumbrances and encroachments on the Slte where applicable herein $ " E i @- ~g 5,

5:: "Equlty" means the sum exeressed in lndlan Rupees representing the equity Rf share capital of the Company and shall include the funds advanced by any !* Member of the Consortium or by any of ~ t s shareholders to the Concessionaire

5 , j . company for meeting the equity component of the Total Project Cost Provided,

$ however, that for purposes of cornput~ng Termination Payments under this *i Agreement, Equity st~all be reckoned as an amount that 1s arrived at after

. . excluding from the equity share capital of the Company the follow~ng vlz (a) Equlty Support, if any, and (b) the sum by which the capital cost of the Project Highway as stated by tP? Concessionaire for purposes of claiming Termination Payments exceeded the Total Project Cost.

1 ' $ "Equity Support" shall have the meaning ascribed thereto ~n Clause 23 2 3

"Escrow 'Account" means an Account whlch the Concessionaire shall open and malntaln wlth a Bank in which all inflows and outflows of cash on account of capital and revenue receipts and expenditures shall be credited and deb~ted, 2s - .*the case may be:inraccordance with the provisions of th is -Agreement7m.1 r r * " . =

1 0 rk "Escrow Agreement" shall have the meaning ascribed thereto in Clause 25.2

0 d .5' "Exempted Vehicles" mt"lns vehicles that shall be exempted from payment of

r Fees and include Defence Vehicles, Vehicles w~th very important person symbols (VIP). Pollce Veh~cles, ambulances, flre tenders, Funeral Vans, Post and

0 %i Telegraph department vehicles, Central and State Government vehicles on duty

0 *:$ The vehlcles with the followrng dignitaries, shall be deemed to be veh~cles having $4

Q % r VIP symbols namely, President of India, the Vlce-President of Ind~a, Governors of States, Central and State Min~sters, Leaders of Oppos~t~on of Lok Sabha or Rajya Sabha or State Legislators, Lt Governors of Union Terntor~es, Speakers and Chairman of State Legislature, Executive Councilors, Forelgn Diplomats stationed in India using cars wlth CD symbols

Nelamangala-Tumkur BOT Pro~ect

0 ?2 id 0 %

"Fee" means the charge levled on and payable for a vehicle ~ ~ s l n g the Project HlghWay in accordance with the Fee Not~ficat~on and thls Agreement

"Fee Notlfrcation" nleans the Not~flcat~on to be issued by GO1 in exerclse of the powers conferred by Sub-rule (1) and (2) of Rule 3 of the Nat~onal H~ghways (Collect~on of Fees by Any Person for the Use of Sectron of Nat~onal H~ghwaysIPermanent Br~dgeITemporary Bridge on Nat~onal H~ghways) Rules, 1997 In respect Of the levy and collectron of the Fees and a copy of whlch IS at Schedule "G" and includes any such subsequent notrf~cat~ons Issued from tlme to tlme to give effect to the provisions of thls Agreement

* * p + "Financial Close" means the date on whlch the Flnanclng Documents provtding

0 ki .a for fundlng by the Senior Lenders have become effectwe and the Concess~onalre

f has lmmed~ate access to such fundlng under the Flnanclng Documents 0 ;$:

% $T

0 8 "Flnanclng Documents" means the documents executed by the Concesslonalre

i$ in respect of flnanc~al ass~stance to be prov~ded by the Senlor Lenders by way of 0 loans, guarantees, sub5 ript~on to non-convert~ble debentures and other debt

0 .I instruments Including loan agreements, guarantees, notes, debentures, bonds and other debt instruments, security agreements, and other documents relatlng

0 f$ to the flnanclng (~ncludlng refinancing) of the Project and includes amendments t O W or mod~flcations made in accordance w~th Clause 9.1 (iv)

i-2 8 & "Flnanclng Package" means the financing package of the Project fumlshed by

k 0 5 the Concess~ona~re along w~th its Bid lndlcatlng the Total Project Cost and the e means of flnanclng thereof and shall be deemed to have been modifled to the

,extent as submitted .to the Senlor Lenders and as approved by the Senior --.. - - mi-%.= --ir - a.r - - s ,**a*y-pys - 5'

Lenders 76r the purposes of fundlng of the ~?ojk&

0 . "Force Majeure" or "Folc* Majeure Event" shall mean an act, event, condltlon or 4 0 2 occurrence specified in Article XXIX.

"GOI" means the Government of India.

"GOK" means the Government of the State of Karnataka

"Good Industry Practice" means those practlces, methods, techniques, standards, skills, dll~gence and prudence whrch are generally and reasonably expected of and accepted internationally from a reasonably sk~lled and experienced operator engaged in the same type of undertaking as envisaged under th~s Agreement ar.l acting generally ~n accordance w~th the provrs~ons,of the . NHAI Act, and would mean good englneerlng practlces in !he. des~~n.'?.

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0 14

eng~neering, construction and project rnanagerner~t and which would be expected to result i r l the performance of its obligat~ons by the Concessionaire and in the

I operation and maintenance- of the Project Highway in accordance with this I

I Agreement, Applicable I sws, Applicable Permits, rel~abllity, safety, environment protect~on, economy and efficiency. I

I

"Governmental Agency" means GOI, GOK or any ministry, department, commission, board, authority, instrumentality or agency, under the control of GO1 or GOK having jurisdiction over all or any part of the Project Hlghway or the performance of all or any of the servlces or obligatlons of the Concessionaire under or pursuant to th~s Agreement

"Grant" shall have the meaning ascr~bed thereto in Clause 23.1

"Indemnifying Party" means the Party obligated to indemnify the other Party pursuant to Article XXX\'

0 "Independent Engineer" shall have the meanlng ascr~bed thereto ~n Clause 20.1

"lndlrect Polit~cal Event" shall have the meaning ascr~bed thereto ~n Clause 29 3

p 0 "Lenders' Representative" means the person(s) duly author~sed by the Senlor F2 Lenders to deal with the Part~es to the Agreement with regard to the issues

0 14 arising out of and contained in this Agreement

0 0

8 "Maintenance Manual" shall have the meaning ascr~bed to ~t in Clause 18 2.

0 "Mater~al Adverse Effect" means mater~al adverse effect of any act or event on

0 4 the ability of either Party to perform any of its obligat~ons under and in accordance with the provisions of this Agreement 8 $.

1 8 3 "Mater~al Breach" means a breach by elther Party of any of ~ t s obl~gat~ons 1-1 this.

a ! Agreement which shall be deemed to have a Material Adverse Effect on the Project and which i t shall have faded to cure withln the Cure Period

O d 0 $ "MORT&Hn shall mean Mlnistry of Road Transport and H~ghways, Government of

India i 0 - "NHAI Representative" means such person or persons as

(3 f

O ]

0 0 ;

0.t *d

On

"Net Cash Flow" means in any Accoirnting Year revenue Income less tax payments, O&M Expense, Concess~on Fee and Debt Servtce Payments to Senror Lenders

"Non Polrtical Event" shall have the meaning ascribed thereto ~n Clause 29 2.

"O&M" means the operat~on and marntenance of the Project Highway during the Operations Period and rncludes but IS not llmrted to functions of maintenance. collection and appropriation of Fees and performance of other services incidental

"OBM Contract" means the Operation and Maintenance Contract that may be entered ~ n t o between tbi- Conceae~onarre and the O&M Contractor for O&M of the Project Highway

"O&M Contractor" means the person or ent~ty w~th whom the Concessiona~re has entered Into an O&M Contract for d~schargrng O&M funct~ons for and on behalf of the Concessiona~re

"O&M Expense" means expenses Incurred by or on behalf of the Concess~onaire duly cert~f~ed by its Statutory Auditors or by NHAI, as the case'may be, for all regularly scheduled and reasonably antrcipated O&M during Operations Period, including, without limitation (a) all cost of salar~es and other employee

k, - ,,, -.--- - - - c~mpensa~io~and&ogtyct i. .. * =.ni..,..--;- -ivi-n fee payable to the O&M Contractor, if any,(b) cost of . . materials, suppl~es, util~, ;s and other servlces (c) premia for insurance (d) all franchise, excise, property and other similar taxes and all costs and fees ~ncurred ~n order to obtain and maintaln all Applicable Perm~ts necessary for the O&M of the Project Highway at ~ t s full des~gn capac~ty, (e) all repalr, replacement and malntenance costs of the Project Highway, and (f) all other expend~tures requrred to be ~ncurred under Applrcablc Law or under Applicable Permlts necessary for the operairon and malntenance of the Project Hrghway according to the Specrf~cations and Standards at ~ ts full design capacrty.

"O&M Support" shall have the meaning ascr~bed thereto in Clause 23 5.

"OBM Works" means all works necessary to keep the Project Highway In operation during the Ope~ations Penod

' ~ ~ ~ I ' . w"-*.%-JT . t%. .CA< *

%%s'% "Operations Perlod means the penod commencing frnln COD and ending 041 the 3 &: P;

-* r TermlnatlOtl Date ;i'+d"

(*pCUn shall have the rn 'nlriy ascrlbed to the passenger car unit In rhe 'Indran Roads C~ngresS', Publication No IRC-64, 1990, a true copy of whlch is 'dt Schedule 'W', and for the purposes of this Agreement refers or~ly to Such PCUS which pay Fees In accordance with the Fee Notification

"Part~es" means the part~es to th~s Agreement collectively and "Party" shall mean any of the Partles to this Agreement lndlvldually

"Performance Security" shall mean the irrevocable Bank Guarantee in a sum of Rs 30 million issued by State Bank of Indla ~n favour of NHAI, in the form set forth in Schedljle 'F', guaranteemy the due performance and discharge of all the obllgat~ons of the Concess~onaire under this Agreement

?f% 0 gk

"Pol~tlcal Event" shall have the rriearling ascribed thereto In Clause 29 4

"Preliminary Notlce" shall have the meanlng attr~buted thereto ~n Clause 32.1.2

"Project" means the development, deslgn, financing, procurement, englneenng and construction, operation and malntenance of the Project Hlghway ~n accordance wlth the provrsions of this Agreement and shall include all works relatlng to or In respect of the Project Hlghway as descr~bed In Article II

"Project Agreements" means this Agreement, the F~nancing Documents, the EPC Contract, ~f any, the O&M Contract, lf any, the Tolling Contract, if any, and any -- ." **** other agreements or-conrracts entered into by the Concessionaire:with~NH~l~or-- - others relating to the Project during the subsistence of thls Agreement '

"Project Assets" means all physical and other assets relatlng to and formlng part of the Project Highway including but not limited to (i) rights over the Site in the form of Ilcense, nght of way or otherwise, (il) tang~ble assets such as civil works ~nclud~ng the foundation, embankments, pavements, road surface, Interchanges, bndges, approaches to bridges and flyovers, road overbndges, drainage works, llghtlng facilltles, traffic signals, sign boards, milestones, toll plazas, equipment for the collection of tolls or relatlng to regulation of traffic, electrrcal works for l~ght~ng on the Project Highway, telephone and other communicat~on systems and equipment for the nroject, rest areas, adrnin~strat~on and malntenance depots, rellef centers, service fac~litles etc (111) Project Faclllties sltuated on the Site (IV) the rlghts of the Concessionaire under the Project Agreements, (v) f~nanclal assets, such as securlty deposlts for electricity supp!$;eiephon<<e~c~.

( <.'" ., , - - L .

: '. , - Conces ~ r k g r e e b ~ n t of Nelamangala-Tumkur BOT Project : I :

.-' I

I

- = - - - - - - - ~ d ~ ~ = i L S I ~ . . l i . l i ' P S - U. ". ' i., .*;~I-i~~~-.-

-jvi) insurance proceeds arid (vii) Applicable ~ e b i t s and a~.~thorisat~ons relating to or in respect of the Proje-t Highway, but does not include Additional Facilities.

'%Project Completion" shall have the meanlng ascribed thereto in Clause 15.1.

"Project Completion Schedule" means the progressive Project milestone set forth in Schedule 'H' for the realization of the Project Highway complete in all respects by the Scheduled Project Completion Date.

"Project Facilities" means all the amenities and facilities situated on the Site, as described in Schedule 'C'.

"Project Highway" means the rehabilitation and widening of the existing two lanes of NH-4 from km 29.5 tc ..m 62 and addition of 2 (two) more lanes thereto so as to have four lanes and shall include the Project Assets and the Project Facilities to be designed, engineered and built on Site and to be operated an3 maintained during the Concession Period in accordance with the pro"isions of this Agreement.

"Provisional Certificate" shall have the meaning ascribed to it in Clause 16.5.

"Punch List" shall have the meaning ascribed to it in Clause 16.5.

"Realisable Fee" means all the Fees due and realisable under &is Agreement but does not include Fees that the Concessionaire has not been able to realise after due diligence and bzst effcrts.

* -* *T.*vw?w.,. ,

"Revenue Shortfall Loan" shall have the meaning ascribed to it in Clause 24.1.

"Rs." Or "Rupees" means the lawful currency of the Republic of India.

"SBI PLR" means the prime lending rate per annum for loans with l(one) year maturity as fixed from time to time by the State Bank of India, and in the absence of such rate, the average of the prime lending rates for loans with l(one) year maturity fixed by the Bank of India and the Bank of Baroda and failing that any other arrangement that substitutes such prime fending rate as mutually agreed between the Parties.

"Scheduled Project Completion Date" shall have the meaning set forth in Clause

.. - -

: %.. *,Senior Lenders" means the financial institut~ons, banks, funds and agents or f debenture h-'iders, including their successors and assignees, who

have agreed to guarantee or provide finance to the Concessionaire under any of ing Documents for meeting costs of all or any part of the Project and

d pari passu charge on the Concession granted by this Agreement.

eans the real estate licensed by NHAl to the Concessionaire under and ance with this Agreement on which the Project Highway is situated and

,+ore particularly described in Schedule 'A'.

"Specifications and Standards" means the specifications and standards relating to the quality,, capacity and other requirements for the Project Highway as set forth in Schedule 'D' and any modifications thereof, or additions as included in the design and engineering for the Project Highway submitted by the Concessionaire to and expressly approved by NHAI.

"State Support Agreement" means the agreement to be entered into between the GOK, NHAl and the Concessionaire substantially in the form set forth in Schedule 'R' for provision of support, backup and services required from GOK for the performance of Concessionaire's obligations under this Agreement.

"Statutory Auditors" means recognized and reputable firm of Chartered Accountants duly licensed to practice in India acting as statutory auditors of the Concessionaire under the provisions of the Companies Act, 1956 including any statutory modification or -a-enactment or replacement thereof, for the time being

"Subordinated Debt" means any borrowings by the Concessionaire subordinated to the financial assistance provided by the Senior Lenders for meeting the Total Project Cost but does not include any interest thereon.

"Subsistence Revenue Level" means the total amount of Fee revenue that is required by the Concessionaire in an Accounting Year to meet the sum of (a) the O&M Expense subject to an annual ceiling of 2% (two percent) of the Total Project Cost in the first operations year, to be revised each year to reflect the variations in the WPI in each subsequent years and (b) Debt Service Payments due to the Senior Lende:: in an Accounting Year.

"Substitution Agreement" means the agreement referred to in Article XXXV and

Concessionaire by any other person subject to and ~n accordance wlth the prov~sions of this Agreement and the Substitut~on Agreement

J~axos' means any lnd~an taxes on corporate income, sales tax, exclse duties, customs dut~es and local taxes and any Impost of l~ke nature (whether Central, Stake or local) charged, levied or imposed on the goods, materials, equipment and servlces incorporated in and form~ng part of the Project H~ghway, on the construction, operation and maintenance thereof and on the Project A s s e t s , K

d excluding any Interest, penalties and other sums In relatlon thereto imposed on i - G c ~ ~ u n t whatsoever.

"Termlnat~on" means the explry or term~nation of this Agreement and the Concess~on hereunder

J% * "Termination Date" means the date on wh~ch thls Agreement and the Concess~on

& * B-=$ hereunder expires pursuant to the provlslons of thls Agreement or IS termmated *v, by a Terminat~on Notice 9-; @ ::3: "Terminatron Not~ce" means the communication issued n accordance with th~s &xi -*

$? :" Agreement by any one Party to the other Party terminating this Agreement

"Termlnat~on Payment" means the amounts payable by NHAl to the Concessionaire under tt-s Agreement upon the Termlnat~on of this Agreement and shall conslst of payments relating to Debt Due, Subordinated Debt and Equity, as the case may be, and such other amounts as are expressly prov~ded for under thls Agreement. Provided, however, that for purposes of determining

=Terminat~on-Payments:to=benmade by NHAl under'th~s Agreement, th5aGp~61x cost of the Project H~ghway shall at all times be reckoned as an amount not exceeding the Total Project Cost and the liability of NHAl to make such Terminat~on Payments relatlng to Debt Due, Subordinated Debt and Equlty shall be determined as if such capital cost was restr~cted to Total Project Cost

"Tests" mean the tests to be carned out as set forth in and in accordance with Schedule 'J' to determine the Project Completion and its cert~ficat~on by the Independent Engineer fc- commencement of commercial operailon of the Project Highway.

'To11 Plaza" means the structures and barriers erected on the Project Highway (one at Nelamangala end and the other at the Tumkur end) for the purpose of regulating the entrylexit of vehicles in accordance with the orovisions of this Agreement.

Nelamangala-Tumkur BOT Project

"Tolling Contract" means the contract, if any, entered into by the Concessionaire with the Tolling Contractor for operation of the Toll Plazas including collection of Fees for and on behalf Of the Concessionaire.

"Tolling Contractor" means the person, if any, with whom the Concessionaire has entered into a Tolling Contract for operation of Toll Plazas and collection of Fees for and on behalf of the Concessionaire.

"Total Project Cost" means the lowest of the following: a. a sum of Rs. 1550 n .:'ion; b. actual capital cost of the Project upon completion of the Project Highway as

certified by the Statutory Auditors; or c. total project'cost as set forth in Financing Documents.

Provided further that if part of the Total Project Cost is funded in foreign currency, in accordance k i t h the Financing Package, then the rate of exchange shall be determined as on the date of Bid, and the Total Project Cost shall be computed as if such foreign currency were converted with reference to such exchange rate. In the event of Termination of this Agreement requiring NHAl to make Termination Payments, the liability of NHAl shall be determined on basis of the rate of exchange prevailing on the date of Termination Notice and the amounts payable by NHAl for Det;, Due and Subordinated Debt, as the case may be, shall be computed accordingly.

1.2 In this Agreement, unless the context otherwise requires,

(a) any reference to a statutory provision shall include such provision as is from time to time ~nodified or re-enacted or consolidated so far as such modification or re-enactment or consolidation applies or is capable of applying to any transactions entered into hereunder;

(b) references to Indian law shall include the laws, acts, ordinances, rules, regulations, or bye laws which have the force of law in any State or Union Territory forming part of the Union of India;

companies, corpont~ons, joint ventules, trusts, associations, O~ganlZations or other entitles (whether or not havlng a Separate kgal ent~ty),

(d) the headings are for convenrence of reference only and shall not be used in and shall not affect the construct~on or interpretation of thls Agreement;

(e) terms and words beginn~ng wlth capital letters and defined ~n this Agreement shall have the meanlng ascribed thereto herein and the terms and words defin?J in the Schedules and used therein shall have the meaning ascnbed thereto in the Schedules;

(f) the words "include" and "including" are to be construed wlthout limitat~on;

(g) references to "construction" include, unless the context. otherwise requires, investigation, design, engineering, procurement,. delivery, transportation, installation, processing, fabrication, testing, commissioning and other activities incidental to the construction:

(h) any reference to any period of time shall mean a reference to that according to Indian Standard Time;

(i) any reference to day shall mean a reference to a caLendar day;

(j) any reference to month shall mean a reference to a calendar month,

* * I * k' r-'aalt " ~ z ~ * ( k ) " q s t h " e " e ~ t t f i ~ u " ~ e ' ? ~ t i i k T s ~ ~ ~ e " & e n t form an 1ntegril bart of this"Agreement

and will be in full force and effect as though they were expressly set out ln the body of this Agreement.

(1) any reference at any tune to any agreement, deed, ~nstrurnant, llcense or document of any descnp:~on shall be construed as reference to that agreement, deer' ~nstrurnent, l~cense or other document as amended, vaned, supplemented, mod~fied or suspended at the time of such reference provided that th~s clause shall not operate so as to Increase llabll~ties or obl~gat~ons of NHAl hereunder or pursuant hereto ~n any manner whatsoever,

(m) references to Recitals, Articles, Clauses, Sub-clauses, Paragraphs, or Schedules in this Agreement shall, except where the context otherwise requires, be deemed to be references to Recitals,

, ..

-

clauses, paragraphs, and Schedules of or to this Agreement;

(n) any agreement, consent, approval, authonsatlon, notice, ~ ~ m m ~ n l c a t i ~ n , lnformation or report requtred under or pursuant to this Agreement from or by any Party or the lndependent Engfneer shall be valld and effectual only if it is in wrlting under the hands of duly authortsed representative of such Party or the lndependent Englneer, as the case may be, in this behalf and not otherwise,

(0) any reference to any penod commenctng "from" a specrf~ed day or date and "till" or "untrl" a speclfled day or date shall ~nclude both such days or dates;

(p) the damages payable by ether Party to the other of them as set forth In thrs Agreement, whether on per diem basis or othewise, are mutuallv agreed genurne pre-esttmated loss and damage likely to be suffered and incurred by the Party entltled to receive the same and are not by way of penalty or hquidated damages (the "Damages"); and

(q) unless otherwic- expressly provlded in thfs Agreement any Documentatlon requlred to be provlded or furnished by the Concessionaire to NHAl andlor the lndependent Englneer shall be provided free of cost and in three copies and rf NHAl and/or the lndependent Engrneer are requrred to return any such Documentatlon wlth thelr comments and/or approval, they shall be entltled to retaln two

0 9; copies thereof *7 @ 3 & ; ~ " s ****d' - r r i r J s n ~ ~ . u ; r . , s .*'R.=UIS.. =-°rq*a*y.-3:. * : , ,ztT?-

i+*m

* 0 9%-

%- 1.3 Measurements and Arrthrnetic Conventtons

lo ..: . a All measurements and calculatlons shall be In metnc system and calculat~ons done to 2 declmal places, with the thlrd dtgrt of 5 or above berng rounded up and below 5 belng rounded d wn.

1.4 Priority of contract documents and errorsldiscrepancies

1.4.1 The several documents forming thrs Agreement are to be taken as mutually explanatory to one another and, unless otherwise expressly provided elsewhere in thls Agreement, the prionty of the following documents shall ~n the event' of any conflict between them be in the order they are set out

(i) this Agreement

-.

(ii) all other documents forming part of this Agreement

i.e. document at (i) above shall prevail over the documents at (ii) above

1.4.2 In case of ambiguit~es or discrepancies within this Agreement the following shall apply:

(i) between two Clauses of this Agreement, the provisions of the speciflc clause relevant to the issue under consideration shall prevail over those in other Clauses;

(11) Between the Clauses and the Schedules, the Clauses shall prevail save as otherwise expressly set forth in Clause 1.4.1;

(iii) Between the written description on the Drawings and the Specifications and Standards, the latter shall prevail;

(IV) Between the dlrnfiwion scaled from the Drawing and its specrflc written dlrnension, the latter shall prevail;

(v) Between any value written in numerals and that in words, the latter shall prevail.

SCOPE OF PROJECT

The Project shall be executed on the Site, which IS described irl Schedule 'A' Of thls Agreement. The scope of project shall include performance and execution by the CoI,cessionaire of all deslgn, engrneenng, financing, procurement, construction, completion, operation and maintenance of the Project Highway as described in Schedule 'B' and Schedule 'C' of thls Agreement It shall include rehabilitation and widening of the existing two lanes of NH-4 from Km 29 5 to Km 62, four-laning thereof ~n accordance with the Specifications and Standards set f6rth in Schedule 'D' and operation and rna~ntenance thereof In accordance with Schedule 'L'. It shall also include the performance and fulfillment of other obligations by the Concess~onalre under thls Agreement * 6%. i

%$ The Concessionaire shall undertake its obligat~ons at its own cost and risk

2.2 Test Sectlon

NHAl represents that the stretch of new two lane comprised In the Prqect Highway and located between km. 30 and km 34 (the "Test Sectlon") is being constructed by the Public Works Department of the State of Karnataka and the same is expected to be completed by December 2001 and handed over to the Concessionaire The Test Section will be under observation by MORT&H and Central Road Research Institute (CRRI) for a period of 4 5 years from the date Of

completion thereof (Observation Period). The Concesslonarre IS requlred to ma~ntain the Test Section during the Observation Period in accordance with the

, maintenance req~ireme~i is to be specified by MORT&HICRRI. After expiry of the *-a,* %(% p O b ~ e ~ a t i ~ f l ' Period," the-Concessionaire qshal l '?strengthen~and?~cont~nuezto~ w

maintain the same in accordance wlth the Speclflcations and Standards appended in Schedule D.

The Concessionaire shall during the Observation Period allow access to the authorised officers and representatives of MORT&H/CRRl for the purpose of observation.

-

CHAPTER - II G?ANT OF CONCESSION

111. GRANT OF CONCESSION

3.1 Subject to and in accordance with the terms and conditions set forth in this Agreement, NHAl hereby grants to the Concess~ona~re and the Concess~onaire hereby accepts the Concession for a period of 19 (n~neteen) years commencing from the Appointed Date,, lncludlng the exclusive rlght, llcense'and authority during the subsistence of this Agreement to implement the Project and the Concession in respect of the Project Hlghway.

3 2 Subject to and 1r-1 acco,,ance with the terms and cond~t~ons set forth ~n thls Agreement, the Concession hereby granted shall entitle the Concessionaire to enjoy, and obl~ge the Concessionaire to undertake the following in accordance wlth the provisions of thls Agreement, the Appl~cable Laws and the Applicable Permits

to develop, design, engineer, finance, procure, construct, operate and maintaln jP$ 5

0 &J# the Project Hlghway during the Concession Period,

! 0 II upon completion of the Project Highway and durlng the Operations Per~od to

0 manage, operate 8 maintain the Project Highway and regulate the use thereof by

+B~&#*b ~ - $ ' r d . ~ ? 4 e s . , - ~ = ~ % ~ . w . - , . .*:. - r - r r - r i u y l ~ ~ ~ .

4 0 i.,i I I ~ levy, demand, collect and appropriate the Fees from veh~cles and persons l~able

+$ to payment of Fees for using the Project Hlghway or any part thereof and refuse 0 =l*f & -

%a entry of any veh~cle to the Project Highway ~f the due Fee IS not pald,

IV perform and fulfill all of the Concessionaire's obligations under this Agreement;

01 v bear and pay all expenses, costs and charges incurred in the fulfillment of all the "F f

0 +ti Concessionaire's obllgatlons under th~s Agreement ,and ,?&

I vi not assign or create any lien or Encumbrance on the Concession hereby granted

or on the whole or any art of the Project H~ghway nor transfer, lease or part possession therewith save and except as expressly permitted by this Agreement or the Substitution Agreement.

, - --*

of Nelamangala-Tumkur BOT Project

I - .Vi--F===--L- ~ Z ? F i ~ ~ " F & ~ ~ ~ ~ ~ ~ n ) (

The Concessron Period st~all cornnlence on the Appc~ntod Date and shall end on the Termination Date.

CONDITIONS PRECEDENT

Conditions Precedent

Save and except as provided In Articles IV, V and XXII, the rights and obligations of the Concessionaire under thls Agreement are subject to the sattsfaction in full of the following conditions precedent to be fulfilled on or before Financial Close unless any such cond~tlon has been waived as provided in Clause 4 2

(a) Concesslonaire ;hall have obtalned all such Applicable Perm~ts as llsted In Schedule 'E' ~,,rcondrt~onaIly or if subject to cond~t~ons then all such candlt~ons have been sat~sfled In full and such Appl~cable Permlts are and shall he kept in flill fnrce and effect for the relevant per~od durrng the subsistence of this Agreement,

(b) the Concessionaire shall have been granted way leaves required In connection with the Project including:

(i) r~ghts of way for the alignment of the Project Highway free from all Encumbrances,

(ii) rights of way from publ~c roads to the Slte, and

(ill) permlsslon I license to enter upon and utlllse the Slte for the construct~on pursuant to and in accordance w~th this Agreement

, , ,,.-w , . T r m r ~ ~ * M ~ U " * ~ f f -?*-=. - "3

(c) the Concesslonaire shall have been granted all Central Government clearances and permits under the Applicable Laws relating to environmental protection and conservatron from the Ministry Of Environment and Forests;

(d) the Concessionaire shall nave entered into the Slate Support Agreement with NHAl and the GOK;

(e) certified true coples of all Project Agreements, In particular, the Ffnanclng Documents, the -PC Contract, O&M Contract, ~f any and the Tolling ---" Contract, ~f any, as well as the shareholders funding agreement have -I--- -

been del~vered by the Concesslonalre to NHAI, _--I-- I . . _ _ _ " - ---- to NHAl in accordance with Clause 5.1;

(g) all of the representations and warranties of the Concessionaire set forth in Article XI are true and correct as on date of this Agreement and as on the Appointed Date;

(h) NHAl shall have received from the Concessionaire copies (certified as true copies by an authorised officer of the Concessionaire) of the constitutional documents of the Concessionaire;

(i) NHAl shall have received copies (certified as true copies by a Director of the Concessionaire) of all resolutions adopted by the Board of ~i'rectors of the Conces+ionaire authorising the execution, delivery and performance by the Concessionaire of this Agreement and each'of the Project Agreements;

(j) NHA1 shall have iew;v id from the Indian legal counsel of the Concessionaire a legal opinion with respect to the authority of the Concessionaire to enter into this Agreement and the Project Agreements and the Financing Documents and the enforceability of the provisions thereof; and

(k) MORT&H shall have issued a Fee Notification substantially in the form at Schedule 'G'.

4.2 Any of the conditions precedent set forth in Clause 4.1. save and except condition of Sub-clause (b) and (c) thereof, may be waived fully or partially by

.discretion." x-r - 4. - - * -w - % z - y A ~ ~ E :.

4.3 Obligation to Satisfy the Conditions Precedent.

The Concessionaire shall make all reasonable endeavors to procure the satisfaction in full of the Conditions Precedent set out in Clause 4.1 above and NHAl shall make all reasonable endeavors to procure fulfillment of the conditions set forth in Sub-clauses (b), (c), (d) and (k) of Clause 4.1. Each Party shall bear its respective cost and expense of satisfying such Condition Precedent.

4.4 If the Conditions Precedent set forth in Clause 4.1 have not been satisfied on or before the Financial Close and the NHAl has not waived, fully or partially, such conditions under Clause 4.1, NHAl may, notwithstanding anything to the contrary contained in this Agreement, terminate this Agreement in accordance with provisions of Clause 32.2 without being liable in any manner whatsoever to the Concessionaire and forfeit the Performance

; . ala-Tumkur BOT Project

. , '- ~ c ~ . : ~ ~ ~ i ~ i i j s ! I ~ i ) m <rpn

1

provided that where NHAl does not fulfill its obligations under Clause 4.3 and terminates this Agreement under this Clause 4.1, it shall refund in full the Performance Security, as the case may be. I

i

. is 5.1 The Concessionaire has provided to NHAl the Performance Security that is valid for a period of three years from the date of this Agreement.

contribution of the Equit, (excluding Equity Support, if any) by the shareholders of the Concessionaire to the extent of 100% and upon the Concessionaire having expended on the project and paid out an aggregate sum of not less than 20% (twenty percent) of the Total Project Cost as certified by the Statutory Auditors of the Concessionaire. and provided the Concessionaire is not in breach of this Agreement. If the' Concessionaire is in breach of this Agreement, the Performance Security shall be continued till the COD or until the breach is cured; whichever is earlier.

5.3 In the event of the Concessionaire being in default in the due and faithful performance of its'obligations under this Agreement and failing to remedy such default within the Cure Period, the NHAl shall without prejudice to its other rights and remedies hereunder ne entitled to encash and appropriate the Performance Security as Damages for such default. Upon such encashment and appropriation of the Performarlce Security, NHAl shall grant a period of 30

,Fhirty) _ days to)Je_$,o;~s,s$,"aire, to ~ r o v j d ~ - ~ & S , h ~ < e , r f $ ~ q $ $ $ ~ $ . e ~ , u ~ ~ t y , a , " t ] ~ ~ ~ ~ ~ ~ ~ " p * - **411r...

the Concessionaire shall. within 'the time so-granted furnish to NHAl -such - " "

Performance Security failing which NHAl shall be entitled to Terminate this Agreement under clause 52.2. The provision set forth in Clause 5.2 and this Clause 5.3 shall apply mutatis-mutandis to such fresh Performance Security.

5.3 Notwithstanding anything to the contrary contained in clause 5.3, upon furnishing of fresh Performance Security in accordance with clause 5.3, the Concessionaire shall be granted an ac+iditional period of 60 (Sixty) days as Cure Period for remedying the defaults and complying with his obligations under this Agreement. In the event of the Concessionaire continuing to be in breach of the provisions of this Agreement after such Cure Period, NHAl shall be entitled to terminate this Agreement under the provisions of Clause 32.2.

Oncessionaire shall be entitled during the Operations Period to levy and collect the Fees from the users of the Project Highway pursuant to and in accordance with the Fee Notification set forth in Schedule 'G' and this Agreement. provided, however, that3s;(ch f ee sh'all be rounded off upwa.rds tor the nearest one rup& 'for '::ens;iiig'! :e&e "of payml6ht and collection.

ncessionaire acknowledges that the Fee Notification, inter alia, provides for annual revision in the Fees linked to the extent of variation in WPI as per the Fee Notification, and hereby confirms that save and except as provided in the Fee Notification, the Concessionaire is not entitled to and shall not seek any relief whatsoever from NHAI, Got or GOK on account of increase or otherwise in WPI or on any other account except in accordance with the express provisions of this Agreement.

6.3 The Concessionaire shall not collect any Fees in excess of 50% of the applicable.2 Fees for the specific category of the vehicle from such users of the Project j-fifi <*'

Highway who use the ; roject Highway without crossing more than one Toll ' ',,/$.'. ... '71

6.4 The Concessionaire shall not collect any Fees in relation to Exempted Vehicles.

6.5 The Fees collected by the Concessionaire or NHAl or NHAl's nominee pursuant hereto shall be deposited in the Escrow Account and appropriated in accordance with the provisions of Article XXV. . - 8 , .*.*- :*

6.6 The Concessionaire may delegate its right to collect Fees to the O&M Contractor or the Tolling Contractor or to any other person provided, however, that notwithstanding such delegation, the Concessionaire shall be and remain solely liable and responsible tor the collection of Fees in accordance with this Agreement and its deposit into the Escrow Account.

VII CONCESSION FEE

7.1 In consideration of the grant of Concession under this Agreement, the Concession Fee payable by the Concessionaire to the NHAl shall be Re.l.OO (Rupee One) per year during the term of this Agreement.

~ 1 1 1 ADDITIONAL TOLLWAY

8.1 Notwithstanding anything to the contrary contained in this Agreement, any of NHAI, GO1 or GOK may constNct and operate either itself or have the same, inter alia, built and operL8 :d on BOT basis or otherwise any Expressway or other toll road, not being a bye-pass, between, inter alia, Nelamangala and Tumkur (the "Additional Tollway") provided that such ~dditional Tollway shall not be opened to traffic before expiry of 8 (eigbt) years from the Appointed Date.

8.2 In the event of NHAI, GO1 or GOK, as the case .may be, constructing or permitting construction of any Additional Tollway as set forth in this Clause 8.2, and the Additional Tollway is commissioned at any time after 8 (eight) years from the Appointed ate, then the Concession Period shall be increased by half the number of years' by which such commissioning precedes the expiry of the Concession Period. For example, if the commissioning of the Additional Tollway occurs after 10 (ten) years from the Appointed Date, the Concession Period shail be increased to 23.5 (Twenty three and a half) years.

8.3 Upon commissioning of the Additional Tollway,the Concessionaire shall continue to levy and collect ,the Fee under this Agreement and shall not offer any discounts or reductions in such Fee except with the prior written consent of NHAI. Provided, however, that any such discounts or reductions that the Concessionaire had offered to any general or special class of users or vehicles for a continuous period of three years prior to the commissioning of the Additional Tollway may continue in the same form and manner after the commissioning of such Additional Tollway.

' $ a . * " u .r . ., - ' . - ' " ? % ~ i f f s ; - r n ' ~ ~ ~ T ~ ~ : ~ i . I i r ~ ~ * i p n ~ y e i L d , jn,

8.4 NHAI shall ensure that pe; kilometer fee to be levied and collected from any vehicle or class of vehicles using the Additional Tollway shall at no time be less than an amount which is 133% of the per kilometer Fee levied aad collected from similar vehicles or class of vehicles using !he Project Highway.

- - - L L s 5 ? ! - E w - ~ - . -T--=-t-.d .

CHAPTER -111 OBLIGATIONS AND UNDERTAKINGS

i, I*. OBLIGATIONS OF THE CONCESSIONAIRE

9 I The Concessionaire shall at its own cost and expense observe, undertake, comply wrth and perform, in addition to and not rn derogation of its obligatrons elsewhere setout in this Agreement, the following

(i) make, or cause to be made, necessary applicat~ons to the relevant ,

Governmental Agenc~es wlth such partrculars and detalls, as may be necessary for obtaining all Applicable Permrts, and obtain such Applicable Permits in conformity with the Applicable Laws,

(il) notrfy to NHAI forthwith the occurrence of F~nancial Close,

(ill) submit to NHAl certif~ed true copies of each of the Project Agreements wlthin 7 (seven) days of their execution,

(iv) not make any replacement, amendment or modificat~ons to any of the Project Agreements without the pnorwrltten consent of NHAI, where such replacement, amendment or mod~flcation has or may have the effect Of increasing or rmposing any financial l~abilrty or obligation on NHAl i? any manner, and where such amendment or modificat~on IS made without such consent, not to enforce such amendment or modification nor permit enforcement thr-eof agalnst NHAI in any, manner whatsoever,

*sq u r i - - * s 7 r - r - b p a v * " 7 8' -n tqwvq7

(v) glve NHAl not less than 30 (thirty) days written notice prior to entering rntc, amending or replacing any Project Agreement so as to enable NHAl to provide its consent or offer its comments, rf any thereon which, if made, shall be duly considered and glven effect to by the Concessronarre before ente:ing into, amendrng or replacing such Project Agreement;

(vi) remove promptly from the Project Highway all surplus construct~on machinery and materials, waste materrals (including, wlthout limrtation, hazardous materials and waste water), rubbish and other debns (including without l~mitation accrdent debr~s) and shall keep the Slte ~n a neat and clean c idition and in conformity with the Applicable Laws and Applicable Perm~ts;

la-Tumkur BOT Project

---...A ----. t

(VII) procure, as required, the appropriate proprretary nghts, IfcenSes, agreements and permissions for materials, methods, processes and Systems used or <corporated lnto the Project Hlghway,

(vill) provide all assfstance to the Independent Engineer as it may requlm for the performance of ~ t s duties and services;

(ix) provide to NHAl reports on regular basis during the Constructfon Per~od and the Operatfons Per~od in the form and manner set forth in this Agreement and Schedule 'X',

(x) obta~n and malntain in force on and from the Appointed Date all Insurance in accordance with the provisions of this Agreement and Good Industry Practice,

(XI) acquire such real estate, as the Concess~onafre may deem appropriaie for the Addltronal Facilities and to lndemnffy and save harmless and defend GOI, NHAI, and GOK from and agalnst all proceedrngs, clafms, I

demands, costs, expense's, losses and damages arising out of or relatlng to the secunng of nghts to use such real estate by the Concess~onafre or any person clafmlng through or under the Concess~ona~re.

(xu) undertake Debt Servfce Payments ~n accordance with the Flnanang Documents,

(xiij) levy and collect Fees from u>ars of the Project Hlghway at the rates set forth' ln'the Fee Notiflcatlon'and ~n accordance-with this~Agreementwand~n2Tww-

Sb;. regulate the trafflc on the Project Hlghway ~n accordance wlth the '

0 i b , Applicable Laws; . Ir

(xiv) ensure and procure that each Project Agreement contains provisions that entitle NHAl to step into such agreement in its discretion ill place and substitution of the Concessionaire in the event of Termination of this Agreement on account of default or breach by the Concessionaire;

) (xv) appolnt, supervise, monltor and control the activltles of Contractors under thelr respectwe Project Agreements as may be necessary,

(xvl) make reasonable efforts to malntafn harmony and good industrial relations among the personnel employed ~n wnnectlon wlth the performance of the Concessronalre's obligations un

I

- - - u-- - .- -- P. -I__- -.,. - -_ __, .

(xvii) comply with all Applicable permits and Applicable Laws in the performance of ~ , , e Concessionaire's obligations under this Agreement including those being performed by any of the Contractors;

(xviii) develop, implement and administer a surveillance and safety program for the Project Highway, the users thereof, and the Contractors personnel engaged in the provision of any services under any of the Project Agreements including correction of safety violations and deficiencies, and taking of all other actions necessary to provide a safe environment in accordance with Schedule 'S', Applicable Laws and Good Industry

(xix) take all reasonable precautions for the prevention of accidents On or about the Project Highway and provide all reasonable assistance and emergency medical aid to accidentvictims;

{(xx) not to place or create and nor permit any Contractor or other person claiming through or under the Concessionaire to create or place' any Encumbrance or security interest over all or any part of Site or the Project Assets, or on any rights of the Concessionaire therein or under this Agreement, save and except as expressly set forth in this Agreement;

(xxi) make its own arrangements for quarrying, and observe and fulfill the environmental and other requirements under the Applicable Laws .and Applicable Permi;:, at Concessionaire's own cost and expense;

(xxiii) not claim Or demand possession or control of any roads, s t ~ d u r e s or real estate which do not form part of the Project Highway;

(xxiv) after receiving vacant possession of the Site or part thereof, ensure that such Site remains free from all encroachments and take all steps necessary to remove encroachments, if any

(xxv) make payment to Police department or any Government Agency, if required, for provision of such services as are not provided in the normal course or are available on payment;

( ~ J I ) ~ridemnify the NIiAI against all actions, sults, clalms, dema~ids and proceed~rigs and any loss or damage or ~ o s t or expense that may be suffered by them on account of anythlng done or omitted to be done by the Concessionaire m connection wfth the performance of ~ t s obligations under this Agreement, and

(XXVII) comply with the Divestment Requrements and hand over the Project Hlghway to NHAl upon Termination of the Agreement

9.2 Subject to the terms and cond~t~ons of this Agreement the Concess~onalre shall at its cost and expense:

(I) undertake the des~gn, engineering, procurement and constructlon and financing of the Project Hlghway in accordance w~th this Agreement,

(il) operate and mantaln the Projpct Hlghway at all tlmes In conformity wlth this Agreement lncludlng but not llmlted to the Speciflcatlons and Standards set forth ~n Schedule 'D', Schedule 'L', the Maintenance Programme and Good Industry Practice

9.3 The Concesslonalre shall, before commencement of constructlon of the Project

(I) submit to NHAl with due regard to Project Completlon Schedule as set forth in Schedule 'H' and Scheduled Project Completlon Date, its design, englneering and constructlon tlme schedule and shall formulate and

-.yr7 +ara~-;br. provide CPM/PERT,ch?Qs,for .the c o m p ! e $ t i q q , $ t h & ~ ~ d ~ ~ a $ ; @ $ ~ ~ ~ ~ ~

(11) flnal~se the deslgn and detalled englneering baas,

(111) have requlslte organlsatlon and designate and appolnt a Project manager and such other managers, officers and representatives as ~t may deem appropnate to supervise the Project and to deal wlth the NHAl Representative and be responsible for all necessary exchanges of information re .~ l red pursuant to this Agreement, and

(iv) undertake, do and perform such acts, deeds and thlngs as may be necessary or required for constluctlon and Project completion under and In accordance wlth thls Agreement.

9 4 In respect of the Concesslonalre's obllgatlons w~th resped to the Drawlngs of the

(i) 'The Concessionaire stla11 prepare and subnrit with reasonable promptness and in such sequence as is consistent with the Project Completion Schedule, three copies each of all Drawings to NHAl and the independent Engineer for review and commerits.

(ii) By forwarding the Drawings for review and comment to NHAI, the Concessionaire represents that it has determined and verified that the design and engineering including field construction criteria related thereto is in conformity with the Specifications, Standards and quality set forth in this Agreement for and in respect of the Project Highway.

. (iii) Within 30 (thirty) days of the receipt of the Drawings, NHAI shall review the same and convey its comments/obsewations to the Concessionaire- with palticular reference to the conformity or otherwise with the Specifications and Sianaaras sei forth i r ~ i i~ is Ag~aarnailt. It Is exp:sss!y agreed that notwithstanding any review and comment/observations of NHAl on any Drawings or failure of NHAl to provide comments/ observations thereon, NHAl shall not be liable for the same in any manner whatsoever and the Concessionaire shall remain solely responsible for and shall not be relieved or absolved in any manner whatsoever of its obligations, duties and liabilities as set forth in this Agreement. The Concessionaire shall not be obliged to await the commentslobservations of NHAl on the Drawings submitted pursuant '

hereto beyond the period set forth hereinabove.

Agreement, s ich Drawings shall be revised by the Concessionaire to the extent necessary and resubmitted to NHAl for review, 0bSe~ati0nS and comments. NHAl shall give its observations and comments, if any, within 15 (fifteen) days of the receipt of such revised Drawings provided, however, that any observations or comments of NHAl or failure of NHAl to give any obse~ .ations or comments on such revised drawings shall not relieve or absolve the Concessionaire of its obligation to conform to such Specifications and Standards.

(v) The Concessionaire shall be responsible for delays in Project Completion Schedule caused by reasons of any Drawings not being in conformity with the Specifications and Standards, and the Concession Period shall not be

of any Drawings.

the obligation to provide ?s comments and observations, i i any, in respect Of the

hereunder.

(ii) permit peaceful '.:se of the Site ty the Concessionaire as licensee under and in accordance with the provisions of this Agreement without any let or

(iii) assist and proslid? all reasonable support to the Concessionaire in

including water, electricity and telecommunication facilities at rates and on terms no less favourable to the Concessionaire than those generally available to cnmmercial customers receiving substantially equivalent

(ix) , operate and maintain the Projed Highway during the Development Period, at its ownFcost and expense, in a manner that the level of service

11.1 Representations and Warranties of the Concessionaire

The Concessionaire represents and warrants to NHAl that:

(i) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation;

(ii) It has full power and authority to execute, deliver and perform its obligations under this Agreement and to cany out the transactions contemplated hereby;

(iii) It has taken all necessary corporate and other action under Applicable Laws and its constitutional documents to authorize the execution, delivery and performance of this Agreement; .

(iv) It has the finanr:sl standing and capacity to undertake the Project;

(v) This Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with the terms hereof;

(vi) It is subject to civil and commercial laws of India with respect to this Agreement and it hereby expressly and irrevocably waives any immunity in any jurisdiction in respect thereof;

on the Appointed Date and COD and the Balance Sheet an3 Profit and Loss Account of the Concessionaire for each of its Accountir~g Years after the Appointed Di..2 furnished to NHAl shall give true and fair view of the affairs of the Concessionaire;

(viii) It shall furnish a copy of the audited accounts of the Company within 120 (one hundred twenty) days of the close of its each Accounting Year after the Appointed Date and any material change subsequent to the date of such accounts shall be notified to NHAl by the Concessionaire within 30 (thirty) days of its occurrence and warrants that the accounts and the information furnished as aforesaid shall be true and correct;

(ix) The execution, delivery and performance of this Agreement will not conflict with, result in the breach of, constitute a default under or

, 7 2 *'k%-'i$$' 1 (3 @iwfi and Artlcles of Assoc~at~on of Ihe Concess~onaire or any Member of the -.*w.-

$ 3 3 ~ ~ Consortlurn or any Applicable Laws or any covenant, agreement.

f? understanding, decree or order to wh~ch, 11 IS a Party or by which it or any 1 of its properties or assets IS bound or affected,

(x) There are no actlons, suits, proceedings, or rnvestigatrons pendlng or, to 1 the Concesslona, e's knowledge, threatened against ~t at law or in equlty

before any court or before any other judicial, quasl judicial or other authority, the outcome of whlch may result in the breach of or constltui default of the Concessionaire under this Agreement or whlch lndlvidually or in the aggregate may result in any Materlal Adverse Effect on

I business, properties or assets or ~ ts cond~tlon, flnanclal or othenivise, or in any impairment of ~ t s abillty to perform ~ ts obllgatlons and dutles under I , thls Agreement,

(XI) It has no knowledge of any wolation or dofzult wlth respect to In:, order, wnt, in~unct~on or any decree of any court or any legally blndrng order of any Governmental Agency whlch may result m any Materlal Adverse Effect or impa~n~tent of the Concess~ona~re's ablllty to perform its obllgatlons and dutles under this Agreement;

(XII) It has cornplled with all Applicable Laws and has not been subject to any flnes, penalties, in~unctive rellef or any other clvll or crlmlnal llablllt~es whlch ~n the aggregate have or may have Mater~al Adverse Effect or flnanclal condltlon or ~ t s abillty to perform ~ t s obligations and dutres under this Agreeme?;

Z - - - ~ ~ V ~ ~ ~ + ~ . * - F - F W r r-rvrvnqu ) r n e + , - - ~ ." ='T'%%-ea- .flYE?F==. (XIII) The Concessionaire shall ensure that

(a) aggregate equlty share holdrng of the Consort~um Members and them Assc-lates In the issued and paid up equlty share capltal of the Concesslonalre shall not be less than (a) 51% (flfty one percent) durlng the Construction Perlod and for 3 (three) years following COD, and (b) 26% (iwenty SIX per cent) dur~ng the balance remaining Operations Period.

(b) MIS Jayaswals Neco Llmlted ["Lead Technical Member"] and MIS SREl lntematlonal F~nance Llmlted [Lead F~nanc~al Member"] holds at any trme not less than 25% each, of the Consortium's holding In the pard up equlty capltal of the Concesslonalre.

0 ' 4 3 .

- ,, ,4,-, . >',

Concesslonp~reement ok welamangala-Tumkur BOT Project . -

C 1 ----

I

-- - i ~ ~ ~ ; W L *

(c) Mls Jayaswals Ashoka Infrastructure Private Limited, the dther Member of the Consortium holds at any time not less thanlo% each of the Consortium's holding in the paid up equity capital of the Concessionaire.

(xiv) Each Consortiurr Vember was and is duly organised and existing under the laws of the jurisdiction of its incorporation and has full power and authority to consent to and has validly consented to and requested NHAl to enter into this Agreement with the Concessionaire pursuant to the LOA and has agreed to and unconditionally accepted the terms and conditions set forth in this Agreement;

(xv) All rights and interests of the Concessionaire in and to the Project Highway shall pass to and vest in NHAl on the Termination Date free and clear of all liens, claims, and Encumbrances without any further act or deed on the part of the Concessicnaire or NHAl and that none of Project Assets including materials, supplies or equipment forming part thereof shall be acquirea ~y the Concessionaire subject to any agreement under which a security interest or other lien or Encumbrance is retained by any person save and except as expressly provided in this Agreement;

(xvi) No representation or warranty by the Concessionaire contained herein or in any other document furnished by it to NHAI, or to any Governmental Agency in relation to Applicable Permits contains or will contain any untrue statement of material fact or omits or will omit to state a material

(xvii) It warrants that nn sums, in cash or kind, have been paid or will be paid by or on behalf or the Concessionaire, to any person by way of fees, commission or otherwise for securing the Concession or entering into this Agreement or for influencing or attempting to influence any officer or employee of NHAI, GO1 or GOK in connection therewith.

11.2 Representations and Warranties of NHAI.

NHAI represents and warrants to the Concessionaire that:

(i) NHAl is duly organised and validly existing under the laws of India;

* YFI. ,x - - 2z (11) NHAl has full 'power and author~ty to exec~rte, deliver and pelfor~n lts

-;;4tlr& 4 , .-. **k$*$w* obllgat~ons under this Agreement and to carry out the transactions %$ * 4 contemplated hereby,

(nl) NHAl has taken rll necessary action to authorlse the executlon, dellvery and performance of this Agreement,

(IV) This Agreement constitutes its legal, valid and blndlng obl~gatlon enforceable against ~t In accordance with the terms hereof;

(v) NHAl 1s subject to civll and commercial laws of lnd~a wlth respect to thls Agreement and ~t hereby expressly and ~rreqocably waives any sovereign immunlty In any ~Urlsdlction in regard to matters set forth In thls Agreement

XH DISCLP.IVE!?

12 1 The Cancess~onalre acknowledges that prlor to the executlon of thls Agreement, the Concess~onalre has after a complete and careful exarnlnat~on rnade an Independent evaluat~on of the traK: volumes, Speclflcatlons and Standards, Site and all the lnformatlon prov~ded by NHAl and has determined to the Concesslonalre's satisfact~on the nature and extent of such d~fflcult~es, risks and hazards as are llkely to arise or may be faced by the Concessionaire In the course of performance of ~ t s obllgatlons h'ereunder I

12 2 The Concessronaire acknowledges asd hereby accepts the rlsk of Inadequacy, *-mistake or error In or relating to any of the matterstset forth in C!aused2 l,?_bo_ve,, ,, ,,,

and hereby conflrms that NHAl shall not be llable for the same In any manner whatsoever to the Concessionaire, the Consortlurn Members or therr Assoc~ates

eement of Nelamangala-Turnkur BOT Project

CHAPTER - IV * - P<<Q- PROJECT DEVELOPMENT AND OPERA7 IONS v&: a I

$$$ : ~ 1 1 1 . USE AND DEVELOPME; T OF THE SITE igg + I * -

&%.c 13.1 NHAl hereby grants to the Conccssionarre for the Development Period access to $g& ,? % ;:* 7

the Slte for carrylng out such surveys, investlgatlons and so11 tests as the

!& F Concessionaire may deem necessary at the Concess~ona~re's cost, expense and

*%.ic g:* risk without causlng dlsnrptlon In the traffic on the exlsting lanes of the Project

Highway.

s3 ' tIY. 13.2 NHAl hereby grants to the Concesslonalre for the Concession Perlod the nght I Yr.

" h and l~cence to enter upon all real estate cornpr~sed ~n the Slte as br~efly described y o . ".. % ? . b ~ ~ ~ ~ : ~ * In Schedule 'A' and to survey design, engineer, procure, construct, operate and @ ma~ntaln the Project Highway Including the Project Faclllties In accordance with

,&.@ <. k-

the provisions of ihls Agreement Such right and licence of the Concessionaire to

the use the Slte shall be subject to

13 2 1 Any existlng utlllties on, under or above the Slte are kept ln continuous satisfactory use, if necessary by the use of surtable temporary or permanent diversions wlth the authority of the controlling body of that utlllty,

13.2 2 Any exlstlng roads or right of ways are kept in continuous satisfactory use, ~f necessary, by the use of sultable temporary or permanent

I 7<:3.:y+2 L: + . , . .,, -.f" , ' - .. . d i v e r s i ? ~ a ~ & ~ h _ ~ ~ e , a ~ ~ ~ ~ ? ~ ~ ~ o t ~ h ~ ~ $ ~ ~ o $ g ~ b ~ ~ _ y , ~ f ;haL;oad or right of ~:?>.CA.-%-- , .ata,tf., .' . way. For any dis*nrsion br construction; of teinporary roads, NKAI will 1 #>p assist the Concesslonalre ~n acquiring the r~ght of way,

1 $. [!I t .- 13.2 3 The rlghts of the road users to use the road In accordance with thls I::.S Agreement;

13 2 4 A nght of access by the NHAl ~tself and any of ~ t s agents to perform thelr obligations and nghts under the Concession Agreement or any other functions that they have, and to conduct any study or trial for the purpose of research,

13 3 The llcense and the nght to use the Slte shall be granted for the purpose of carrylng out the funct~on placed upon the Concessionalre under the Agceement . "\., and not for any other purposes, ->!:.!!p.< ,

8 l $2: 13 4 The Concesslor!aire shall bear ail costs and charges for specral and temporary :zt: rrghts of way requrred by r i n connection wrth access to the Slte 'The

gqg Concessionaire shall obtsrn at rts cost such facllrtles on or outslde the Site as F! =- - may be requrred by ~t for the purposes of the Project Hrghway and the

% performance of its obligations under this Agreement ,.;* ::+33

13.5 The Srte shall be made avarlable to the Concesslonarre pursuant hereto by NHAl / ixx: - ~ 4 3 %

free from all Encumbrances and occupatrons and wrthout the Concessronalre *a;< ,

&$ berng required to make any payment to NHAl on account of any costs, expenses and charges for the use of such Srte for the duratron of the Concessron Perrod save and except as otherwrse expressly provrded rn thrs Agreement NHAl shall procure for the Concessionaire access t3 the Slte, free of Encumbrances, not later than 150 (one hundred and fifty) days from the date of thrs Agreement Provided, however, that ~f NHAI does not enable such access to any part or parts of the Srte for any reas 1 other than a Force Majeure Event or breach of this Ayree~rla~i i by the Conccsz:cr,~::c, NY.41 hail pay to the Concessrona~re Damages at the rate of Rs.1000 (Rupees one thousand) per month per 1000 (one thousand) sq meters or part thereof if such area IS requrred by the Concessionaire for Construction Works Such Damages shall be rarsed to R3 2000 (Rupees two thousand) per month after COD ~f such area IS essential for the smooth and efflcrent operatron of the Project Hlghway Provrded further that the Completion Certrfrcate or the Provrslonal Certlflcate, as the case may be, for the Project Hrghway shall not be affected or delayed as a consequence of such parts of the S~ te remarnrng under canst~ctron even after the Scheduled Project Cornpletron Date

6m@n70r after the Appointe.. Date,.the C o n c e s s ~ o n a ~ r _ e ~ h ~ ~ . c o m m e n c e , . ~ ~ ~ ~ ~ ~ ~ ~ ~ and complete all Coilstructron Works OP the ~ r o j e c t ' ~ ~ ~ h w a ~ rn accordance with this Agreement

13 7 Const~ctron of the Project Hlghway shall be undertaken by the Concessronarre in conformrty wrth the Project Ccmpletron Schedule 'H' and the Project milestones set forth in Schedule 'H' for completion of the Project Hrghway On or before the Scheduled Project Complet~on Date If the Concessronaire falls to achreve any such Project mrlestone other than Project Completron, wlthrn a perrod of 90 (nrnety) days from the date set forth in Schedule "H' then rt shall pay Damages to NHAl at the rate of Rs.50U,000 (Rs F~ve lakhs) per day untrl such mrlestone IS achieved. NHAl may e~ther recover such Damages from the Performance Secur~ty or oemand payment thereof from the Concessronarre The Concessronarre shall make such payment wrthrn 7 (seven) days of receiving such demand from NHAl and any delay In making such payment @ SBI PLR plus two per cent. If the Concessronaire

completion as per the Sct)ed~lled project Completrori Date as set forth in Schedule 'H', t t~en rt s k pay damages to NHAl as per Artlcle XV. However, In

the event that the Cancesslonalre achieves the Provisional Certlflcat~on or the Completlon Certlflcate by Scheduled Project Completlon Date, the damages recovered under thls clause, ~f any, would be refunded (without interest) to the Concessionaire

XIV. MONITORING AND SUPERVISION OF CONSTRUCTION

14 1 Durlng the Construction Perlod, the Concessionaire shall furnish to NHAl and the lndependent Engineer monthly progress reports of actual progress of the Construction Works comprised rn the Project Highway and shall give all such other relevant information as may be required by NHAl andlor the lndependent Englneer.

14.2 The lndependent Englneer shall Inspect the Constructlon \IVorKs ana tne Projecr Highway at least once a month dunng the Construction Period and make out an lnspectlon Report of such rnspectlon (the "lnspect~on Report"). It shall send a copy of ~ t s Inspectton Report to NHAI and the Concesslonalre. The Concesslonaire shall take necessary actron to remedy the lapses, d any, stated ~n the lnspectron Report for ensuring compliance wlth the provlslons of th~s Agreement Such lnspectron or subm~ss~on of lnspectlon Report by the lndependent Englneer shall not relieve or absolve the Concesstonaire of ~ts obligations and llabllltres hereunder in any manner whatsoever

14 3 For the purposes of determlnlng that Constructlon Works are belng undertaken !n -- * a ~ - i ~ ~ " c o r d a n c e ~ w ~ ~ h ' ~ ~ ~ ~ f i f i c " a t i ~ ~ ' a ' n ~ ' S ~ ~ d a F " d s " ~ d ~ ~ o o d Industry' Practice, the .

lndependent Engtneer shall require the Concessionaire to carry out such Tests at such tlme and frequency and ~n such manner as may be necessary In accordance with Good Industry Pradlce for quallty assurance The Concesslonaire shall wlth due dlllgence carry out, or cause to be carrled out, all such tests In accordance wlth the rnstructlons of the lndependent Eng~neer and furnlsh the results of such tests forthwrth to the lndependent Engrneer The Concesslonalre shall promptly carry out such remedial measures as may be necessary to cure the defects or defrcrencies, ~f any, lndlcated rn such test results and fum~sh a report to the lndependent Englneer In thls behalf

0 0:

:7 14 4 If the lndependent Englneer or NHAl shall reasonably determrne that the rate Of

:? progress of the Construction of the Project H~ghway is such that the Project 1

0, 0 .

0% 0' 0

O f -

Completlon IS not feaslble on or before the Scheduled Project Completlon Date '- i ":

- f "

/

b I I 1

* s l

lndependent Engiieer s . . ~ u t the steps it proposes to l a b tc~ expedite progress and the period within which it shall achieve COD.

14.5 (a) Upon recommendation of the Independent Engineer or suo-moto, NHAl may by wrltten notice require the Concessionaire to suspend forthwith the whole or any part of the Construction Works if in the reasonable opinion of the NHAl such work is being carried on ~n a manner which threatens the safety of the works or of the users of the Project Highway.

(b) The Concessionaire, shall upon instructions of the NHAl pursuant to sub- clause (a) above suspend the Constructlon Works or any part thereof for such tlme and m such manner as may be specified by NHAl and subject to sub-clause (c, oelow, the costs incurred dunng such suspension to properly protect and secure the Construction Works or such part thereof as is necessary in the opinion of the lndependent Englneer ("Prese~atlon Costs"), shall be borne by the Concess~onalre.

(c) If the suspension pursuant to Sub-clause (a) above, is caused by:

(I) any reason other than default or breach of thls Agreement by the Concesslonalre including breach of any of the obligations of the Concess~onarre under thls Agreement, the Preservatron Costs shall be bome by NHAL.

(~i) reason of default or breach of thls Agreement by NHAl the Preservation Costs shall be bome by NHAI, or

111) reason of any Force Majeure Event, the Prese~atlon Costs shall - -- --jr --am r z l i r i r a 7-- r-r.aur-lr - *- +---lrss t---jq

be borne by the ~ o n c e s s l o n ~ e and except.to-the extent- othewlse expressly provlded in Artlcle XXlX

(d) If suspension of Constructlon Works IS for reasons not attr~butable to the Concessionalre, the Independent Engineer sha.11 determine any extension to the Project Completlon Schedule, the Scheduled Project Completion Date and the Concession Penod, to which the Concessionalre is reasonably ent~tled and shall notify NHAl accordingly NHAl shall extend the Project Completlon Schedule, the Scheduled Project Completlon Date and the Concesc,: n Penod in accordance with the recornmendatlons of the lndependent Eng~neer.

"I" a.

XV. COMPLETlON

15.1 The Project shall be deerned to be complete and open to traffic only when the Completion Certificate or the Provisional Certrficate is issued in accordance w~th the provisions of Article XVI (the "Project Completion").

15.2 COD of the Project shall be the date on whlch the Independent Eng~neer has issued the Completion Cert~ficate or the Prov~sional Cert~f~cate, as the case may be, under t h~s Agreement and the Concess~onaire shall not levy and collect any Fee unt~ l it has received such Complet~on Cert~f~cate or the Provisional Cert~ficate.

15.3 The Concessionaire guac ,ntees that the Project Completion shall be achieved ~n accordance with the provisions of this Agreement on a date not later than 24 (twenty four) months from the Appointed Date ("Scheduled Project Completion Date").

15.4 If the Project Completion IS not ach~eved by the Scheduled Project Completion Date for any reason other than conditions const~tuting Force Majeure or for reasons attributable to NHAl or any Governmental Agency, the Concessionaire shall pay to NHAl as weekly Damages for delay in the ach~evement of the COD, an amount calculated at the rate of 0.01% (point zero one per cent) of the Total Project Cost per week or part thereof.

15.5 If the COD does not OCCbi wlth~n 12 (twelve) months from the Scheduled Project Complet~on Date, NHAl shall be ent~tied to Termmate i h ~ s Agreement ~n

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0: -2% .4]:7> ' ? ' XVI TESTS

9.. a - 04' . 16 1 All Tests shall be conducted in accordance wrth Schedule 'J' and the Appl~cable

ti. ; Laws and Appl~cable Perrn~ts NHAl shall des~gnate a NHAl Representatwe to

Q$ : wrtness and observe the Tests All Tests shall be held in accordance wrth the

Q;~ ; " schedule notrf~ed by the Concess~ona~re to the lndependent Eng~neer and the

& ;, NHAl Representat~ve who may e~ther w~tness the Tests themselves or des~gnate the~r representat~ves for this purpose, if they choose

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16 2 The Independent Engineer shall monitor the results of the Tests to determ~ne the

i . cornpl~ance of the Project H~ghway w~th the Spec~f~cat~ons and Standards The 0.

' Concess~onaire shall prov~de to the lndependent Engineer and the NHAl w~th

"-is 9 copies of all Test data including detailed Test results. 0 '

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16 3 At least 30 (thirty) days prior to the llkely completion of the P~oject Highway, the

Concesslona~re shall not~fy the lndependent Engineer arid NHAl of the same and shall glve not~ce of ~ t s Intent to conduct any final Tests. The Concess~onaire shall give to NHAl and the lndependent Engineer at least 10 (ten) days' pnor notlce of the actual date on whlch ~t intends to commence the Tests and at least 7 (seven) days' prior notice of the commencement date of any subseq~lent Tests The lndependent Englneer shall have the nght to suspend or delay any Test lf ~t is reasonably antlclpated or determined during the course of the Test that the performance of the Project Hlghway or any part thereof does not meet the Spec~flcat~ons and Standards

16 4 Upon the lndependent Engineer determlnlng the Tests to be successful and all parts of the Project Highway to have been completed and the Project Highway can be legally, safely and rel~ably placed ~n cornrnerc~al operat~ons, the lndependent Engineer shall forthw~th issue to the Concess~onaire and NHAl a Certif~cate substantially i n the form set forth ~n Schedule 'K' (the "Complet~on Cert~ficate")

16.5 lndependent Engineer may at the request of the Concess~onaire Issue a provlslonal certrfrcate of completion ("Provisional Certlficate") ~f the Tests are successful and all parts of Project Highway can be legally, safely and reliably placed in commercial operat~on though certain works or thlngs formlng part thereof are not yet complete In such an event such Provislonal Certlficate shall have appended theretc, a l~st of outstanding Items signed jointly by the lndependent Engineer and the Concesslonalre ("Punch List") All Punch Llst Items shall be completed by_the Conc~ssionaire w~thin 120 (one hundred twenty)

--wwc--q * = a "=a . w ? * s w z - . . '* r-r-s---*a -*ru~ days of the date of issue of such Provls~onal Certiflcate Subject to payment of Damages equal to Rs 200,000 (Rs Two hundred thousand) per week or part thereof on account of any delay beyond the aforesaid period of 120 (one hundred twenty) days, the Concessionalre shall be entltled to a further perrod of upto 180 (one hundred e~ghty) days for complet~on of Punch List items Upon complet~on

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I of all Punch Llst Items to the satisfact~on of the Independent Engineer, the ,%- Independent Engineer shall Issue the Completion Certificate to the

~ :,4 Concessiona~re. Fa~lure to complete the Punch Llst [terns in the manner set forth

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? In thls Clause 16 5 shall p i t~ t le NHAl to Termmate thls Agreement in accordance wlth the prov~s~ons of Clause 32 2

:a, *-$! '..+ 16 6 If the Independent Engineer certlfles to NHAl and the Concess~onaire that ~t is :%aV unable to issue the Completron Certlflcate or Provisional Cert~ficate because of

:: events or c~rcumstances which excuse the performance of the Concessiona~re's obl~gat~ons ~n accordance w~th this Agreement and as a ,"

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16 3 At least 30 (thirty) days prior to the likely completion of the Project Hlghway, the Concesslonaire shall not~fy the Independent Englneer and NHAI of the same and shall give notice of ~ t s intent to conduct any final Tests. The Concesslonalre shall give to NHAl and the lndependerlt Englneer at least I 0 (ten) days' prior notice of the actual date on whlch it intends to commence the Tests and at least 7 (seven) days' prlor notlce of the commencement date of any subsequent Tests. The lndependent Engineer shall have the right to suspend or delay any Test if it IS

reasonably antlc~pated or determined during the course of the Test that the performance of the Project Highway or any part thereof does not meet the Speclflcatlons and Standards.

16 4 Upon the lndependent Englneer determining the Tests to be successful and all parts of the Project Highway to have been completed and the Project Hlghway can be legally. safely and reliably placed in commerclal operations, the lndependent Engineer shall forthwith Issue to the Concessionaire and NHAl a Certificate substantially in the form set forth in Schedule 'K' (the "Completlon Certificate"),

16.5 lndependent Engineer may at the request of the Concessionaire issue a provisronal certificate of completion ("Provis~onal Certlflcate") d the Tests are successful and all parts of Project Hlghway can be legally, safely and reliably placed in commerclal operation though certain works or things forming part thereof are not yet complete In such an event such Provislonal Certlflcate shall have appended theretcl a 11st of outstanding Items signed jointly by the lndependent Englneer and the Concesslonaire ("Punch Llst") All Punch List -

Items shall be completed by the Concessionaire wlthln 120 (one hundred twenty) w - : p ~ 9 - ~ = - - r 7 5- a . + - ~ . p - ~ r i . l i - " x v " x v ~ a - ~ - r n n *rs r - a* -' -

days of the datebf Issue of such~Prov~s~onaI,Cert~f~cate. Subject to payment of Damages equal to Rs 200,000 (Rs. Two hundred thousand) per week or part thereof on account of any delay beyond the aforesaid perlod of 120 (one hundred twenty) days, the Concessionaire shall be entltled to a further period of upto 180 (one hundred eighty) days for completion of Punch List items Upon completion of all Punch Llst Items to the sat~sfactlon of the lndependent Engineer, the lndependent Engineer shall issue the Completlon Certificate to the Concess~onaire. Fallure to complete the Punch List Items ~n the manner set forth ~n this Clause 16.5 shall eqtitle NHAl to Terminate thls Agreement in accordance with the provisions of Clause 32.2.

9 . 16 6 If the Independent Engineer certifies to NHAI and the Concesslonalre that it is 3 . unable to lssue the Completion Certlflcate or Provisional Certlflcate because of

0 * events or c~rcumstances whlch excuse the performance of the Concess~onalre's

s +* obllgatlons ~n accordance wlth this Agreement and as a

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Tests a u l d not be held or had to be suspended, the Concessionaire shall re- t schedule the Tests and hold the same as soon as reasonably practicable. $

16.7 Upon receipt of a report from the Independent Engineer or after conducting its own review or inspection, if NHAl is not satisfied with the results of any Tests, it shall within 7 (seven) days thereof notify the Concessionaire of its reasons to conclude that the Completion Certificate should not be issued, in which case the Concessionaire shall promptly take such action as will achieve such satisfaction. Such procedure shall be repeated as necessary after rectification and remedy of reasons/ causes by the Concessionaire on account. of which the Tests were unsuccessful, until the Completion Certificate or Provisional Certificate has been issued in accordance with this Agreement by the lndependent Engineer.

16.8 The Concessionaire shall bear all the expenses relating to Tests under this Agreement. Provided, however, that if the NHAl Representative requires any Test to be conducted which is not specified in this Agreement and such Test is not necessary in the opinion of the lndependent Engineer, then the expenses on such Test shall be reimbursed by NHAI to the Concessionaire.

XVII. CHANGE OF SCOPE

17.1 NHAl may, notwithstanding anything to the contrary contained in this Agreement, require provision of such additional works and services on or about the Project Highway which are beyond the scope of the Project as contemplated by this Agreement ("Change of Scope"), provided such changes do not require

adversely affect the COD. All such changes shall be made by NHAl by an order (the "Change of Scope Order") issued in accordance with the procedure set forth in this Article XVII.

17.2 Procedure for Change o f Scope

(a) NHAl shall when. er it desires provision of additional works and services referred to in Clause 17.1, issue to the Concessionaire a notice of Change of scope (the "Change of Scope Notice").

(b) upon receipt of such Change of Scope Notice, the Concessionaire shall provide to NHAl and the Independent Engineer such information as is necessary and reasonable together with preliminary documentation in support of the following:

I

-

(ij the impact, if any, which the Change of Scope is likely to have p n

the Project Completion Schedule if the work is required to be carried out before COD, and

(ii) the cost to the Concessionaire of complying with such Change of Scope Notice (including, without limitation, material and labour cost information furnished in accordance with the current schedule of ratas 3pplicable to !he works assigned by NHAl to its contractotj, including the premium on such rates).

(iii) the options suggested for implementing the proposed Change of Scope and the effect, if any, each such option would have on the

. costs and time for the implementation thereof including a detailed breakdown by work classifications. Provided, however, that the costs of providing such information shall be reimbursed to the Concessionaire by NHAl to the extent such costs are certified to be reasonable by the Independent Engineer.

(c) If NHAl desires, after receipt of information set forth in sub-clause (b) to proceed with the Change of Stop, it shall convey the desired option to the Concessionaire by issuing a Change of Scope Order and thereupon the Parties shall make good faith efforts to mutually agree upon the costs and time for implementing of the same. Upon reaching an agreement relating to such costs and time, NHAI shall issue a written confirmation of the Change of Scope Order and thereupon the Concessionaire shall proceed with performance of such order. In the event, the Parties are

- r - " " w -"vd unable~to"agiee~NHAl~maypby:issuingta-,confirmation in writing of such Change of Scope Order, require the Concessionaire to proceed with the performance of the Change in Scope Order pending resolution of such dispute.

17.3 A change of Scc;:.: Order will be effective and binding upon issuance of a confirmation of such Change of Scope Order by NHAI. Notwithstanding a dispute regarding'cost and time for implementation of such Change of Scope Order, the Concessionaire shall proceed with the performance of such Change of Scope Order promptfy following NHAl's confirmation pursuant to Clause 17.2(c). Pending resolution of such dispute, NHAl shall pay to the Concessionaire an amount equal to the costs that are certified by the lndependent Engineer to be reasonable plus one-half the difference between the amount certified by the lndependent Engineer and the amount claimed by the Concessionaire with final adjustments to be made in accordance with the resolution of dispute under the Dispute Resolution Procedure. All claims by the Concessionaire pursuant;to.-this Article XVll shall be supported by such documentation :az.is reasonaply, sufficient for NHAl to determine the accuracy theibof; including invoices

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frorn Contractors and subcontractors and certiflcat~on cif such claims by the Statutory Auditors

All clams by the Concess~ona~re pursuant to Art~cle XVll shall be supported by such documentat~on as is reasonably sufflc~ent for NHAl to determine the ar-lracy thereof, including lnvolces from Contractors and subcontractors and certlflcatron of such clams by Statutory Auditors

XVIII. OPERATION AND MAINTENANCE

18 1 The Concess~onaire shall operate and maintam the Project Hlghway by itself, or through O&M Contractors and if required, modify, repalr or otherwise make improvements to the Project H~ghway to comply w~th Speclflcatlons and Standards, and other requirements set forth in thls Agreement, Good Industry Practice, Appllcable laws and Appllcable Permits and manufacturer's gu~dellnes and lnstructlons w~ th respect to toll systems, and more spec~flcally.

(i) perm~tting safe, smooth and un/nterrupted flow of traffic durlng normal operat~ng cond~t~ons,

(11) charging, collecting and retalnlng the Fees In accordance wlth thls Agreement,

(iii) m~nlm~zing dlsrupt~on to traff~c in the event of acc~dents or other lnc~dents affecting the safety and use of the Project Hlghway by providing a rapld and effective response and rnarntalnlng lla~son procedures wlth emergency services,

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(iv) undertak~ng routlne malntenance including prompt repairs of potholes, cracks, concrete '* ~nts, drams, l~ne marking, lightlng and slgnage,

(v) undertak~ng major marntenance such as resutfaclng of pavements, repalrs to structures, repairs and refurb~shment of tolling system and hardware and other equipment,

(VI) carrylng out periodic preventwe malntenance to Project Highway lncludtng tolling system,

(VII) preventing w~ th the ass~stance of concerned law enforcement agencles unauthorised entry to and exit from the Project Highway,

(VIII) preventing with .ie assistance of the concerned law enforcement

(ix) maintaining a public relations unit to interface wiitl and attend to

suggestions from users of the Project Highway, the media, Government Agencies, and ot;.i?r external agencies; and

(x) adherence to the safety standards set out in Schedule 'So.

18.2 The Concessionaire shall in consultation with the lndependent Engineer prepare not later than 180 (one hundred and eighty) days before the Scheduled Project Completion Date, the repair and maintenance manual (the "Maintenance Manual") for the regular and periodic maintenance, and shall ensure and procure that at all times during the Operations Period, the Project Highway is maintained in a manner that it complies with the Specifications and Standards and the minimum maintenance requirements set forth in Schedule L. The Concessionaire shall supply, at least two months before the COD, 10 (ten) copies of the Maintenanc;;: Manual to NHAI and 3 (three) copies each to the GO!, GOK and lndependent Engineer. Copies of the Maintenance Manual shall also be made available by the Concessionaire for public inspection during office hours at a conspicuous place adjacent to each Toll Plaza on the Project Highway.

18.3 Not later than forty five (45) days before the beginning of each Accounting Year, the Concessionaire, shall in consultation with the lndependent Engineer prepare and provide to NHAI, its proposed programme of preventive and other scheduled maintenance of the Project Highway subject to the minimum maintenance requirements set forth in Maintenance Manual and in Schedule 'L' necessary to maintain the Project Highway at all times in conformity with the Specifications

- -and Standardsr(the~!'Main!enance Prog?arnme8!):Such Maintenance Program'me' shall include but not be limited to the following:

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" (i) intervals and proced~res for the carrying out of inspection of all elements .! of the Project Highway; r. .

(ii) criteria to be adopted for deciding maintenance needs; A

'C (iii) preventive maintenance schedule; ? (iv) intervals at which the Concessionaire shall carry out periodic 'a .,.i maintenance;

': .. (v) intervals for major maintenance and the scope thereof; and

(vi) lane closures schedule for each type of maintenance (length and time). i4 - ";

9 18.4 Maintenance shall inclu ; replacement of equipmentlconsumables, horticultural .-

maintenance and upkeep of all Project Assets in good order and working ::, condition. Maintenance shall not include the extension of -any-,-%xisting

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pavements, bridges, structures and other civil works unless part6f;f!hei~~e$l>;7~, i

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$5j ' 18.5 The Concess~ona~re shall keep the carnageways, rest areas and other Project 26-

mi- Facilltles and Toll Plazas in a clean, tidy and orderly cond~tlon free of lltter and %@d

%&a. debris

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@as 18 6 Durlng the Operations Perlod, the Concesslonalre shall not carry out any materlal %<@ e w r modlflcat~ons to the Project Highway save and except where such (I) modlflcatlon

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*& IS requlred by Good Industry Practlce, or (11) rnodlflcatlon IS necessary for the @ - *p:.:. Project Hlghway to operate In conformity wlth the Specifications and Standards

$3 prescnbed under this Agreement Provlded that the Concessionalre shall notify *= rv NHAl of the proposed modlflcations along wlth detalls thereof at least flfteen days Pr ; before commenclna work on such mod~f~cat~ons and shall reasonablv consider -

such suggestions as NHAI may make within 15 (fifteen) days of receipt of such details by NHAI.

t .F;'; 1 ~ ~ & $ w v 18 7 The Concessiona~re shall be respons~ble for the maintenance of the approach g* roads to and underpasses and overpasses upto 100 mtrs from the Project 5%- i Highway in accordance with Good Industry Practice. 1 k#

18.8 Safety, Vehlcle Breakdown and Accident pi +

Qd 5. 18 8 1 In the case of unsafe cond~tions, vehicle breakdowns and acadents, the

- 3~ Concessionaire shall follow the relevant operating procedures, which 32% A shall include the settlna UD of tem~orarv traffic cones and llqhts as well as

- - the removal of obstrucuon and debr~s expeditiously. Such =--- . r W . n l r M r a X 2 '-R)'q-a* shall be ~n accorTaAce wlth Appljcable Laws, ~ ~ ~ l ~ c i b l e

w5 IS provisions of this .'greement. 7-3"

k I R 18 8 2 The Concess~onaire shall ensure that any dlverslon or lnterruptlon of $ traffic IS remedled wthout delay. The Concess~ona~re's respons~blilty for

!$$" rescue operations on the Project H~ghway shall be limited to the removal of vehlcles or debrls or any other obstruction, whlch may endanger or interrupt the smooth traffic flow on the Project Highway.

18.8 3 The Concessionaire shall ensure that safety standards specified ~n I Schedule 'S' are strictly complied with In the event of any lane closure or dlverslon of traffic. Compliance wlth Schedule 'S' will be monitored by the Independent Englneer and a breach by the Concesslonalre of its

9 obllgat~ons In r&.>ect of this Schedule Identified by the Independent P Englneer shall be notlfied lmmedlately and is requlred to be cured wlthln

$c "",- 24 hours of ~ t s notdlcatlon notwlthstandlng Ins e a i a reporting

procedures oufl~ned elsewhere in this Agree&%

notified breach shall le%d to the award of a penalty point to the Concessionaire. A total of five penalty points in any continuous period of 365 days.shall constitute a Material Breach of this Agreement.

18.9 Emergency De-commissioning

18.9.1 If, in the reasonable opinion of the Concessionaire there exists an emergency which warrants decommissioning and closure to traffic of whole or any part of the Project Highway, the Concessionaire shall be entitled to de-commission and close the whole or the relevant part of ttie Project Highway to traffic for so long as such emergency and the consequences thereof warrant, provided however that such emergency decommissioninr ill be notified to NHAl promptly. NHAl may issue directions to the Concessionaire for dealing with such situations and the Concessionaire shall abide by such directions.

18.9.2 The Concessionaire shall re-commission the Project Highway or the affected part thereof as quickly as practicable after the circumstances leading to its de-commissioning and closure have ceased to exist.

18.10 The Concessionaire shall not close any lane of the Project Highway for undertaking maintenance or repair works except with the prior written approval of the NHAl which may delegate its authority to the Independent Engineer. Such approval shall be sought by the Concessionaire through a written request to be made at least 7 (seven) days before the proposed closure of lane and shall be

length and section required to be closed and the period of closure. The Concessionaire shall also furnish particulars indicating the minimum time required for completing such repair works. Within 5 (five) days of receiving such request, NHAl or the lndependent Engineer, as the case may be, shall grant permission with such modifications as it may deem necessary. Upon receiving such permission, the Concessionaire shall be entitled to close the lane in accordance with such permission and re-open it within the period stipulated in such permission. For any delay in re-opening such lane during the first Operations Year, the Concessionaire shall pay Damages to NHAl calculated at the rate of Rs.10.000 fRs. Ten thousand), per day or part thereof for every stretch of 100 (one hundred) meters or part thereof in each lane until such time the stretch has been re-opened for traffic: These damages of Rs.10,000 (Rupees

18 11 SEIV~? and except as otherwise be expressly provrded in thrs Agreement, B the Project H~ghway rncludrng Construction Works or any part thereof shall suffer any loss or damage dur~ng the Concession Period, from any cause whatsoever, the Concessronaire shall, at rts cost and expense rectrfy and remedy such loss or damage forthwrth in a manner so as to make the Project Hrghway conform in every respect to the Specifications and Standards, quallty and performance as prescribed by this Agreement

18 12 In the event the Concessronaire does not marntaln and/ or repalr the Project Highway or a part thereof upto and rn accordance with the Specificatrons and Standards and/or in ac,ordance wrth the Marntenance Programme or the Marntenance Manual, and shall have farled to commence remedral works wrthin 30 (thrrty) days of recerpt of notice in thrs behalf from NHAl or the Independent Engineer, or the O&M lnspectron Report, as the case may be, NHAl shall, wlthout prejudrce to its rrghts under this Agreement, rncluding Terminatron thereof, be entitled to undertake the repair and malntenance of the Project Hrghway at the rrsk and cost of the Concessronarre and to recover the same from the Concessronalre In addrtion to recovery of the aforesard cost of repair and malntenance by NHAI, a sum equal to 25% (twenty five per cent) of such cost shall also be recovered by NHAl from the Concessionaire as Damages NHAl shall have the rrght and the Concessionarre hereby expressly grants to NHAl the right to recover the same directly from the Escrow Account and for that purpose the Concessronarre he~eby expressly authorrses NHAl and hereby gives irrevocable instructions to the Escrow Bank to make payment from the Escrow Account rn accordance, w~th the rnstructrons of NHAl under thrs Clause.

18 13 In the event NHAl does not exercise rts option to undertake the requlred reparr and maintenance after expiry of the 30 (thrrty) days penod stipulated rn Clause 18 12 rt shall recover Damages from the Concessronarre for default in operating and marntarnlng the Project Hlghway in conformrty w~th thls Agreement Such Damages shall be payable after the aforesaid period of 30 (thirty) days and until

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9: ; !i the default IS cured The amount of Damages shall be calculated for each day of default at the hrgher of the following, namely (a) Rs.10,000 (Rs Ten thousand), $;

a, . iP and (b) 0 1% (zero point -rle per cent) of the cost of such repair as estrmated by S'

* the Independent Engrneer Recovery of such Damages shall be without prejudice to the rights of NHAl under thrs Agreement, lncludrng Termlnatlon

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manner that results in a delay of more than 30 (thirty) days as compared i u the time required in accordance with Good Industry Practice, NHAl shall recovet Damages from the Concessionaire as if a default had occurred under Clause

18.15 The Concessionaire shall not be considered in breach of its obligations under this Agreement if any part of the Project Highway is ngt available to traffic after the COD on account of any of the following for the duration thereof:

,

(i) an event of Force Majeure;

(ii) measures taken to ensure the safe use of the Project Highway except when unsafe conditions on the road occurred because of failure of the Concessionaire to perform its obligations under this Agreement; or

(iii) compliance with a request from NHAl or the directions of any Governmental Agency the effect of which is to close all or any part of the Project Highway.

Notwithstanding the above, the Concessionaire shall keep all unaffected parts of the Project Highway open to traffic and use provided they can be safely operated and kept open to traffic.

XIX MONITORING AND SUPERVISION DURING OPERATION

19.1 The Concessionaire shall undertake periodic (at least once every calendar month

Specifications and Standards and the maintenance required and shall submit reports of such inspection ("Maintenance Reports") to NHAl and the independent

19.2 The lndependent Engine;,. shall review the Maintenance Reports and inspect the Project Highway at least once a month during the Operations Period and make out an lnspection Report of such inspection (the "O&M lnspection Report"). The lndependent Engineer shall send a copy of its O&M lnspection Report to NHAl and the Concessionaire. The Concessionaire shall within 30 (thirty) days of the receipt of the O&M lnspection Report remedy the defects and deficiencies, if any, set forth in such O&M lnspection Report and submit its report in respect thereof to the lndependent Engineer and NHAl within the said Where the remedying of such defects or deficiencies is

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30 (thirty) days ~n accordance with Good Indus{ly Practice, the Concsss10naire shall undertake the works ln accordance w ~ t h such pract~ce and subm~t progress reports of such works every fortnight The O&M lnspectlon Report may also

require the Conce'ss~onalre to undertake such tests as may be specified by the lndependent Engineer for the purpose of determining that the Project Hlghway Is at all t~mes in conformity w~th the Speaf~cat~ons and Standards The

Concessionaire shall undertake such Tests without any delay and fumlsh a COPY of the results thereof to the Independent Engineer and NHAl along wlth a written statement speclfylng ln reasonable detail the measures, ~f any, that It proposes to undertake for curlng the r'efaults or defrclencles indicated In such results. Such inspect~on o r submission of O&M lnspectlon Report by the lndependent Englneer or submiss~on of O&M lnspectlon Compliance Report by the Concess~onalre shall not relieve or absolve the Concesslona~re of ~ t s obl~gatrons and l~abllltres hereunder ~n any manner whatsoever

19 3 NHAl may Inspect the Project Htyhw;ly at any time for a review of the compliance by the Concessionalre with its maintenance obligatrons under th~s Agreement

19 4 The Concessionaire shall furnlsh to NHAl wlthln 7 (seven) days of completion of each calendar month during the Operations Per~od, a statement of Fees ~n the form set forth In Schedule 'M' (the "Monthly Fee Statement")

XX. INDEPENDENT ENGINEER

20 1 NHAl shall appolnt a consult~ng engineering flrm Or body corporate out of the 3 three names proposed by the Concessionalre from the panel of 5 (flve)

" " ~ e - ' " & i ~ * , ,- a. , . , consultants selected b? NHAl ~n accordance with the~selectron process ~et$$h-,,*-~- in S&edule 'N' to be the Independent Englneer to undertake and perform the dutles, work, services and actlvrties set forth ~n Schedule '0'.

20 2 The appolntment of the lndependent Engineer pursuant to Clause 20 1 shall fi ,< >, initially be for a penod of four years from the date of ~ t s appolntment The date of 0 ,L

1 / such appo~ntment shall be no later than 45 (forty-flve) days from the date Of thls

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5, Agreement After the explry of the aforesatd appointment, NHAl shall appolnt for

8" a term of 3 (three) years as lndependent Englneer such person as ~t may deem -. a

i appropr~ate from the 1st -drawn ~n accordance wlth Schedule 'N' as amended

:$h from time to tlme by mutual consent of NHAl and the Concess~onalre and who may or may not be the same person, who was lndependent Englneer dunng the

..' lnitlal term NHAl may ~n rts d~scret~on thereafter renew such appointment or

8 appolnt another person out of the 1st determ~ned pursuant to Schedule 'N', as NHAl may deem appropriate to be the independent Engineer for a 1.- term . , - , L I . ofihree ".-<

years at a tlme ,- /------- . i ~ ,

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20.3 The Independent Engineer shall report to NHAI abou! their work, services, and

activities pursuant hereto through regular periodlc reports (at least once ellev month) as the situation may warrant. such report of lndependent Engineer shall include but not be limited to the matters and things set forth in sa~d Schedule '0'.

r20:4 The remunerat~on, cost and expenses of the lndependent Engineer shall be paid by NHAI. One-half of such remuneration, cost and expenses shall be reimbursed by the Concess~onaire tc .\IHAI within 30 (thirty) days of receiving a StatmIent of expenditure from NHAI.

20.5 NHAI may, with the prior concurrence of the Concessionatre, term~nate the appointment of the lndependent Engineer at any trrne subject to appointment of their replacement by another lndependent Englneer in accordance with lhls Article XX.

20 6 NHAI may appolnt another Independent Engineer In accordance w~th th~s Artlcle XXII, ~f the existlng lndependent Engineer, ~n accordance w~th the terms of its appointment, resigns or not~fies ~ ts ~ntent~on not to contlnue as the lndependent Engineer,

20 7 If the Concesslona~re has reason to belleve that the lndependent Eng~neer is not discharging tts dut~es in a far, effic~ent and dlligent manner, ~t may make a written representatlon to NHAI, stating ~ t s reasons in 'deta~l, seek~ng term~natlon Of the appointment of the lndependent Englneer Upon receipt of such representatlon, NHAI shall hold a tr~part~te meetlng wlth the Concess~onalre and lndependent Engineer for am~cable resolution of the d~spute If the dlspute rematns

- - W . s + . T I . - * - unresolved,' ~t*sGall * b ~ ' r ~ s o l v e d ~ ~ n ~ a c c o r d a n c ~ , ~ j ~ e ~ ~ ~ ~ f ~ t l o n ~ ~ ,,, . Procedure In case the appointment of lndependent Englneer IS termmated under thls Clause, it shall be replaced by another lndependent Engineer In accordance with th~s Article XX s-

b * 20.8 If either party disputes any advice, instruction or award of the Independent

Engineer, the dispute shall be resolved in accordance with the Dispute Resolution Procedure.

X X I . TRAFFIC SAMPLING

21.1 For the purpose of determination andlor verification of the actual traffic on the Project Highway, NHAI shall, in addition to inspection of Concessionaire's

. ,<' . ..- . __

Schedule 'P' hereto. The Concessionaire shall provide all facilities and assistance as NHAl may reasonably require for undertaking such traffic sampling. ,

21.2 If the data collected from traffic sampling undertaken pursuant to Clause 21.1 demonstrates that actual traffic is more than the traffic according to the records of the Concessionaire, the actual traffic for the purposes of this Agreement shall be deemed to be the traffic as determined by such NHAl traffic sampling pursuant to this Article XXI.

21.3 The Concessionaire may, in consultation with NHAI, commission an independent agency to conduct traffic sampling under this Article. The report of such agency shall be furnished to NHAl for such. use as it may deem fit.

21.4 In the event of any dispute arising as to the actual traffic on the Project Highway the same shall be resolved in accordance with the Dispute Resolution Procedure under this Agreement.

i

CHAPTER - V FINANCING ARRANGEMENTS

XXII. FINANCIAL CLOSE

22.1 The Concessionaire shall provide to NHAI, a copy of the Financing Package furnished by it to the prospective Senior Lenders. As and when such Financing Package is approved by the Senior Lenders, with or without modifications, a copy of the same shall be furnished by the Concessionaire to NHAl forthwith.

22.2 Notwithstanding anything to the contrary contained in this Agreement, the Concessionaire covenants with NHAI that it shall achieve Financial Close within 180 (one hundred and eighty) days from the date of this Agreement. If the Concessionaire shall fail to achieve Financial Close within the said 180 (one hundred and eighty) days period, the Concessionaii-e shall be entitled to a further period of 90 (ninety) rl-ys subject to an advance weekly payment by the Concessionaire to NHAl of a sum of Rs.50,000 (Rupees fifty thousand) per week or part thereof for any delay beyond the said 180 (one hundred eighty) day period, as Damages on account of such delay in achieving Financial Close within the said 180 (one hundred eighty) day period by the Concessionaire.

22.3 Notwithstanding anything to the contrary contained in this Agreement, NHAI shall be entitled to terminate this Agreement forthwith, without being liable in any manner whatsoever to the Concessionaire, by a communication in writing to the Concessionaire pursuant to Clause 32.2 if the Concessionaire shall have failed to pay in advance the Damages to NHAI under and in accordance with Clause 22.2

---$&9Ye. w * w , * ~ - ~ - ' p - ~ ~ n a ~ ~ ~ ~ ~ ~ - ~ ~ i . ~ ~ - ~ r n .= .- ?. - -- v :

22.4 Notwithstanding anything to the contrary contained in this Agreement, if the Financial Close shall not occur within 270 (two hundred and seventy) days as set forth in Clause 22.2 above, all rights, privileges, claims and entitlements, if any, of the Concessionaire under or arising out of this Agreement shall be deemed to have been waived by and to have ceased with the concurrence of the Concessionaire, and the Concession Agreement shall be deemed to have been terminated by mutual agreement of the Parties.

22.5 Upon Termination of this Agreement under Clauses 22.2 and 22.3, NHAI shall be entitled to encash the Performance Security, as the case may be, and appropriate the proceeds thereof as Damages.

. .

XXIII. GRANTS

Grant (the "Grant") eql;.., to the sum, set forth ~n the B I ~ of the Bidder and accepted by NHAl namely, Rs.248.28 mllllon (Rupees Two Hundred Forty Elght declmal twenty elght milllon) In accordance with the provisions of this Artlcle

23.2 As set forth ~n the B I ~ of the Bldder and accepted by NHAI, Rs. 207 8 mllllon (Rupees Two Hundred and Seven decimal Elght million) of the amount of the Grant shall be appl~ed by the Concesslonalre for meeting the cap~tal cost of the Project and shall be treated as part of the shareholders' funds (the "Equity Support") The balance of the Grant available after deduct~ng therefrom the amount of Equ~ty Support, whlch IS Rs 40 48 mllllon (Rupees Forty decimal four elght million) shall be prov~ded to the Concesslonalre ~n accordance wlth this Article XXlll for meetlng u&M Expenses of the Project (the "O&M Support").

23 3 The whole or any part of the Grant shall be dlsbursed by NHAl to the Concessionaire if and only ~f

23 3 1 the Concessionaire 1s not In Materlal Breach of th~s Agreement at the tlme of such dlsbursement, and

part of the Total P-oject Cost.

23 4 The dlsbursement of the Equity Support pursuant to thls Art~cle XXlll shall be made by NHAI to the Concesslonalre proport~onately along with the balance loan funds to be dlsbursed by the Senlor Lenders under the Financing Documents for meet~ng the Total Project Cost NHAl shall dlsburse each tranche of the Equlty Support as aforesaid by credit to the Escrow Account w~thln 15 (fifteen) days of the release of each loan installment by the Senior Lenders to the Concesslonalre prov~ded the Concessionaire has submitted to NHAl along wlth each dlsbursement request a cert~flcate from ~ t s Statutory Audltors certifying the above particulars and has given at least 7 (seven) days to NHAl for processing such request

23 5 The O&M Support shall be dlsbursed by NHAl to the Conces_s~onaye !y ccedlt to ,;I a .\,

the Escrow Account ln four quarterly lnstalments of R ~ l b - t ~ p h e ~ ~ ,.' . .; ,,,' *

Ten decimal one two million) each and the first such installnlent shall be reieased within 30 (thirty) days of the COD. /

23 ti If NHAl shall fall to d~suurse any tranche of the Equrty Suppofl or the O&M Support within the periods set forth for the payment thereof to the J Concessionaire, NHAl shall pay interest on such delayed tranche @ SBI PLR

plus two per cent.

XXIV. REVENUE SHORTFALL LOAN

24 1 If the Reahsable Fees in any Accounting Year durrng the Concessron Per~od shall fall below the Subs~stence Revenue Level as a result of an lndlrect Polltlcal Event, or a Pol~t~cal Event as set forth in Article XXIX, NHAl agrees to provide to the Concessiona~re such shortfall support, by way of a loan ("Revenue Shorffall Loan") with interest therePo@ SBI PLR per annum Provrded, however, that any reserves of the Concessionaire and any sums received or lrkely to be received by the Concesslonarre through Insurance clalms (except Insurance payments for physical loss used to carry out requ~site reparrs) or payments by NHAl under Article XXlX shall first be deducted and only the balance rernarnrng shall be disbursed as the Revenue Shortfall Loan.

24 2 For the purposes of c la~m~ng disbursements on account of Revenue Shortfall loan pursuant to Clause 24.1 above In any Accountrng Year, the Concessronaire shall

(a) Submrt a deta~led account of the lnd~rect Polrtlcal Event or the Polltlcal

Event, as the case may be, and ~ t s rmpact on total revenues of the ..- .Rg"- -*..* --- Concessrona~re asbsoon3as feasible a n d _ s u ~ ~ i t , w ~ & ~ $ p $ , ~ . thtreaffer, . ,-, (b) Provide to NHAI, the Schedule of Debt Servrce Payments under the

Financrng Documents for the Account~ng year for which Revenue Shortfall Loan are cla~med.

(c) Provide to NHAl the details of O&M Expense budget for such Accounting Year and the expenditure incurred in that year out of such budget;

k . (d) W~thrn 15 (f~fteen) days of the close of each Accounting Year In wh~ch the

C: shortfall in the referred to rn Clause 24 1 shall occur, provide a certificate f ' f * '

i t n from the Statu+-ry Aud~tors of the Concessronarre certrfyrng the Subs~stence Revenue Level, the Reallsable Fees and the Revenue Shortfall Loan requirement after deductrng reserves of the Concessrona~re, ~f any, and

0.g k 6; n of Nelamangalr~urnkur BOT Pmlect

I

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(e) Submit a written request to NtiAl under the hands of a Director of the

Concessionaire requesting for disbursement of the Revenue Shortfall Loan to the Concessionaire by payment thereof into theEscrow ACCOU~~ .

and provided the same is not found by NHAl to be wrong or incorrect, NHAl shall disburse the Revenue Shortfall Loan within 30 days (thirty) thereof.

24.4 In the event Realisable Fees during the first six months of an Accounting Year

shall fall as a result of an Indirect Political Event or a Political Event and the amount of such Realisable Fees is less than the Debt Service Payments due for the first six months of such Accounting Year, NHAl shall ~ lpon request provide an advance to the Concessionaire for meeting the shortfall in such Debt Service Payments. For claiming such advance, the Concessionaire shall make a demand to NHAl accompanied by a certificate from the Statutory Auditors setting forth the Realisable Feel during the first six months of the Accounting Year, the reserves of the Concessionaire and the outstanding amount on account of Debt Service Payments due in the first six months of such year. The .Statutory

Auditors shall also certify the amount of advance required by the Concessionaire from NHAl for meeting such Debt Service Payments after deducting such Realisable Fees and the reserves of the Concessionaire. Within 15 (fifteen) days of receiving such demand, NHAl shall disburse the advance due to the Concessionaire at an interest rate equal to SBI PLR. Not later than 15 (fifteen) days after completion of such Accounting Year, the Concessionaire shall either refund such advance with interest to NHAl or adjust it against such Revenue

"I*' *r;--.*yy* .a ,,a 4 .i - - = % - ~ - w % - 24.5 he Revenue Shortfall Loan disbursed by NHAl pursuant hereto and the interest

thereon shall be repaid by the Concessionaire in a sum equal to 50% (fifty per cent) of the Net Cash flow of the Concessionaire as and when made and such repayments shall be made in one or more years as necessary.

24.6 Notwithstanding anything to the contrary contained in Clause 24.5, the Concessionaire shall repay the entire Revenue Shortfall Loan and interest thereon at least two years before the expiry of the Concession Period. If any sum remains due or outstanding from the Concessionaire under this Article XXlV at any time during a period of two years preceding the Termination Date, it shall constitute a Concessionaire Event of Default under Article XXXll and NHAl shall be entitled to Terminate '- 's Agreement under Clause 32.2.

XXV. ESCROW ACCOUNT

25.1 The C~ncessionaire shall within 60 days from the date of this Agreement Open and establish the Escrov 4ccount with a Bank (the "Escrow Bank) and all funds constituting the Financing Package for meeting the Total Project Cost shall be credited to such Escrow Account. During Operations Period all Fees collected by the Concessionaire from the users of the Project Highway shall be exclusively deposited therein. In addition, all Fees collected by NHAI in exercise of its rights under this Agreement during the Concession Period and all disbursements Or payments by NHAl pursuant hereto shall also, subject to the rights of deductions and appropriations therefrom of NHAl under this Agreement, be deposited by NHAl in the Escrow Account.

25.2 Disbursements from Escrow Account

2.5.2.1 The Cuncession;..a sho!! .;iv~, at !he time of the opening of the Escrow Account, irrevocable instructions by way of an Escrow Agreement substantially in form set forth in Schedule 'Q' (the "Escrow Agreement") to the Escrow Bank instructing, inter alia, that the deposits into the Escrow Account shall subject to Clause 25.2.3, be appropriated in the following order every month and if not due in a month then appropriated proportionately in such month and retained in the Escrow Account and paid out therefrom in the month when due unless otherwise expressly provided in the instruction letter:

(a) All taxes due and payable by the Concessionaire;

*" *-P.ip(b)w--AIl .expenses,in ,connect~?n , w ! $ E a ~ $ e q g q ~ t p s . g ~ , " ~ t ~ ~ ~ [ ! n _, _ &,,. + of Project ighway by way of payment to the EPC Contractor and such other persons as may be spec~f~ed In the F~nanclng Documents;

(c) O&M Expenses lncludlng Fees collect~on expenses Incurred by the Concess~onalre d~recily or through O&M Contractor and/or Tolling Contractor, if any, subject to the ~tems and ceiling In respect thereof as set forth In the Flnanclng Documents but not exceeding 1/12 (one twelth) of the annual l~ablllty on th~s account, 1; (d) The whole or part of the expense on repalr work or O&M Expense lncludlng Fees collect~on expenses Incurred by NHAl on account of exercise of any of its nghls under this Agreement provided

1 ," NHAl cert~f~es to the Escrow Bank th C " K , expenses In accordance w~th the prow

I

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(e) All Concession Fee5 due to Nl-lkl from the Concessionaire under this Agre t lent;

(f) Monthly proportionate provision of Debt Service Payments due in an Accounting Year and payment of Debt Service Payments in the month when due:

(g) Any payments and Damages due and payable by the Concessionaire to NHAl pursuant to thls Agreement, lnc~udlng repayment of Revenue Shortfall Loans; and

(h) Balance ~n accordance with the instructions of the Concess~onaire.

25.2 2 The Concess~on&,~e shall not ~n any manner modlfy the order of payment spec~f~ed ~n this clause 25 2 except w~th the prlor wr~tten approval of NHAl

25.2.3 In the event, the Grant, if any, to the Concess~onaire shall exceed 10% of the Total Project Cost, all disbursements on account of Total Project Cost other than those to the EPC Contractor ~n accordance w~th the EPC Agreement, shall be made ~n accordance w~th the express provlslons contained ~n that behalf in the F~nancing Documents Prov~ded, however, that if the total of such disbursements exceed 10% of the Total Project Cost, prlor wr~tten consent of NHAl shall be requ~red in respect of the disbursement arrrrlgements for such excess amounts, and such consent shall not be unreasonably \,ylthheld by NHAl

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25 3 ~o'twlthstandin~ anything to the contrary contained ~n the Escrow Agreement and subject to the provlslons contamed in Clauses 33.5 and Art~cle XXXIV, upon Termination of this Agreement, all amounts standlng to the credrt of the Project Escrow Account shall be appropriated and dealt wlth ~n the following order.

(a) all Taxes due and payable by the Concessionaire;

(b) all Concession Fees due and payable to NHAl under th~s Agreement;

(c) all accrued Debt Service Payment;

(d) any payments and Damages due and payable by the Concessionaire to NHAl pursuant to this Agreement, including Terminason claims and repayment of Revenue Shortfall Loans; ,.,.<. ,;.., 2 :.,. ,3;-.- . .;. ..- .,, is,^'.. , I.. , . .. ,,,.,,,, -.------ 4 ,;:-

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i : (e) all accrued O&M Expenses;

@ (f) any other payments requ~red to be made under th~s Agreement; and

i.? 7

!@ +-r (g) balance, if any, on the lnstructlons of the Concessionaire *. 2".

@: 25.4 The instructions contained in the Escrow Agreement shall rernaln ~n full force $%, ,%S '

and effect until the obligations set forth ~n Clause 25 3 have been discharged

& XX"~ STATE SUPPORT AGREEMENT &

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26.q he Concess~onalre acknowledges that for the performance of ~ t s oblrgations $** under th~s Agreement, ~t requires support and certain services from GOK The

83. w.*., s J 3 nature and scope of such support and servlces required by the Concesslonalre

1 &$fj@e from GOK are fully described rn the draft State Support Agreenlent set fort11 at Schedule 'R'.

F 1 0. +r Ei 26.2 The Concessionaire acknowledges ~ t s obligation to enter ~nto the State Support

Agreement and accordingly the Concessionaire agrees and undertakes to enter it; lnto at ~ t s cost and expense the State Support Agreement wlth NHAl and GOK R si~bstant~allv in form and content as set forth in Schedule 'R'

Construct~on Period such Insurances upto such maxlmum sums as may be requlred under and ~n accordance w~th the Financing Documents, Appl~cable Laws and such Insurance as the Concesslonalre may reasonably cons~der necessary or desirable in accordance wlth Good l~tuustry Practice The Concess~ona~re shall also effect and ma~ntain such Insurance as may be

%+ necessary for mlt~gatlng the rlsks that may devolve on NHAI as a consequence of any act of omlsslon by the Concesslonalre durlng the Construct~on Period

27 2 Insurance durlng the Oparatlons Period Not later than 4 months prior to the antrc~pated Completion of the Project Hlghway, the Concesslonalre shall obtaln and maintam at no cost to NHAl durlng the Operations Period ~n respect of the Project H~ghway and ~ t s operations such insurance as may be required under any of the Flnanc~ng Documents, Applicable Laws and such insurance as the Concessionaire may reasonably cons~der necessary wlth Good Industry Practice Provided, however, the

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malntalned after satlsfactlon of Senlor Lenders' dues ~n full, shall be determ~ned 1 on the same prlnclples as applrcable for determrnlng the level of lnsurance pnor to such date Thls level shall be agreed wlth NHAI wlthrn 120 days of date of thls Agreement

For the sake of brevlty, the aggregate of the maximum sums Insured under the insurance taken out by the Concesslonalre pursuant to this Artlcle XXVll are herein referred to as the "lnsurance Cover",

27 3 Evldence of lnsurance Cover. All insurance obtarned by the Concesslonalre in accordance with thrs Art,;!e XXVll shall be rnaintarned wlth Insurer or rernsurers, and on terms consistent wlth Good Industry Practlce Within thlrty days of obtaining any lnsurance cover, the Concessiona~re shall fumish to NHAI, copies of certrf~cates of Insurance, coples of the insurance pollcies srgned by an authorlsed representatwe of the insurer and coples of all premia payment rece~pts In respect of such lnsurance received from each insurance cdrrler, and such lnsurance wrll not be cancelled, changed or not renewed untrl the explratlon of at least 45 (forty flve) days after wrltten notice of such cancellation, change of non-renewal has been received by NHAI.

27 4 Remedy on Fallure to Insure If the Concesslonalre shall fall to effect and keep rn force the lnsurance for which it is responsible pursuant hereto, NHAI shall have the optlon to keep ~n force any such Insurance, and pay such premla and recover the costs thereof from the Concessiona~re, or for the purposes of computatron of payments to the Concesslonaire pursuant to Artrcle XXlX treat the lnsurance cover I e the rnaxlmum sums whlch such irisurance was provldlng for had ~t been

bemn3'deehed to hav6 *bS&T%Eelved' by the**'"-m*~mp Concess~onalre

27.5 Warver of Subrogatron All Insurance pollcres supplled by the Concessiona~re shall include a walver of any rlght of subrogatlon of the insurers thereunder agalnst, Inter aha, NHAI, and ~ t s asslgns, subs~diar~es, afflllates, emoloyees, insurers and undeiwrlters and of any r~ght of the Insurers of any set-off or counterclaim or any other deductron, whether by attachment or otherwise, In respect of any liablllty of -4iy such person Insured under any such pollcy.

27.6 Concesslonaire Waiver The Concessiona~re hereby further releases, asslgns and walves any and all rlghts of recovery agalnst, Inter aha, the NHAI, and ~ts affiliates, subsidrarles, employees, successors, permrtted asslgns, insurers and undewnters, whlch the Concesslonalre may othemse have or acqulre In or from or In any way connected wlth any loss covered by pollcles of lnsurance maintained or requ~red to be malntalned by the Concess~onalre p~~~~uant-t-to.th!s

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Agreement (other than tlrlrd party linbi~ibj :nsurance policies) or bemuse of . b

deductible clauses In or inadequacy of llmrts of any such policies of insurance L

u P 27.7 A.~pllCation of Insurance proceeds. The proceeds from all insurance claims, - -

except life and injury, shall be paid to the Concesslonalre by credit to the Escrow 'I ' ;

Account (unless otherwise required by the Financrng Documents) who shall, subject to irs obligat~ons under the Financing Documents, and notwrthstanding i r . anything contained in Article xXV, apply such proceeds for any necessary repair, I reconstruct~on, reinstatement, replacement, improvement, dellvery or installation 1

I

of the Project Highway.

XXVIII. ACCOUNTS AND AUDIT

1 The Concess~onaire shall maintain full accounts of all Fees including Realisable Fees and other revenues derivedkollected by it from and on account of use of the Project Highway and of O&M Expenses and other costs pa~d out of the Project Escrow Account and shall provide copes of the said accounts duly audited and cert~fied by the Concessiona~re's Statutory Auditors wrthrn 120 (one hundred twenty) days of the close of each Accounting Year to whrch they pertarn, durlng the subsistence of this Agreement Such audited accounts shall form the basts of vanous payo nts by either Party under this ~greement The Concessionaire shall also fumlsh, within one week of its publrcation, a certlfred copy of the audrted accounts and annual report published by the Company under th6 Applicable Laws.

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28.2 The Concessionaire shall appoint and have during the subsistence of this Agreemenf a, f i [~ ppf,Ccarteyed Accountants, duly licensed to practrce In Ind~a, as

?-----.u.> ..+ .ke *.* - its statutory Audltors ?rider the provisions of the Comp2n1es~Actzt1956 -+The. I*-V,<' , ~oncess~oriaire and NHAl shall mutually agree upon a hst of 10 (tun) rndependent and reputable firms of Chartered Accounta~ts In lnd~a (the "List of Chartered Accountants") for the purpose of Clauses 28 4 and 28 5 The cnteria for preparing the List of Chartared Accountants are set forth in Schedule 'T'

28 3 On or before the f~fteenth day of Apnl each Year, the Concessionaire shall prov~de for the preceding Accounting Year a statement duly audited by rts Statutory Audrtors givrng surnmarised vehicleluser wise information on (I) the traffic count for each categov of vehicles using the Project H~ghway and l~able for payment of Fees therefore, and (11) Fees charged and the amount of Fees received, Realizable Fees and other revenues der~ved from the Project Hlghway and such other information as NHAl may reasonably require

- ent of Nelamar -sla-Tumkur BOT Project

28.4 Not~lthstand~ng anything to the contrary contained in th~s Ag~eernent, NHAl shall have the right but not the obligation to appolnt at ~ t s cost another firrn of chartered accountants from the Llst of Chartered Acco~intants (the "Additronal Auditor") to aud~t and venfy all those matters, expense, costs, real~sat~ons and thlngs which the Statutory Aud~tors of the Concessionaire, are requ~red to do, undertake or certify pursuant to this Agreement.

28.5 Where a Grant has been provided, NHAI shall have the nght to appolnt for the duration of the Constr~r '~on Period as Concurrent Auditor a firm of Chartered Accountants from the List of Chartered Accountants (the "Concurrent Auditor") who shall undertake concurrent aud~t of the Concessionaire during the Construction Penod. The charges and expenses of such Concurrent Audrtor shall be borne by the NHAI. After such Constmctron Period, NHAl may at ~ t s option have concurrent audit done at such tlme and for such period as NHAl may deem appropriate at ~ t s cost and expenses

28.6 In the event of their being any difference between the finding of the Additional Auditor or the Concurrent Auditor, as the case may be, and the certification provided by the Statutory Auditors of the Concessionaire, such Auditors shall meet to resolve such differences and if they are unable to resolve the same such disputed certification sh:. . be resolved by recourse to the Dispute Resolution Procedure.

CHAPTER - V1

FORCE MAJEURE

XXIX. FORCE MAJEURE

29 1 Force Majeure Event AD used ~n this Agreement, a Force Maleure Event shall mean occurrence 10 lnd~a of any or all of Non Pol~tlcal Event, Indirect Polltical

I , Event andlor Polltical Event as deflned ~n Clauses 292, 29 3, and 29.4 respectively heremafter which prevent the Party cla~mlng Force Majeure (the "Affected Party") from performing its obl~gat~ons under thls Agreement and which act or event IS (I) beyond the reasonable control and not arlslng out of the fault of the Affected Party, (11) the Affected Party has been unable to overcome such act or event by the exercise of due diligence and reasonable efforts, skill and care, ~ncludlng through expenditure of reasonable sums of money and (111) has a Material Adverse Effect on the Project

29 2 Non Polltical Force Majenre Events: For purposes of Clause 29 1 N0n-Polrt~cal Events shall mean one or more of the followtng acts or events

(I) acts of God or events beyond the reasonable control of the Affected Party whlch could not reasonably have been expected to occur, exceptionally

- adverse weather condlt~ons, Ilghtn~ng, earthquake, cyclone, flood. volcanlc eruptlon or hre (to the extent or~glnatlng from a source external to the S~ te or beyond deslgn speclflcations for the Construct~on Works) or landslide -

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(11) radloactlve contaminat~on or ~on~zlng rad~at~on;

(111) strikes or boycc s (other than those lnvolvlng the Concess~onalre, Contractors or thelr respectwe employees1 representat~ves or attr~butable to any act or otnlsslon of any of them) lnterruptlng suppl~es and servlces to the Project H~ghway for a penod exceeding a continuous per~od of 7 (seven) days In an Account~ng Year, and not belng an lndlrect Pol~ttcal Event set forth in Clause 29.3 hereof,

(IV) any failure or delay of a ~oniractor but only to the extent caused by another Non-Pol~t~cal Event and whrch does not result In any offsetting compensat~on being payable to the Concessionaire by or on behalf of such Contractor,

,A:-

of Nelamangala-Turnkur.BOT Project

I - ---- *rrur C- wF - -

(v) Any judgement or order of an9 court of competent jrlrisdiction or statutory authority in lndia made against the Concessionaire in any proceedings

for reasons other than failure of the Concessionaire to comply with any Applicable 'Law or Applicable permits or on account of breach thereof, or of any contract, c. enforcement of this Agreement or exercise of any of its rights under this Agreement by NHAI; or

(vi) Any event or circumstance of a nature analogous to any of the foregoing.

29.3 Indirect Political or be Majeure Events: For purposes of Clause 29.1, Indirect Political Event shall mean one or more of the following acts or events:

(i) an act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, riot,:insurrection, terrorist or military action, civil commotion or politically motivated sabotage which prevents collection of Fees by the Concessionair@ for a period exceeding a continuous pL;iod of 7 (seven) days in an Accounting Year;

(ii) industry wide or state wide or lndia wide strikes or industrial action which prevent collection of Fees by the Concessionaire for a period exceeding a continuous period of 7 (seven) days in an Accounting Year; Or

(iii) any public agitation which prevents collection of Fees by the Concessionaire for a period exceeding a conti&ous period of 7 (seven) days in an Accounting Year.

mean one or more of the following acts or events by or on account GOI, NtlAI, GOK or any other Governmental Agency:

(i) Change in Law, only when provisions of Article XXXVl canno! be applied;

(ii) expropriation or compulsory acquisition by any Governmental Agency of any Project Assets or rights of the Concessionaire or of the Contractors;

(iii) unlawful or unauthorised or without jurisdiction revocation of, or refusal to renew or grant without valid cause any consent or approval required by the Concessionaire or any of the Contractors to perform their respective obligations undp- the Project Agreements (other than a consent the

Concessiona~re's or any Contractor's lnabllity or failure to comply with any " ' A

, Condltlon relat~ng to grant, maintenance or re~iewal of such consents Or permlts ,

2 9 5 Effect of Force Majeure ,-vent before Flnanclal Close Upon the Occurrence of

any Force Majeure Event prlor to Flnancjal Close as set forth ~n Artlcle XXII, the follow~ng shall apply.

(a) There shall be no Termination except as provided in Clause 29.8;

(b) The date for achieving Financial Close shall be extended by the period for which such Force Majeure event shall subsist, and

(c) The Part~es shall bear their respective costs and no Party shall be 'required to pay to the other Party any costs arising out of such Force Majeure Event.

29.6 Effect of Force Majeure ?vent after F~nancial Close. Upon occurrence of any Force Majeure Event after Financial Close, the following shall apply:

(a) There shall be no Terminat~on of this Agreement except as provided in Clause 29.8,

(b) Where the Force Majeure Event occurs before COD, the dates set forth in the Project Completion Schedule, and the Concess~on Period shall be extended by the period for which such Farce Majeure Event shall subsist,

(C)=-* Where-a* Force Majeure.,Eveqt,o~curs ,aftelmC,Qg,-&ee,='sionaire, . shall contlnue to make all reasonable efforts to collect Fees, but if he IS

unable to collec, -ees dur~ng the subs~stence of such Force Majeure Event, the Concess~on Per~od shall be extended by the, per~od for which coilect~on of Fees remalns suspended on account thereof; and

(d) Costs arislng out of or concemlng such Force Majeure Event shall be borne ~n accordance wlth the provisions of Clause 29 7

29.7 Allocation of costs durlng subs~stence of Force Majeure Subject to the provisions of clause 29 6, upon occurrence of a Force Majeure Event after Financial Close, the costs arlslng out of such event shall be allocated as follows

(a) When the Force Majeure Event is a Non Polltical Event, the Parties shall bear their respect,ve costs and neither Party shall be required to pay to the other Party any costs arising out of any s

t of Nelarnangala-Turnkur BOT Project

(b) Where the Force Majellre Event is an lnd~rect Pollt~cal Event, the costs

attrlbutable to such Force Maleure Event and d~rectly relatlng to the Project (the "Force Majeure Costs") shall be borne by the Concessionaire to the extent of a e Insurance Claims, and to the extent such Force Majeure Costs exceed the Insurance Clarms , one half of the same to the extent actually incurred and duly certrf~ed by the statutory Auditors of Concessionaire shall be reimbursed by NHAl to the C o n ~ e ~ ~ l ~ f l a l r e In one lump sum or pald ~n three equal annual installments with Interest @ SBI PLR plus two percent, and

(c) Where the Force Majeure Event rs a Polltical Event, the Farce Majeure Costs to the extent actually ~ncurred and certified by the Statutory Aud~tors of Concess~onaire shall be reimbursed by NHAl to the Concess~onaire in one lump sum or pa~d In three equal annual installments with '~terest @ SBI PLR plus two percent, provlded that no Force Majeure Costs shall be payable by NHAl ~f the Concess~on Period IS Increased under Clause 29 6.

For avoidance of doubt, Force Majeure Costs shall not include loss of Fee revenues or any debt repayment obligations but shall Include Interest payments on such debt, O&M Expenses and all other costs dlrectly attrlbutable to the Force Majeure Event

29.8 Termination Notice: If a Force Majeure Event subsists for a period of 180 (one hundred eighty) days or more within a continuous period of 365 (three hundred sixtyJ&e) d y s either PartyPyay in.its;>o!e discretion terminate this Agreement :*"-'----'"' P - L L ?.?.. .he""*ni*ni.*.r f . . - . - Y L . I

by giving 30 (thirty) day: ~erminatio;~otice in writing to the other P%j without" being liable in any manner whatsoever, save as provided in Clause 29.9.

29.9 Termmation Payment for Force Majeure Events Upon Termlnatlan of this Agreement pursuant to Clause 29 8, Terminat~on Payment to the Concesslona~re shall be made in accordance wlth the following

(a) If the Termination is on account of a Non Political Event, the Concess~onaire shall be entitled to receive from NHAl by way of Termination Payment an amount equal to 90% of the Debt Due and the entire Subord~nated Debt less due Insurance clalms, ~f any Provlded that In the event some insurance claims are not admitted, then 90% of such claims shah qual~fy for be~ng Included in the computatton of Debt Due

+ - - 9 F EFd

'"*? B 0

(b) If the Termination IS on account of an Indirect Polltrcal Event, the !:.& ;I

= % 0 Corlcesslonaire shall be entltled to receive from NHAI by way of 4 I

0 Termlnatlon payment an amount equal to I c .?

b (I) the total Debt Due, less due insurance claims, rf any Provided, A -T

b however, that if all or any of the Insurance claims are not admltted and pald, then 80% (elghty per cent) of such unpald claims shall

0 quallfy for belng Included ~n the computation of Debt Due, plus

0 0

(li) the outstanding Subordinated Debt, plus

(II~) 110% (one hundred ten per cent) of the Equity (subscribed In cash and actually spent on the Project but exclud~ng the amount of Equlty Support referred to fn Article XXIII) ~f such Termlnatlon occurs at any tlme durlng three years commenclng from the Appointed Date and for each successlve years thereafter, such amount shall be adjusted every year to fully reflect the changes In WPI during such year, and the adjusted amount so arrlved at shall be reduced every year by 7 5% (seven and half per cent) per annum

(c) If the Termlnatlan of this Agreement IS on account of a Polltlcal Event, the ' Concessionaire shall be entrtled to recelve from NHAl by way of

Terminatron Payment an amount equal to

(11) 120% (one hundred twenty per cent) of the Subordinated Debt plus

(111) 150% (one hundred flfty per cent) of the Equlty (subscribed ~n cash aiid actually spent on the project but excluding the amount of Equrty Support referred to in Article XXIII) the if such Termlnatron occurs at any tlme durlng three years commenclng from the Appointed Date and for each successlve year thereafter, such amount shall be adjusted every year to fully reflect the changes ~n WPl durlng such year, and the adjusted amount so arrived at shall be reduced every year by 7 5% (seven and half per cent) per annum.

29.10 Dlspute Resolution. In the event that the Parties are unable to agree ~n good

i

shall be finally settled in accordarlce will> the D~spute Resoluhon Proced~~re, provided however that the burden of proof. as to the occurrence or exlstence of Such Force Majeure Eve-t shall be upon the Party claiming relief aridlor excuse On account of such Force Majeure Event

b 29.11 Liability for other losses, damages etc Save and except as expressly provrded In

io thls Artlcle XXIX, nelther Party hereto shall be l~able ~n any mannerwhatsoever to the other Party In respect of any loss, damage, cost, expense, claims, demands

0 and proceedings relating to or arising out of occurrence or existence of any Force

0 Majeure Event or exerclse of any nght pursuant to this Article XXlX I

29.12 Duty to Report. The Affected Party shall discharge the follow~ng obl~gabons In relation to reporting the occurrence of a Force Majeure Event to the other Party

(a) The Affected Pai shall not clalm any relief for or rn respect of a Force Majeure Event unless rt shall have notifled the other Party ~n writing of the occurrence of the Force Maleure Event as soon as reasonably practrcable, and In any event w~thrn 7 (seven) days after the Affected Party knew, or ought reasonably to have known, of ~ t s occurrence and the probable material effect that the Force Majeure Event 1s likely to have on the performance of ~ t s obligations under thrs Agreement

1 (b) Any notice pursuant to this Clause 29.12 shall Include full particulars of-

(I) the nature and extent of each Force Majeure Event whlch IS the sublect of any clalm for rel~ef under thls Artlcle XXlX w~th ev~dence In SUDDO? yereof.

--- --.=wwm (z ) 1 - r e s t i m a t e d durati;; i n d the effect or probable-.effect.which such Force Majeure Event is having or will'have on the Affected Party's performance of its obligations under this Agreement;

(111) the measures whrch the Affected Party 1s takrng or proposes to take, to allevrate the rmpact of such Force Majeure Event; and

I L (IV) any other ~nformation relevant to the Affected Party's clarm

(c) For so long as the Affected Party continues to clam to be affected by such Force Majeure Event, rt shall provrde the other Party wlth regular (and not less tl n weekly) wntten reports containing rnformation as required by th~s Clause 29 12, and such other rnformat~on as the other Party may reasonably request the Affected Party to provlde

".

0 29.13 Excuse from performance of obilgat~ons. If the Affected Party IS ref ~dered wholly k;?.. ! . , or Partially unable to pe;urm its obligations under this Agreement because of 8 * v -!

0 Force Maleure Event, ~t shall be excused from performance of such of its

Q obligat~ons to the extent it is unable to perform on account of such Force Ma~eure

0 Event prov~ded that

o (a) The suspension of performance shall be of no greater scope and of no E 0

longer durat~on than IS reasonabty required by the Force Majeure Event, 1 I

0 (b) The Affected Party shall make all reasonable efforts to mltlgate or llmlt

0 damage to the other Party ansing out of or as a result of the existence or occurrence of such Force Majeure Event and to cure the same wlth due

Q dll~gence, and

b (c) When the Affected Party IS able to resume performance of ~ t s obl~gatlons

under this Agreement, it shall give to the other Party wr~tten notlce to that

b effect and shall promptly resume performance of its obligations

b hereunder

I

P

1 8

-

0 CHAP1 ER - Vil SUSPENSION AND TERMINATION

0 0 XXX. MATERIAL BREACH AND SUSPENSION

30 1 If the Concessionalre shall be in Material Breach of thls Agreement NHAI, shall be entitled in ~ t s sole discretion and without prejudice to rts other rights and remedles under thls Agreement including its right of Termination hereunder, to (I) suspend all or any of the rights of the Concessionalre under this Agreement incliiding the Concessiona~re's nght to collect and appropriate all Fees and other revenues from the Project Highway, and (li) exerclse the nghts of the Concessionaire under this Agreement itself or author~se any other person to exercise the sarne d u r i n ~ such suspension Such suspenslon by NHAl shall be by a commun~cat~on in wrltlng to the Concessionaire and shall be effective forthwith upon the issue thereof to the Concessionalre Any Fees or revenues collected by or on behalf of NHAl during such suspenslon shall be deposited in the Escrow Account to the exclusion of the Concessionaire Provld4, however, that the penod of such suspenslon under thls AFtlcle XXX shall not exceed 120 (one hundred twenty) days

V 30.2 Subject to clause 30 1, NHAl shall have the right to utlllse the proceeds of Fees

0 and other revenues for meeting the costs Incurred by NHAl to remedy and rectlfy

0 the cause of such suspension and for defray~ng the O&M Expenses during such suspension perlod Prr.,ided, however, that ~f the Concessipnarre is maklng

0 drllgent efforts to remedy and rectify such cause, then NHAl shall allow the

0 Concessionaire reasonable tlme and opportunity for such remedy or rectlficatlon =---aV- .* *-qF7 - - . --- ,-, , , -, . ., ,/ , I O 3 r T h e suspensiahof the nghts of the Concesiionaire by N H A I ' ~ ~ ~ S U % ~ t b - ~ l ~ l i s e

30.1 above shall be revoked by NHAl forthwith upon the Concessiona~re having remed~ed the Material Breach durlng such suspension per~od to the satisfaction of NHAl unless in tne meantme this Agreement has been terminated by NHAl In accordance with Article XXXII.

0 30.4 At any trme during the period of suspension under tills Article XXX, the

d Concessronaire may in writlng notify to NHAl that it does not Intend to cure the

0 breach or default that h . I caused such suspenslon Wlthin 7 (seven) days Of rece~pt of such notlce, NHAl shall terminate this Agreement as d a Material

0 Breach of this Agreement had occurred on account of a Concessionaire Event Of

0 Default

$0 -- , -

0 &I !?,Ti -<Ys **

0 XXXI. COMPENSAT~ON FOR RREACH OF AGREEivlf NT &.&&& a

Ta-3 <:d ."$Tp; 31 1 In the event of Concessionaire being tn niaterral default of. this Agreement and

0 Such default is cured before lermlnatlon, the Concessionarre shall pay f0 NHAi Ft%&a% %ih&$% 3

as compensat~on, all d~rect additional costs suffered or mcurred by NHAl arising * p5:*?W

0 out of such material default by the Concessionarre, m one lumpsurn w~thin 30 g-* ; 0 (thirty) days of recervrng the demand or at the C o n ~ e ~ ~ l ~ n a i t e ' ~ optton in 3 i I

a (three) equal semi-annual rnstal[ments wrth interest @ SBI PLR plus 2% (two per cent)

3 ' L

0 t 31 2 In the event of NHAl being rn materral default of thrs Agreement and such default 1

0 is cured before Termrnation, NHAl shall pay to the Concessionalre as 0 compensation, all dfrf t add~tional costs suffered or ~ncurred by the

0 Concessionarre arising out of such material default by NHAI, in one lumpsum wrthln 30 (thirty) days of receivrng the demand or at NHAl's optron In 3 (three)

0 eqml semi-nnn~~al installments wrth interest @ SBI PLR plus 2% (two per cent) "7. w

6 XXXII. TERMINATION

I P 32.1 Terrninatron for the Concessionaire Event of Default

I p 32 1 .I Concessionaire Event of Default

The following events shall constitute an event of default by the Concessionaire . A "Concessionaire Event of Default") unless such Concessionarre Event of Default has occurred as a result of NHAl Event

(1) The Concessionaire fails tq achieve Financial Close in accnrdance with the provisions of Atticle m i l ;

(2) The Concessionaire fails to achieve any ~ r o ~ e c t milestone other than Scheduled Project Completion Date within the period set forth in Schedule 'H' and fails to cure such default within a period of 180 (one hundred and eighty) days from the date of its occurrence.

(3) The Concessionaire is in Material Breach of this Agreement;

(4) The Concessionaire commits default in complying with any of the

I ' - . - " -

provided In this Agreement and fails to remedy or rectify the same w ~ t h ~ n the period provided in a notice In thls behalf from N c M which shall %

(I) require the Concessionarre to remedy the breach or breaches referred to ~n such notice wlthin 1 (one) month

(or such ionger perlod as may be agreed by the NHAl at its absolute drscretion), or

i:

(li) permit the Concessronaire to put forward within 15 days of such notrce a reasonable programme for the remedyrng of

i tht. breach or breaches, such programme to specify In I

reasonable detarl the manner in whlch such breach or breaches IS or are proposed to be remecited and the latest date by whrch ~t IS proposed that such breach or all such breaches shall be remedied

(5) The Concessionarre creates any Encumbrance, charges or lien in favour of any person save and except as othewrse expressly permitted under Clause 35 2;

(6) The shareholdlng of the Consortium Members falls below the mrnimum prescrrbed under Clause 11.1 (xrli) and the Concesslonalre does not suo moto cure such default wrthln 90 (nrnety) days of its occurrence,

;law of either (a? Zth~~~~hts~;d/~r obllgat~ons of the Concessionaire under any of the Project '"*- Agreements, or (b) all or material part of the assets or undertaking of the Concesslonalre except where such transfer rn the reasonable oplnion of NHAl does not affect the abrlrty of the Concessronarre to perform, and the Concessionalre has the financial and tzchnrcal capabrlrty to perform, its mater~al oblrgat~ons under the Project Agreements,

(8) A resolutron is passed by the shareholders of the Concessionalre for the voluntary wrndlng up of the Concess~onarre,

(9) The Concessionalre IS adjudged bankrupt or insolvent or if a trustee or receiver is appointed for the Concesslonalre or for any of its property that has a rnatenal bearlng on

BOT Project

I

- ----?TF-mm /I ,

(10) Any petrtlon for winding up of the Concessionaire isAadmrtted by a

court of con~petent jurlsdictlon or the Concessionaire is ordered to be wound LIP by Court except for the purpose of amalgamation or reconstruction provided that, as part of such amalgamation or reconstruction, the property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entrty and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionarre under this ~ ~ r e e h e n t and the Project Agreements, and provided that:

(I) the amalgamated or reconstmcted entity has the technical capability and operating experience necessary for the performance of ~ t s obllgat~ons under this Agreement and the Project Agreements;

-

(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concesslonaire a: -t the Financial Close; and

(iii) each of the Project Agreements remains in full force and effect;

0 The Concessionaire is in Material Breach of any, of the Project - -. --dk%a-=-YLlqLlq?I 0 - - . A g r e e m e n t S , ~ ~ X * ~ ~ * ~ m ~ 4- v=w7 - -- -4 ~-,*->e'~ .-.- - ~- 0

(12) An event of default of the Concesslonalre under any of the 0 Financing Documents has occurred or any of the Senror Lenders

0 has recalled its loan under any of the Financing Documents,

(13) The Con Jsslonalre abandons the operations of the Project Hlghway for more than 15 (fifteen) consecutcve days wtthout the pnor consent of NHAI, provlded that the Concesslonaire shall be deemed not to have abandoned such operation ~f Such abandonment was (I) as a result of Force Majeure Event and is only for the period such Force Majeure IS continuing, or (11) is on account of a breach of ~ t s obligat~ons by NHAI

(14) The Concessionaire repudiates this evidences an intention not to be bound by

sla-Tumkur BOT Project

(15) The Concess~onaire suffers an executron be~ng levled on any of its" I , .- , assets1 equipment causing a Matenal Adverse Effect on the

Prbject and allows ~t to be cont~nued for a perlod of 15 (fifteen)

days,

(16) The Concessionalre has delayed any payment that has fallen due under t h ~ c 9greement ~f such delay exceeds 90 (nlnety) days, or

(17) The Concessionaire is in breach of its obligation to repay the Revenue Shortfall loans ~n accordance th~s Agreement

32 1.2 Save and except as othewise prov~ded in Clause 32 2, and w~thout prejudice to any other rlght or remedy wh~ch NHAl may have ~n respect thereof under t h~s Agreement, upon the occurrence of any breach or default by the Concess~onaire under thls Agreement lncludlng any Concessionalre Event of Default, NHAl shall be entltled to termmate thls Agreement. by a communication in wrlt~ng (the "Term~natlon Notice") to the Concessiona ' 2 ~f the Concess~onaire has faded to cure such breach or default w ~ t h ~ n the per~od provided for the same in th~s Agreement provided that before ~ssuing the Term~nat~on Not~ce, NHAl shall by a notlce In writing-inform the Concessionaire of ~ t s Intention to Issue the Termination Notrce (the "Prel~minary Not~ce") and grant 15 (f~fteen) days t~rne to the Concess~onalre to make ~ t s representation, if any, agalnst

, such Intended Termmation Not~ce and shall after the explry of said 15 e w ** - -v- - - * d c - "- a?-..-- X-'--. I-

(fifteenjday period whEthyo'rnit ~t is In recelpt of such r e p r e s e n t a t i ~ - - d i i ; f * ~ m v q ~ t s sole dlscretlon Issue the Terrn~nat~on Notlce.

32.1.3 Subject to Clause 32 2, the following shall apply in respect of cure of any of the defaults andlor breaches of th~s Agreement

(I) The Cure Perlod shall commence from the date on wh~ch a not~ce In wr~tlng is delivered by NHAl to the Concess~onaire ask~ng the latter to cure the breach or default spec~fled in such notice

(11) The Cure Perlod prov~ded ~n th~s Agreement shall not rel~eve the Concesslona~re from llabll~ty for Damages caused by its breach or default.

of suspension under this Agreement,

- 4 (lv) If the cure of any breach by the Concess~ona~ie requlres any

reasonable action by Concess~onaire that must be approved by f

NHAl or the Independent Englneer hereunder the applicable Cure r

Perlod (and any l~abil~ty of the Concess~onaire for damages Incurred) ailall be extended by the per~od taken by NHAl or the Independent Engineer to accord their required approval

32.2 Notwithstand~ng anything to the contrary contained in thls Agreement, ~n the event of the Concess~onalre be~ng in default under any of the provlslons hereof expressly provtdlng for Termlnat~on under or ~n accordance wlth t h~s Clause 32.2, NHAI shall be ent~tled to termmate th~s Agreement forthw~th by lssutng a Termlnatlon Notice to the Concesslonarre and upon Issue of such Termlnation Notice by NHAl this Agreement shall stand terminated forthw~th Provtded,

however, that prior to such Terminat~on, NHAl shall by not~ce grant to the Concessionaire a Cure Per~od of one month for curlng the relevant breach or default of the provisions 4 this Agreement.

32.3 Upon Termlnatlon by NHAl on account of occurrence of Concessionaire Event Of Default during the Operations Period, the NHAl shall pay to the Concess~ona~re by way of Terminat~on Payment an amount equal to 90% (ninety per cent) of the Debt Due less insurance claims, if any, provided, however, that if all or any Of

the insurance cla~ms are not admitted and pa~d, then 80% (eighty per cent) of, such unpaid clams shall qualify for belng Included in the computation of Debt Due.

32 4.1 The Concess~on: e may after giv~ng 90 (ntnety) days notlce ln writlng to NHAl termtnate thls Agreement upon the occurrence and continuat~on of any of the following events (each a "NHAI Event of Default"), unless any s~rch NHAl Event of Default has occurred as a result of Concess~onalre Event of Default or due to a Force Majeure Event.

(1) NHAl IS in breach of thls Agreement and such breach has a Matertal Adverse Effect on the Concesslonalre and NHAl has fa~led to cure such breach or take effect~ve steps for curing such breach within 90 (nlnety) days of rece~pt of not~ce ~n th~s behalf from the Concessionaire,

(2) NHAl reyldiates this Agreement or otherwise evidences an irrevocable intention not to be bound by this

/--

of Nelamangala-Turnkur BOT Project 7,. /> '., \ s -... ._ --.. -.. ---- I /

commission or omission created circumstances that have a Material Adverse Effect on the performance of its obligations by the Concujsionaire and have failed to cure the Same within 90

(ninety) days of receipt of notice by NHAI in this behalf from the Concessionaire;

(4) NHAI. has delayed any payment that has fallen.due under this

Agreement if such delay exceeds 90 (ninety) days.

32.4.2 Upon Termination on account of an 'NHAI Event of Default, the Concessionaire shall be entitled io receive from NHAl by way of Termination Payment a sum equal to:

(i) the total ~ e b t Due, plus

(ii) 120% (one hundred twenty percent )the total. Subordinated Debt,

(iii) 150% (one hundred fifty per cent) of the Equity (subscribed in cash and actually spent on the Project but excluding the amount of Equity Support referred to in Article XXIII) if such Termination occurs at any time during three years commencing from the Appointed Date and for each successive year thereafter, such amount shall be adjusted every year to fully reflect the changes in WPI during such year and the adjusted amount so arrived at shall be reduced every year by 7.5% (seven and a half per cent) per

annum.--*ve=z=m'i a * - a rrrUv- - - - - --~z?++F+FSmq

32.5 Upon Termination of this Agreement for any reason whatsoever, NHAl shall:

(i) take possession and control of Project Highway forthwith;

(iii) take possession and control forthwith of any materials, construction plant, implements, stores etc. on or about the Site;

(iv) restrain the Concessionaire and any person claiming through or under the Concessionaire from entering upon. the Site or any part of the Project Highway; andlor

* -s-* 3 ; 2:s P?va.s,t$

and shall upon such elect~on be requ~red to compensate such contract&? f r { only for compen-tibn accruing and becoming due and payable to them under the terms of their respectwe Project Agreements from and after the

1 9 (

date NHAl elects to succeed to the rnterests of the Concesslona~re as 'r . aforesa~d All sums claimed by such Contractors as being due and owing for work and services performed or accrulng on account of any act, $ 4 omission or event prior to such date shall constitute debt between the Concess~onaire and such Contractors and NHAl shall In no way or manner be liable or responsible for such sums.

32 6 Terrninat~on Payments The Termination Payment pursuant to this Agreement

R shall become due and payable to the Concess~ona~re by NHAI within th~rty days of a demand berng made by the Concess~onaire with the necessaly part~culars

0 duly certrfred by the S .tutory Aud~tors. If NHAl fails to disburse the full Termmation Payment w~thin 30 (thlrty) days, the amount remain~ng unpaid shall be d~sbursed along w ~ t h interest @ SBI PLR plus two per cent for the period of delay on such amount.

32.7 Mode of Payment. Payment of compensation of costs by NHAl pursuant to this Article XXXll shall be made by way of credit to the Escrow Account and such payment shall constitute valid discharge of NHAl's obligations for Termination Payment hereunder.

0 32 8 Notwithstand~ng anything to the contrary contained rn th~s Agreement, any

0 Termination pursuant to the provlsrons of th~s Agreement shall be wrthout

.~,w.PP 7 prejud~ce to accrued righ~s of,e~thqr,~arty including ~ ts r~ght to clam and recover +-~=--TTI - - . - * . . - - A .I -+

0 money damages and other rights and remedies which ~t may have In law or contract All rrghts and obl~gatrons of e~ther Party under this Agreement, ~nclud~ng w~thout lrmitation Termrnat~on Payments and Drvestment procedures. shall survrve the Term~nat~on of this Agreement to the extent such survival IS

necessary for giving effect to such rrghts and obligatrons

0 0 XXXIII. DIVESTMENT OF RIGHTS AND INTERESTS

33.1 Upon Termination of this Agreement, the Concessionaire shall comply with the followrng:

(a) notify to NHAl forthwith the location and particulars of all Project Assets;

(b) deliver forthwith actual or constmctive possession of the Project Highway

- .

dlvestlng the Concess~onaire of all of the rights, title and Interest of the Concessiona~re Iri the Project Hlghway and conveying the Project Highway free of any charge or cost to NHAI, and

(c) comply w ~ t h the Dlvestment Requlrements set out !n Clause 33 2.

33 2 Upon Termination of th~s Agreement, except In case of Non Pollttcal Force Majeure, where divestment requirements shall be mutually agreed, the Concessiona~re shall comply and conform to the following Dlvestment Requlrements in respect of the Project Highway

(I) all Project Assets lnclud~ng the road, pavement, structure and equipment shall have been dnewed and cured of all defects and def~clenc~es as necessary so that the Project H~ghway 1s compliant wlth the Spec~ftcatlons and Standards set forth In thls Agreement,

(il) all sections of each traff~c lane (the "Carriageway") of the Project H~ghway shall have a roughness Index of not more than 2500 mm per km and shall b e free from defects In accordance wlth O&M requirements,

(iii) all lamps shall be in working condition,

(iv) the Concessionaire delivers relevant records and reports pertaining to the Project Highway anc! its design, engineering, constwction, operation, and ,

malntenance lncludlng all operat~on and marntenance records and programmes ano manuals perta~ning thereto and complete as built Drawlngs on the Dlvestment Date,

*- ,m., , ,, ,- U.-;l - - a ,r a r . * = # p m r p p * = " .+ . - " m q V w p-R~~rEi?EEp ~ - 7 " X T ~

bz '(v) the Concessionaire executes such deeds of conveyance, documents and other writ~ngs as the NHAI may reasonably require to convey, divest and assign all the rtghts, title and interest of the Concessionaire in the Project Highway free from all Encumbrances absolutely and free of any charge or tax unto the NHAI or its Nominee, and

(VI) the Concessiona~re complies with all other requirements as may be prescribed under Applicable Laws to complete the divestment and assignment of all 'be rlghts, t~tle and interest of the Concessionaire in the Project Highway free from all Encumbrances absolutely and free of any charge or tax to NHAl or its nomlnee.

33 3 Not earlier than 3 (three) months before the expiry of the Concession Per~od but not later than 30 (thrrty) days before such explry, or In the event of earher Termination of this Agreement, immediately upon but no

3 ?O days from the date of issue of Termination Notice th

,*

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a-. - 0 T"?! P$&. .ta 0

. * * . D L T h 4

L,a p -4 0 shall verify, i r l the presence of a represerltatlve o i ttre Cbncessionaire,

0 conipl~aiice by the Concessionaire with the Drvestment Requirements set forth ~n 1: I 4

Clause 33 2 ~n relatlon to the Project Highway and, if required, cause appropriate 0 tests to be carned out at the Concessiona~re's cost for determlnlng the

0 compliance therewrth If any shortcomings ~n the Drvestment Requ~rements are found by either Party, it shall notify the other of the same and the Concesslonalre

0 shall rectify the same at its cost. The provisions of Article XXXlV shall apply

0 mutatis mutandls ~n relation to repair or curing of defects under this Art~cle Xxxl l l f

0 33 4 Upon the Concessionaire conforming to all Drvestment Requirements and

0 handlng over actual or constnrctive possession of the Project Hlghway to NHAl or a person nominated by NHAl in ths regard, NHAl shall Issue a certlflcate

0 substantially ~n the form set forth ~n Schedule 'V' (the "Vesting Cert~frcate") whlch

0 will have the effect of constltutlng evldence of divestment of all rights, title and hen In the Project H~ghway by the Concessionaire and thelr vestrng in NHAl

0 pursuant hereto. Issue of the Vestlng Certificate shall not be unreasonably

0 wlthheld by NHAl The divestment of all rlghts, title and lien tn the Project Hlghway shall be deemed to be complete on the date when all the Dlvestment

0 Requirements have been fulfilled or the Vestrng Certlf~cate has been issued,

0 whichever is earller, ~t belng expressly agreed that any defect or deflclency in any Dlvestment Requiremen. shall not ~n any manner be construed or interpreted as

0 restricting the exerclse of any rlghts by NHAl or ~ t s nomlnee on or ~n respect of . d the Project Hlghway on the footing as if all Divestment ~e~u i rements have been

0 complied wlth by the Concesslonalre - w u *t'* x 7 a . 4 -* * " nYrwUCuc'41-. "m-33.5 ~ o ~ t E s d i n g a n i n g to the--contiarYEontalned tn this Agreement, any

0 Termlnatlon Payments made by NHAl lnto the Escrow Account shall not be withdrawn therefrom for any purpose whatsoever until the Vestrng Certlflcate has

0 been lssued by NHAl under thls Article Provided, however, that the aforesaid

0 restr~dlon shall not apply to withdrawals from the Escrow Account ~n favour of the Senlor Lenders to the extent of Debt Due.

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XXXIY.DEF-'ECTS LIABILITY r:,? > : 0 * Y

0 34 1 Not less than 30 months nor more than 36 months prlor to the expiry of the Concess~on Period, the Concesslonalre and the lndependent Englneer shall

0 conduct a joint ~nspectlon (the "]nltlal Inspection") of the Project H~ghway and all

0 Project Facll~ties

0 34 2 W~thln 90 days after the cornpletron of tha ln~tral Inspectron, the Concesslonalre

0 shall prov~de to the lndependent Englneer a report on the condltlon of the Project H~ghway and the Project Facll~tres and a not~ce sett~ng out the Concesslona~re's

0 proposals as to the renewal works requlred to comply wlth the Drvestment

0 Requirements

0 34 3 The Independent Englneer may, w~thln 90 days after rece~pt of the notrce from

0 the Concess~ona~re ~n accordance wrth Clause 34 2, by not~ce to the

0 Concessiona~re object to the proposals givlng deta~ls of the grounds for such object~on and shall grve the lndependent Englneeis proposals rn respect of the

0 renewal works

0 34 4 If no agreement IS reached between the Concess~onalre and the lndependent

0 Engineer withln 30 days of receipt of such notrce, then erther the Concess~ona~re

0 or the lndependent Engrneer may refer the matter to the D~sputes Resolut~on Procedure

army*- ., * rr o r - 6 a*-*. u 41-h . a 4 *.a rr u - x r , * y = y v t *. .. 'c, * J y a r m w w ~~- . " " - % = q g " q w v :

0 34 5 Upon agreement or determlnatron ~n accordance with the D~sputes Resolut~on Procedure, the Concess~onarre shall carry out the renewal works at its own cost

0 . 0 34 6 Not less than 9 months nor more than 12 months prior to the expiry of the

8 Concessron Per~od, the Concessronaire and the lndependent Englneer shall conduct a jolnt Inspectlor, (the "Second Inspect~on") of all elements of the Project

0 Hrghway and Project Facrllties (whether or not the Renewal Works have been

0 carrted out)

0 34 7 W~thln 30 days after the complet~on of the Second Inspectton, the

0 Concess~onalre shall prov~de to the lndependent Engineer a report on the condltlon of the Project H~ghway and Project Faclllt~es and a notlce settlng out

0 any revisions or addlt~ons to the renewal works required in order to ensure

0 complrance wlth the Divestment Requtrements

-. . . 0 . ,

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' 34 8 The Independent Engineer may, within 30 days after receipt of the notlCe from

0 the Concesslonarre ~n accordance with Clause 34 7, by notrce to the Concesslona~re object to the proposed revisions grvrng detarls of the grounds for

0 such objection and the Concessionaire shall give the Independent Engrneer

0 proposals rn respect of such matters

' 34.9 If no agreement is reached between the Concessionaire and the lndependent

0 Eng~neer within 30 days of receipt of such notice, then erther the Concessionaire

0 or the lndependent En&,:~eer may refer the matter to the D~spute Resolutron Procedure.

0 0 34.10 Upon agreement or determination in accordance with the Disputes Resolution

Procedure, the Concessionaire shall cany out the renewal works (as so revised) 0 at ~ t s own cost.

0 34.13 Within 14 days after the Issue of the Vesting Certificate Issued In accordance

0 with Artlcle Wlll the sums retalned in accordance wrth Clause 34 I lshal l be released from the Escroj 9ccount to the Concessionaire.

0

1

XXXV. ASSIGNMENTS AND CHARGES

0 34 11 From the date whlch is 2 years prior to the expiry of the Concession Per~od a

0 sum equal to the Fees realisable during the last two years of the Concession .

0 Period for a traffrc volume calculated at the rate of 10,000 (ten thousand) PCUs

l o per day per year or a higher sum estimated by the lndependent Engineer for Renewal Works, shall nohvithstanding anythlng to the contrary contained in this

0 Agreement, be retamed in the Escrow Account provlded that ~f a Bank Guarantee

0 of an equivalent sum In Ule form and content acceptable to NHAl has been furnished by the Concessionaire to NHAI, no such retention shall be made.

0 0 34 12 If follow~ng the Second Inspection, it IS agreed or determined that no renewal

works are required, then wlthrn 14 days of such agreement, 50% of the sums *~W=-~~TS%-- 9 .. *. -. -- UnTp7 , .

reta~ned ln accorda~cTw1th~CIause?!34~4ishall~be- released .from the Escrow -- *-,?-%=

0 Account to the Concessionaire.

I

,

0 35.1 Subject to Clauses 35.3 and 35 4, thrs Agreement shall not be assigned by the

6 Concessionaire save and except w~ th pnor consent rn wrltlng of NHAI, wh~ch

0 consent NHAl shall be entitled to decline wrthout assign~ng any reason whatsoever.

0 0 35.2 Subject to Clause 35 3, the Concessionaire shall n

subsist any encumbrance over or otherwise transfer 8 0

0

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I I I

.- . - + - . - ~ . - X r r ; ? - ~ t " 2 T x T ~ * *" 1

I

, * rights and benefits under this Agreement or any Project Agreements to which I F )

1 E Concesstona~re IS a party except with prior consent ~n writing of NHAI, which consent NHAI shall be entltled to decline wlthout assigning any reason whatsoever

Restraint set forth in Clauses 35.1 and 35.2 shall not apply to:

0) \lens arlsing by >eration of law (or by an agreement evidencing the same) in the ordinary course of bus~ness of the Project Highway;

(11) rnortgageslpledges/hypothecat~on of goodslassets other than Project Assets, and those covered by the Substitution Agreement and their related documents of title arislng or created in the ordinary course of buslness of the Project Highway and as security only for indebtedness to the Senior Lenders under the Financing Documents andlor for working capital arrangements for the Project Highway,

(rli) assignment of rlghts, title and interest to or in favour of the Lenders pursuant to and ~n accordance wlth the Substitution Agreement ~n respect of financing by t1,2 Senior Lenders under the F~nancing Documents for the Project; and

(iv) liens or encumbrances'required by any Applicable Law. I Senlor Lenders may exerase the rtghts of step-ln or substitd~on as provlded In

-the Substitution Agreement to be enteredlinto among the ~ o n c e s s ~ o n a ~ r e : N H ~ l ? * ~ and Senior Lenders in the form set forth in Schedule 'U' provlded that the person substituting the Concess~onaire shall be deemed to be the Concesslona~re under thls Agreement and shall enjoy all rights and be responsible for all obl~gat~ons under thls Agreement as ~f ~t were the Concess~onaire Provided, however, that in the event of such step-lr qr substitution, an add~tlonal Cure Perlod of 90 (ninety) days shall be provided by NHAI to enable the Concesslonalre to cure any breach or default subs~st~ng on the day of such step-ln or subst~tut~on Provlded further that if the Senlor Lenders step in to operate and manage the Concession for a perlod not exceeding 90 (ninety) days, thelr llablllties shall be restricted to the obllgat~ons relating to and arlsing durlng such 90 (nlnety) days per~od

Notwithstanding anything to the contrary contained in this Agreement NHAI may assign any of its rights and benefits andlor obligations under this Agreement pursuant to any direction of GO1 or by operation of law or in the course of its own business

.. .. - - , .-. - . of Nelamangala-Turnkur BOT Project : ;:.:!

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I

I

XXXVI.CHANGE IN LAW 1. -?*:

0 36 1 If as a result of Change in Law, the Concessiona~re suffers an increase in costs

1 " : ' i

0 1. or reductlon In net after tax return or other flnanctal burden, the aggregate ~ o flflaflcial effect of which exceeds Rs 5 million (Rupees five million) in any Accounting Year, the Concesslonalre may notlfy NHAl and propose amendments 0 to this Agreement so as 9 put the Concessionaire ~n the same financial p0SltlOn

8 as it would have occupied had there been no such Change ln Law resultrng in

0 such cost Increase, reduct~on ~n return or other flnanc~al burden as aforesaid Upon notlficat~on by the Concessionaire as aforesa~d, the Parties shall meet as

d soon as reasonably practicable but no later than 30 (th~rty) days and either agree

0 on amendments to this Agreement or on alternative arrangements to implement the foregoing

0 Prov~ded that ~f no agreement is reached as aforesaid by the Partles wlthln 90 (nlnety) days of the meet~ng pursuant to t h~s Clause 36.1, the Concess~onaire may by not~ce ~n writlng requlre NHAl to pay an amount that would put the Concesslonalre in the same f~nanc~al pos~tion ~t would have occupled had there been so such Change Ir .aw resulhng ~n such cost increase, reductlon in return or other f~nancial burden as aforesaid Such notlce shall be accompanied by necessary part~culars duly certlf~ed by the Statutory Audltors of the Concess~onalre NHAl shall make payment of such compensat~on within 15 (fifteen) days of receiving such notlce or w~th Interest @ SBI PLR ~f the payment thereof IS delayed beyond such 15 (fifteen) days If NHAl shall dlspute the quantum of such compensation claim of the Concessionalre, the same shall be

flnarly settled !~$c~o~dap$~y~q.$ ,e tD~~~f f~Rp~g~t r t ronnProcedure ,., ,,, ,, , , -%,A

, If as a result of Change in Law, the Concess~ona~re enjoys a reduct~on ~n costs or increase in net after tax return or other financ~al benef~t, the aggregate flnancial effect of which exceeds Rs.10 million (Rupees ten rnlllion) in any Accounting Year. NHAl may so notr~, the Concessionalre and propose amendments to thrs Agreement so as to put the Concessionaire ~n the same f~nanclal pos~t~on as ~t would have occup~ed had there been so such Change ~n Law result~ng in such decreased cost, Increase in return or other f~nanclal benef~t as aforesaid Upon notification by the NHAl as aforesa~d, the Part~es shall meet as soon as reasonably pract~cable but no later than 30 (thirty) days and either agree on such amendments to t h~s Agreement or on alternative arrangements to ~rnplement the foregong.

Provided that if no agreement is reached as aforesaid by the Parties within 90 I (ninety) days of the meeting pursuant to this Clause 3 writing require the Co~cessionaire to pay an a

". Nelamangala-Tumkur BOT Project

0 *<

' 0 i L

- : r concesslonalre in the same financial position rt would have occupied had there [ . - . been no such Change in Law resulting in such decreased cost, increase in return or other financial benefit as aforesa~d Such notice shall be accompanied by necessary particulars duly certlf~ed by the NHAl Representative The Concess~onalre shall make such payment within 15 (fifteen) days of receiving

I r h o t w i t h s t a n d l n g anything to the contrary contained in .IS Agreement, NHA, shall not be liable to reimburse to the Concessionaire any sums on account of

I

0 any Change in Taxes if the same are re~verapble.from.the_~s~r~ of the yro!e-st .H~ghway,or i f the aggregate financial effect of such changes in any Accounting

0 Year IS less than or equal to Rs 10 mlllloil (Rupees ten million).

0 XXXVII.

0 LIABILITY AND INDEMNITY

0 37.1 General Indemnity

d such notice or with interest @ SBI PLR if the payment is delayed beyond such

, o 15 (fifteen) days. If the Concessionaire shall d~spute such clam of NHAI, the same shall be finally settled in accordance with the Dispute Resolution

' 0 Procedure. I

0 (i) The Concess~onaire will indemnify, defend and hold NHAl harmless

0 agalnst any and all proceedings, actions and, third party clalms other than

0 a claim by NHAl or GO1 for Ibss, damage and expense of whatever kind and nature arislng out of the des~gn, englneerlng, construct~on,

0 procurement, Operation and Maintenance of the Project Highway or -~*~var lS~ng~OUt ofSa breach by Concess~onaire'of any of its o b l i @ ~ t i o n s . G i % d e ~ ~ ~ ~ - ~ ~

this Agreement except to the extent that any such claim has arlsen due to d NHAl Event of Default. A w

(11) NHAl w~ll, lnder- i~fy, defend and hold harmless the Concessionaire 0 agalnst any and all proceedrngs, actions, thlrd party claims for loss,

0 damage and expense of whatever kind and nature arlsing out of defect ~n

8 tltle andlor the rights of NHAl in the land comprised ~n the Site adversely affecting the performance of the Concess~ona~re's obl~gations under thls

0 Agreement and/or arlslng out of acts done in d~scharge of their lawful

0 functions by NHAI, its Officers, servants, agents, subsidiaries and contractors ("NHAI Indemnified Persons") including NHAl Events of

0 Default except to the extent that any such claim has arisen due to a

0 negligent act or omission, breach of contract or breach of statutory duty on the part of the Concessionaire, its Subsidiaries, affiliates, contractors,

0 servants or agents including due to Concessio

0

Nelamangala-Tumkur BOT Project 0

0 I

0 ' *

h 0 37 2 Without limltrng the generalrty of Clause 37.7 the Concesslonalre shall fully

indemnify, save harmless and defend NHAl including ~ t s officers, servants, t

0 agents and subsldlaries from and agalnst any and all loss and damages arising out of or wlth respect to (a) fallure of the Concessionaire to comply wlth 1

0 1 Applicable Laws and Ar 'Ircable Permlts, (b) payments of taxes relating to the

d Concessionarre contractors, suppliers and representatives, ~ncome or other taxes

0 required to be paid by the Concessionaire wlthout reimbursement hereunder, or (c) non-payment of amounts due as a result of materials or servlces furnished to

0 the Concessionaire or any of its Contractors which are payable by the

0 Concessionaire or any of its contractors

37.3 Without lrrniting the generalrty of the provisions of this Article XXXVII, the Concessionaire shall fully ~ndemndy, save harmless and defend the NHAl 1

0 Indemnified Person from and against any and all damages which the NHAl lndemnifled Persons may hereafter suffer, 01 pay by reason of any demands,

0 clalrns, suits or proceedings arisrng out of claims of infrrngement of any domestic

0 or foreign patent rights, ,opyrights or other ~ntellectual property, proprietary or confldential~ty rights wlth respect to any materials, information , design or process

0 used by the Concessionaire or by the Concessionaire's Contractors in performing

n the Concessionaire's oblrgations or in any way incorporated in or related to the - Project If in any such suit, claim or proceedings, a temporary restraint order or

0 preliminary injunction is granted, the Concessionaire shall make every

c-3 reasonable effort, by giving a satisfactory bond or otherwise, to secure the - suspension of the ~njunction or restraint order If, in any such suit claim or

0 % calt"-" r

proceedings, the Project, or any part, thereof or comprised therein is held to

d c o r i s t 1 i u t ~ " a 7 1 ~ f f i ~ ~ G f ~ C f i a ~ i t s -use -1s. .permanently enjorned, the ' - Concessionaire shall promptly make every reasonable effort to secure for NHAl a

d Ilcence, at no cost to NHAI, authorrng continued use of the infringing work If the

0 Concessionaire IS unable to secure such lrcence within a reasonable time, the

0 Concessionaire shall, at its own expense and without lmpairrng the specifications and standards elther replace the affected work, or part, or process thereof with non-infringing work or parts or process, or modrfy the same so that it becomes non-infringing

0 37.4 In the event that either Party recelves a claim from a thlrd party rn respect of

0 whlch it is entltled to the beneflt of an indemnity under thls Article XXXVll (the 'Indemnified Party') ~t shall notlfy the other Party ("lndemnrfying Party") within 14

€3 (fourteen) days of receipt of the claim and shall not settle or pay the clam wlthout

' 0 the prior approval of the Indemnifying Party, such approval not to be

0 unreasonably withheld 7- delayed. In the event that the Indemnifying Party wishes to contest or dispute the claim it may conduct

0 0

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0 Concession Agreement of Nelamangala-Tumkur BOT Project

'0 0

5 0 - i b -

- . * . *

0 "* r e-4 10

+? : <q$~c 7 ."4 -" "

name of the lndemn~fied Party subject the Indemnified Party he~ng secured k, ;, - 0 against any costs involved to its reasonable satisfaction.

0 37.5 Defence of Claims

0 d 37.5.1 The Indemnified Party shall have the right, but not the obligation, to

0 contest, defend and litigate any claim, action, su~t or proceed~ng by any third party alleged or asserted against such party in respect of, resulting

0 from, related to or anslng out of any matter for which it is entitled to be

0 indemn~f~ed hereunder and their reasonable costs and expenses shall be ~ndemnif~ed by the lndemnifying Party. If the lndemn~fying Party

0 acknowledges in writing its obligation to indemnify the person indemnified

0 in respect of loss to the full extent provided by this Article XXXVII, the lndemnifying Party shall be entitled, at its option, to assume and control

0 the defence of such claim, act~on suit or proceeding I~abilities, payments and obligations a1 ~ t s expense and through counsel of its choice provided it gives prompt notice of its intention to do so to the lndemnified Party and reimburses the lndemnif~ed Party for the reasonable cost and expenses

0 incurred by the lndemnified Party pnor to the assumption by the lndemnifying Party of such defence. The lndemnifying Party shall not be

0 entitled to settle or compromise any claim, action, suit or proceeding

0 w~thout the prior written consent of the Indemnified Party unless the

0 lndemnifyrng Party provides &ch security to the lndemnified Party as shall be reasonably required by the lndemn~fied Party to secure, the loss

C) to be indemnified hereunder to the extent so compromised or settled .- "

T -.-&I--- 59 . -dUL'~ as1 id id - us w c r - w v - - x - r i l r ~ ~ ~ - * ~ ( * w n ~ - " . ~ y ~ ~ - ~ .

37.5 2 If the Indemnifyir- Party has exercised its rights under Clause 37.4, the

0 lndemnrf~ed Party shall not be ent~tled to settle or cornpromrse any claim, action, suit or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

0 37.5.3 If the Indemnifying Party exercises its rights under Clause 37.4 then the

d Indemnified Party shall nevertheless have the right to employ its own

0 counsel and such counsel may participate in such action, but the fees and -

0 expenses of such counsel shall be at the expense of such lndemnified Party, when and as incurred, unless:

0

0 (i) the emplc: .nent of counsel by such party has been authorised in writing by the Indemnifying Party; or

0

0

0 0

0 0 t

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(11) the lndemnrfied Party shall have reasonably concluded that there 0

* * '1 I I may be a P.onfllct of interest between the lndemnifying Party and

, = 1

0 the lndemnrfled Party in the conduct of the defence of such action; or

0 (iii) the Indemnifying Party shall not in fact have employed independent counsel reasonably satisfactoly to the lndernnified

C) Party to assume the defence of such action and shall have been

0 so notified by the Indemnified Party, or

0 (iv) the Indemnified Paffy shall have reasonably concluded and

0 specifically notified the lndemnlfying Party either:

(a) ths; there may be specific defences available to it which d are different from or addit~onal to those available to the

Indemnifying Party; or

(b) that such claim, action, suit or proceeding involves or could have a material adverse effect upon it beyond the scope of this Agreement;

d provided that ~f clauses (II), (111) or (iv) shall be appl~cable, counsel for the

-0 Indemnified Party shall have the right to direct the defence of such clalm,

0 action, suit or proceeding on behalf of the lndemn~f~ed Party and the reasonable fees and disbursements of such counsel shall constrtute legal

0 or other expenses hereunder. m ,, z-.. .. s: s 9 3. *" = -me.. d*irr- rr -d, - -. ~ - % y - ? p i ~ ? 4 L . e f ~ zer??s-

~XXVIII. RIGHTS AND TITLE OVERTHE SITE I

0 68.1 The Concessionaire shall have exclusrve r~ghts to the use of the S~te in

accordance w~ th the provisions of th~s Agreement and for th~s purpose it may 0 regulate the entry and use of the Project H~ghway by third parhes.

0 38.2 The Concessionaire shall allow access to, and use of the Srte for telegraph lines, 0 electrlc lines or such other publ~c purposes as NHAl may spec~fy. Where such

access or use causes any damage to the Project Highway and consequent financial loss to the Concessiona~re, it may seek compensation or damages from

O such user of the S~te as ~ s r Applicable Laws 0 b8 3

The Concessionaire shall not be liable to pay any property taxes for the Slte

0 ' i

^,% L t l 0 > , ... = -* 2°F

' t 38 4 For the purposes of claiming tax depreciation, the property representrng the 1 . . 0 caprtal rnvestment made by the Concessionaire shall be deemed to be acqulred

I

0 and owned by the Concessionaire.

9 8 . 5 The Concessionaire shall not sublet the whole or any part of the Slte save and

0 except as may be expressly set forth In this Agreement provided however that nothing contained herein shall be construed or Interpreted as restricting the rlght

O of the Concessionarre to appornt contractors for the performance of rts

0 obllgations hereunder includlng for operation and marntenance of all or any part

0 of the Project Hlghway includlng Project Facllltres.

C;(XXIX. DIS UTE RESOLUTIO;: 9

0 Project Highway between the Parties and so notified in wrrting by either Party to the other (the "Dispute") in the first instance shall be attempted to

lo be resolved amicably in accordance with the conciliation procedure set

0 forth in Sub-clause (b) below.

I

O (b) In the event of any Dispute between the Parties, ether Party may call

0 upon the Independent Engineer to mediate and assrst the Part~es in ?--arriving at*anva'micable"settlement thereof-failing 'medrationnbyr t h e t - m - ' $ - r 0 lndependent Engineer or wrthout the intewentlon of the lndependent

0 Engineer, either Party may requrre such Dispute to be referred to the

0 Chalrman of NHAl and the Chairman of the Board or Directors of the Concesslonalre, for the tlme berng for amicablefsettlement. Upon such

0 reference, the sald two Charrmen shall meet not later than 7 (seven) days

0 of the date of such request to discuss and attempt to amlcably resolve the Dlspute. If such meetlng does not take place within the sald perlod or

0 the Dispute is not amlcably settled withln 15 (f~fteen) days of such

0 meeting betwee.. the sald two Shasmen, either Party may refer the

0 dlspute to arbitration in accordance with the provisions of Clause 39.2

q 9 9 cable Resolut~on 0

(a) Save where expressly stated to the contrary ~n this Agreement, any dlspute, d~fference or controversy of whatever nature howsoever anslng

0 under, out of or In relation to thrs Agreement lncludlng incompletron of the

0 (c) If the D~spute is not resolved as evidenced by the srgning of the written

0 terms of settlement wlthin 30 (thlrty) working days of the aforesaid notlce in writing or such longer period as may be mutually agreed by the Parties

0 then the provisions of Clause 39.2 shall apply

0 - mangala-Tumkur BOT Project

- 0 0

B ' . ,< "7 ."?

0 " C

39 2 Arbltratiori f 0

a i

39 2.1 Any Dlspute, which IS not resolved amlcably as provided in Clause 39.1 1.

0 f shall be finally decided by reference to arbltratlon by a Board of Arbitrators, appo~nted pursuant to Clause 39.2.2 below. Such arbltratlon 0

0 shall be held ~n accordance wlth the Rules of Arb~tratlon of the lndlan I

Councll of Arbitrat~on and shall be subject to the prov~sions of the F

0 Arbitration Act

0

0 39 2 2 There shall be Board of three arbitratois of whom each party shall select one and the thlrd arbitrator shall be appointed in accordance with

0 the Rules of Arbitration of the Indlan Council of Arbltratron

0

0 39 2 3 The arbitrators shall lssue a reasoned Award.

0 0 39 2 4 The venue of such arb~tratlon shall be New Delhl, India.

'39 3 Arbitration Awards to be Bind~ng p 0 39 3.1 The Concessiona~re and NHAl undertake to carry out any dectslon or

0 award of the arbitrators (the "Award") wlthout delay Awards relatlng to F-T &. any Dlspute s@=@eflnal and blnd~ngpn th_e,.qartles as from the date they -- - * - - - .r *

"a are made

0 0 39 3 2 The Concessionaire and NHAl agree that an Award may be enforced

0 agalnst the Concesslonalre and/or NHAI, as the case may be and thew respect~ve assets wherever sltuated

0 0 39 3 3 T h ~ s Agreement and rights and obligations of the Partles shall remaln In

0 full force and ev ct pendlng the Award In any arbitratron proceeding hereunder.

0

OXL. DISCLOSURE

0 0 4 0 1 The Concesslonalre shall make available for lnspectlon by members of publlc

free of charge durlng normal bus~ness hours on all working ' concess~on Agreement, tFe O&M Contract, the Tolling 0 Support Agreement (hereinafter collect~vely referred to

Nelarnangala-Turnkur BOT Project

0 ' i

0 i t -

l r 0 7 --T' tyy- +

0 e i

0 I '

1 " 0 the Concessionaire's Site office during the subsistence of thls Agreement 1

0 The Concessionaire shall prominently display at the Toll Plazas public notlces k about the availabil~ty of the Public Documents for inspection and shall make

0 available upon request and payment ~n advance of copylng charges on no profit no loss basis to members of public copies of the said Publrc Documents

t 0

' XLI. REDRESSAL O f PUBLIC GRIEVANCES

0 0 41 1 The Concessionaire shs., malntain a public relations office adjacent to each Toll

Plaza and keep it open to publlc access at all times. At each such office, the

0 Concessionaire shall open and maintain a register (the "Complaints Register") for

0 recording of complaints by any person (the Complainant") at any time of the day The availability of and access to such office and the Complaints Reglster shall be

0 prominently displayed by the concessionaire at each Toll Plaza so as to bring it

0 to the attent~on of all persons who are entering and exiting the Project Hlghway

41 2 The Complaints Register shall be securely bound and kept in proper custody at

0 the publ~c relations office. Each page of the Register shall be duly numbered and

0 each complaint recorded therein shall also be duly numbered Soon after a complaint is registered the Complainant shall be given a receipt by such office

0 stating the date and complaint number, which the Complainant may refer to in

0 any subsequent correspondence or claim The Complaints Register shall have approprlate columns including but not limlted to the complaint number and date,

0 name and address of the Complainant, the complaint and the actlon taken by the 7-"--?%Concessionaire thereon: *- 0- -=T*+mWz+?mTi "-*=-=*EST- =i) -m%rpp?y-U*%

0 41.3 The Concessionaire shall inspect the Complaints Register at reasonable intervals

0 and take prompt steps for redressal of the grievances stated in each complaint The actlon so taken by the Concesslonaire shall be brlefly noted in the 'Action

d taken' column of the Complaints Register and a suitable reply shall also be sent

0 to the complainant by post under a certificate of posting.

41 4 Withln one week following the close of each calendar month, the Concessionaire shall send to NHAl a true photocopy of such pages of the Complaints Register on which any entries have been recorded of any Complaint on the Concesslonaire durrng the course of such month. NHAl may ~n ~ t s discretion direct the concessionalre to take such further reasonable action as NHAl may deem approprlate for a fair and just redressal of any grievance Where NHAl rs of the oplnion that the Complainant IS entitled to any further redressal or compensation beyond what the Concesslonaire 1s willing to provide, NHAl may refer the matter to the Consumer Redressal Forum having jurisdrctlon for its dlsp63al !n

, . accordance wlth the provisions of the Consumer Protection Act, 1986

. ". r r ..

f Nelarnar~~ala-Tumkur BOT Project \,

, ;>

0 0 XLII. ADVERTISING ON THE SITE

0 42 1 The Concessionaire shall not undertake or permlt any form of Commercial

0 advertising, display or hoardlng at any place on the Site S such advertising,

display or hoarding shall be visible to a user of the Project Highway while driving 0 on such Highway

0

XLIII. GOVERNING LAW AND JURISDICTION

0 0

43 1 This Agreement shall be construed and interpreted in accordance with and governed by the laws of lnd~a and the Courts at New Delhi, lnd~a shall have

0 j~~r isd~ct ion over all matters ansing out of or relatlng to this Agreement

O XLIV. MISCELANEOUS 0 Q 44.1 Video Recording

0 During the Construction Period, the Concessionaire shall provide a video

0 recording to NHAl every calendar quarter which will be cornp~led ~nto a 3 (three) hour cassette, covering the construction of the Pro~ect Highway in that quarter.

0 Such v~deo recording shall be provided no later than fifteen days afler the close

0 of each quarter. 'a*. ..i r* + q q q r ~ p f g o * p ; - n * i i C - . - - ---- - . ' ? E ? F & - v - * = - - sr* .*+' - '6 44 2 Waiver

0 0 (a) Waiver by e~ther Party of any default by other Party in the observance

and performance of any provision of or obligations of or under this 0 Agreement

0 (i) shall not operate or be construed as a waiver of any other or

0 subsequent default hereof or of other provisions of or obligations

0 under this Agreement,

(ii) shall not be effective unless it is in writing and executed by a duly authorised representative of the Party; and

0 (iii) shall not affect the validity or enforceability of this Agreement in

0 any manner.

0 .I i i

(b) Neithet the fa~lure by either Party to tnsist on ally occaslon upon the . a u " & i ... ..=

I 0 performance of the terms, cond~tlons and provisions of this Agreement or

3

0 any obl~gat~on thereunder nor t~me or other ~ndulgence granted by a Party to the other Party shall be treated or deemed as waiver of such breach or ! * v 0 acceptance of any variation or the rel~nquishment of any such right

I 0 hereunder E I

I I

0 44.3 Surv~val I I

I

0 I Terrnlnat~on of this Agreement (a) shall not relieve the Concessionaire or NHAl of

I

0 any obligations hereunder which expressly or by ~mpl~cation survlves Termrnation I

0 hereof, and (b) except as otherwise provtded in any provision of thts Agreement

0 expressly lrmtting the llab~llty of either Party, shall not rel~eve either Party of any obligations or l~ab~l~hes for loss or damage to the other Party arising out of or

0 caused by acts or omissions of such Party prior to the effectiveness of such

0 Terminat~on or ansing out of such termination.

1 0 44.4 Entire Agreement. I

;

This Agreement and the Schedules together const~tute a complete and exclusive statement of the terms of the agreement between the Partles on the subject

_no,amendment or*rnodlficatian hereto shall be val~d and effectlve 4- -I.- I IIII . . ii 4 " s . t l

unless expressly previously approved in writ~ng by NHAl and executed by- th2; ' .p- ' *~~=~*. person expressly authortsed by a resolution of NHAl in this behalf.

4

10 All obligat~ons surviving the cancellation, expiration or Terminat~on of this

0 Agreement shall only su, vive for a period of 5 (f~ve) years following the date of such Termination or expiry of th~s Agreement.

0

44 5 Nottces

0 0 Any notice or other commun~ca!~on to be given by Party to the other Party under,

or ~n connect~on w~th the matters contemplated by this Agreement shall be ~n 0 writtng and shall

0 (a) in the case of the Concessionaire, be given by letter del~vered by hand to

0 the address grven and marked for the attentton of the person set out

0 oppos~te the correspond~ng s~gnature below or to such other address marked for such other attention as the Concess~onalre may from t~me to

0 time designate by not~ce to NHAI, prov~ded that notices or other

0 cornmun~cations to be grven to an address outside New Dei

0 are subsequentl. confirmed by send~ng a copy )he/reo~

0

0 0

I 0 a

L O I

. . ----A -*un.r-ma,..-~*l *trsi fF FF 2, * -C. *

V

0 registered airmail or by couner) be sent by facslmlle to the number as the R Concessionaire may from tlme to t~me designate by notice to NHAI, and

0 a.

0 (6) in the case of NHAI, be grven by letter delrvered by hand and be i

addressed to the Chairman, NHAI. Copies of all not~ces shall also be sent 0 by facslmile and 5 y registered post or courier.Copies of all notices shall

1 0 also be sent to the NHAl Representative.

I

Severability

If for any reason whatever any provision of this Agreement IS or becomes ~nval~d, rllegal or unenforceable or IS declared by any court of competent jur~sdlct~on or any other instrumental~ty to be ~nvalrd, Illegal or unenforceable, the val~d~ty, legality or enforceability of the rernarnlng provlslons shall not be affected ~n any manner, and the Part~es will negotiate ~n good falth wlth a vlew to agreeing one or more provlslons whlch may be substituted for such ~nval~d, unenforceable or illegal provisions, as nearly as IS practicable to such lnvalid, ~llegal or unenforceable provrslon 'ailure to agree upon any such provlslons shall not be subject to d~spute resolut~on under thrs Agreement or otherwise

No Partnership

0 Nothing contained ~n this Agreement shall be construed or interpreted as

0 const~tuting a partnership between the Partles Nelther Party shall have any au thq ty to brnd the other ~n any manner whatsoever * . r a r * r r - w i a r a -7% ~~~~w~~ +or*%? P ' ~ - - - ~ ~ ~ - \ R \ R \ R \ R rr - . e s h, L - r

0

10 44 8 Language

' 0 All notices required to be given by one Party to the other Party and all other

0 communications, docum,,ltation and proceedings which are in any way relevant to this Agreement shall be ~n wr~ting and ~n English language

0 0 44.9 Exclusion of Implied Warranties etc.

0 This Agreement expressly excludes any warlanty, cond~t~on or other undertaking

0 Implied at law or by custom or othewise ansing out of any other agreement

0 between the Parties or any representation by either Party not contained in a binding legal agreement executed by both Partres

0

Q

C nt of Nelamangala-Tumkur BOT Project

0 0 0 0

44.10 Counterparts 0 0

I This Agreement may be executed ~n two counterparts, each of which when E

Q executed and del~vered shall const~tute an onglnal of this Agreement. I

1 QN WITNESS WHEREOF THE. PARTIES HAVE EXECUTED AND DELIVERED THIS

GREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.

OS~GNED SEALED AND DELIVERED 0 OFor and on behalf of

ONATIONAL HIGHWAYS AUTHORITY OF INDIA

LY(. TJRRI (Name)

0 Q 4 . M . ~ ~ ~ & ~ ( ~ e s i ~ n a t i o n )

0 SIGNED,nSEALED.AND DELIVERED - * * . . * - * P ' - ' * ' C ~ ~ ~ - + : = - ~ ~ ~ * ~ T * . F ? I ~ T Z ~ - ' ~ P ~ - ~ ~ -a - For and on behalf of

o c ~ N ~ E s s l o N A I R E b~

0 (Signature)

0 p'lf+noS F A Y ~ s G ~ ~ L 0 (Name)

0 - J ) > R E i 7 d R . (Designation)

0

O l n the presence of:

0 w m - a . . , * c v ~ + , C Y ~ L C I * , m4nb)vk ~ u L . L , ( . I ~ 5 ~ ~ ~ ~ i ' t ~

r \ l . l c . . S / i v H , I ~ ~ & B E L ~ T E ( ~ ) ~ 4 ~ ~ 1

CliJfn 0 4 ~ (&SPSI, J H - Y A T ~ ~ S NFCO U " ) 7 3 &

10 Concess~on Agreement of Nelarnar->la-Tumkur BOT Project

Page 96