PUBLIC PRIVATE PARTNERSHIP IN DBFOT

National Highways Logistics Management

Limited

Development, Operations and Maintenance of

Ropeway from Sonprayag to Kedarnath in the
State of Uttarakhand on DBFOT mode.

DRAFT CONCESSION AGREEMENT

October 2024

National Highways Logistics Management Limited

2nd Floor, D21 Corporate Park,

Sector 21, Dwarka, New Delhi

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PUBLIC PRIVATE PARTNERSHIP IN DBFOT

Draft Concession Agreement

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Part I
Preliminary

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PUBLIC PRIVATE PARTNERSHIP IN DBFOT

CONCESSION AGREEMENT
THIS AGREEMENT is entered into on this the .......... . day of .......... , 20…..

BETWEEN

1 The President of India through the Ministry of Road Transport & Highways,
Government of India represented by National Highways Logistics Management
Limited (“NHLML”), an autonomous body promoted by the Ministry of Road
Transport and Highway, GoI and having its Head Office at Room No. 309, D21
Corporate Park, Sector 21, Dwarka, New Delhi - 110077 (hereinafter referred to
as the “Authority” which expression shall, unless repugnant to the context or
meaning thereof, include its administrators, successors and assigns) of One Part;

AND

2 {. LIMITED}$, a company incorporated under the provisions of the Companies

Act, 1956/ Companies Act, 2013 and having its registered office at
…………………, (hereinafter referred to as the “Concessionaire” which
expression shall, unless repugnant to the context or meaning thereof, include its
successors and permitted assigns and substitutes) of the Other Part.

WHEREAS:

(A) The Government of India had entrusted to the Authority the Development,
Operations and Maintenance of Ropeway from Sonprayag to Kedarnath in the
State of Uttarakhand on DBFOT mode.

(B) The Authority had accordingly adopted a single stage two envelope bidding
process and accordingly invited proposals by its Request for Proposal dated ***
(the “Request for Proposal” or “RFP”) for qualification and short listing of
bidders for construction, operation and maintenance of the above referred
Ropeway Project from Sonprayag to Kedarnath in the State of Uttarakhand on
DBFOT mode.

(C) The Authority had prescribed the technical and commercial terms and conditions
in the RFP and invited bids comprising technical and financial bids from the
bidders for undertaking the Project.

(D) After evaluation of the bids received, the Authority had technically qualified
certain bidders including, inter alia, the {the selected bidder/ consortium
comprising ………………., …………………….., ………………………., and
……………….. (collectively the “Consortium”) with …………….. as its Lead
Member} and accepted the financial bid of the {selected bidder/ Consortium}
and issued its Letter of Award No. ……………………………. dated
…………………… (hereinafter called the “LOA”) to the {selected
bidder/ Consortium} requiring, inter alia, the execution of this Concession
Agreement within 45 (forty-five) days of the date of issue thereof.

$ The provisions in flower parenthesis and the blank spaces in the draft Concession Agreement shall be suitably
modified/ filled after completion of the bid process to reflect the particulars relating to the selected bidder.

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(E) {The selected bidder/ Consortium has since promoted and incorporated the
Concessionaire as a limited liability company under the Companies Act
1956/2013, and has requested the Authority to accept the Concessionaire as the
entity which shall undertake and perform the obligations and exercise the rights
of the selected bidder/ Consortium under the LOA,} including the obligation to
enter into this Concession Agreement pursuant to the LOA for executing the
Project.

(F) {By its letter dated , the Concessionaire has also joined in the said request of
the selected bidder/ Consortium to the Authority to accept it as the entity which
shall undertake and perform the obligations and exercise the rights of the selected
bidder/ Consortium including the obligation to enter into this Concession
Agreement pursuant to the LOA. The Concessionaire has further represented to
the effect that it has been promoted by the selected bidder/ Consortium for the
purposes hereof.}

(G) The Authority has agreed to the said request of the {selected bidder/Consortium
and the} Concessionaire and has accordingly agreed to enter into this Concession
Agreement with the Concessionaire for execution of the Project on DBFOT basis,
subject to and on the terms and conditions set forth hereinafter.

NOW THEREFORE in consideration of the foregoing and the respective covenants

and agreements set forth in this Concession Agreement, the sufficiency and adequacy
of which is hereby acknowledged, and intending to be legally bound hereby, the Parties
agree as follows:

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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions

The words and expressions beginning with capital letters and defined in this
Agreement (including those in Article 49) shall, unless the context otherwise
requires, have the meaning ascribed thereto herein, and the words and
expressions defined in the Schedules and used therein shall have the meaning
ascribed thereto in the Schedules.

1.2 Interpretation

1.2.1 In this Agreement, unless the context otherwise requires,

(a) references to any legislation or any provision thereof shall include

amendment or re-enactment or consolidation of such legislation or any
provision thereof so far as such amendment or re-enactment or
consolidation applies or is capable of applying to any transaction entered
into hereunder;

(b) references to laws of India or Indian law or regulation having the force
of law shall include the laws, acts, ordinances, rules, regulations, bye
laws or notifications which have the force of law in the territory of India
and as from time to time may be amended, modified, supplemented,
extended or re-enacted;

(c) references to a “person” and words denoting a natural person shall be

construed as a reference to any individual, firm, company, corporation,
society, trust, government, state or agency of a state or any association
or partnership (whether or not having separate legal personality) of two
or more of the above and shall include successors and assigns;

(d) the table of contents, headings or sub-headings in this Agreement are for
convenience of reference only and shall not be used in, and shall not
affect, the construction or interpretation of this Agreement;

(e) the words “include” and “including” are to be construed without

limitation and shall be deemed to be followed by “without limitation”
or “but not limited to” whether or not they are followed by such
phrases;

(f) references to “construction” or “building” include, unless the context

otherwise requires, survey and investigation, design, developing,
engineering, procurement, delivery, transportation, installation,
processing, fabrication, testing, commissioning of the Project, including
maintenance during the Construction Period, removing of defects, if any,
and other activities incidental to the construction, and “construct” or
“build” shall be construed accordingly;

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(g) references to “development” include, unless the context otherwise

requires, construction, renovation, refurbishing, augmentation,
upgradation and other activities incidental thereto, and “develop” shall
be construed accordingly;

(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) references to a “business day” shall be construed as a reference to a day

(other than a Sunday) on which banks in the State are generally open for
business;

(k) any reference to month shall mean a reference to a calendar month as

per the Gregorian calendar;

(l) references to any date, period or Project Milestone shall mean and
include such date, period or Project Milestone as may be extended
pursuant to this Agreement;

(m) any reference to any period commencing “from” a specified day or date
and “till” or “until” a specified day or date shall include both such days
or dates; provided that if the last day of any period computed under this
Agreement is not a business day, then the period shall run until the end
of the next business day;

(n) the words importing singular shall include plural and vice versa;

(o) references to any gender shall include the other and the neutral gender;

(p) “lakh” means a hundred thousand (100,000) and “crore” means ten
million (10,000,000);

(q) “indebtedness” shall be construed so as to include any obligation

(whether incurred as principal or surety) for the payment or repayment
of money, whether present or future, actual or contingent;

(r) references to the “winding-up”, “dissolution”, “insolvency”, or

“reorganisation” of a company or corporation shall be construed so as to
include any equivalent or analogous proceedings under the law of the
jurisdiction in which such company or corporation is incorporated or any
jurisdiction in which such company or corporation carries on business
including the seeking of liquidation, winding-up, reorganisation,
dissolution, arrangement, protection or relief of debtors;

(s) save and except as otherwise provided in this Agreement, any reference,
at any time, to any agreement, deed, instrument, licence or document of
any description shall be construed as reference to that agreement, deed,
instrument, licence or other document as amended, varied,
supplemented, modified or suspended at the time of such reference;
provided that this Sub-clause shall not operate so as to increase liabilities

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or obligations of the Authority hereunder or pursuant hereto in any

manner whatsoever;

(t) any agreement, consent, approval, authorisation, notice, communication,

information, report or any other correspondence required under or
pursuant to this Agreement from or by any Party or the Independent
Engineer shall be valid and effective only if it is routed through NHAI
Data Lake (unless the law requires to send such notice, communication,
etc., through physical / any other specified mode only) under the hand
of a duly authorised representative of such Party or the Independent
Engineer, as the case may be, in this behalf and not otherwise;

(u) the Schedules and Recitals to this Agreement and the Request for
Proposal (“RFP”) form an integral part of this Agreement and will be in
full force and effect as though they were expressly set out in the body of
this Agreement;

(v) references to Recitals, Articles, Clauses, Sub-clauses, Provisions or

Schedules in this Agreement shall, except where the context otherwise
requires, mean references to Recitals, Articles, Clauses, Sub-clauses,
Provisions and Schedules of or to this Agreement, and references to an
Annex shall, subject to anything to the contrary specified therein, be
construed as a reference to an Annex to the Schedule in which such
reference occurs and reference to Paragraph shall be subject to anything
to the contrary specified therein, be construed as a reference to a
Paragraph of this Agreement or of the Schedule or Annex in which such
reference appears;

(w) the damages payable by either Party to the other of them, as set forth in
this Agreement, whether on per diem basis or otherwise, are mutually
agreed genuine pre-estimated loss and damage likely to be suffered and
incurred by the Party entitled to receive the same and are not by way of
penalty (the “Damages”); and

(x) time shall be of the essence in the performance of the Parties’ respective
obligations. If any time period specified herein is extended, such
extended time shall also be of the essence.

1.2.2 Unless expressly provided otherwise in this Agreement, any

Documentation required to be provided or furnished by the
Concessionaire to the Authority and/or the Independent Engineer shall be
provided free of cost and in three copies, and if the Authority and/or the
Independent Engineer is required to return any such Documentation with
their comments and/or approval, they shall be entitled to retain two copies
thereof.

1.2.3 The rule of construction, if any, that a contract should be interpreted

against the parties responsible for the drafting and preparation thereof,
shall not apply.

1.2.4 Any word or expression used in this Agreement shall, unless otherwise

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defined or construed in this Agreement, bear its ordinary English

meaning and, for these purposes, the General Clauses Act 1897 shall not
apply.

1.3 Measurements and arithmetic conventions

All measurements and calculations shall be in the metric system and calculations
done to 2 (two) decimal places, with the third digit of 5 (five) or above being
rounded up and below 5 (five) being rounded down.

1.4 Priority of agreements, clauses and schedules

1.4.1 This Agreement, and all other agreements and documents forming part of or
referred to in this agreement are to be taken as mutually explanatory and, unless
otherwise expressly provided elsewhere in this Agreement, the priority of this
Agreement and other documents and agreements forming part hereof or referred
to herein shall, in the event of any conflict between them, be in the following
order:

(a) this Agreement; and

(b) all other agreements and documents forming part hereof or referred to
herein;

i.e. the Agreement at (a) above shall prevail over the agreements and
documents at (b) above.

1.4.2 Subject to the provisions of Clause 1.4.1, in case of ambiguities or discrepancies

within this Agreement, the following shall apply:

(a) between two or more Clauses of this Agreement, the provisions of a

specific Clause relevant to the issue under consideration shall prevail
over those in other Clauses;

(b) between the Clauses of this Agreement and the Schedules, the Clauses
shall prevail and between Schedules and Annexes, the Schedules shall
prevail;

(c) between any two Schedules, the Schedule relevant to the issue shall
prevail;

(d) between the written description on the Drawings and the Specifications
and Standards, the latter shall prevail;

(e) between the dimension scaled from the Drawing and its specific written
dimension, the latter shall prevail; and

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

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Part II
The Concession

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ARTICLE 2
SCOPE OF THE PROJECT
2.1 Scope of the Project

The scope of the Project (the “Scope of the Project”) shall mean and include,
during the Concession Period:

(a) design and construction of the Project on the Site set forth in Schedule-
A and as specified in Schedule-B together with provision of Project
Facilities as specified in Schedule-C, and in conformity with the
Specifications and Standards set forth in Schedule-D;

(b) operation and maintenance of the Project in accordance with the

provisions of this Agreement and in conformity with the requirements
set forth in Schedule-E; and

(c) performance and fulfilment of all other obligations of the Concessionaire

in accordance with the provisions of this Agreement and matters
incidental thereto or necessary for the performance of any or all of the
obligations of the Concessionaire under this Agreement.

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ARTICLE 3
GRANT OF CONCESSION

3.1 The Concession

3.1.1 Subject to and in accordance with the provisions of this Agreement, the
Applicable Laws and the Applicable Permits, the Authority hereby grants to the
Concessionaire the concession set forth herein including the exclusive right,
licence and authority to design, construct, operate and maintain the Project (the
“Concession”) for a period of

(i) 2190 days from the Appointed Date, i.e., Construction Period; and

(ii) Operation Period of 34 (Thirty Four) years commencing from the

Appointed Date,

and the Concessionaire hereby accepts the Concession and agrees to implement
the Project subject to and in accordance with the terms and conditions set forth
herein:

(i) and (ii) collectively referred to as the “Concession Period”)

3.1.2 Subject to and in accordance with the provisions of this Agreement, the
Concession hereby granted shall oblige or entitle (as the case may be) the
Concessionaire to:

(a) Right of Way, access and licence to the Site for the purpose of and to the
extent conferred by the provisions of this Agreement;

(b) Finance, design and construct the Project;

(c) manage, operate and maintain the Project and regulate the use thereof by
third parties, wherever applicable;

(d) demand, collect and appropriate Fee from Users liable for payment of
Fee for using the Project or any part thereof and refuse entry of any user
if the Fee due is not paid;

(e) perform and fulfil all of the Concessionaire’s obligations including, but
not limited to, the safety trials, Safety audits, Rescue Services etc. under
and in accordance with this Agreement;

(f) to let out on lease or license or on franchise basis any portion of the built
up space at the Terminal Stations, subject to terms of this Agreement, for
commercial use in consonance with the terms of this Agreement and for
duration which shall always be conterminous with this Agreement;

(g) undertake and implement the augmentation of the Project in accordance

with Schedule “B” and terms and conditions of this Agreement;

(h) bear and pay all costs, expenses and charges in connection with or

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incidental to the performance of the obligations of the Concessionaire

under this Agreement; and

(i) neither assign, transfer or sublet or create any lien or Encumbrance on

this Agreement, or the Concession hereby granted or on the whole or any
part of the Project nor transfer, lease or part possession thereof, save and
except as expressly permitted by this Agreement or the Substitution
Agreement.

(j) Appoint Sub-contractors on its behalf, to the extent permissible in terms

hereof, to assist the Concessionaire in fulfilling its obligations in relation
to the Project;

(k) Hand over the Project and the Project Assets, including the land, if any,
owned by the Concessionaire and related to the operations and
maintenance of the Project to the Authority or its nominated agency on
the Transfer Date;

3.2 Actions in Support of Concession

(a) The Authority accepts and agrees that the route alignment of the aerial
Ropeway, fixed on the basis of topographical & engineering surveys at
Lower Terminal Point (LTP), and Upper Terminal Point (UTP) specified
in Schedule - B, forms the basic core of the Project and agrees and
undertakes not to change it in any manner whatsoever during the term of
this Agreement, including extension thereof, if any, unless in exceptional
scenarios wherein the alignment needs to be changed considering the
safety aspect / statutory requirement

(b) The Authority acknowledges that the location of the total Project Area
(as defined in Schedule B) is of fundamental importance to the Project
and agrees that that the same shall not be changed during the Concession
Period

(c) The Authority shall maintain / caused to be maintained the approach

roads, as defined under the terms of this Agreement, to the Project Area
and to keep the roads open throughout the year on a best effort basis

(d) The Authority shall render such assistance to the Concessionaire as may
be reasonable and feasible for the Authority or the State Government,
from time to time, for availing of formal permissions & approvals for
completion of formalities relating to the Project, however the sole
responsibility and obligation for obtaining and maintaining all required
permissions and approvals shall be of the Concessionaire alone.

In consideration of the mutual covenants by the Authority and other good and
valuable consideration expressed herein, the Concessionaire hereby accepts the
Concession and agrees and undertakes to implement the Project / provide
facilities and to perform/ discharge all of its obligations in accordance with the
provisions hereof.

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ARTICLE 4
CONDITIONS PRECEDENT
4.1 Conditions Precedent

4.1.1 Save and except as expressly provided in Articles 4, 9, 10, 24, 34, 44 and 47, or
unless the context otherwise requires, the respective rights and obligations of the
Parties under this Agreement shall be subject to the satisfaction in full of the
conditions precedent specified in this Clause 4.1 (the “Conditions Precedent”).

4.1.2 The Concessionaire may, upon providing the Performance Security to the
Authority in accordance with Article 9, at any time after [90 (ninety)] days from
the date of this Agreement or on an earlier day acceptable to the Authority, by
notice require the Authority to satisfy any or all of the Conditions Precedent set
forth in this Clause 4.1.2 within a period of 90 (ninety) days of the notice, or such
longer period not exceeding 120 (one hundred and twenty) days as may be
specified therein, and the Conditions Precedent required to be satisfied by the
Authority shall be deemed to have been fulfilled when the Authority shall have:

(a) provided to the Concessionaire the Right of Way to the Site in accordance
with the provisions of Clause 10.3.2;

(b) issued the Fee Notification;

[(c) procured for the Concessionaire the Right of Way to ****;]1

[(d) procured all Applicable Permits relating to environmental protection, and

conservation in respect land forming part of the Right of Way under
Clause 10.3.1 and 10.3.2;]

[(e) procured forest clearance for and in respect land forming part of the Right
of Way under Clause 10.3.1 and 10.3.2, save and except permission for
cutting trees];

[(f) procured wildlife clearances, wherever applicable] and;

[(g) appointed the Independent Engineer within 90 (ninety) days of this

Agreement.

Provided that the Authority at its discretion may waive the Condition Precedent
in Clause 4.1.2 (b) till 6 months prior to Scheduled Completion Date as provided
in Schedule G; and Clause 4.1.2 (d), (e) and (f) for a maximum period of 180
days. All other Condition Precedents shall have to be satisfied prior to declaration
of Appointed Date.

4.1.3 The Conditions Precedent required to be satisfied by the Concessionaire prior to

the Appointed Date shall be deemed to have been fulfilled when the
Concessionaire shall have:

(a) provided Performance Security to the Authority;

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(b) executed and procured execution of the Escrow Agreement;

1
If completion of construction on any part of the Site is considered critical for issue of Provisional/ Completion Certificate, such part
shall be specified in this Sub-clause so that it does not form part of the Appendix referred to in Clause 10.3.1, on or after the Appointed
Date.

(c) executed and procured execution of the Substitution Agreement;

(d) procured all the Applicable Permits specified in Schedule-E

unconditionally or if subject to conditions, then all such conditions
required to be fulfilled by the date specified therein shall have been
satisfied in full and such Applicable Permits are in full force and effect;

(e) executed the Financing Agreements and delivered to the Authority 3

(three) true copies thereof, duly attested by a Director of the
Concessionaire;

(f) delivered to the Authority 3 (three) true copies of the Financial Package
and the Financial Model including the details as per format prescribed at
Schedule Y, duly attested by a Director of the Concessionaire, along with
3 (three) soft copies of the Financial Model, which is workable, formulae
linked and interactive, in MS Excel version or any substitute thereof,
which is acceptable to the Authority containing financials as appraised
and adopted by Senior Lenders;

(g) delivered to the Authority from {the Consortium Members, their

respective} confirmation, in original, of the correctness of their
representations and warranties set forth in Sub clauses (k), (l) and (m) of
clause 7.1 of this Agreement;

(h) delivered to the Authority a legal opinion from the legal counsel of the
Concessionaire with respect to the authority of the Concessionaire to
enter into this Agreement and the enforceability of the provisions thereof;
and

(i) satisfy himself about the availability of minimum 90% of the

Construction Zone as per joint memorandum signed in accordance with
clause 10.3.1 and 10.3.2, subject to the condition that the available
Construction Zone shall be sufficient for achievement of COD

(j) New Added – Design validation /obligations

4.1.4 Each Party shall make all reasonable endeavours to satisfy the Conditions
Precedent within the time stipulated and shall provide the other Party with such
reasonable cooperation as may be required to assist that Party in satisfying the
Conditions Precedent for which that Party is responsible.4.1.5 The Parties
shall notify each other in writing at least once a month on the progress made in
satisfying the Conditions Precedent. Each Party shall promptly inform the other
Party when any Condition Precedent for which it is responsible has been
satisfied.

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4.2 Damages for delay by the Authority

In the event that (i) the Authority does not procure fulfilment of any or all of the
Conditions Precedent set forth in Clause 4.1.2 within the period specified in
respect thereof, and (ii) the delay has not occurred as a result of breach of this
Agreement by the Concessionaire or due to Force Majeure, the Authority shall
pay to the Concessionaire Damages in an amount calculated at the rate of 0.1%
(zero point one per cent) of the Performance Security for each day’s delay until
the fulfilment of such Conditions Precedent, subject to a maximum of 20%
(twenty percent) of the Performance Security.

4.3 Damages for delay by the Concessionaire

In the event that (i) the Concessionaire does not procure fulfilment of any or all
of the Conditions Precedent set forth in Clause 4.1.3 within a period of 180 (One
hundred eighty) days from the date of this Agreement, and (ii) the delay has not
occurred as a result of failure to fulfil the obligations under Clause 4.1.2 or other
breach of this Agreement by the Authority, or due to Force Majeure, the
Concessionaire shall pay to the Authority Damages in an amount calculated at the
rate of 0.2% (zero point two per cent) of the Performance Security for each day’s
delay until the fulfilment of such Conditions Precedent, subject to a maximum of
20% ( twenty per cent) of the Performance Security, provided further that such
Damages for delay by the Concessionaire for non-fulfilment of Conditions
Precedent shall be payable within 15 (fifteen) days of achievement of fulfilment
of Conditions Precedent.

4.4 Deemed Termination upon Delay

Without prejudice to the provisions of Clause 4.2 and 4.3, and subject to the
provisions of Clause 9.2, the Parties expressly agree that in the event the
Appointed Date does not occur, for any reason whatsoever, before the 1st (first)
anniversary of the date of this Agreement or the extended period provided in
accordance with this Agreement, all rights, privileges, claims and entitlements 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.

Provided, however, that in the event the delay in occurrence of the Appointed
Date is for reasons attributable to the Concessionaire, the Performance Security
of the Concessionaire shall be encashed and appropriated by the Authority to the
extent of an amount calculated as 1% (one per cent) of the Total Project Cost and
in the event the non-occurrence of the Appointed Date is for reasons attributable
to the Concessionaire (including for reasons under clause 4.3 above), the
Performance Security of the Concessionaire shall be encashed and appropriated
by the Authority as Damages thereof.

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ARTICLE 5
OBLIGATIONS OF THE CONCESSIONAIRE
5.1 Obligations of the Concessionaire

5.1.1 Subject to and on the terms and conditions of this Agreement, the Concessionaire
shall at its cost and expense procure finance for and undertake the design,
engineering, procurement, construction, operation and maintenance of the
Project and observe, fulfil, comply with and perform all its obligations set out in
this Agreement or arising hereunder.

5.1.2 The Concessionaire shall comply with all Applicable Laws and Applicable
Permits (including renewals as required) in the performance of its obligations
under this Agreement.

5.1.3 Save and except as otherwise provided in this Agreement or Applicable Laws,
as the case may be, the Concessionaire shall, in discharge of all its obligations
under this Agreement, conform with and adhere to Good Industry Practice at all
times..

5.1.4 The Concessionaire shall, at its own cost and expense, in addition to and not in
derogation of its obligations elsewhere set out in this Agreement:

(a) make, or cause to be made, necessary applications to the relevant

Government Instrumentalities with such particulars and details as may be
required for obtaining Applicable Permits (other than those set forth in
Clause 4.1.2), and obtain and keep in force and effect such Applicable
Permits in conformity with the Applicable Laws;

(b) submit a detailed Project construction completion schedule with clearly

defined milestones, construction methodology and technology proposed
to be deployed along with capacity augmentation details (in terms of this
Agreement) to the Authority on or before the Appointed Date. However
the Authority upon written request from the Concessionaire may allow
the Concessionaire, subject to such terms and conditions as it specify,
submission of detailed completion schedule later than the Appointed
Date but not later than 60 days from the Appointed Date, in any case;

(c) procure, as required, the appropriate proprietary rights, licences,

agreements and permissions for materials, methods, processes, know-
how and systems used or incorporated into the Project;

(d) perform and fulfil its obligations under the Financing Agreements;

(e) make reasonable efforts to maintain harmony and good industrial

relations among the personnel employed by it or its Contractors in
connection with the performance of its obligations under this Agreement;

(f) upon written request from the Authority, make reasonable efforts to
facilitate the acquisition of land and procuring of environmental and
forest clearances required for the purposes of the Agreement;

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(g) ensure and procure that its Contractors comply with all Applicable
Permits and Applicable Laws in the performance by them of any of the
Concessionaire’s obligations under this Agreement;

(h) In implementing the Project, the Concessionaire shall ensure compliance

by itself and Persons claiming through or under it with all Applicable
Laws, including environmental laws and laws relating to pollution, and
the terms of Applicable Permits and the Concessionaire shall be entirely
liable for any violations or breaches thereof and indemnify and keep
indemnified the Authority from and against all liabilities and costs in this
behalf

(i) always act in a manner consistent with the provisions of this Agreement
and not cause or fail to not do or omit to do any act, deed or thing, whether
intentionally or otherwise, which may in any manner be violative of any
of the provisions of this Agreement;

(j) support, cooperate with and facilitate the Authority in the implementation
and operation of the Project in accordance with the provisions of this
Agreement; and

(k) procure that all facilities and amenities within the Project are operated
and maintained in accordance with Good Industry Practice and the Users
have non-discriminatory access for use of the same;

(l) design, construct, operate and maintain the Ropeway System considering
operations for the entire year, unless the Authority explicitly directs the
Concessionaire to design the Ropeway System considering a fixed
operation period, i.e., months in which the Ropeway System shall remain
functional and a fixed duration of operation, i.e., number of hours of
operation per day;

(m) support, assist, cooperate with and facilitate the Authority and other
Government Instrumentality in the implementation and operation of the
Project in accordance with the provisions of this Agreement including
securing full and complete compliance with directives & guidelines
issued by the Authority / State Government of …………… or any other
authority having jurisdiction in the matter relating to the directives &
guidelines issued;

(n) transfer the Project to the Authority upon Termination of this Agreement,
in accordance with the provisions thereof.

(o) propagate, advertise, publicize the Project in compliance with Clause 5.7

(p) facilitate for enabling of mobile connectivity along the Project to the
Project Users including Wi-Fi at Terminal Stations, wherever deemed
necessary by the Authority.

(q) conduct regular and timely audit to ensure safety of passengers as

detailed in Clause 5.1.11 and Clause 5.1.12 and audits of passenger

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convenience as detailed in Clause 19.7.1

(r) comply with the deployment of additional cable cars at any point of time,
during the Concession Period, if required in compliance with this
Agreement

(s) The Concessionaire is required to keep a provision of minimum of 1 hr

for storage of fuel at any point of time to cater peak and average hours.
However, the developer shall ensure such that the operations of the
ropeway system is not affected due to the shortage of supply of fuel.

(t) ensure that the Concessionaire and its Sub-contractors comply with the
safety and welfare measures for labour in accordance with the Applicable
Laws and Good Industry Practice;

(u) keep, on Site, a copy of this Agreement, publications named in this

Agreement, the Drawings, Documents relating to the Project, and Change
of Scope orders and other communications given under this Agreement.
The Independent Engineer and its authorised personnel shall have the
right of access to all these documents at all reasonable times;

(v) cooperate with other contractors employed by the Authority and

personnel of any public authority; and

(w) not interfere unnecessarily or improperly with the convenience of the

public, or the access to and use and occupation of all roads and footpaths,
irrespective of whether they are public or in the possession of the
Authority or of others.

5.1.5 The Concessionaire shall undertake all necessary superintendence to plan,

arrange, direct, manage, inspect and test the Works. The Concessionaire shall
provide all necessary superintendence of the Works for the proper fulfilling of the
Contractor's obligations under the Agreement. Such superintendence shall be
given by competent person having adequate knowledge of the operations to be
carried out (including the methods and techniques required, the hazards likely to
be encountered and methods of preventing accidents) for the satisfactory and safe
execution of the Works.

5.1.6 The Concessionaire shall obtain and maintain a project related bank account
operational at site where all transactions related to the payment of work will be
done. The Concessionaire shall submit a monthly account statement and a
detailed report on utilization of funds transferred to this project related bank
account to Independent Engineer.

Notwithstanding anything contrary to this agreement, the authority, in the interest

and to ensure timely completion of the work, reserves the right to audit such bank
accounts to ensure that there is no diversion of funds from this project specific
account to any other project being implemented by the Concessionaire.

5.1.7 The Concessionaire shall provide the documents of the Concessionaire specified
in the Agreement, and all Contractors' personnel; Goods, consumables and other

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things and services, whether of a temporary or permanent nature, required in and

for the execution, completion of Works and remedying defects.

5.1.8 The Concessionaire shall perform the Works in conformity with the Project
requirements and other requirements and standards prescribed under or pursuant
to the Agreement.

5.1.9 The Concessionaire shall carry out such work incidental and contingent to the
original Scope of the Project to comply with Good Industry Practices.

5.1.10 The Concessionaire shall maintain required staff and necessary Contractor’s
equipment and materials within the reach of the Site during the Concession Period
so that any defects arising are promptly attended.

5.1.11 The Concessionaire shall throughout the Concession Period, on a regular basis,
carry out and undertake regular inspection of the Site to secure and prevent
against any encroachment’s or any deterioration of land condition and ensure
safety of the Project by taking preventive measures. The scope, protocol and
schedule of inspection, maintenance and the remedial measures, if any required
to be undertaken, shall be discussed and finalized by the Concessionaire with the
Authority each year in advance. For avoidance of doubt, the onus of regular
inspection of the Site and undertaking preventive measures shall lie with the
Concessionaire;

5.1.12 During the Concession Period, the Concessionaire shall ensure that the safety of
the passengers shall not be compromised in any manner by taking all
precautionary measures to prevent any breakdowns of the cable propelled system,
effects from adverse climatic condition, protection from landslides, rock-sliding,
snow-avalanche, floods, earthquakes, cyclones/ tornedos/storms, etc.

5.1.13 The Concessionaire shall, at least 30 days prior to the COD or [Partial COD,
wherever applicable] of the Project in consultation with the Authority decide and
finalize the operating schedule of the Ropeway Project and shall revise the same,
as and when required, only in consultation with the Authority. The
Concessionaire agrees and acknowledges that the recommendations of the
Authority in this regard shall be binding on the Concessionaire.

5.1.14 The Concessionaire shall comply with all requirements of the Escrow Bank in
order to provide to the Authority the facility for online viewing and downloading
the account statement of Escrow Account at all times during the Concession
Period.

5.2 Obligations relating to Project Agreements

5.2.1 It is expressly agreed that the Concessionaire shall, at all times, be responsible
and liable for all its obligations under this Agreement notwithstanding anything
contained in the Project Agreements or any other agreement, and no default under
any Project Agreement or agreement shall excuse the Concessionaire from its
obligations or liability hereunder.

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5.2.2 The Concessionaire shall submit to the Authority the drafts of all Project
Agreements, or any amendments or replacements thereto, for its review and
comments, and the Authority shall have the right but not the obligation to
undertake such review and provide its comments, if any, to the Concessionaire
within 30 (thirty) days of the receipt of such drafts. Within 7 (seven) days of
execution of any Project Agreement or amendment thereto, the Concessionaire
shall submit to the Authority a true copy thereof, duly attested by a Director of
the Concessionaire, for its record. For the avoidance of doubt, it is agreed that the
review and comments hereunder shall be limited to ensuring compliance with the
terms of this Agreement. It is further agreed that no review and/or convey its
observations on any document shall relieve the Concessionaire of its obligations
and liabilities under this Agreement in any manner nor shall the Authority be
liable for the same in any manner whatsoever.

5.2.3 The Concessionaire shall not make any addition, replacement or amendments to
any of the Financing Agreements without the prior written consent of the
Authority if such addition, replacement or amendment has, or may have, the effect
of imposing or increasing any financial liability or obligation on the Authority,
and in the event that any replacement or amendment is made without such
consent, the Concessionaire shall not enforce such replacement or amendment nor
permit enforcement thereof against the Authority. For the avoidance of doubt, the
Authority acknowledges and agrees that it shall not unreasonably withhold its
consent for restructuring or rescheduling of the Debt Due.

5.2.4 The Concessionaire shall procure that each of the Project Agreements contains
provisions that entitle the Authority to step into such agreement, in its sole
discretion, in substitution of the Concessionaire in the event of Termination or
Suspension (the “Covenant”). For the avoidance of doubt, it is expressly agreed
that in the event the Authority does not exercise such rights of substitution within
a period not exceeding 90 (ninety) days from the Transfer Date, the Project
Agreements shall be deemed to cease to be in force and effect on the Transfer
Date without any liability whatsoever on the Authority and the Covenant shall
expressly provide for such eventuality. The Concessionaire expressly agrees to
include the Covenant in all its Project Agreements and undertakes that it shall, in
respect of each of the Project Agreements, procure and deliver to the Authority
an acknowledgment and undertaking, in a form acceptable to the Authority, from
the counter party(ies) of each of the Project Agreements, whereunder such
counter party(ies) shall acknowledge and accept the Covenant and undertake to
be bound by the same and not to seek any relief or remedy whatsoever from the
Authority in the event of Termination or Suspension.

5.2.5 Notwithstanding anything to the contrary contained in this Agreement, the

Concessionaire agrees and acknowledges that selection or replacement of an
EPC Contractor and an O&M Contractor and execution of the EPC Contract and
O&M Contract shall be subject to the prior approval of the Authority from
national security and public interest perspective, the decision of the Authority in
this behalf being final, conclusive and binding on the Concessionaire, and
undertakes that it shall not give effect to any such selection or contract without
prior approval of the Authority. For the avoidance of doubt, it is expressly agreed
that approval of the Authority hereunder shall be limited to national security and

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public interest perspective, and the Authority shall endeavour to convey its
decision thereon expeditiously. It is also agreed that the Authority shall not be
liable in any manner on account of grant or otherwise of such approval and that
such approval or denial thereof shall not in any manner absolve the
Concessionaire or its Contractors from any liability or obligation under this
Agreement.

5.3 Obligations relating to Change in Ownership

5.3.1 The Concessionaire shall not undertake or permit any Change in Ownership,
except with the prior approval of the Authority and subject to following
conditions.

(i) no objections from the Senior Lenders.

(ii) The eligibility condition for Change in Ownership request will be
issuance of COD and completion of Punch List items excluding the
Punch List items pending due to the reasons attributable to the Authority.
(iii) The concessionaire shall not be in default of
a. Paying Concession Fee to the Authority, if applicable
b. O&M obligations

5.3.2 Notwithstanding anything to the contrary contained in this Agreement, the

Concessionaire agrees and acknowledges that:

(i) all acquisitions of Equity by an acquirer, either by himself or with any

person acting in concert, directly or indirectly, including by transfer of
the direct or indirect legal or beneficial ownership or control of any
Equity, in aggregate of not less than 25% (twenty five per cent) of the
total Equity of the Concessionaire; or

(ii) acquisition of any control directly or indirectly of the Board of Directors

of the Concessionaire by any person either by himself or together with
any person or persons acting in concert with him

shall constitute a Change in Ownership requiring prior approval of the Authority

from national security and public interest perspective, the decision of the
Authority in this behalf being final, conclusive and binding on the
Concessionaire, and undertakes that it shall not give effect to any such acquisition
of Equity or control of the Board of Directors of the Concessionaire without such
prior approval of the Authority. For the avoidance of doubt, it is expressly agreed
that approval of the Authority hereunder shall be limited to national security and
public interest perspective, and the Authority shall endeavour to convey its
decision thereon expeditiously. It is also agreed that the Authority shall not be
liable in any manner on account of grant or otherwise of such approval and that
such approval or denial thereof shall not in any manner absolve the
Concessionaire from any liability or obligation under this Agreement.

For the purposes of this Clause 5.3.2:

(a) the expression “acquirer”, “control” and “person acting in concert” shall
have the meaning ascribed thereto in the Securities and Exchange Board

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of India (Substantial Acquisition of Shares and Takeover) Regulations,

2011 or any statutory re-enactment thereof as in force as on the date of
acquisition of Equity, or the control of the Board of Directors, as the case
may be, of the Concessionaire;

(b) the indirect transfer or control of legal or beneficial ownership of Equity

shall mean transfer of the direct or indirect beneficial ownership or
control of any company or companies whether in India or abroad which
results in the acquirer acquiring control over the shares or voting rights
of shares of the Concessionaire; and

(c) power to appoint, whether by contract or by virtue of control or

acquisition of shares of any company holding directly or through one or
more companies (whether situate in India or abroad) the Equity of the
Concessionaire, not less than half of the directors on the Board of
Directors of the Concessionaire or of any company, directly or indirectly
whether situate in India or abroad, having ultimate control of not less than
15% (fifteen per cent) of the Equity of the Concessionaire shall constitute
acquisition of control, directly or indirectly, of the Board of Directors of
the Concessionaire.

5.4 Employment of foreign nationals

The Concessionaire acknowledges, agrees and undertakes that employment of

foreign personnel by the Concessionaire and/or its contractors and their sub-
contractors shall be subject to grant of requisite regulatory permits and
approvals including employment/residential visas and work permits, if any
required, and the obligation to apply for and obtain the same shall and will
always be of the Concessionaire and, notwithstanding anything to the contrary
contained in this Agreement, refusal of or inability to obtain any such permits
and approvals by the Concessionaire or any of its contractors or subcontractors
shall not constitute Force Majeure Event, and shall not in any manner excuse
the Concessionaire from the performance and discharge of its obligations and
liabilities under this Agreement.

5.5 Employment of trained personnel

The Concessionaire shall be responsible for the employment of adequate number

of all personnel / staff members required for the day-to-day operations and
maintenance of the Project. For the avoidance of doubt, the Authority shall not
provide any manpower / personnel to the Concessionaire.

The Concessionaire shall ensure that the personnel engaged by it in the

performance of its obligations under this Agreement are at all times properly
trained for their respective functions.

The Concessionaire shall ensure that the personnel’s employed by it or through

any contractor are trained and proficient in their respective areas of
responsibilities and conversant with all the Standard Operating Procedures
including the emergency response procedures and are deputed to attend refresher
courses from time to time.

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5.6 Sole purpose of the Concessionaire

The Concessionaire having been set up for the sole purpose of exercising the
rights and observing and performing its obligations and liabilities under this
Agreement, the Concessionaire or any of its subsidiaries shall not, except with
the previous written consent of the Authority, be or become directly or indirectly
engaged, concerned or interested in any business other than as envisaged herein.

5.7 Branding of Project

The Project or any part thereof shall not be branded in any manner to advertise,
display or reflect the name or identity of the Concessionaire or its shareholders.
The Concessionaire undertakes that it shall not, in any manner, use the name or
entity of the Project to advertise or display its own identity, brand equity or
business interests, including those of its shareholders, save and except as may be
necessary in the normal course of business. For the avoidance of doubt, it is
agreed that the Concessionaire may display its own name at a spot where other
public notices are displayed for the Users. It is further agreed that the Project
shall be known, promoted, displayed and advertised by the name of
“Development, Operations and Maintenance of Ropeway from Sonprayag
to Kedarnath in the State of Uttarakhand on DBFOT mode”.

5.8 Facilities for physically challenged and elderly persons

The Concessionaire shall, in conformity with the guidelines issued from time to
time by the Ministry of Social Justice and Empowerment, or a substitute thereof,
procure a barrier free environment for the physically or visually challenged and
for elderly persons using the Project.

5.9 Obligations relating to Local Content

The Concessionaire [Class I Local Supplier/ Class II Local Supplier/ Non Local
Supplier] undertakes to ensure minimum Local Content in the Project of at least
[50%/20%] duly complying with the provisions of Department for Promotion of
Industry and Internal Trade, Ministry of Commerce and Industry, Government of
India Order No. P-45021/2/2017-PP (BE- II) dated September 16, 2020, as
amended or modified till Bid Due Date and the provisions under Rule 144(xi) of
GFR, 2017.

5.10 Obligations relating to operations of Stations & Ropeway:

The obligations relating to design, construction, operation and maintenance of the

Stations shall be, including but not limited to, in compliance with Article 48:

(a) The Concessionaire shall provide adequate number of ticket vending

machines and ticket counters to handle the traffic volumes as detailed in
Schedule B, such that waiting time3 for the Users shall not exceed 5 (five)
minutes and shall ensure usage of such design and modern technology
which would enable efficient and comfortable boarding / de-boarding of
passengers;

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(b) in case of Emergency, evacuation from any point on the platform of

Station to a point of safety in an open space within or outside the Station
shall not exceed 200 (two hundred) meters;

(c) make arrangements for the public announcements system at the platforms
and communication facility between the Station control room and
ropeway cable cars for use including Emergency;

(d) deploy trained marshals at the Project Facilities to guide and assist the
Users and visitors to the Project Facility or any part of the Site

(e) The Concessionaire shall establish a cloak room at the terminal buildings
station areas with adequate number of lockers for visitors and tourists
who avail the ropeway facilities. The notification of locker fee shall be
issued by the Concessionaire itself and fixed and modified by the
Concessionaire according to market demand and the locker fee rate
(including any revision therein) shall be intimated to Authority forthwith.
[Additionally, the Concessionaire may also provide mobile charging
stations at the cloak rooms for usage visitors and tourists].

(f) The Concessionaire shall itself carry out O&M by their own manpower,
provided manpower is certified by OEM to carry out O&M activities or
engage O&M contractor having experience of atleast 05 years in carrying
out maintenance of Ropeway System of technology adopted in the
project. The O&M shall be carried out strictly in accordance with codal
provisions throughout the Concession Period;

(g) The Concessionaire shall deploy suitable instrumentations and

equipment to measure the efficiency as detailed in Schedule - D and any
fault in the entire cable propelled system round-the-clock during the
operational and non-operational hours during the entire Concession
Period;

(h) Provide space for setting up and maintaining tourist information and
assistance kiosks to be manned by certified tourist agencies of State and
/ or Central Government;

(i) The Concessionaire shall ensure that the Project Facilities are primarily
meant for the use of the public and their accompanying luggage permitted
as detailed in Schedule - D, wherever applicable, for transit between the
originating and destination station and shall not be allowed to be used for
transportation of goods and materials on commercial basis (except where
expressly provided and only in the manner specified), save and except for
in the case of emergency situations requiring speedy transportation of
relief materials, evacuation & rescue materials and equipment including
medical aid supplies;

(j) The Concessionaire shall not make or permit any alterations or additions
to the approved designs and drawings relating to the Project, without
obtaining the previous consent, in writing, of the Authority.
3
waiting time for the User will vary depending on the peak and non-peak hours, capacity of the cable cars,

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lag time, headway, etc.

(k) make reasonable efforts to maintain harmony and good industrial

relations among the personnel employed by it or its Contractors in
connection with the performance of its obligations under this Agreement.

5.11 Obligations relating to medical aid

For providing medical aid to the Users, the Concessionaire shall, set up and
operate a Medical Aid Post at the Site equipped to render first aid and to assist in
accessing emergency medical aid from hospitals/ clinics in the vicinity.

5.12 Obligations relating to basic amenities

The Concessionaire shall install necessary fixtures, furnishing and equipment,

through development of warm-shells for installation of basic amenities, in
adequate numbers in accordance with Good Industry Practice for non-
discriminatory use by the Users of the Project. These amenities shall include
drinking water facilities, sanitation facilities, toilets, telephone and
communication facilities, eateries and canteens as per Schedule - D.

5.13 Obligations relating to noise control

The Concessionaire shall take all such measures as may be necessary in

accordance with Applicable Laws and Good Industry Practice to control and
mitigate the noise arising from the Project and its impact on Users and the
neighborhood.

5.14 Obligations relating to aesthetic quality of the Project

The Concessionaire shall maintain a high standard in the appearance and aesthetic
quality of the ropeway and achieve integration of the Project with the character
of the surrounding landscape through both appropriate design and sensitive
management of all visible elements, including the design of facade. The
Concessionaire shall engage professional architects and town planners of repute
for ensuring that the design of the Project meets the aforesaid aesthetic standards.

5.15 Obligations relating to fulfilling Key Performance Indicators

The Concessionaire shall operate the Project such that it achieves or exceeds the
performance indicators specified in this Article 48 (the “Key Performance
Indicators”) and the Project is always operated and maintained as per best industry
standards and safety measures.

5.16 Obligation relating to environmental safety

The Concessionaire shall make provisions for proper, timely and efficient,
handling, collection, segregation and scientific disposal of bio-degradable waste
and other solid wastes in accordance with the Solid Waste Management Rules
2016 and such other local guidelines as may be issued from time to time.

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5.17 Obligation relating to lighting and signages

The Concessionaire shall ensure that the lighting arrangement with adequate
power back up facility is provided at the Site. The Concessionaire shall also
ensure that the lighting facility do not cause any inconvenience to any Users of
the facility and / or neighboring facilities.

Additionally, the Concessionaire shall provide proper design branding material

for signages / totem / Logo etc. as approved by the Authority. The signages used
for display of User Fee shall also be legible and available in at-least 2 languages,
i.e. English and Hindi.

5.17 Encumbrances and Encroachments

(a) Not place or create nor permit or suffer any Contractor or other Person
claiming through or under the Concessionaire to create or place any
Encumbrance over all or any part of the Project Assets or the Project area,
or on any rights of the Concessionaire therein, save and except as
expressly set forth in this Agreement.

(b) Ensure that the Project area remains free from all encroachments during
the Concession Period and subject to Applicable Laws take all steps
necessary to remove encroachments, if any.

5.18 Development of Commercial Space:

(a) The Concessionaire shall be entitled to, as a part of the development
program, to plan, design, construct and operate or lease out or grant on
license or franchise basis any portion of the built up space only within or
at the Terminal Station for the purpose of undertaking commercial
activity relating to or incidental to the Project activities or for the
convenience of the Users (including for setting up of counters, vending
machines and kiosks for sale of eatables, beverages, travel accessories,
books and periodicals, tourist guidance desk etc.).

(b) The total area proposed to be utilized for commercial activities shall not
exceed 10% percent of the total floor area of the Terminal Station for
which the Concessionaire shall procure prior written approval from the
Authority.;

(c) The commercial activities may be undertaken or performed by the

Concessionaire itself or by any third party appointed for this purpose by
the Concessionaire on lease or license or franchise basis and the
Concessionaire shall at all times be liable and responsible for the conduct,
operation, maintenance and adherence to the terms of this Agreement by
the operator(s) of such commercial activities and the same shall be
undertaken, performed and conducted in such manner that the operation
and maintenance of the ropeway operations is not hindered or obstructed
or the free movement of the Users is in any manner impaired. The
Concessionaire further agrees and acknowledges that any and all
arrangements with respect to the commercial activities shall be in
compliance with this Agreement;

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(d) All contractual arrangements made or entered into by the Concessionaire

for the operation, performance and maintenance of the commercial
activities at the Project with any third-party entities, a copy of the same
duly authenticated by the authorized officer of the Concessionaire shall
be provided to the Authority by the Concessionaire forthwith upon the
execution thereof. The Concessionaire shall also ensure that no covenant
of any such arrangement shall contain any condition or obligation which
is, or can be, construed to be inconsistent with the terms of this
Agreement or in any manner, by implication or otherwise, puts any
responsibility, liability or obligation on the Authority;

In case where any utilities or facilities, for the Project, are procured and
provided at no cost basis to the Concessionaire by the Authority or in
respect of any utility or facility the cost and charges in respect of the same
are in any manner reimbursed or subsidized by the Authority then to the
extent such utility or facility is utilized by the Concessionaire / third party
operator for the performance of the commercial activity the same shall be
duly metered and proportionate cost thereof, on actual consumption basis,
or on fixed slab basis depending on the area covered by the commercial
activity, as may be decided by the Authority in its sole discretion, shall be
reimbursed by the Concessionaire to the Authority on periodical basis at
such intervals as instructed by the Authority;

(e) The entire pre-tax gross revenue (including any non-refundable deposits
or advances or premiums etc.) earned by the Concessionaire from the
commercial activities undertaken at the Project shall be properly
accounted and audited and a statement in respect of the same shall be
provided by the Concessionaire to the Authority on half yearly basis. The
Concessionaire shall pay to the Authority NIL percentage of the total pre-
tax gross revenue (including income accrued but not collected) in each
quarter from all the commercial activities undertaken at the Project as
defined in Clause 31.2 (“Revenue Share”).

The Concessionaire should not charge more than the Maximum Retail
Price (MRP) for any consumable product sold at any commercial facility
operated by it, including but not limited to the Food and Beverage shops,
canteens, etc. The Authority shall also have a right, by itself or through
any person authorized by it is this regard, to inspect and audit the books
of accounts of the Concessionaire to determine revenues earned from the
commercial activities;

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ARTICLE 6
OBLIGATIONS OF THE AUTHORITY
6.1 Obligations of the Authority

6.1.1 The Authority shall, at its own cost and expense undertake, comply with and
perform all its obligations set out in this Agreement or arising hereunder.

6.1.2 The Authority agrees to provide support to the Concessionaire and undertakes to
observe, comply with and perform, subject to and in accordance with the
provisions of this Agreement and the Applicable Laws, the following:

(a) upon written request from the Concessionaire, and subject to the
Concessionaire complying with Applicable Laws, provide reasonable
support and assistance to the Concessionaire in procuring Applicable
Permits required from any Government Instrumentality for
implementation and operation of the Project by making all the required
applications and submissions to concerned authorities.

(b) upon written request from the Concessionaire, provide reasonable

assistance to the Concessionaire in obtaining access to all necessary
infrastructure facilities and utilities, including water and electricity at
rates and on terms no less favourable to the Concessionaire than those
generally available to commercial customers receiving substantially
equivalent services;

(c) procure that, during the Operation period, no barriers are erected or
placed by any Government Instrumentality on the project, except for
reasons of Emergency, national security, law and order or collection of
inter-state taxes. The Authority shall also make best endeavors to procure
that no Government Instrumentality shall undertake or cause to be
undertaken, except for reasons of Emergency, national security or law
and order, any diversions of traffic from, or closing down of approach
roads to the Project that may cause a material adverse effect on the flow
of traffic to and from the Project.

(d) [Deleted]

(e) subject to and in accordance with the Applicable Laws, grant to the
Concessionaire the authority to regulate traffic on the Project, use of
project and related associated facilities and amenities provided by
Concessionaire.

(f) assist the Concessionaire in procuring Police assistance for regulation of

traffic, removal of trespassers and security on or at the Project;

(g) not do or omit to do any act, deed or thing which may in any manner be
violative of any of the provisions of this Agreement;

(h) support, cooperate with and facilitate the Concessionaire in the

implementation and operation of the Project in accordance with the

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provisions of this Agreement; and

(i) upon written request from the Concessionaire and subject to the
provisions of Clause 5.4, provide reasonable assistance to the
Concessionaire and any expatriate personnel of the Concessionaire or its
Contractors to obtain applicable visas and work permits for the purposes
of discharging their respective obligations by the Concessionaire or its
Contractors under this Agreement and the Project Agreements
respectively.

(j) Subject to and in accordance with Applicable Laws, as defined in clause

5.1.11, grant to the Concessionaire the authority to carry out regular
inspections of the land area beneath the aerial ropeway lines or land
adjacent to the Station buildings and prevent, remove or cause to be
removed any illegal obstruction or encroachment which may or has the
potential to adversely affect the safe operations of the Project, however
this shall not cover or deemed to cover any right, power or authority in
favor of the Concessionaire to undertake cutting of any trees in the
Project area.

6.2 [Deleted]

6.3 Obligations relating to Competing Ropeways

The Authority shall procure that during the subsistence of this Agreement,
neither the Authority nor any Government Instrumentality shall, at any time
before the 10th (tenth) anniversary of the Appointed Date, construct or cause to
be constructed any Competing Ropeway; provided that the restriction herein
shall not apply if the average traffic on the Project in any year exceeds 90%
(ninety percent) of its design capacity specified in Clause 29.2.3. Upon breach
of its obligations hereunder, the Authority shall be liable to pay compensation to
the Concessionaire under and in accordance with Clause 35.4 and to extend the
Concession Period in accordance with Clause 29.2.1. Such payment of
compensation and enhancement in Concession Period shall be deemed to cure
the breach of this Agreement.

6.4 Obligations relating to refinancing

Upon request made by the Concessionaire to this effect, the Authority shall, in
conformity with any regulations or guidelines that may be notified by the
Government or the Reserve Bank of India, as the case may be, permit and enable
the Concessionaire to secure refinancing, in whole or in part, of the Debt Due on
such terms as may be agreed upon between the Concessionaire and the entity
providing such refinancing; provided, however, that the refinancing hereunder
shall be utilized for the Project purpose only and shall always be subject to the
prior approval of the Authority, which shall not be unreasonably withheld. For
the avoidance of doubt, the tenure of debt refinanced hereunder may be
determined mutually between the Senior Lenders and the Concessionaire, but the
repayment thereof shall be completed no later than 1(one) year prior to the expiry
of Concession Period.

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6.5 Maintenance obligations relating to Last Mile Connectivity

During the Concession Period, the Authority shall provide and maintain last mile
connectivity by constructing an approach road, as detailed in Schedule – D, in
such a manner so as to ensure that the quality of service and safety are maintained.
For the avoidance of doubt, even in the event of any material deterioration or
damage other than normal wear and tear, including damages due to unforeseen
circumstances like extreme floods or landslides, etc., damaging the substantial
road portion, as determined by the Independent Engineer, the Authority shall
undertake repair thereof at its own cost and expense.

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ARTICLE 7
REPRESENTATIONS AND WARRANTIES

7.1 Representations and Warranties of the Concessionaire

The Concessionaire represents and warrants to the Authority that:

(a) it is duly organised and validly existing under the laws of India, and has
full power and authority to execute and perform its obligations under
this Agreement and to carry out the transactions contemplated hereby;

(b) it has taken all necessary corporate and other actions under Applicable
Laws to authorise the execution and delivery of this Agreement and to
validly exercise its rights and perform its obligations under this
Agreement;

(c) it has the financial standing and capacity to undertake the Project in
accordance with the terms of this Agreement;

(d) this Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with the terms hereof, and its
obligations under this Agreement will be legally valid, binding and
enforceable obligations against it in accordance with the terms hereof;

(e) it is subject to the laws of India, and hereby expressly and irrevocably
waives any immunity in any jurisdiction in respect of this Agreement or
matters arising thereunder including any obligation, liability or
responsibility hereunder;

(f) the information furnished in the Bid and as updated on or before the date
of this Agreement is true and accurate in all respects as on the date of
this Agreement;

(g) the execution, delivery and performance of this Agreement will not
conflict with, result in the breach of, constitute a default under, or
accelerate performance required by any of the terms of its Memorandum
and Articles of Association {or those of any member of the Consortium}
or any Applicable Laws or any covenant, contract, agreement,
arrangement, understanding, decree or order to which it is a party or by
which it or any of its properties or assets is bound or affected;

(h) there are no actions, suits, proceedings, or investigations pending or, to

its knowledge, threatened against it at law or in equity before any court
or before any other judicial, quasi-judicial or other authority, the
outcome of which may result in the breach of this Agreement or which
individually or in the aggregate may result in any material impairment
of its ability to perform any of its obligations under this Agreement;

(i) it has no knowledge of any violation or default with respect to any order,
writ, injunction or decree of any court or any legally binding order of
any Government Instrumentality which may result in any material

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adverse effect on its ability to perform its obligations under this

Agreement and no fact or circumstance exists which may give rise to
such proceedings that would adversely affect the performance of its
obligations under this Agreement;

(j) it has complied with Applicable Laws in all material respects and has
not been subject to any fines, penalties, injunctive relief or any other
civil or criminal liabilities which in the aggregate have or may have a
material adverse effect on its ability to perform its obligations under this
Agreement;

(k) it shall at no time undertake or permit any Change in Ownership except

in accordance with the provisions of Clause 5.3 and that the {selected
bidder/ Consortium Members}, together with {its/ their} Associates,
hold not less than 51% (fifty-one percent) of its issued and paid up
Equity as on the date of this Agreement; and that each Consortium
Member whose technical and financial capacity was evaluated for the
purposes of pre-qualification and short-listing in response to the Request
for Proposal shall hold at least 26% (twenty six per cent) of such Equity,
which shall also be not less than 5% (five per cent) of the Total Project
Cost during the Construction Period and one year thereafter. The period
of 1 year will be reckoned from date of completion of Punch List
excluding the Punch List items pending due to the reasons attributable
to the Authority.

Provided further that any such request made under Clause 5.3, shall at
the option of the Authority, may be required to be accompanied by a
suitable no objection letter from Senior Lenders.

(l) {the selected bidder/ Consortium Members and its/their} Associates

have the financial standing and resources to fund the required Equity and
to raise the debt necessary for undertaking and implementing the Project
in accordance with this Agreement;

(m) {the selected bidder/ each Consortium Member} is duly organised and
validly existing under the laws of the jurisdiction of its incorporation or
registration, as the case may be, and has requested the Authority to enter
into this Agreement with {itself/the Concessionaire} pursuant to the
Letter of Award, and has agreed to and unconditionally accepted the
terms and conditions set forth in this Agreement;

(n) all its rights and interests in the Project shall pass to and vest in the
Authority on the Transfer Date free and clear of all liens, claims and
Encumbrances, without any further act or deed on its part or that of the
Authority, and that none of the Project Assets shall be acquired by it,
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;

(o) no representation or warranty by it contained herein or in any other

document furnished by it to the Authority or to any Government

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Instrumentality in relation to Applicable Permits contains or will contain

any untrue or misleading statement of material fact or omits or will omit
to state a material fact necessary to make such representation or warranty
not misleading;

(p) no sums, in cash or kind, have been paid or will be paid, by it or on its
behalf, 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 the
Authority in connection therewith;

(q) all information provided by the (selected bidder/ Consortium Members)

in response to the Request for Proposals or otherwise, is to the best of its
knowledge and belief, true and accurate in all material respects; and

(r) all undertakings and obligations of the Concessionaire arising from the
Request for Proposals or otherwise shall be binding on the
Concessionaire as if they form part of this Agreement.

7.2 Representations and Warranties of the Authority

The Authority represents and warrants to the Concessionaire that:

(a) it has full power and authority to execute, deliver and perform its
obligations under this Agreement and to carry out the transactions
contemplated herein and that it has taken all actions necessary to execute
this Agreement, exercise its rights and perform its obligations, under this
Agreement;

(b) it has taken all necessary actions under the Applicable Laws to authorise
the execution, delivery and performance of this Agreement;

(c) it has the financial standing and capacity to perform its obligations under
the Agreement;

(d) this Agreement constitutes a legal, valid and binding obligation

enforceable against it in accordance with the terms hereof;

(e) it has no knowledge of any violation or default with respect to any order,
writ, injunction or any decree of any court or any legally binding order
of any Government Instrumentality which may result in any material
adverse effect on the Authority’s ability to perform its obligations under
this Agreement;

(f) it has complied with Applicable Laws in all material respects;

(g) it has the right, power and authority to manage and operate the Project up
to the Appointed Date;

(h) it has good and valid right to the Site, and has power and Authority to
grant a licence in respect thereto to the Concessionaire.

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7.3 Disclosure

In the event that any occurrence or circumstance comes to the attention

of either Party that renders any of its aforesaid representations or
warranties untrue or incorrect, such Party shall immediately notify the
other Party of the same. Such notification shall not have the effect of
remedying any breach of the representation or warranty that has been
found to be untrue or incorrect nor shall it adversely affect or waive any
right, remedy, or obligation of either Party under this Agreement.

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ARTICLE 8
DISCLAIMER

8.1 Disclaimer

8.1.1 The Concessionaire acknowledges that prior to the execution of this Agreement,
the Concessionaire has, after a complete and careful examination, made an
independent evaluation of the Request for Proposals, Scope of the Project,
Specifications and Standards of design, construction, operation and
maintenance, Site, existing structures, local conditions, physical qualities of
ground, subsoil and geology, traffic volumes, suitability and availability of
access routes to the Site and all information provided by the Authority or
obtained, procured or gathered otherwise, and has determined to its satisfaction
the accuracy or otherwise thereof and the nature and extent of difficulties, risks
and hazards as are likely to arise or may be faced by it in the course of
performance of its obligations hereunder. The Authority makes no
representation whatsoever, express, implicit or otherwise, regarding the
accuracy, adequacy, correctness, reliability and/or completeness of any
assessment, assumptions, statement or information provided by it and the
Concessionaire confirms that it shall have no claim whatsoever against the
Authority in this regard.

8.1.2 The Concessionaire acknowledges and hereby accepts the risk of inadequacy,
mistake or error in or relating to any of the matters set forth in Clause 8.1.1
above and hereby acknowledges and agrees that the Authority shall not be liable
for the same in any manner whatsoever to the Concessionaire, {the Consortium
Members and their} Associates or any person claiming through or under any of
them.

8.1.3 The Parties agree that any mistake or error in or relating to any of the matters
set forth in Clause 8.1.1 above shall not vitiate this Agreement, or render it
voidable.

8.1.4 In the event that either Party becomes aware of any mistake or error relating to
any of the matters set forth in Clause 8.1.1 above, that Party shall immediately
notify the other Party, specifying the mistake or error; provided, however, that
a failure on part of the Authority to give any notice pursuant to this Clause 8.1.4
shall not prejudice the disclaimer of the Authority contained in Clause 8.1.1 and
shall not in any manner shift to the Authority any risks assumed by the
Concessionaire pursuant to this Agreement.

8.1.5 Except as otherwise provided in this Agreement, all risks relating to the Project
shall be borne by the Concessionaire and the Authority shall not be liable in any
manner for such risks or the consequences thereof.

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Part III
Development and Operations

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ARTICLE 9
PERFORMANCE SECURITY
9.1 Performance Security

9.1.1 The Concessionaire shall, for the performance of its obligations hereunder during
the Construction Period, provide to the Authority no later than 30 (thirty) days
from the date of this Agreement, in the form of Insurance Surety Bond (issued by
Insurance Company authorized by Insurance Regulatory and Development
Authority of India in the form set forth in Annexure I of Schedule – F), Account
Payee Demand Draft, Banker’s Cheque or an irrevocable and unconditional e-
bank guarantee from a Bank for a sum equivalent to Rs. **** crore (Rupees ****
only)2 in the form set forth in Schedule-F (the “Performance Security”). Until
such time the Performance Security is provided by the Concessionaire pursuant
hereto and the same comes into effect, the Bid Security shall remain in force and
effect, and upon such provision of the Performance Security pursuant hereto, the
Authority shall release the Bid Security to the Concessionaire.

9.1.2 Notwithstanding anything to the contrary contained in this Agreement, in the

event Performance Security is not provided by the Concessionaire within a period
of 30 (thirty) days from the date of this Agreement, the Authority may encash the
Bid Security and appropriate the proceeds thereof as Damages, and thereupon all
rights, privileges, claims and entitlements 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 this Agreement shall be deemed
to have been terminated by mutual agreement of the Parties.

9.2 Appropriation of Performance Security

Upon occurrence of a Concessionaire Default or failure to meet any Condition

Precedent, the Authority shall, without prejudice to its other rights and remedies
hereunder or in law, be entitled to encash and appropriate the relevant amounts
from the Performance Security as Damages for such Concessionaire Default or
failure to meet any Condition Precedent. Upon such encashment and
appropriation from the Performance Security, the Concessionaire shall, within
15 (fifteen) days thereof, replenish, in case of partial appropriation, to its original
level the Performance Security, and in case of appropriation of the entire
Performance Security provide a fresh Performance Security, as the case may be,
and the Concessionaire shall, within the time so granted, replenish or furnish
fresh Performance Security as aforesaid failing which the Authority shall be
entitled to terminate this Agreement in accordance with Article 37. Provided that
upon appropriation on account of Concessionaire’s Default the Concessionaire
shall replenish the Performance Security. Upon replenishment or furnishing of a
fresh Performance Security, as the case may be, as aforesaid, the Concessionaire
shall be entitled to an additional Cure Period of 120 (one hundred and twenty)
days for remedying the Concessionaire Default or to meet any Condition
Precedent, save and except as provided in Clause 4.5 of this Agreement, and in
the event of the Concessionaire not curing its default or meeting such Condition
Precedent within such Cure Period, the Authority shall be entitled to encash and

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appropriate such Performance Security as Damages, and to terminate this

Agreement in accordance with Article 37.
2
Calculated @ 3% (three per cent) of Estimated Project Cost as specified in the RFP.

9.3 Release of Performance Security

The Performance Security shall remain in force and effect for a period of [one
year] from the Appointed Date, but shall be released earlier upon the
Concessionaire expending on Project construction an aggregate sum that is not
less than 30% (thirty per cent) of the Total Project Cost; however, that the
Performance Security shall not be released if the Concessionaire is in breach of
this Agreement. Upon request made by the Concessionaire for release of the
Performance Security along with the particulars which establish satisfaction of
the requirements specified under this Clause 9.3, the Authority shall release the
Performance Security forthwith.

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ARTICLE 10
RIGHT OF WAY

10.1 The Site

The site of the Project shall comprise the real estate described in Schedule-A and
in respect of which the Right of Way shall be provided and granted by the
Authority to the Concessionaire as a licensee under and in accordance with this
Agreement (the “Site”). For the avoidance of doubt, it is hereby acknowledged
and agreed that references to the Site shall be construed as references to the real
estate required for the Project as set forth in Schedule-A.

10.2 Licence, Access and Right of Way

10.2.1 The Authority hereby grants to the Concessionaire access to the Site for carrying
out any surveys, investigations and soil tests that the Concessionaire may deem
necessary during the Development Period, it being expressly agreed and
understood that the Authority shall have no liability whatsoever in respect of
survey, investigations and tests carried out or work undertaken by the
Concessionaire on or about the Site pursuant hereto in the event of Termination
or otherwise.

10.2.2 In consideration of the Concession Fee, this Agreement and the covenants and
warranties on the part of the Concessionaire herein contained, the Authority, in
accordance with the terms and conditions set forth herein, hereby grants to the
Concessionaire, commencing from the Appointed Date, leave and licence rights
in respect of all the land (along with any buildings, constructions or immovable
assets, if any, thereon) comprising the Site which is described, delineated and
shown in Schedule-A hereto (the “Licensed Premises”), on an “as is where is”
basis, free of any Encumbrances, to develop, operate and maintain the said
Licensed Premises, together with all and singular rights, liberties, privileges,
easements and appurtenances whatsoever to the said Licensed Premises,
hereditaments or premises or any part thereof belonging to or in anyway
appurtenant thereto or enjoyed therewith, for the duration of the Concession
Period and, for the purposes permitted under this Agreement, and for no other
purpose whatsoever.

10.2.3 The licence, access and Right of Way granted by this Agreement to the
Concessionaire shall always be subject to existing rights of way and the
Concessionaire shall perform its obligations in a manner that an alternative
thereof are open to traffic at all times during the Construction Period.

10.2.4 It is expressly agreed that the licence granted hereunder shall terminate
automatically and forthwith, without the need for any action to be taken by the
Authority to terminate the licence, upon the Termination of this Agreement for
any reason whatsoever. For the avoidance of doubt, the Parties expressly agree
that notwithstanding any temporary or permanent structures erected on the Site
by the Concessionaire or its sub-licensees, the license in respect of the Site shall
automatically terminate, without any further act of the Parties, upon Termination
of this Agreement. For the avoidance of doubt, the Parties expressly agree that

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notwithstanding any temporary or permanent structures erected on the Site by

the Concessionaire or its sub-licensees, the license in respect of the Site shall
automatically terminate, without any further act of the Parties, upon Termination
of this Agreement.

10.2.5 The Concessionaire hereby irrevocably appoints the Authority (acting directly or
its nominee) to be its true and lawful attorney, to execute and sign in the name
of the Concessionaire a transfer or surrender of the licence granted hereunder at
any time after the Concession Period has expired or has been terminated earlier
in terms hereof, a sufficient proof of which will be the declaration of any duly
authorised officer of the Authority, and the Concessionaire consents to it being
registered for this purpose.

10.2.6 It is expressly agreed that trees on the Site are property of the Authority except
that the Concessionaire shall be entitled to exercise usufructuary rights thereon
during the Concession Period;

10.3 Procurement of the Site

10.3.1 Pursuant to the notice specified in Clause 4.1.2, the Authority Representative,
the Independent Engineer and the Concessionaire shall, on a mutually agreed
date and time, inspect the Site and prepare a memorandum containing an
inventory of the Site including the vacant and unencumbered land, buildings,
structures, road works, trees and any other immovable property on or attached to
the Site. Such memorandum shall have appended thereto an appendix (the
“Appendix”) specifying in reasonable detail those parts of the Site to which
vacant access and Right of Way has not been granted to the Concessionaire.
Signing of the memorandum, in two counterparts (each of which shall constitute
an original), by the authorised representatives of the Parties shall, subject to the
provisions of Clause 10.2.2, be deemed to constitute a valid licence and Right of
Way to the Concessionaire for free and unrestricted use and development of the
vacant and unencumbered Site during the Concession Period under and in
accordance with the provisions of this Agreement and for no other purpose
whatsoever. For the avoidance of doubt, it is agreed that valid licence and Right
of Way with respect to the parts of the Site as set forth in the Appendix shall be
deemed to have been granted to the Concessionaire upon vacant access thereto
being provided by the Authority to the Concessionaire.

10.3.2 Without prejudice to the provisions of Clause 10.3.1, the Parties hereto agree that
on or prior to the Appointed Date, the Authority shall have granted vacant access
and Right of Way for minimum 90% of the Construction Zone, so that on
completion of work in this granted RoW access shall be sufficient to construct
and achieve COD of the Project. The Appendix shall not include more than 10%
(ten per cent) of the remaining parts of the Construction Zone required and
necessary for construction. Further, in the event Financial Close is delayed solely
on account of delay in grant of such vacant access and balance Construction
Zone, the Authority shall be liable to payment of Damages under and in
accordance with the provisions of Clause 4.2.

10.3.3 On and after signing the memorandum referred to in Clause 10.3.1, and until the
Transfer Date, the Concessionaire shall maintain a round-the-clock vigil over the

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Site and shall ensure and procure that no encroachment thereon takes place, and
in the event of any encroachment or occupation on any part thereof, the
Concessionaire shall report such encroachment or occupation forthwith to the
Authority and undertake its removal at its cost and expenses.

10.3.4 The Authority shall make best efforts to procure and grant, no later than 180 (one
hundred eighty) days from the Appointed Date, the Right of Way to the
Concessionaire in respect of all land included in the Appendix, and in the event
of delay for any reason beyond 180 days, the works corresponding to RoW in
the Appendix not provided shall be deemed to be removed from the Scope of the
Project and provisions of Clause 16.6.1 shall apply in case of such works.

10.3.5 Upon receiving Right of Way in respect of any land included in the Appendix,
the Concessionaire shall complete the Construction Works thereon within a
reasonable period to be determined by the Independent Engineer in accordance
with Good Industry Practice; provided that the issue of Provisional Certificate
shall not be affected or delayed on account of vacant access to any part of the
Site not being granted to the Concessionaire or any construction on such part of
the Site remaining incomplete on the date of Tests on account of the delay or
denial of such access thereto. For the avoidance of doubt, it is expressly agreed
that Construction Works on all lands for which Right of Way is granted within
180 (One hundred and eighty) days of the Appointed Date shall be completed
before Project Completion Date.

10.3.6 The Concessionaire shall, if so required by the Authority, procure on behalf of

the Authority, on the terms and to the extent specified by the Authority, the
additional land required for stations and related offices, ancillary buildings,
storage and maintenance depots, electric substation, ticket plaza, Traffic Aid
Posts, Medical Aid Posts, under passes and over passes or for construction of
works specified in Change of Scope Order issued under Article 16, in accordance
with this Agreement and upon procurement, such land shall form part of the Site
and vest in the Authority; provided that the Concessionaire may, by notice given
to the Authority no later than 60 (sixty) days from the Appointed Date or the date
of Change of Scope Order, as the case may be, require the Authority to initiate
and undertake proceedings for acquisition of such land and the Authority shall
take all such steps as may be reasonably necessary for such land acquisition
forthwith; provided further that the cost of land acquired under this Clause 10.3.6
shall be borne by the Authority; provided also that the land to be acquired by the
Authority hereunder, as a part of the site prior to the Appointed Date, shall be
deemed to be included in the Appendix referred to in this Clause 10.3 and dealt
with in accordance with the provisions thereof. For the avoidance of doubt, it is
agreed that the minimum area of land to be acquired for the stations and related
offices, ancillary buildings, storage and maintenance depots, electric substation,
ticket plaza, Traffic Aid Posts, Medical Aid Posts and approach roads thereof
shall conform to the provisions of Schedule - B and Schedule - C. It is further
agreed that the Authority may, at any time after the Bid Date, suo moto acquire
the land required hereunder.

10.3.7 The Concessionaire may procure at its cost and expense and on its own the land
that may be required by it for Additional Facilities and the Authority shall have
no obligation or liability in respect thereof. For the avoidance of doubt, the

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Concessionaire shall seek prior consent of the Authority to connect any

Additional Facility to the Project and such consent shall not be unreasonably
withheld. Provided that cost of procuring such land for construction of additional
facilities shall not be the part of Financial Package and the Financial Model.

10.4 Site to be free from Encumbrances

Subject to the provisions of Clause 10.3, the Site shall be made available by the
Authority to the Concessionaire pursuant hereto free from all Encumbrances and
occupations and without the Concessionaire being required to make any payment
to the Authority on account of any costs, compensation, expenses and charges for
the acquisition and use of such Site for the duration of the Concession Period,
except insofar as otherwise expressly provided in this Agreement. For the
avoidance of doubt, it is agreed that existing rights of way, easements, privileges,
liberties and appurtenances to the Licensed Premises shall not be deemed to be
Encumbrances. It is further agreed that the Concessionaire accepts and undertakes
to bear any and all risks arising out of the inadequacy or physical condition of the
Site.

10.5 Protection of Site from encroachments

During the Concession Period, the Concessionaire shall protect the Site from any
and all occupations, encroachments or Encumbrances, and shall not place or
create nor permit any Contractor or other person claiming through or under the
Concessionaire to place or create any Encumbrance or security interest over all
or any part of the Site or the Project Assets, or on any rights of the Concessionaire
therein or under this Agreement, save and except as otherwise expressly set forth
in this Agreement.

10.6 Special/temporary right of way and disposal of Construction waste

The Concessionaire shall bear all costs and charges for any special or temporary
right of way required by it in connection with access to the Site. The
Concessionaire shall obtain at its cost such facilities on or outside the Site as may
be required by it for the purposes of the Project and the performance of its
obligations under this Agreement.

All debris and construction and building materials (sand, gravel, stone, rock,
loose earth etc.) lying at the Site area or generated during the construction or
implementation of the Project may be used by the Concessionaire for
implementing the Construction Works. The Concessionaire may use or shall
dispose of at its cost all unused debris and construction and building materials in
accordance with the written instructions issued from time to time by the
Authority or its authorized representative.

10.7 Access to the Authority and Independent Engineer

The licence, right of way and right to the Site granted to the Concessionaire
hereunder shall always be subject to the right of access of the Authority and the
Independent Engineer and their employees and agents for inspection, viewing
and exercise of their rights and performance of their obligations under this
Agreement.

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The Concessionaire shall, for the purpose of operation and maintenance of any
utility specified in Article 11, allow free access to the Site at all times for the
authorized persons of the controlling body of such utility.

10.8 Geological and archaeological finds

It is expressly agreed that mining, geological or archaeological rights do not form

part of the licence granted to the Concessionaire under this Agreement and the
Concessionaire hereby acknowledges that it shall not have any mining rights or
interest in the underlying minerals, fossils, antiquities, structures or other
remnants or things either of particular geological or archaeological interest and
that such rights, interest and property on or under the Site shall vest in and belong
to the Authority or the concerned Government Instrumentality. The
Concessionaire shall take all reasonable precautions to prevent its workmen or
any other person from removing or damaging such interest or property and shall
inform the Authority forthwith of the discovery thereof and comply with such
instructions as the concerned Government Instrumentality may reasonably give
for the removal of such property. For the avoidance of doubt, it is agreed that any
reasonable expenses incurred by the Concessionaire hereunder shall be
reimbursed by the Authority. It is also agreed that the Government shall procure
that the instructions hereunder are issued by the concerned Government
Instrumentality within a reasonable period.

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ARTICLE 11
UTILITIES, ASSOCIATED ROADS AND TREES

11.1 Existing utilities and roads

Notwithstanding anything to the contrary contained herein, the Concessionaire

shall ensure that the respective entities owning the existing roads, right of way,
walking trails or utilities on, under or above the Site are enabled by it to keep
such utilities in continuous satisfactory use, if necessary, by providing suitable
temporary or permanent diversions with the authority of the controlling body of
that road, right of way, walking trails or utility. In case unidentified utilities, other
than the utilities mentioned in the Technical Schedules are encountered by the
Concessionaire during the course of execution of project, the Concessionaire
shall remove the same and in such case Change of Scope (CoS) shall be allowed
to the Concessionaire.

11.2 Shifting of obstructing utilities

11.2.1 The shifting of existing utilities shall be undertaken by the State Govt. The
Concessionaire shall, subject to Applicable Laws and with assistance of the
Authority, undertake shifting of any utility (including electric lines, water pipes
and telephone cables), to an appropriate location or alignment within or outside
the Site, if such utility or obstruction adversely affects the Construction,
Operations or Maintenance of the Project as per the scope given in Schedule B
and in accordance with applicable standards and specifications of concerned
utility owning entity. Cost of shifting utilities not included in the Schedule-B, if
any, shall be treated as Change of Scope. The Authority will provide assistance
to the Concessionaire for obtaining the estimates for shifting of such utilities from
the entity owning such electric lines, water pipes or telephone cables, as the case
may be. The Concessionaire shall execute such utility shifting works under the
supervision of utility owning agency and Independent Engineer (IE) in
accordance with the provision of agreement. The supervision charges only shall
be paid by the Authority to the utility owning entity. In the event of any delay in
shifting thereof, the Concessionaire shall be responsible for failure to perform any
of its obligations here under if such failure is not as a direct consequence of delay
on the part of the entity owning such electric lines, water pipes or telephone
cables, as the case may be.

The dismantled material/scrap of existing Utility to be shifted/dismantled shall

be taken into account while obtaining the estimate.

The work of shifting of utilities can be taken up by the Concessionaire any time
after signing of the Agreement, provided further and without prejudice to
anything stated in this Article 11, all shifting of utilities prior to the Appointed
Date shall be undertaken by the Concessionaire subject to prior written
concurrence of the Authority and in accordance with conditions and directions,
if any, specified by the Authority

11.2.2 In case Appointed Date is not achieved and the Concession Agreement is
terminated prior to achievement of Appointed Date, the Concessionaire shall be

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reimbursed the cost of utility shifting carried out during Development Period by
the Authority after due certification by the Authorized Representative of the
Authority. For the purpose of such reimbursement, the rates in the approved
estimates by the concerned utility department shall be paid as per actual work
carried out at site. For the avoidance of doubt, the Concessionaire would be
reimbursed the cost of utility shifting only in case of termination prior to
Appointed Date and only if it carries out the utility shifting as envisaged as per
the terms of this Agreement (applicable only in case if existing utilities are to be
shifted the concessionaire).

11.3 New utilities and roads

11.3.1 The Concessionaire shall allow, subject to such conditions as the Authority may
specify, access to, and use of the Site for laying telephone lines, water pipes,
electric cables, internet cables, mobile network towers, or other public utilities.
However the erection and installation of all mobile service towers or any other
similar structure shall be made in such manner that it shall not interfere with the
operations, maintenance of the Ropeway Project (including the emergency
situations). Where such access or use causes any financial loss to the
Concessionaire, it may require the user of the Site to pay compensation or
damages as per Applicable Laws. For the avoidance of doubt, it is agreed that
use of the Site under this Clause shall not in any manner relieve the
Concessionaire of its obligation to maintain the Project in accordance with this
Agreement and any damage caused by such use shall be restored forthwith.

In case where the Concessionaire has set up any new utilities after the Appointed
Date for Projects captive consumption or for public use as a part of corporate
social responsibility measure, it shall provide all details thereof, as may be
reasonably required, to the relevant department / agency under the Government
owning and maintain similar utilities in the vicinity.

11.3.2 [Deleted]

11.3.3 The Authority may by notice require the Concessionaire to connect, through a
paved road or FoB, any adjoining transport facility, or any other public facility
or amenity to the Project, whereupon the connecting portion shall be constructed
and maintained by the Concessionaire upon advance payment of the cost to be
made by the beneficiary entity in accordance with the amount and period as
determined by the Independent Engineer. For the avoidance of doubt, any
connecting infrastructure like FoB, paved road etc from the adjoining public
facility to the Project which was developed prior to the Appointed Date shall be
maintained by the Concessionaire upon advance payment to be made by the
beneficiary entity in accordance with the provisions of this Clause.

11.4 Felling of trees

The Authority shall assist the Concessionaire in obtaining the Applicable Permits
for felling of trees to be identified by the Authority for this purpose if and only
if such trees cause a material adverse effect on the construction, operation or
maintenance of the Project. The cost of such felling shall be borne by the
Authority, and in the event of any delay in felling thereof for reasons beyond the

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control of the Concessionaire, it shall be excused for failure to perform any of its
obligations hereunder if such failure is a direct consequence of delay in the
felling of trees. For the avoidance of doubt, the Parties hereto agree that the felled
trees shall be deemed to be owned by the Authority and shall be disposed in such
manner and subject to such conditions as the Authority may in its sole discretion
deem appropriate.

11.5 Dismantling of structures

The Concessionaire shall at its own cost dismantle the structures in the acquired
lands including those on patta lands, abadi lands, assigned lands, etc. the
compensation for which, was paid by the Authority to the landowners or belongs
to the State Govt. / Forest Department and the lands were handed over to the
Concessionaire. The Concessionaire shall, at its own cost, dispose of the
dismantled material in its sole discretion as deemed appropriate, while
complying with all environmental guidelines and regulations and clear the Site
for undertaking construction.

11.6 Installation of Material Ropeways

The Concessionaire shall, subject to Applicable Laws undertake installation of

material ropeways, if required, in accordance with applicable standards and
specifications. The erection of material ropeway shall be supervised by
Independent Engineer (IE) in accordance with the provision of Agreement. The
work of erection of material ropeways can be taken up by the Concessionaire any
time after signing of the Agreement.

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ARTICLE 12
CONSTRUCTION OF THE PROJECT

12.1 Obligations prior to commencement of construction

Prior to commencement of Construction Works, the Concessionaire shall:

(a) submit to the Authority and the Independent Engineer its detailed design,
construction methodology, quality assurance procedures, and the
procurement, engineering and construction time schedule for completion
of the Project in accordance with the Project Completion Schedule as set
forth in Schedule-G;

(b) appoint its representative duly authorized to deal with the Authority in
respect of all matters under or arising out of or relating to this
Agreement;

(c) appoint a design director (the “Design Director”) who will head the
Contractor’s design unit and shall be responsible for surveys,
investigations, collection of data, and preparation of preliminary and
detailed designs;

(d) undertake, do and perform all such acts, deeds and things as may be
necessary or required before commencement of construction under and
in accordance with this Agreement, the Applicable Laws and Applicable
Permits; and

(e) make its own arrangements for quarrying and procurement of materials
needed for the Project under and in accordance with the Applicable Laws
and Applicable Permits.

12.2 [Deleted]

12.3 Drawings

In respect of the Concessionaire’s obligations with respect to the Drawings of

the Project as set forth in Schedule-H, the following shall apply:

(a) The Concessionaire shall prepare and submit, with reasonable promptness
and in such sequence as is consistent with the Project Completion
Schedule, three copies each of all Drawings to the Independent Engineer
for review;

(b) By submitting the Drawings for review to the Independent Engineer, the
Concessionaire shall be deemed to have represented that it has determined
and verified that the design and engineering, including field construction
criteria related thereto, are in conformity with the Scope of the Project and
the Specifications and Standards;

(c) Within 15 (fifteen) days of the receipt of the Drawings, the Independent
Engineer shall review the same and convey its observations to the

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Concessionaire with particular reference to their conformity or otherwise

with the Scope of the Project and the Specifications and Standards. The
Concessionaire shall not be obliged to await the observations of the
Independent Engineer on the Drawings submitted pursuant hereto beyond
the said 15 (fifteen) days period and may begin or continue Construction
Works at its own discretion and risk;

(d) If the aforesaid observations of the Independent Engineer indicate that the
Drawings are not in conformity with the Scope of the Project or the
Specifications and Standards, such Drawings shall be revised by the
Concessionaire and resubmitted to the Independent Engineer for review.
The Independent Engineer shall give its observations, if any, within 7
(seven) days of receipt of the revised Drawings;

(e) No review and/or observation of the Independent Engineer and/or its

failure to review and/or convey its observations on any Drawings shall
relieve the Concessionaire of its obligations and liabilities under this
Agreement in any manner nor shall the Independent Engineer or the
Authority be liable for the same in any manner;

(f) Without prejudice to the foregoing provisions of this Clause 12.3, the
Concessionaire shall submit to the Authority for review and comments,
its Drawings relating to alignment of the Project, and the Authority shall
have the right but not the obligation to undertake such review and provide
its comments, if any, within 30 (thirty) days of the receipt of such
Drawings. The provisions of this Clause 12.3 shall apply mutatis mutandis
to the review and comments hereunder; and

(g) Within 90 (ninety) days of the Project Completion Date, the

Concessionaire shall furnish to the Authority and the Independent
Engineer a complete set of as-built Drawings, in 2 (two) hard copies and
in its editable digital format or in such other medium as may be acceptable
to the Authority, reflecting the Project as actually designed, engineered
and constructed, including an as-built survey illustrating the layout of the
Project and setback lines, if any, of the buildings and structures forming
part of Project Facilities.

12.4 Construction of the Project

12.4.1 On or after the Appointed Date, the Concessionaire shall undertake construction
of the Project as specified in Schedule-B and Schedule-C, and in conformity with
the Specifications and Standards set forth in Schedule-D. The Concessionaire
shall be responsible for the correct positioning of all parts of the Works, and shall
rectify any error in the positions, levels, dimensions or alignment of the Works.
The 2190th (Two Thousand One Hundred Ninetieth) day from the Appointed
Date shall be the scheduled date for completion of the project, (the “Scheduled
Completion Date”) and the Concessionaire agrees and undertakes that the Project
shall be completed on or before the Scheduled Completion Date.

The Concessionaire shall design and construct the Ropeway System to handle
the traffic volumes, as defined by the Authority in Schedule – B. All equipment

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procured by the Concessionaire, including cable cars, etc. shall be deployed and
maintained considering the traffic volumes, as defined by the Authority in
Schedule – B;

12.4.2 The Concessionaire shall construct the Project in accordance with the Project
Completion Schedule set forth in Schedule-G. In the event that the
Concessionaire fails to achieve any Project Milestone within a period of 90
(ninety) days from the date set forth for such Milestone in Schedule-G, unless
such failure has occurred due to Force Majeure or for reasons solely attributable
to the Authority, it shall pay Damages to the Authority in a sum calculated at the
rate of 0.1% (zero point one per cent) of the amount of Performance Security for
delay of each day until such Milestone is achieved; provided that if any or all
Project Milestones or the Scheduled Completion Date are extended in
accordance with the provisions of this Agreement, the dates set forth in Schedule-
G shall be deemed to be modified accordingly and the provisions of this
Agreement shall apply as if Schedule-G has been amended as above; provided
further that in the event Project Completion Date is achieved on or before the
Scheduled Completion Date, the Damages paid under this Clause 12.4.2 shall be
refunded by the Authority to the Concessionaire, but without any interest
thereon. For the avoidance of doubt, it is agreed that recovery of Damages under
this Clause 12.4.2 shall be without prejudice to the rights of the Authority under
this Agreement, including the right of Termination thereof.

12.4.3 In the event that the Project is not completed and COD does not occur within 270
(two hundred and seventy) days from the Scheduled Completion Date, unless the
delay is on account of reasons solely attributable to the Authority or due to Force
Majeure, the Authority shall be entitled to terminate this Agreement.

12.5 [Deleted]

12.6 [Deleted]

12.7 [Deleted]

12.8 Deleted.

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ARTICLE 13
MONITORING OF CONSTRUCTION
13.1 Monthly progress reports

During the Construction Period, the Concessionaire shall, no later than 7 (seven)
days after the close of each month, furnish to the Authority, Lenders’
Representative and the Independent Engineer a monthly report on physical and
financial progress of the Construction Works and shall promptly give such other
relevant information as may be required by the Independent Engineer. The
Concessionaire shall also submit a detailed report (along with each monthly
report) indicating the locations and movements of all construction vehicles by
way of installing a functional Global Positioning System (GPS) in each vehicle,
which shall include, but not limited to, the following information:

i. Real- time location data of each construction vehicle.

ii. Timestamps indicating the start and end times of vehicle movements.

iii. Mileage covered by each vehicle.

The Concessionaire shall be responsible for ensuring the accuracy and integrity
of the GPS tracking data.

13.2 Inspection

During the Construction Period, the Independent Engineer shall inspect the
Project at least once a month and make a report of such inspection (the
“Inspection Report”) stating in reasonable detail the defects or deficiencies, if
any, with particular reference to the Scope of the Project and Specifications and
Standards. It shall send a copy of the Inspection Report to the Authority and the
Concessionaire within 7 (seven) days of such inspection and upon receipt
thereof, the Concessionaire shall rectify and remedy the defects or deficiencies,
if any, stated in the Inspection Report. Such inspection or submission of
Inspection Report by the Independent Engineer shall not relieve or absolve the
Concessionaire of its obligations and liabilities hereunder in any manner
whatsoever. The Authority on a written request from the Lenders’ Representative
shall be obliged to provide a copy of the such Inspection Report.

13.3 Tests

13.3.1 For determining that the Construction Works conform to the Specifications and
Standards, the Independent Engineer shall require the Concessionaire to carry out
or cause to be carried out tests, at such time and frequency and in such manner as
may be specified by the Independent Engineer from time to time, in accordance
with Good Industry Practice for quality assurance. The size of sample for such
tests shall, to the extent possible, not exceed 10% (ten per cent) of the quantity
and/or number of tests prescribed by IRC and/or MORTH for the construction
works undertaken by the Authority through their contractors. The Concessionaire
shall, with due diligence, carry out or cause to be carried out all the tests in

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accordance with the instructions of the Independent Engineer and furnish the
results thereof to the Independent Engineer. One half of the costs incurred on such
tests, and to the extent certified by the Independent Engineer as reasonable, shall
be reimbursed by the Authority to the Concessionaire. For the avoidance of doubt,
the costs to be incurred on any Test which is undertaken for determining the
rectification of any defect or deficiency in construction shall be borne solely by
the Concessionaire.

13.3.2 In the event that results of any tests conducted under this Clause 13.3 establish
any defects or deficiencies in the Construction Works, the Concessionaire shall
carry out remedial measures and furnish a report to the Independent Engineer in
this behalf. The Independent Engineer shall require the Concessionaire to carry
out or cause to be carried out tests to determine that such remedial measures have
brought the Construction Works into compliance with the Specifications and
Standards, and the procedure set forth in this Clause 13.3 shall be repeated until
such Construction Works conform to the Specifications and Standards. For the
avoidance of doubt, it is agreed that tests pursuant to this Clause 13.3 shall be
undertaken in addition to and independent of the tests that shall be carried out by
the Concessionaire for its own quality assurance in accordance with Good
Industry Practice. It is also agreed that a copy of the results of such tests shall be
sent by the Concessionaire to the Independent Engineer forthwith.

13.4 Delays during construction

Without prejudice to the provisions of Clause 12.4.2, if the Concessionaire does

not achieve any of the Project Milestones or the Independent Engineer shall have
reasonably determined that the rate of progress of Construction Works is such
that the project is not likely to be achieved by the Scheduled Completion Date, it
shall notify the Concessionaire to this effect, and the Concessionaire shall, within
15 (fifteen) days of such notice, by a communication inform the Independent
Engineer in reasonable detail about the steps it proposes to take to expedite
progress and submit a revised schedule as provided in accordance with Clause
12.1 (a) for achieving the Project Milestones or Project Completion Date, as the
case may be.

Further, if the Independent Engineer reports that the progress achieved in any
continuous three months is less than 75% as per the revised schedule, the
Authority may invoke termination as per Clause 37.1.1 of this Agreement..

13.5 Suspension of unsafe Construction Works

13.5.1 Upon recommendation of the Independent Engineer to this effect, the Authority
may by notice require the Concessionaire to suspend forthwith the whole or any
part of the Construction Works if, in the reasonable opinion of the Authority, such
work threatens the safety of the Users, workers, surrounding areas and
pedestrians. Provided, however, that in case of an emergency, the Authority may
suomoto issue the notice referred to hereinabove.

13.5.2 The Concessionaire shall, pursuant to the notice under Clause 13.5.1, suspend the
Construction Works or any part thereof for such time and in such manner as may
be specified by the Authority and thereupon carry out remedial measures to

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secure the safety of suspended works and the Users, workers and surrounding
area including any affected party / property or structure. The Concessionaire may
by notice require the Independent Engineer to inspect such remedial measures
forthwith and make a report to the Authority recommending whether or not the
suspension hereunder may be revoked. Upon receiving the recommendations of
the Independent Engineer, the Authority shall either revoke such suspension or
instruct the Concessionaire to carry out such other and further remedial measures
as may be necessary in the reasonable opinion of the Authority, and the
procedure set forth in this Clause 13.5 shall be repeated until the suspension
hereunder is revoked.

13.5.3 Subject to the provisions of Clause 34.7, all reasonable costs incurred for
maintaining and protecting the Construction Works or part thereof during the
period of suspension (the “Preservation Costs”), shall be borne by the
Concessionaire; provided that if the suspension has occurred as a result of any
breach of this Agreement by the Authority, the Preservation Costs shall be borne
by the Authority.

13.5.4 If suspension of Construction Works is for reasons not attributable to the

Concessionaire, the Independent Engineer shall determine any extension of the
dates set forth in the Project Completion Schedule to which the Concessionaire is
reasonably entitled, and shall notify the Authority accordingly whereupon the
Authority shall extend such Project Completion Schedule dates in accordance
with the recommendations of the Independent Engineer. In the event that the
Scheduled Completion Date is extended pursuant hereto, the Concession Period
shall be deemed to be extended by a period equal in length to the period of
extension of the Scheduled Completion Date.

13.6 Video recording

During the Construction Period, the Concessionaire shall provide to the Authority
for every calendar month, a video recording through drone feed, wherever
possible, which will be compiled into a 3 (three) hour digital video disc or any
substitute thereof, covering the status and progress of Construction Works in that
month. The first such video recording shall be provided to the Authority within 7
(seven) days of the Appointed Date and thereafter, no later than 15 (fifteen) days
after the close of each month. Such video recording shall be carried out along
with the authorized representative of the Authority. Independent Engineer shall
ensure that the features and quality of drone video is acceptable and video is not
distorted/tampered with. Independent Engineer shall analyse these drone videos
and give their comments in its digital MPRs covering inter-alia but not limited to
the encumbrances/lands not available, sites of COS demands, progress of project,
mobilisation of plant & equipment, mobilisation of camp sites, progress on
rectification of NCRs etc. along with the proposed action plan. Authority shall
cross-check drone videos during the monthly physical inspections and notify the
discrepancies noticed, if any, between drone video, on Independent Engineer
comments and ground reality. The discrepancies shall be examined and addressed
through joint site inspections.

Authority should plan biannually drone based video recording during O&M
Period in such a manner so that there is no overlap and digital data of O&M Period

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is available in regular intervals (monthly) through drone videography.

Notwithstanding anything to the contrary contained in this document, the

Concessionaire shall also develop a Project specific website which shall be
accessible to the public and upload the time stamp pictures of the development of
the Project each week regarding progress. The website must be accessible to the
public. In addition, Authority shall also undertake need based drone videography
as and when required. Authority shall ensure development of a project specific
website by the Concessionaire. In case of default on this account, the Authority
shall withhold an amount equivalent to Rs. 5 Lacs plus (drone rate X length of
project X no. of defaulting week) from the dues to the Concessionaire. The Parties
further agree that such video recording shall constitute evidence of the status and
condition of the Project Area as on the date of such recording.

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ARTICLE 14
COMPLETION CERTIFICATE

14.1 Tests

14.1.1 At least 30 (thirty) days prior to the likely completion of the Project, the
Concessionaire shall notify the Independent Engineer of its intent to subject the
Project to Tests. The date and time of each of the Tests shall be determined by the
Independent Engineer in consultation with the Concessionaire, and notified to the
Authority who may designate its representative to witness the Tests. The
Concessionaire shall provide such assistance as the Independent Engineer may
reasonably require for conducting the Tests. In the event of the Concessionaire
and the Independent Engineer failing to mutually agree on the dates for
conducting the Tests, the Concessionaire shall fix the dates by not less than 10
(ten) days notice to the Independent Engineer.

14.1.2 All Tests shall be conducted in accordance with Schedule-I. The Independent
Engineer shall observe, monitor and review the results of the Tests to determine
compliance of the Project with Specifications and Standards and if it is reasonably
anticipated or determined by the Independent Engineer during the course of any
Test that the performance of the Project or any part thereof does not meet the
Specifications and Standards, it shall have the right to suspend or delay such Test
and require the Concessionaire to remedy and rectify the defects or deficiencies.
Upon completion of each Test, the Independent Engineer shall provide to the
Concessionaire and the Authority copies of all Test data including detailed Test
results. For the avoidance of doubt, it is expressly agreed that the Independent
Engineer may require the Concessionaire to carry out or cause to be carried out
additional Tests, in accordance with Good Industry Practice, for determining the
compliance of the Project with Specifications and Standards.

14.2 Completion Certificate

Upon completion of Construction Works and the Independent Engineer

determining the Tests to be successful, it shall forthwith issue to the
Concessionaire and the Authority a certificate substantially in the form set forth
in Schedule-J (the “Completion Certificate”).

14.3 Provisional Certificate

14.3.1 Subject to the provisions of Clause 14.3.2, the Independent Engineer may, at the
request of the Concessionaire, issue a provisional certificate of completion
substantially in the form set forth in Schedule-J (the “Provisional Certificate”)
if the Tests are successful and the Project can be safely and reliably placed in
commercial operation though certain works or things forming part thereof are
outstanding and not yet complete. In such an event, the Provisional Certificate
shall have appended thereto a list of outstanding items signed jointly by the
Independent Engineer and the Concessionaire (the “Punch List”); provided that
the Independent Engineer shall not withhold the Provisional Certificate for
reason of any work remaining incomplete if the delay in completion thereof is

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due to is attributable to the Authority; provided further that the Punch List shall
also include the cost of completion for each of the outstanding items.

14.3.2 The Parties hereto expressly agree that a Provisional Certificate under this Clause
14.3 may, upon request of the Concessionaire to this effect, be issued for
operating part of the Project, if the Concessionaire has completed construction
of 100% (Hundred per cent) of the Site made available to it up to 180 days from
the Appointed Date. Upon issue of such Provisional Certificate, the provisions
of Article 15 shall apply to such completed part, and the rights and obligations
of the Concessionaire for and in respect of such completed part of the Project
shall be construed accordingly.

14.3.3 In case the Authority requests the Concessionaire to operationalize different

Ropeway Section of the Project separately, as defined in Schedule – B, a
Provisional Certificate under this Clause 14.3 may, upon request of the
Concessionaire to this effect, be issued for concerned Ropeway Section of the
Project if the Concessionaire has completed commissioning of the Ropeway
Section. Upon issue of such Provisional Certificate, the provisions of Article 15
shall apply to such completed Ropeway Section, and the rights and obligations
of the Concessionaire for and in respect of such completed Ropeway Section of
the Project shall be construed accordingly.

14.4 Completion of Punch List items

14.4.1 All items in the Punch List shall be completed by the Concessionaire within 90
(ninety) days of the date of issue of the Provisional Certificate and for any delay
thereafter, other than for reasons solely attributable to the Authority or due to
Force Majeure, the Authority shall be entitled to recover Damages from the
Concessionaire to be calculated and paid for each day of delay until all items are
completed, at the lower of (a) 0.1% (zero point one per cent) of the Performance
Security, and (b) 0.2% (zero point two per cent) of the cost of completing such
items as estimated by the Independent Engineer. Subject to payment of such
Damages, the Concessionaire shall be entitled to a further period not exceeding
120 (one hundred and twenty) days for completion of the Punch List items. For
the avoidance of doubt, it is agreed that if completion of any item is delayed for
reasons solely attributable to the Authority or due to Force Majeure, the
completion date thereof shall be determined by the Independent Engineer in
accordance with Good Industry Practice, and such completion date shall be
deemed to be the date of issue of the Provisional Certificate for the purposes of
Damages, if any, payable for such item under this Clause 14.4.1.

14.4.2 Upon completion of all Punch List items, the Independent Engineer shall issue
the Completion Certificate. Failure of the Concessionaire to complete all the
Punch List items within the time set forth in Clause 14.4.1 for any reason, other
than conditions constituting Force Majeure or for reasons solely attributable to
the Authority, shall entitle the Authority at its discretion to get the Punch List
items completed at the risk and cost of the Concessionaire or to terminate this
Agreement.

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14.5 Withholding of Provisional or Completion Certificate

14.5.1 If the Independent Engineer determines that the Project or any part thereof does
not conform to the provisions of this Agreement and cannot be safely and reliably
placed in commercial operation, it shall forthwith make a report in this behalf
and send copies thereof to the Authority and the Concessionaire within 15
(fifteen) days of conducting such tests. Upon receipt of such a report from the
Independent Engineer and after conducting its own inspection, if the Authority
is of the opinion that the Project is not fit and safe for commercial service, it
shall, within 30 (thirty) days of receiving the aforesaid report, notify the
Concessionaire of the defects and deficiencies in the Project and direct the
Independent Engineer to withhold issuance of the Provisional Certificate or
Completion Certificate, as the case may be. Upon receipt of such notice, the
Concessionaire shall remedy and rectify such defects or deficiencies and
thereupon Tests shall be undertaken in accordance with this Article 14. Such
procedure shall be repeated as necessary until the defects or deficiencies are
rectified.

14.5.2 Notwithstanding anything to the contrary contained in Clause 14.5.1, the

Authority may, at any time after receiving a report from the Independent
Engineer under that Clause, direct the Independent Engineer to issue a
Provisional Certificate or Completion Certificate under Clause 14.3 or 14.2
respectively, and such direction shall be complied forthwith.

14.6 Rescheduling of Tests

If the Independent Engineer certifies to the Authority and the Concessionaire that
it is unable to issue the Completion Certificate or Provisional Certificate, as the
case may be, because of events or circumstances on account of which the Tests
could not be held or had to be suspended, the Concessionaire shall be entitled to
re-schedule the Tests and hold the same as soon as reasonably practicable.

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ARTICLE 15
ENTRY INTO COMMERCIAL SERVICE

15.1 Commercial Operation Date (COD)

15.1.1 The Project shall be deemed to be complete when the respective Completion
Certificate or the Provisional Certificate, as the case may be, is issued under the
provisions of Article 14, and accordingly the commercial operation date of the
Project shall be the date on which such Completion Certificate or the Provisional
Certificate is issued (the “COD”). The Project shall enter into commercial service
on COD whereupon the Concessionaire shall be entitled to demand and collect
Fee in accordance with the provisions of Article 27.

15.1.2 Notwithstanding anything to the contrary contained in this Agreement, in case the
Authority requests the Concessionaire to undertake partial operations for different
Ropeway Section of the Project, as defined in Schedule - B the Concessionaire
shall request for Provisional Certificate, as per Clause 14.3, for the Ropeway
Section deemed to be operationalized. Post issuance of Provisional Certificate by
Independent Engineer and as per the provisions given in respective Aerial
Ropeway Act of the respective State Government or issuance of Safety Certificate
by nominated State Technical Committee, the Ropeway Section of the Project
deemed to be operationalized shall receive a “Partial COD”. This shall enable
the Concessionaire to commence the commercial operations for the proposed
Ropeway Section. However, the Concessionaire shall receive a COD only post
completion and operationalization of all Ropeway Sections together of the
Project.

15.2 Damages for Delay

Subject to the provisions of Clause 12.4, if COD or Partial COD does not occur
prior to the 91st (ninety first) day after the Scheduled Completion Date, unless
the delay is on account of reasons solely attributable to the Authority or due to
Force Majeure, the Concessionaire shall pay Damages to the Authority in a sum
calculated at the rate of 0.1% (zero point one per cent) of the amount of
Performance Security for delay of each day until COD or Partial COD is achieved.

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ARTICLE 16
CHANGE OF SCOPE

16.1 Change of Scope

16.1.1 The Authority may, notwithstanding anything to the contrary contained in this
Agreement, require the provision of additional works and services which are not
included in the Scope of the Project as contemplated by this Agreement or to
make modifications/ alternations in the scope of works (the “Change of Scope”).
Any such Change of Scope shall be made in accordance with the provisions of
this Article 16 and the costs thereof shall be expended by the Concessionaire and
reimbursed to it by the Authority in accordance with Clause 16.3.

16.1.2 If the Concessionaire determines at any time that a Change of Scope is necessary
for providing safer and improved services to the Users, it shall by notice in
writing require the Authority to consider such Change of Scope. The Authority
shall, within 60 (sixty) days of receipt of such notice, either accept such Change
of Scope with modifications, if any, and initiate proceedings therefor in
accordance with this Article 16 or inform the Concessionaire in writing of its
reasons for not accepting such Change of Scope, which shall be final and binding

16.1.3 Any works or services which are provided under and in accordance with this
Article 16 shall form part of the Project and the provisions of this Agreement
shall apply mutatis mutandis to such works or services.

16.2 Procedure for Change of Scope

16.2.1 In the event of the Authority determining that a Change of Scope is necessary, it
shall issue to the Concessionaire a notice specifying in reasonable detail the
works and services contemplated thereunder (the “Change of Scope Notice”).

16.2.2 Upon receipt of a Change of Scope Notice, the Concessionaire shall, with due
diligence, provide to the Authority and also to Independent Engineer such
information as is necessary, together with detailed proposal in support of:

(a) the impact, if any, which the Change of Scope is likely to have on the
Project Completion Schedule if the works or services are required to be
carried out during the Construction Period; and

(b) the options for implementing the proposed Change of Scope and the
effect, if any, each such option would have on the costs and time thereof,
including the following details:
i. break-up of the quantities, unit rates and cost for different items
of work; and
ii. proposed design for the Change of Scope;
iii. proposed modifications, if any, to the Scheduled

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For the avoidance of doubt, the Parties expressly agree that subject to the
provisions of Clause 16.1.2, the Change of Scope Order shall be issued for such
Change of Scope of works of the Project.

(c) The parties agree that costs and time for implementation of the proposed
Change of Scope shall be determined as follows: -

(i) For items of works where schedule of rates of state’s public works
department prevailing on the date of Change of Scope Order are
available, the same shall be applicable for determination of costs. In case
of non-availability of schedule of rates for year of the prevailing date,
the available schedule of rates shall be applied by updating the same
based on yearly WPI.

(ii) For item of works not included in schedule of rates as mentioned in sub-
para (i) above, the cost shall be derived on the basis of MORTH standard
data book and the rates given in applicable schedule of rates failing
which the prevailing market rates. For any item in respect of which
MORTH standard data book does not provide the requisite details, the
Independent Engineer shall determine the rate in accordance with Good
Industry Practice.

(iii) The costs of existing works or items, which are being changed/ modified
shall also be valued as per above procedure and only net cost shall be
considered.

(iv) The design charges shall be considered @ 1% (one per cent) of cost of
COS. However, if COS is on net cost basis, the design charges @1% of
negative COS shall not be deducted.

(v) The reasonable time for completion of works to be taken under Change
of Scope shall be determined by the Independent Engineer on the basis
of Good Industry Practice and if such time exceeds the Scheduled
Completion Date, the issue of Completion Certificate shall not be
affected or delayed on account of construction of Change of Scope
items/ works remaining incomplete on the date of Tests.

16.2.3 Upon receipt of information set forth in Clause 16.2.2, if the Authority decides
to proceed with the Change of Scope, it shall convey its preferred option to the
Concessionaire, and the Parties shall, with assistance of the Independent
Engineer, thereupon make good faith efforts to agree upon the time and costs for
implementation thereof. Upon reaching an agreement, the Authority shall issue
an order (the “Change of Scope Order”) requiring the Concessionaire to
proceed with the performance thereof. In the event that the Parties are unable to
agree, the Authority may, by issuing a Change of Scope Order, require the
Concessionaire to proceed with the performance thereof pending resolution of
the Dispute, or carry out the works in accordance with Clause 16.5.

16.2.4 The provisions of this Agreement, insofar as they relate to Construction Works
and Tests, shall apply mutatis mutandis to the works undertaken by the
Concessionaire under this Article 16.

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16.3 Payment for Change of Scope

16.3.1 Within 30 (thirty) days of issuing a Change of Scope Order, the Authority shall
make an advance payment to the Concessionaire in a sum equal to 20% (twenty
per cent) of the cost of Change of Scope as agreed hereunder, and in the event of
a Dispute, 20% (twenty per cent) of the cost assessed by the Independent
Engineer. The Concessionaire shall, after commencement of work, present to the
Authority bills for payment in respect of the works in progress or completed
works, as the case may be, supported by such Documentation as is reasonably
sufficient for the Authority to determine the accuracy thereof. Within 30 (thirty)
days of receipt of such bills, the Authority shall disburse to the Concessionaire
such amounts as are certified by the Independent Engineer as reasonable and
after making a proportionate deduction for the advance payment made
hereunder, and in the event of any Dispute, final adjustments thereto shall be
made under and in accordance with the Dispute Resolution Procedure.

16.3.2 Notwithstanding anything to the contrary contained in Clause 16.3.1, all costs
arising out of any Change of Scope Order issued during the Construction Period
shall be borne by the Concessionaire, subject to an aggregate ceiling of 0.25%
(zero point two five per cent) of the Total Project Cost. Any costs in excess of
the ceiling shall be reimbursed by the Authority in accordance with Clause
16.3.1. In the event that the total cost arising out of Change of Scope Orders (if
any) issued prior to the Project Completion Date is less than 0.25% (zero point
two five per cent) of the Total Project Cost, the difference thereof shall be
credited by the Concessionaire to the Safety Fund within a period of 180 (one
hundred and eighty) days of the Project Completion Date. For the avoidance of
doubt, it is agreed that the aforesaid 0.25% (zero point two five per cent) of the
Total Project Cost shall, to the extent borne by the Concessionaire, be deemed to
form part of the actual capital cost of the Project.

16.4 Restriction on certain works

16.4.1 Notwithstanding anything to the contrary contained in this Article 16, but subject
to the provisions of Clause 16.4.2, the Authority shall not require the
Concessionaire to undertake any works or services if such works or services are
likely to delay completion of the Project; provided that in the event that the
Authority considers such works or services to be essential, it may issue a Change
of Scope Order, subject to the condition that the works forming part of or affected
by such Order shall not be reckoned for purposes of determining completion of
the Project and issuing the Provisional Certificate.

16.4.2 Notwithstanding anything to the contrary contained in this Article 16, the
Concessionaire shall be entitled to nullify any Change of Scope Order if it causes
the cumulative costs relating to all the Change of Scope Orders to exceed 5%
(five per cent) of the Total Project Cost in any continuous period of 3 (three)
years immediately preceding the date of such Change of Scope Order or if such
cumulative costs exceed 20% (twenty per cent) of the Total Project Cost at any
time during the Concession Period.

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16.5 Power of the Authority to undertake works

16.5.1 Notwithstanding anything to the contrary contained in Clauses 16.1.1, 16.2 and
16.3, the Authority may, after giving notice to the Concessionaire and
considering its reply thereto, award any works or services, contemplated under
Clause 16.1.1, to any person on the basis of open competitive bidding; provided
that the Concessionaire shall have the option of matching the first ranked bid in
terms of the selection criteria, subject to payment of 2% (two per cent) of the bid
amount to the Authority$, and thereupon securing the award of such works or
services. For the avoidance of doubt, it is agreed that the Concessionaire shall be
entitled to exercise such option only if it has participated in the bidding process
and its bid does not exceed the first ranked bid by more than 10% (ten percent)
thereof. It is also agreed that the Concessionaire shall provide access, assistance
and cooperation to the person who undertakes the works or services hereunder.

16.5.2 The works undertaken in accordance with this Clause 16.5 shall conform to the
Specifications and Standards and shall be carried out in a manner that minimises
the disruption in operation of the Project. The provisions of this Agreement,
insofar as they relate to Construction Works and Tests, shall apply mutatis
mutandis to the works carried out under this Clause 16.5.

16.6 Reduction in Scope of the Project

16.6.1 (a) If the Concessionaire shall have failed to complete any Construction Works
as specified in the Punch List items in accordance with Clause 14.4 and works
deemed to be descoped/ removed as per Clause 10.3.4, the cost of such works
shall be determined as on the Bid Due Date as per the methodology provided in
Clause 16.2.2 (c). Such cost shall be further multiplied by a factor of 1.30 and
divided by Total Project Cost to arrive at the percentage (rounded upto two
decimals) of incomplete works. The Concessionaire shall be liable to pay to the
Authority such percentage of the Realisable Fee every month till completion of
such works, in the form of an additional Concession Fee.

For the avoidance of doubt, the Total Project Cost to be reckoned for the
purposes of this Clause shall include Equity Support.

(b) without prejudice to the above, in case there is any reduction in effective
length of the Project due to such incomplete work on account of Force Majeure
or for reasons solely attributable to the Authority, the shortfall in Realisable Fee
on this account shall be reimbursed by the Authority every month as if it would
have enjoyed had such work been completed.

The Punch List items shall be reviewed quarterly and on completion of all or
any of the Punch List items, the percentage of incomplete work and effective
length shall be revised accordingly.

16.6.2 For determining the obligations of the Concessionaire under this Clause
16.6, the provisions of Clauses 16.1, 16.2 and 16.4 shall apply mutatis mutandis,
and upon issue of Scope Order by the Authority hereunder, the Concessionaire
shall pay forthwith the sum specified therein.

$The Authority shall transfer 75% (seventy five percent) of the amount so received to the first ranked
bidder whose bid shall have been matched by the Concessionaire.

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ARTICLE 17
OPERATION AND MAINTENANCE
17.1 O&M obligations of the Concessionaire

17.1.1 During the Operation Period, the Concessionaire shall operate and maintain the
Project in accordance with this Agreement either by itself, or through the O&M
Contractor and if required, modify, repair or otherwise make improvements to
the Project to comply with the provisions of this Agreement, Applicable Laws
and Applicable Permits, and conform Specification and Standards and to Good
Industry Practice. The obligations of the Concessionaire hereunder shall include:

(a) permitting safe, smooth and uninterrupted use of the Project during
normal operating conditions;

(b) collecting and appropriating the Fee;

(c) minimising disruption in the event of accidents or other incidents

affecting the safety and use of the Project by providing a rapid and
effective response and maintaining liaison with emergency services of
the State;

(d) carrying out periodic preventive maintenance of the Project;

(e) undertaking routine maintenance including prompt repairs of Ropeway

system, structures, markings, lighting, signages and other traffic control
devices;

(f) undertaking the preventive and major maintenance and overhaul works
such as repair at the stations, systems and equipment installation,
ropeway and passenger cable cars, rescue and evacuation equipment,
safety audits etc.;

(g) preventing, with the assistance of concerned law enforcement agencies,

any unauthorised use of the Project or attempt to damage or harm any
equipment, system, or structures;

(h) preventing, with the assistance of the concerned law enforcement

agencies, any encroachments on or unauthorized entry to the Project or
Project Area;

(i) protection of the environment and provision security to equipment and

materials therefore;

(j) operation and maintenance of all communication, control and

administrative systems necessary for the efficient operation of the
Project and for providing safe, smooth and uninterrupted use of Project;

(k) maintaining a public relations unit to interface with and attend to

suggestions from the Users, government agencies, media and other
agencies; and

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(l) complying with Safety Requirements in accordance with Article 18.

(m) As a part of the annual operation and maintenance schedule, the

Concessionaire shall plan and schedule safety audits of the Project, its
plant, machinery and equipment including operating conditions,
contingency plans to handle any emergency situations etc. (“Safety
Audit”). The Safety Audit shall be conducted at least twice a year with
a gap not exceeding six (06) months between any two audits and shall
be conducted and undertaken by an independent external agency
qualified and equipped to handle such audits and to be selected by the
Authority from the list of eligible and competent agencies submitted by
the Concessionaire on or before the COD of the Project. The fee payable
to the external agency for conducting the Safety Audit shall, initially, be
borne by the Concessionaire and 50% (fifty percentage) of the same shall
be reimbursed by the Authority to the Concessionaire along with the
following installment of the O&M payment. The list of eligible and
competent agencies shall be updated periodically, every 03 years, by the
Concessionaire. The scope of Safety Audit and the terms of reference
thereof shall be jointly settled by the Concessionaire and the Authority,
who shall have a right to seek advice from the Independent Engineer or
the Safety Consultant (appointed in terms of Article 18) on the same.

(n) Procuring and maintaining throughout the Concession Period

satisfactory contractual arrangements with Original Equipment
Manufacturer (OEM), for the regular maintenance of critical equipment
and for supply of spares including up-gradation and modernization of
the systems and equipment installed from time to time;

(o) The Concessionaire shall provide, free of charge and in accordance with
Good Industry Practice, office space and other facilities to security and
other government agencies, if any, as the case may be, for discharging
their statutory functions;

(p) Concessionaire shall operate and provide a comprehensive range of

auxiliary services as part of the Project and provide the services
efficiently to meet the demands of the Users at all times and comparable
to the quality of service provided at other similar international locations
outside India.

(q) Provide traffic management to Project Facilities ensuring access to the

Project Facilities at all times;

(r) The Concessionaire shall regulate the use of the Station building by third
parties and provide non-discriminatory access to all Users in accordance
with the provisions of this Agreement

(s) Signages: The Concessionaire shall maintain illuminated signage’s in

accordance with applicable codes and standard;

(t) Lighting: Adequate lighting system in the Station, in accordance with

applicable standards and codes. The entry and exit areas of the Project
shall be provided with auxiliary emergency lighting system

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17.1.2 The Concessionaire shall remove promptly from the Project all surplus
construction machinery and materials, waste materials (including hazardous
materials and waste water), rubbish and other debris (including, without
limitation, accident debris) and keep the Project in a clean, tidy and orderly
condition, and in conformity with the Applicable Laws, Applicable Permits and
Good Industry Practice. For the avoidance of doubt, it is agreed that the debris
and material excavated shall be carried to and deposited at (to be decided in
consultation with the Independent Engineer)

17.1.3 [Deleted]

17.2 Maintenance Requirements

The Concessionaire shall procure that at all times during the Operation Period,
the Project conforms to the maintenance requirements set forth in Schedule-K
(the “Maintenance Requirements”).

17.3 Maintenance Manual

17.3.1 Not later than 180 (one hundred and eighty) days prior to the Scheduled
Completion Date , the Concessionaire shall, in consultation with the Independent
Engineer, evolve a repair and maintenance manual (the “Maintenance Manual”)
for the regular and preventive maintenance of the Project in conformity with the
Specifications and Standards, Maintenance Requirements, Safety Requirements
and Good Industry Practice, and shall provide 5 (five) copies thereof to the
Authority and 2 (two) copies to the Independent Engineer. The Maintenance
Manual shall be revised and updated once every 3 (three) years as agreed
between the Authority and the Concessionaire and the provisions of this Clause
17.3 shall apply, mutatis mutandis, to such revision.

17.3.2 Without prejudice to the provision of Clause 17.3.1, the Maintenance Manual
shall, in particular, include provisions for maintenance of Project Assets and
shall provide for life cycle maintenance, routine maintenance and reactive
maintenance which may be reasonably necessary for maintenance and repair of
the Project Assets, including replacement thereof, such that their overall
condition conforms to Good Industry Practice.

17.4 Maintenance Programme

17.4.1 On or before COD or Partial COD, whenever applicable and no later than 45
(forty five) days prior to the beginning of each Accounting Year during the
Operation Period, as the case maybe the Concessionaire shall provide to the
Authority and the Independent Engineer, its proposed annual programme of
preventive, urgent and other scheduled maintenance (the “Maintenance
Programme”) to comply with the Maintenance Requirements, Maintenance
Manual and Safety Requirements. Such Maintenance Programme shall include:
(a) preventive maintenance and overhaul schedule;
(b) arrangements and procedures for carrying out urgent repairs;
(c) criteria to be adopted for deciding maintenance needs;
(d) intervals and procedures for carrying out inspection of all elements of
the Project;

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(e) intervals at which the Concessionaire shall carry out periodic

maintenance;
(f) arrangements and procedures for carrying out safety related measures;
and
(g) intervals for major maintenance works and the scope thereof.

17.4.2 Within 15 (fifteen) days of receipt of the Maintenance Programme, the

Independent Engineer shall review the same and convey its comments to the
Concessionaire with particular reference to its conformity with the Maintenance
Requirements, Maintenance Manual and Safety Requirements.

17.4.3 The Concessionaire may modify the Maintenance Programme as may be

reasonable in the circumstances, and the procedure specified in Clauses 17.4.1
and 17.4.2 shall apply mutatis mutandis to such modifications.

17.5 Safety, breakdowns and accidents

17.5.1 The Concessionaire shall ensure safe conditions for the Users, and in the event of
unsafe conditions, closures, diversions, breakdowns and accidents, it shall follow
the relevant operating procedures including the setting up of temporary lights,
safety apparatuses, rescue and retrieval equipment and removal of obstruction and
debris without delay. Such procedures shall conform to the provisions of this
Agreement, Applicable Laws, Applicable Permits and Good Industry Practice.

17.5.2 The Concessionaire’s responsibility for rescue operations on the Project shall be
limited to an initial response to any particular incident and shall be limited to
getting the passengers safely to the nearest Station for disembarkation. The
technology provider shall define standard operating procedure under such
circumstances. Alternatively, rescue operations procedure to be followed as per
Specifications and Standards, with the responsibility of the Concessionaire to get
people safely on the ground, shall be deployed forthwith.

The competent authority shall promptly take charge of the rescue operations and
the Concessionaire shall render all assistance and co-operation to the competent
authority as may be required and shall promptly ensure removal of vehicles or
debris or any other obstruction, which may endanger or interrupt the rescue
operations or the use of the Project. For this purpose, it shall maintain and operate
a round-the-clock rescue post with equipment in accordance with Good Industry
Practice.

17.6 Stoppage due to Emergency

17.6.1 If, in the reasonable opinion of the Concessionaire, there exists an Emergency
which warrants stoppage and closure of the whole or any part of the Project, the
Concessionaire shall be entitled to stop and close the whole or any part of the
Project for so long as such Emergency and the consequences thereof warrant;
provided that such stoppage and particulars thereof shall be notified by the
Concessionaire to the Authority without any delay, and the Concessionaire shall
diligently carry out and abide by any reasonable directions that the Authority may
give for dealing with such Emergency.

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17.6.2 The Concessionaire shall resume the operations of the Project or the affected part
thereof as quickly as practicable after the circumstances leading to its stoppage
and closure have ceased to exist or have so abated as to enable the Concessionaire
to resume the operations of the Project and shall notify the Authority of the same
without any delay.

17.6.3 Any stoppage or closure of any part of the Project and the resuming of operations
thereof shall, as soon as practicable, be brought to the notice of affected persons
by means of public announcements/notice.

17.7 Project closure

17.7.1 The Concessionaire shall not close any part of the Project for undertaking
maintenance or repair works not forming part of the Maintenance Program,
except with the prior written approval of the Independent Engineer. Such
approval shall be sought by the Concessionaire through a written request to be
made to the Independent Engineer, and a copy thereof furnished to the Authority,
at least 7 (seven) days before the proposed closure of such lane and shall be
accompanied by particulars thereof. Within 3 (three) days of receiving such
request, the Independent Engineer shall grant permission with such modifications
as it may deem reasonable and necessary in conformity with the Maintenance
Manual and Maintenance Program and a copy of such permission shall be sent to
the Authority.

17.7.2 The provisions of Clause 17.7.1 shall not apply to de-commissioning under
Clause 17.6.1 or to closure for a period not exceeding 2 (two) hours in a day at
any time of the day and 6 (six) hours in a day at a time specified by the
Independent Engineer as off-peak hours when usage of the Project is
comparatively lower.

17.7.3 Upon receiving the permission pursuant to Clause 17.7.1, the Concessionaire
shall be entitled to close the designated part of the Project for the period specified
therein, and in the event of any delay in re-opening such part, the Concessionaire
shall pay Damages to the Authority calculated at the rate of 0.1% (zero point one
per cent) of the Average Daily Fee for every section of the Project, or part thereof,
for each day of delay until the Project has been reopened for Users.

17.8 Damages for breach of maintenance obligations

17.8.1 In the event that the Concessionaire fails to repair or rectify any defect or
deficiency set forth in the Maintenance Requirements within the period specified
therein, it shall be deemed to be in breach of this Agreement and the Authority
shall be entitled to recover Damages, to be calculated and paid for each day of
delay until the breach is cured, at the higher of (a) 0.5% (zero point five per cent)
of Average Daily Fee, and (b) 0.1% (zero point one per cent) of the cost of such
repair or rectification as estimated by the Independent Engineer.

Notwithstanding anything contained in this agreement, should the actual traffic

exceed the design capacity, during any year or part thereof and the
Concessionaire fails to repair or rectify any defect or deficiency set forth in the
Maintenance Requirements within the period specified therein, it shall be

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deemed to be in breach of this Agreement and the Authority shall be entitled,

from such date, to recover Damages, to be calculated and paid for each day of
delay until the breach is cured, at the higher of (a) 5% (five per cent) of Average
Daily Fee, and (b) 1% (one per cent) of the cost of such repair or rectification as
estimated by the Independent Engineer, for the balance period of the concession.

Recovery of such Damages shall be without prejudice to the rights of the

Authority under this Agreement, including the right of Termination thereof.

17.8.2 The Damages set forth in Clause 17.8.1 may be assessed and specified forthwith
by the Independent Engineer; provided that the Authority may, in its discretion,
demand a smaller sum as Damages, if in its opinion, the breach has been cured
promptly and the Concessionaire is otherwise in compliance with its obligations
hereunder. The Concessionaire shall pay such Damages forthwith and in the
event that it contests such Damages, the Dispute Resolution Procedure shall
apply.

17.9 Authority’s right to take remedial measures

17.9.1 In the event the Concessionaire does not maintain and/or repair the Project or
any part thereof in conformity with the Maintenance Requirements, the
Maintenance Manual or the Maintenance Programme, as the case may be, and
fails to commence remedial works within 15 (fifteen) days of receipt of the O&M
Inspection Report or a notice in this behalf from the Authority or the Independent
Engineer, as the case may be, the Authority shall, without prejudice to its rights
under this Agreement including Termination thereof, be entitled to undertake
such remedial measures at the risk and cost of the Concessionaire, and to recover
its cost from the Concessionaire. In addition to recovery of the aforesaid cost, a
sum equal to 20% (twenty per cent) of such cost shall be paid by the
Concessionaire to the Authority as Damages. For the avoidance of doubt, the
right of the Authority under this Clause 17.9.1 shall be without prejudice to its
rights and remedies provided under Clause 17.8.

17.9.2 The Authority shall have the right, and the Concessionaire hereby expressly
grants to the Authority the right, to recover the costs and Damages specified in
Clause 17.9.1 directly from the Escrow Account as if such costs and Damages
were O&M Expenses, and for that purpose, the Concessionaire hereby agrees to
give irrevocable instructions to the Escrow Bank to make payment from the
Escrow Account in accordance with the instructions of the Authority under this
Clause 17.9.2 and debit the same to O&M Expenses under para 4.1.1 (h) and 4.2
(d) of the Escrow Agreement.

17.10 Overriding powers of the Authority

17.10.1 If in the reasonable opinion of the Authority, the Concessionaire is in material

breach of its obligations under this Agreement and, in particular, the Maintenance
Requirements, and such breach is causing or likely to cause material hardship or
danger to the Users, the Authority may, without prejudice to any of its rights under
this Agreement including Termination thereof, by notice require the
Concessionaire to take reasonable measures immediately for rectifying or
removing such hardship or danger, as the case may be.

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17.10.2 In the event that the Concessionaire, upon notice under Clause 17.10.1, fails to
rectify or remove any hardship or danger within a reasonable period, the
Authority may exercise overriding powers under this Clause 17.10.2 and take
over the performance of any or all the obligations of the Concessionaire to the
extent deemed necessary by it for rectifying or removing such hardship or danger;
provided that the exercise of such overriding powers by the Authority shall be of
no greater scope and of no longer duration than is reasonably required hereunder;
provided further that any costs and expenses incurred by the Authority in
discharge of its obligations hereunder shall be deemed to be O&M Expenses, and
the Authority shall be entitled to recover them from the Concessionaire in
accordance with the provisions of Clause 17.9 along with the Damages specified
therein.

17.10.3 In the event of a national emergency, civil commotion or any other act specified
in Clause 34.3, the Authority may take over the performance of any or all the
obligations of the Concessionaire to the extent deemed necessary by it or as
directed by the Government, and exercise such control over the Project or give
such directions to the Concessionaire as may be deemed necessary; provided that
the exercise of such overriding powers by the Authority shall be of no greater
scope and of no longer duration than is reasonably required in the circumstances
which caused the exercise of such overriding power by the Authority. For the
avoidance of doubt, the consequences of such action shall be dealt in accordance
with the provisions of Article 34. It is also agreed that the Concessionaire shall
comply with such instructions as the Authority may issue in pursuance of the
provisions of this Clause 17.10, and shall provide assistance and cooperation to
the Authority, on a best effort basis, for performance of its obligations hereunder.

17.11 Restoration of loss or damage to the Project

Save and except as otherwise expressly provided in this Agreement, in the event
that the Project or any part thereof suffers any loss or damage during the
Concession Period from any cause whatsoever, the Concessionaire shall, at its
cost and expense, rectify and remedy such loss or damage forthwith so that the
Project conforms to the provisions of this Agreement.

17.12 Modifications to the Project

The Concessionaire shall not carry out any material modifications to the Project
save and except where such modifications are necessary for the Project to operate
in conformity with the Specifications and Standards, Maintenance Requirements,
Good Industry Practice and Applicable Laws; provided that the Concessionaire
shall notify the Independent Engineer of the proposed modifications along with
particulars thereof at least 15 (fifteen) days before commencing work on such
modifications and shall reasonably consider any suggestions that the
Independent Engineer may make within 15 (fifteen) days of receiving the
Concessionaire’s proposal. For the avoidance of doubt, all modifications made
hereunder shall comply with the Specifications and Standards, Applicable Laws
and the provisions of this Agreement.

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17.13 Excuse from performance of obligations

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

(a) an event of Force Majeure;

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

(c) compliance with a request from the Authority or the directions of any
Government Instrumentality, the effect of which is to close all or any part
of the Project.

Notwithstanding the above, the Concessionaire shall keep all unaffected

parts of the Project open to users provided they can be operated safely.

17.14 Barriers and diversions

The Authority shall procure that during the Operation Period, no barriers are
erected or placed by any Government Instrumentality on the Project access roads,
except for reasons of Emergency, national security, law and order or collection
of inter-state taxes. The Authority shall also make best endeavours to procure
that no Government Instrumentality shall undertake or cause to be undertaken,
except for reasons of Emergency, national security or law and order, any
diversions of traffic from, or closing down of approach roads to the Project that
may cause a material adverse effect on the flow of traffic to and from the Project.

17.15 Advertising on the Site

(a) The Concessionaire shall not undertake or permit any form of commercial
advertising, display or hoarding at any place on the Site if such advertising,
display, or hoarding shall diminish the aesthetic quality of the Project or violates
Applicable Laws. The Concessionaire shall ensure that all advertising related
activities are restricted within the premises / built-up area of the Project. All
advertising on the Project shall also conform to Good Industry Practice. For the
avoidance of doubt, it is agreed that the rights of the Concessionaire hereunder
shall be subject to Applicable Laws, as in force and effect from time to time, and
no compensation shall be claimed on account thereof.

(b) The Concessionaire shall ensure that all advertising related activities are
restricted within the premises / built-up area of the Project. Any damages suffered
or caused to any of the structures at the Project Area shall be restored and repaired
to the original condition by the Concessionaire at its own cost & expenses;

(c) Further any or all advertisement hoardings or banners shall be so placed that
they do not obstruct the operations or visibility of the operators at Project
Facilities, Station control rooms, affect or obstruct the lighting equipment
installed, signage’s etc.

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17.16 Installation and operation of CCTV and Control Center

The Concessionaire shall install and operate a closed circuit television system to
monitor such parts of the Project as may be necessary and expedient for a safe,
secure and smooth operation thereof. All live feed from the CCTVs shall be made
available in a control center, which shall be accessible to the Authority and
concerned representatives.

17.17 Operation of Ropeway Cable cars:

The Project shall be operated for 10 hours operation time per day. The start and
ending of the operation time shall be intimated to the Concessionaire on or before
the appointed date.

17.18 Operation of Stations

(i) The Concessionaire shall be entirely responsible for the O&M of the Stations
and all the ancillary offices, amenities and facilities during the entirety of the
Concession Period, in terms of this Agreement. As mentioned in Article 5.8, the
Concessionaire shall operate and maintain amenities, in adequate numbers in
accordance with Good Industry Practice for non-discriminatory use by the Users
of the Project. The amenities shall include drinking water facilities, sanitation
facilities, toilets, locker facility, and telephone and communication facilities. The
Concessionaire shall also ensure that the eateries, canteens, if any, within the
premises of the Terminal Stations shall be hygienic and safe, in accordance with
Good Industry Practice.

(ii) The Concessionaire shall provide and maintain an adequate supply of efficient
baggage trolleys / wheel chairs (for senior citizens or for persons requiring any
special assistance) within easy reach of the platform areas and at the entry point
of the Terminal Station.

(iii) Users who require special assistance:

The Concessionaire shall procure that the Terminal Station shall meet the
travelling needs of elderly persons and differently abled Users, including the
provision of ramp ways, modified toilets, wheelchairs, and earmarked places slots
in conformity with Specifications and Standards and Good Industry Practice, and
at no extra cost to such Users. The Concessionaire shall also procure provision of
childcare room and facilities within the Terminal Station building, at no
additional cost to User. The Concessionaire shall operate and maintain the Project
in accordance with Good Industry Practices, in compliance with safety,
environmental and other applicable laws, maintenance manual and Article 42.

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ARTICLE 18
SAFETY REQUIREMENTS

18.1 Safety Requirements

18.1.1 The Concessionaire shall comply with the provisions of this Agreement,
Applicable Laws and Applicable Permits and conform to Good Industry Practice
for securing the safety of the Users and the surrounding areas and structures and
hereditaments thereon. In particular, the Concessionaire shall develop,
implement, and administer a surveillance and safety programme for providing a
safe environment on or about the Project, and shall comply with the safety
requirements set forth in Schedule-L (the “Safety Requirements”).

18.1.2 The Authority shall appoint, at its own cost, an experienced and qualified firm
or organisation (the “Safety Consultant”) for carrying out safety audit of the
Project in accordance with the Safety Requirements and shall take all other
actions necessary for securing compliance with the Safety Requirements.

18.1.3 Without prejudice to clause 18.2 hereof, the Authority shall, if required under
special circumstances at its own cost and expense, provide or cause to be
provided security within the limits of the Project for the prevention of terrorism,
hijacking, sabotage and/or similar acts or occurrences; provided that the
Authority and the Concessionaire may at any time mutually enter into an
agreement to jointly provide security services for the Project. Notwithstanding
anything to the contrary contained herein the Concessionaire shall be responsible
for the security arrangements within the Site in order to maintain orderly conduct
of its business and the security thereof;

Further the Authority agrees that it shall, at the request of the Concessionaire,
procure and provide the services of security forces of the Authority. The
Authority shall ensure and procure that the personnel of the Concessionaire and
all its Contractors, suppliers, sub-contractors and the Users of the Project are
allowed free ingress and egress from the limits of the Project without any
unreasonable interference by the personnel of the Authority but subject to
adherence of the security protocol, including the security personnel employed by
or on behalf of the Authority.

18.1.4 The Concessionaire shall abide by and implement any instructions of the
Authority for enhancing the security within and around the Project. The
Concessionaire shall not be entitled to any compensation for disruption of its
operations or loss or damage resulting from the Authority’s actions or the actions
of any organization permitted by the Authority other than those resulting from
willful or grossly negligent acts or omissions of such organizations. The
Authority agrees that it shall cause the relevant organizations to take such actions
as reasonably deemed necessary by them, without unduly or unreasonably
disrupting the operations of the Project or interfering with the exercise of rights
or fulfillment of obligations by the Concessionaire under this Agreement. The
Concessionaire agrees that it shall extend its full support and cooperation to the
Authority and to the other organizations permitted by the Authority in the
discharge of their obligations there under.

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18.2 Expenditure on Safety Requirements

All costs and expenses arising out of or relating to Safety Requirements shall be
borne by the Concessionaire to the extent such costs and expenses form part of
the works and services included in the Scope of the Project, and works and
services, if any, not forming part of the Scope of the Project shall be undertaken
in accordance with the provisions of Article 16. Costs and expenses on works
and services not covered hitherto before and arising out of Safety Requirements
shall, subject to the provisions of Clause 16.3.2, be borne from out of a dedicated
safety fund (the “Safety Fund”) to be funded, owned and operated by the
Authority or a substitute thereof.

18.3 Safety Manual:

The Authority shall lay emphasis on aspects of User safety, system reliability
and availability for the Project and require the Concessionaire to submit a safety
manual (the “Safety Manual”) no later than 180 (one hundred and eighty) days
prior to the Scheduled Date which shall be in compliance with the requirements
specified in Schedule –L.

18.4 Enquiry and Investigation

18.4.1 Without prejudice to the provision of clause 19.6 Report of Unusual Occurrence
in any unfortunate event of any accident or mishap or any unusual event
occurring during the operation and maintenance of the Project leading to any
significant loss or damage to any property or structure the Concessionaire shall
within 03 (three) days of the incident submit a report of the same to the Authority
with detailed reasons causing such accident or mishap and remedial measure
taken along with the current status of the same. For the purpose hereof any loss
or damage which requires an expense of more than Rupees 1,00,000/- (One
Hundred Thousand) for restoring the damaged / lost property to its original
condition shall be deemed to be a “significant loss or damage”.

Further if any such incident leads to any loss of life or any grievous bodily injury
(i.e. injury which requires hospitalization for more than 48 hours) or requires
suspension of ropeway operations for 03 (three) hours or more during the
working hours on any day, the same shall reported forthwith to the Authority the
same day.

18.4.2 The Authority, upon perusal of the incident report, may at its discretion direct an
enquiry / investigation into the matter through the Safety Consultant or any
Government Instrumentality to investigate the cause leading to such incident. It
is clarified that the objective of the enquiry / investigation shall be for
understanding the reasons and circumstances leading such accident, mishap, or
unusual occurrence and to avoid its repletion in future through remedial
measures.

18.4.3 However the Concessionaire further explicitly and unconditionally agrees &
acknowledges that all or any liability or responsibility or accountability resulting
from or arising out of such accident or mishap, or unusual occurrence shall,
subject to Applicable Laws, be the sole responsibility of the Concessionaire and

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the Concessionaire shall keep the Authority (including its officers and
representatives) fully indemnified and protected against any such liability or
claim. The Concessionaire shall in accordance with the Good Industry Practice
procure and keep in place, at all times during the Concession Period, sufficient
insurance cover, from a reputed insurance company, against any claim for
damage or loss to property.

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ARTICLE 19
MONITORING OF OPERATION AND MAINTENANCE

19.1 Monthly status reports

19.1.1 During Operation Period, the Concessionaire shall, no later than 7 (seven) days
after the close of each month, furnish to the Authority and the Independent
Engineer a monthly report stating in reasonable detail the condition of the Project
including its compliance or otherwise with the Maintenance Requirements,
Maintenance Manual, Maintenance Programme and Safety Requirements, and
shall promptly give such other relevant information as may be required by the
Independent Engineer. In particular, such report shall separately identify and
state in reasonable detail the defects and deficiencies that require rectification.

19.1.2 During Operation Period, the Concessionaire shall, no later than 10 (ten) days
after the close of each month, furnish a monthly management report which shall
include a summary of:
(a) key performance indicators achieved in the month, along with an analysis
of reasons for failures, if any, and proposals to remedy the same;
(b) key operational hurdles and deliverables anticipated in the succeeding
month along with strategies for addressing the same and for otherwise
improving the Project's operational performance; and
(c) key financial parameters for the month, as benchmarked against the
monthly budget and the reasons for shortfall, if any, and proposals to
remedy the same.

19.2 Inspection

The Independent Engineer shall inspect the Project at least fortnightly. It shall
make a report of such inspection (the “O&M Inspection Report”) stating in
reasonable detail the defects or deficiencies, if any, with particular reference to
the Maintenance Requirements, Maintenance Manual, the Maintenance
Programme and Safety Requirements, and send a copy thereof to the Authority
and the Concessionaire within 7 (seven) days of such inspection. The Authority
on a written request from the Lenders’ Representative shall be obliged to provide
a copy of the such O&M Inspection Report.

19.3 Tests

For determining that the Project conforms to the Maintenance Requirements, the
Independent Engineer shall require the Concessionaire to carry out, or cause to
be carried out, tests specified by it in accordance with Good Industry Practice.
The Concessionaire shall, with due diligence, carry out or cause to be carried out
all such tests in accordance with the instructions of the Independent Engineer
and furnish the results of such tests forthwith to the Independent Engineer. One
half of the costs incurred on such tests, and to the extent certified by the
Independent Engineer as reasonable, shall be reimbursed by the Authority to the
Concessionaire.

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19.4 Remedial measures

19.4.1 The Concessionaire shall repair or rectify the defects or deficiencies, if any, set
forth in the O&M Inspection Report or in the test results referred to in Clause
19.3 and furnish a report in respect thereof to the Independent Engineer and the
Authority within 15 (fifteen) days of receiving the O&M Inspection Report or
the test results, as the case may be; provided that where the remedying of such
defects or deficiencies is likely to take more than 15 (fifteen) days, the
Concessionaire shall submit progress reports of the repair works once every
week until such works are completed in conformity with this Agreement.

19.4.2 The Independent Engineer shall require the Concessionaire to carry out or cause
to be carried out tests, at its own cost, to determine that such remedial measures
have brought the Project into compliance with the Maintenance Requirements
and the procedure set forth in this Clause 19.4 shall be repeated until the Project
conforms to the Maintenance Requirements. In the event that remedial measures
are not completed by the Concessionaire in conformity with the provisions of
this Agreement, the Authority shall be entitled to recover Damages from the
Concessionaire under and in accordance with the provisions of Clause 17.8.

19.5 Monthly Fee Statement

During the Operation Period, the Concessionaire shall furnish to the Authority,
within 7 (seven) days of completion of each month, a statement of Fee
substantially in the form set forth in Schedule-M (the “Monthly Fee
Statement”). The Concessionaire shall also furnish to the Authority such other
information as the Authority may reasonably require, at specified intervals, in
discharge of its statutory functions.

19.6 Reports of unusual occurrence

The Concessionaire shall, prior to the close of each day, send to the Authority
and the Independent Engineer, by facsimile or e-mail, a report stating accidents
and unusual occurrences on the Project relating to the safety and security of the
Users and Project. A weekly and monthly summary of such reports shall also be
sent within three days of the closing of each week and month, as the case may
be. For the purposes of this Clause 19.6, accidents and unusual occurrences on
the Project shall include:
(a) death or injury to any person;
(b) damaged or dislodged fixed equipment;
(c) any obstruction on the Project, which results in slow down of the services
being provided by the Concessionaire;
(d) disablement of any equipment during operation;
(e) communication failure affecting the operation of Project;
(f) smoke or fire;
(g) project disruption due to natural calamity;
(h) Broken or cracked ropes

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(i) Obstruction in opening/closing of doors of doors of a cable car; and

(j) such other relevant information as may be required by the Authority or the
Independent Engineer.

19.7 Traffic & Service Quality Survey and Operations Data Collection:

19.7.1 Traffic & Service Quality Survey:

The Authority may require the Concessionaire to conduct, during each year of
the Concession Period, a detailed traffic survey and service quality survey inter-
alia focusing on the comfort and convenience of the Users of the Project, at such
frequency and on such days as the Authority may specify, provided that the
cumulative period of such survey shall not exceed 7 (seven) days in a year. The
Concessionaire shall, at its own cost, cause to be carried out through an external
agency, the survey’s in the form and manner reasonably specified by the
Authority and furnish a report, in the prescribed format, thereof within 07 (seven)
days of the completion of each survey.
For the avoidance of doubt, the Authority may also at its cost, independently,
conduct traffic surveys and /or service quality survey in such manner as it deems
fit, through any external agency designated by it for this purpose.

19.7.2 Operations Data

The Concessionaire shall install and maintain an automated fare collection
system (AFC System) which would help in collating and maintaining
electronic/computerized User data and control the entry and exit of users with a
valid ticket/pass holders; with the objective of, inter-alia collection, storage of
data in a manner capable of being retrieved and analyzed relating to the number
of Users visiting the Project, distance travelled, seasonal variations and capacity
utilization of the Project, and average travel time per round trip. Data in respect
of customer grievance handling system, notices from local authorities or
regulatory authorities, if any, in relation to any breach or violation or threatened
breach / violation or in relation to any environmental concerns shall also be
maintained by the Concessionaire in a manner capable of be retrieved and
analyzed as and when required by the Authority.
A statement of such data shall be compiled and furnished by the Concessionaire
to the Authority as part of the Monthly Progress Report to be submitted by the
Independent Engineer. The Concessionaire shall also provide viewing access to
the Database Server of the AFC system. The system would have following
components:
o Level 0 (User Level): QR codes printed on ticket / NCMC
o Level 1 (Terminal Level): Turnstile Gates, Handheld ticket validation
machines, QR code printer and readers, POS machines, NCMC reader,
Computer, Cash drawers, Ticket vending machines
o Level 2: Servers for App, Database and Website
o Level 3: Website for online purchase of tickets with Payment gateway
integration

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ARTICLE 20
TRAFFIC REGULATION

20.1 Traffic regulation by the Concessionaire

The Concessionaire shall regulate traffic on the Project in accordance with the
Applicable Laws, and subject to the supervision and control of the State
authorities or a substitute thereof empowered in this behalf under the Applicable
Laws.

20.2 Police assistance

For regulating the use of Project in accordance with the Applicable Laws and
this Agreement, the Authority shall assist the Concessionaire in procuring police
assistance from the State Police Department or a substitute thereof. The police
assistance shall include setting up of a traffic aid post (the “Traffic Aid Post”)
at each of the stations with a mobile Police squad for round-the-clock patrolling
of the part or full Project Area.

Though the Concessionaire shall be primarily responsible for ensuring the safety
of the Users and Project Facility and shall accordingly put in place an adequate
security, safety and surveillance arrangement, however, and without any
prejudice to the provisions of Clause 18, if the Authority is of the opinion or is
requested by the Concessionaire to make provision of additional security through
state law enforcement agencies in view of any specific threat or under any other
circumstances requiring state law enforcement agencies intervention, the
Authority shall , in consultation with concerned Government Instrumentalities
and Concessionaire, make suitable security arrangements at its own cost.

20.3 [Deleted]

20.4 Recurring expenditure on Police assistance

On or before the Scheduled Completion Date or whenever required, the

Concessionaire shall provide to the State Police Department or a substitute
thereof one Jeep or similar vehicle in good working condition along with
chauffeurs for round-the-clock patrolling as set forth in Clause 20.2 and shall
meet the operating costs of such vehicle including the salaries and allowances of
the chauffeurs. - For the avoidance of doubt, it is agreed that the Concessionaire
shall not be liable for any other expenditure incurred by the State Police
Department or a substitute thereof.

20.5 Developer is required to make a provision for 1 (One) room of 15ftx15ft for
medical aid & 1 (One) room of 15ftx15ft police beat each in all the Station
buildings.

20.6 Buildings for helping / information desks

The Concessionaire shall construct, at its own cost and expense, helping and / or
information desks at entry and exit points within the Terminal Station premises

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to assist / aid the passengers for any information that they may require about the
Ropeway System. The Concessionaire shall also deploy its own manpower to
man the helping / information desk at its own cost.

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ARTICLE 21
EMERGENCY MEDICAL AID

21.1 Medical Aid Posts

For providing emergency medical aid during the Operation Period, as set forth
in this Agreement, the Concessionaire shall assist the State Government or a
substitute thereof to be designated by the Authority in setting up and operating a
medical aid post (the “Medical Aid Post”) at each of the stations with round-
the-clock ambulance services for victims of accidents on the Project.

21.2 Buildings for Medical Aid Posts / Nursing Staff Facility

The Concessionaire shall, at its cost and in accordance with the type designs
prescribed for such buildings by the State Medical Department (or a substitute
thereof to be designated by the Authority), construct an aid post and 2 (two)
residential quarters, and hand them over to the Authority, not later than 30 (thirty)
days prior to Scheduled Completion date. The Medical Aid Post(s) shall be
deemed to be part of the Site and shall vest in the Authority.

The Concessionaire shall also provide a medical room with nursing staff
facilities to assist in the first aid for any immediate assistance. To account for
any major injury / accident incurred to the passengers, the Concessionaire shall,
in advance, tie up with the nearest hospital, in case of any immediate need of
hospitalization. The Concessionaire should also ensure a live feed, round-the-
clock to the Independent Engineer, Authority and any other entity that Authority
may specify.

21.3 Recurring expenditure on Medical Aid Posts

On or before COD, the Concessionaire shall provide to the State Medical

Department or a substitute thereof to be designated by the Authority one
ambulance in good working condition along with chauffeurs for round-the-clock
ambulance services as set forth in Clause 21.1 and meet the operating costs of
such ambulance including the salaries and allowances of the chauffeurs. The
Concessionaire shall also reimburse to the State Medical Department (or a
substitute thereof to be designated by the Authority) the actual expenditure
incurred by it in each Accounting Year on the medical equipment, and the pay
and allowances of up to 2 (two) medical personnel deployed exclusively for the
Medical Aid Posts and ambulance, and shall maintain the Medical Aid Post
buildings in accordance with Good Industry Practice. For the avoidance of doubt,
it is agreed that the Concessionaire shall not be liable for any other expenditure
incurred by the State Medical Department or a substitute thereof to be designated
by the Authority.

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ARTICLE 22
TRAFFIC CENSUS

22.1 Traffic census

The Concessionaire shall install, maintain, and operate electronic / computerized

counters at each of the Stations and collect data relating to the number of users
using the Project. A weekly statement of such data shall be compiled and
furnished forthwith by the Concessionaire to the Authority substantially in the
form specified in Schedule-N.

22.2 [Deleted]

22.3 [Deleted]

22.4 Computer systems and network

The Concessionaire shall install, operate and maintain a computer system with
round-the-clock connections to the networks of the Authority and other related
entities for exchange of data and information useful or necessary for efficient and
transparent regulation and management of traffic. For this purpose, it shall follow
such protocol for Electronic Data Interchange (the “EDI”) as the Authority may
specify. For the avoidance of doubt, it is agreed that the form specified in
Schedule-N may be modified by the Authority from time to time for conforming
to the requirements and output of EDI.

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ARTICLE 23
INDEPENDENT ENGINEER

23.1 Appointment of Independent Engineer

The Authority shall appoint a consulting engineering firm substantially in

accordance with the selection criteria set forth in Schedule-P, to be the
independent consultant under this Agreement (the “Independent Engineer”).
The appointment shall be made no later than 90 (ninety) days from the date of
this Agreement and shall be for a period of 5 (five) years. On expiry or
termination of the aforesaid period, the Authority may in its discretion renew the
appointment, or appoint another firm to be the Independent Engineer for a term
of 5 (five) years, and such procedure shall be repeated after expiry of each
appointment during the Concession Period.

23.2 Duties and functions

23.2.1 The Independent Engineer shall discharge its duties and functions substantially
in accordance with the terms of reference set forth in Schedule-Q.

23.2.2 A true copy of all communications sent by the Authority to the Independent
Engineer and by the Independent Engineer to the Authority shall be sent
forthwith by the Independent Engineer to the Concessionaire.

23.2.3 A true copy of all communications sent by the Independent Engineer to the
Concessionaire and by the Concessionaire to the Independent Engineer shall be
sent forthwith by the Independent Engineer to the Authority.

23.2.4 Independent Engineer shall periodically submit data on the progress / status of
construction works, financial progress and other requisite details at such interval,
as mentioned in the TOR, which shall enable the Authority for updating the
project specific website, substantially in the format prescribed at Appendix –
IV*.

23.3 Remuneration

The remuneration, cost and expenses of the Independent Engineer shall be paid
by the Authority and subject to the limits set forth in Schedule-P, one-half of
such remuneration, cost and expenses shall be reimbursed by the Concessionaire
to the Authority within 15 (fifteen) days of receiving a statement of expenditure
from the Authority.

23.4 Termination of appointment

23.4.1 The Authority may, in its discretion, terminate the appointment of the
Independent

*A sample format enclosed at Appendix – IV in clause 23.2.4 and Schedule Q. The format may be
modified as per requirement of the project

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Engineer at any time, but only after appointment of another Independent

Engineer in accordance with Clause 23.1.

23.4.2 If the Concessionaire has reason to believe that the Independent Engineer is not
discharging its duties and functions in a fair, efficient and diligent manner, it may
make a written representation to the Authority and seek termination of the
appointment of the Independent Engineer. Upon receipt of such representation,
the Authority shall hold a tripartite meeting with th Concessionaire and
Independent Engineer for an amicable resolution of the Dispute, and if any
difference or disagreement between the Authority and the Concessionaire
remains unresolved, the Dispute shall be settled in accordance with the Dispute
Resolution Procedure. In the event that the appointment of the Independent
Engineer is terminated hereunder, the Authority shall appoint forthwith another
Independent Engineer in accordance with Clause 23.1.

23.5 Authorised signatories

The Authority shall require the Independent Engineer to designate and notify to
the Authority and the Concessionaire up to 2 (two) persons employed in its firm
to sign for and on behalf of the Independent Engineer, and any communication
or document required to be signed by the Independent Engineer shall be valid
and effective only if signed by any of the designated persons; provided that the
Independent Engineer may, by notice in writing, substitute any of the designated
persons by any of its employees.

23.6 Dispute resolution

If either Party disputes any advice, instruction, decision, direction or award of

the Independent Engineer, or, as the case may be, the assertion or failure to assert
jurisdiction, the Dispute shall be resolved in accordance with the Dispute
Resolution Procedure.

23.7 Interim arrangement

In the event that the Authority does not appoint an Independent Engineer, or the
Independent Engineer so appointed has relinquished its functions or defaulted in
discharge thereof, the Authority may, in the interim, designate and authorize any
person to discharge the functions of the Independent Engineer in accordance with
the provisions of this Agreement, save and except that such person shall not
exercise any functions relating to review, comment, approval or inspection as
specified in this Agreement for and in respect of the Independent Engineer, and
such functions shall be discharged as and when an Independent Engineer is
appointed in accordance with the provisions of this Agreement. Provided,
however, that nothing contained in this Clause 23.7 shall in any manner restrict
the rights of the Authority to enforce compliance of the provisions of this
Agreement.

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Part IV
Financial Covenants

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ARTICLE 24
FINANCIAL CLOSE
24.1 Financial Close
24.1.1 The Concessionaire hereby agrees and undertakes that it shall achieve Financial
Close within 180 (one hundred and eighty) days from the date of this Agreement
and in the event of delay, it shall be entitled to a further period not exceeding 120
(one hundred and twenty) days, subject to payment of Damages to the Authority
in a sum calculated at the rate of 0.1% (zero point one per cent) of the
Performance Security for each day of delay, or for a further period not exceeding
200 (Two Hundred) days, subject to payment of Damages specified in Clause
4.3; provided that the Damages specified herein shall be payable every week in
advance and the period beyond the said 180 (one hundred and eighty) days shall
be granted only to the extent of Damages so paid; provided further that no
Damages shall be payable if such delay in Financial Close has occurred solely as
a result of any default or delay by the Authority in procuring satisfaction of the
Conditions Precedent specified in Clause 4.1.2 or due to Force Majeure. For the
avoidance of doubt, the Damages payable hereunder by the Concessionaire shall
be in addition to the Damages, if any, due and payable under the provisions of
Clause 4.3.

24.1.2 The Concessionaire shall, upon occurrence of Financial Close, notify the
Authority forthwith, and shall have provided to the Authority, at least 2 (two)
days prior to Financial Close, 3 (three) true copies of the Financial Package and
the Financial Model, duly attested by a Director of the Concessionaire, along
with 3 (three) soft copies of the Financial Model in MS Excel version or any
substitute thereof, which is acceptable to the Senior Lenders.

24.2 Termination due to failure to achieve Financial Close

24.2.1 Notwithstanding anything to the contrary contained in this Agreement, but

subject to Clause 34.6.1, in the event that Financial Close does not occur, for any
reason whatsoever, within the period set forth in Clause 24.1.1, all rights,
privileges, claims and entitlements 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.

24.2.2 Upon Termination under Clause 24.2.1, the Authority shall be entitled to encash
the Bid Security and appropriate the proceeds thereof as Damages; provided,
however, if Financial Close has not occurred solely as a result of the Authority
being in default of any of its obligations under Clause 4.2, it shall, upon
Termination, return the Bid Security forthwith along with Damages due and
payable under clause 4.2. For the avoidance of doubt, it is expressly agreed that
if the Bid Security shall have been substituted by Performance Security, the
Authority shall be entitled to encash therefrom an amount equal to Bid Security.

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ARTICLE 25
GRANT
{25.1 Grant

25.1.1 The Authority agrees to provide to the Concessionaire cash support by way of
an outright grant equal to the sum set forth in the Bid, namely, Rs. ............
(Rupees in words ........................), in accordance with the provisions of this
Article 25 (the “Grant”).

25.1.2 The Grant shall be disbursed to the Concessionaire by way of Equity Support in
accordance with the provisions of Clause 25.2.

25.2 Equity Support

25.2.1 Subject to the conditions specified in this Clause 25.2, the Grant shall be credited
to the Escrow Account and shall be applied by the Concessionaire for meeting
the Total Project Cost (the “Equity Support”).

25.2.2 “The Equity Support3 shall not exceed the sum specified in the Bid and as
accepted by the Authority but shall in no case be greater than twice the Equity,
and shall be further restricted to a sum not exceeding 40% (forty per cent) of the
Total Project Cost. For the avoidance of doubt, the Total Project Cost to be
reckoned for the purposes of this Clause 25.2.2 shall include Equity Support.”

25.2.3 Equity Support shall be due and payable to the Concessionaire after it has
expended the Equity and shall be disbursed proportionately along with the loan
funds to be disbursed by the Senior Lenders under the Financing Agreements.
The Authority shall disburse each tranche of the Equity Support as and when
due, but not later than 15 (fifteen) days of receiving a request from the
Concessionaire along with necessary particulars. Provided further, within 30
(thirty) days of Lenders Representative certifying the final drawdown of the last
instalment of the debt, all the balance Equity Support shall be disbursed by the
Authority.

25.2.4 In the event of occurrence of a Concessionaire Default, disbursement of Equity

Support shall be suspended till such Concessionaire Default has been cured by
the Concessionaire.

25.3 Deleted

{PREMIUM}

{25.4 Premium

The Concessionaire acknowledges and agrees that as set forth in the Bid, it shall
pay to the Authority for each year of the Concession Period, a premium (the
“Premium”) in the form of an additional Concession Fee, as set forth in Clause
26.2.1, and in the manner set forth in Clause 26.4.}
3 However, in projects where special dispensation of VGF upto 20% of TPC is allowed by the Government, the square bracket and
contents therein would be removed / cancelled and the restricting provision of 10% of TPC would be modified to 20%.

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ARTICLE 26

CONCESSION FEE

26.1 Concession Fee

In consideration of the grant of Concession, the Concessionaire shall pay to the

Authority by way of concession fee (the “Concession Fee”) a sum of 5% (Five
Percent) of the annual Realizable Revenue {and the Premium specified
in Clause 26.2}.

26.2 Additional Concession Fee

26.2.1 Without prejudice to the provisions of Clause 26.1, the Concessionaire agrees to
pay to the Authority immediately after the second (2nd) anniversary year of COD,
a premium (the “Premium”) in the form of an additional Concession Fee for
every year of the remaining Concession Period, to be calculated on total
Realisable Fee in the manner stated in this clause. The Premium to be paid for
the 3rd year of the COD shall equal to (............................................. percent)
of the total Realisable Fee during that year. For all subsequent years, the
Premium shall be determined on the total Realisable Fee in the respective year
at the percentage to be arrived at by increasing the percentage of Premium by an
additional 1% (one percent) as compared to the immediately preceding year.

For the avoidance of doubt, and by way of illustration, if the Premium for the 3rd
year after COD is 1.5% (one point five per cent), then the premium for the 4 th
year shall be equal to 2.5% (two point five per cent) of the total Realisable Fee
for that year.

26.2.2 The Premium payable under Clause 26.2.1 and payment payable under Clause
16.6.1 (a) by the Concessionaire shall be deemed to be part of the Concession
Fee for the purposes of this Agreement.

26.3 (Deleted)

26.4 Payment of Concession Fee

The Concession Fee payable under the provisions of this Article 26 shall be due
and payable in monthly instalments, within 7 (seven) days of the close of each
month.

26.5 Verification of Realisable Fee

26.5.1 The Authority may, in order to satisfy itself that the Concessionaire is reporting
its Realisable Fee honestly and faithfully, depute its representatives to the
station(s) and the offices of the Concessionaire, and undertake such other
measures and actions as it may deem necessary, to ascertain the actual Fee
revenues.

26.5.2 The Parties hereto agree that if the average daily Fee revenue determined under
this Clause exceeds the average daily Realisable Fee reported by the

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Concessionaire during the preceding month by 1% (one percent) thereof, the

difference between such Fee revenue and Realisable Fee shall be multiplied by
180 (one hundred and eighty) and the product thereof shall be paid as Damages
by the Concessionaire to the Authority, and in the event of any Dispute relating
to the traffic sampling, the Dispute Resolution Procedure shall apply. For the
avoidance of doubt, it is agreed that seasonal variations in traffic volume shall be
determined by the Independent Engineer on the basis of past trends and other
relevant information, and due weightage shall be assigned to such variations in
computing the Realisable Fee under this Clause 26.5.2.

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ARTICLE 27
USER FEE

27.1 Collection and appropriation of Fee

27.1.1 On and from the COD till the Transfer Date, the Concessionaire shall have the
sole and exclusive right to demand, collect and appropriate Fee from the Users
subject to and in accordance with this Agreement, model tariff guidelines
defined by National Highways Logistics Management Limited and as per the
relevant State Aerial Ropeway Act. (the “Fee Rules”); provided that for ease of
payment and collection, such Fee shall be rounded off to the nearest 5 (five)
rupees in accordance with the Fee Rules; provided further that the
Concessionaire may determine and collect Fee at such lower rates as it may, by
public notice to the Users, specify in respect of all or any category of Users. The
maximum fare for the base year (FY2023-24) for the Project shall be Rs. 2,710/-
per passenger per direction.

27.1.2 The Parties acknowledge that a notification for levy and collection of Fee shall
be issued by the State Govt. as per the relevant State Aerial Ropeway Act and
Rules (the “Fee Notification”) within 90 (ninety) days hereof substantially in
the form set forth in Schedule-R.

27.1.3 The Concessionaire acknowledges and agrees that upon payment of Fee, any
User shall be entitled to use the Project and the Concessionaire shall not place,
or cause to be placed, any restriction on such use, except to the extent specified
in any Applicable Law, Applicable Permit, or the provisions of this Agreement.

27.1.4 The Concessionaire acknowledges and agrees that any User who is not liable for
payment of the Fee shall be entitled to use the Project without any restrictions,
except to the extent specified in any Applicable Law, Applicable Permit, or the
provisions of this Agreement. For the avoidance of doubt, the Concessionaire
hereby acknowledges that exempted users are not liable to payment of Fee.

27.2 Revision of Fee

27.2.1 The Parties hereto acknowledge and agree that the Fee shall be revised annually
on April 1 with reference to the base year 2023-24, in accordance with the Fee
Rules to reflect the variation in WPI and with an increase of maximum upto 5%
of the fare in the previous financial year, and then rounded off to the nearest 5
(five) rupees; provided, however, that no revision shall be affected within a
period of 6 (six) months from the date of the preceding revision of Fee.

27.2.2 Deleted

27.2.3 The Concessionaire hereby acknowledges and agrees that it is not entitled to any
revision of Fee or other relief from the Authority or any Government
Instrumentality except in accordance with the express provisions of this
Agreement.

27.3 [Deleted]

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27.4 [Deleted]

27.5 [Deleted]

27.6 [Deleted]

27.7 User Fee Collection Contractor

The Concessionaire may appoint a User Fee Collection Contractor or any other
person to collect the Fee for and on behalf of the Concessionaire, provided that
notwithstanding such appointment, the Concessionaire shall be and remain solely
liable and responsible for the collection of Fee in accordance with this
Agreement and its deposit into the Escrow Account and for compliance with the
provisions of this Agreement.

27.8 Fee collection points

Fee shall ordinarily be collected from Users at the Ticket Counters at Ropeway
Stations and Ticket Vending Machines for using the whole or part of the Project;
provided that for preventing evasion of Fee by any User. To cater to the increased
flow of traffic, the Concessionaire shall be entitled to set up at its own risk and
cost, and in consultation with the Independent Engineer, its temporary or
permanent User Fee collection booths, as may reasonably be necessary.

27.9 Additional charge for evasion of Fee

In the event that any user uses the Project without payment of Fee due, the
Concessionaire shall be entitled to determine and collect from such user the Fee
due and an equivalent amount towards predetermined liquidated damages for
attempt to make unauthorised use of the Project; provided that the determination
and collection of such liquidated damages shall be at the risk and cost of the
Concessionaire and the Authority shall not in any manner be liable on account
thereof; provided that upon failure of the user to pay Fee, the Concessionaire
may prevent such user from using the Project and may have such user removed
therefrom.

27.10 [Deleted]

27.11 Display of Fee rates

27.11.1 The Concessionaire shall conspicuously display the Fee structure at each of the
Terminal Stations of the Project using signages at least in English, Hindi and
vernacular language.

27.11.2 The Concessionaire shall, from time to time, inform the Authority of the
applicable Fee and the detailed calculation thereof. Such information shall be
communicated at least 30 (thirty) days prior to the revision of Fee under and in
accordance with the Fee Rules.

27.11.3 The Concessionaire shall not revise, display, or collect any amounts in excess of
the rates as notified by the State Govt. In the event any excess amounts are
collected by or on behalf of the Concessionaire or collect Fee during periods when
it is not entitled to do so, it shall, upon receiving a notice to this effect from the

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Authority, deposit with the Authority such excess amounts to the Authority along
with Damages equal to 200% (two hundred percent) thereof.

27.12 Fee collection

The Concessionaire agrees and undertakes to collect, as its own cost and expense,
by various means such as cash, UPI, Net Banking or any other modes acceptable
by users and devices as the Authority may determine from time to time.

27.13 Real time data for user fee collection

The Concessionaire shall install appropriate mechanism to ensure that a real time
data of user count and corresponding revenue collection shall be shared with the
Authority at all times during the Operations period.

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ARTICLE 28
REVENUE SHORTFALL LOAN
28.1 Revenue Shortfall Loan

28.1.1 If the Realisable Fee in any Accounting Year shall fall short of the Subsistence
Revenue as a result of an Indirect Political Event, a Political Event or an
Authority Default, as the case may be, the Authority shall, upon request of the
Concessionaire, provide a loan for meeting such shortfall (the “Revenue
Shortfall Loan”) at an interest rate equal to 2% (two per cent) above the Bank
Rate.

28.1.2 If the half-yearly results of the Concessionaire indicate that the shortfall referred
to in Clause 28.1.1 and contemplated for an Accounting Year has arisen in respect
of the first 6 (six) months thereof, the Concessionaire shall be entitled to a
provisional Revenue Shortfall Loan; provided that, no later than 60 (sixty) days
after the close of such Accounting Year, the Concessionaire shall either repay the
provisional loan with interest or adjust it against the Revenue Shortfall Loan, if
any, as may be due to it under this Clause 28.1.

Provided further if the Realisable Fee in any Accounting Year shall fall short of
the Subsistence Revenue as a result of a judicial pronouncement not related to the
default of the Concessionaire the Authority shall, upon request of the
Concessionaire, provide “Revenue Shortfall Loan” at an interest rate equal to 2%
(two percent) above the Bank Rate. The entire surplus cash, after meeting the
subsistence expenditure shall be used for repayment of such Revenue Shortfall
Loan.

28.1.3 The Authority shall disburse the Revenue Shortfall Loan or the provisional
Revenue Shortfall Loan, as the case may be, within 60 (sixty) days of receiving a
valid request from the Concessionaire along with the particulars thereof including
a detailed account of the Indirect Political Event, Political Event or the Authority
Default, as the case may be, and its impact on the collection of Fee.

28.2 Repayment of Revenue Shortfall Loan

A sum equal to 50% (fifty per cent) of the ‘profit before tax’ of the
Concessionaire, as and when made, shall be earmarked for repayment of the
Revenue Shortfall Loan and interest thereon, and paid by the Concessionaire to
the Authority within 90 (ninety) days of the close of the Accounting Year in which
such profits have been made; provided that the Concessionaire shall repay the
entire Revenue Shortfall Loan and interest thereon not later than one year prior to
the expiry of the Concession Period and in the event that any sum remains due or
outstanding at any time during such period of one year, the Authority shall be
entitled to terminate this Agreement forthwith. For the avoidance of doubt, it is
agreed that the repayment of Revenue Shortfall Loan shall be in accordance with
and subject to the provisions of Article 31.

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ARTICLE 29

EFFECT OF VARIATIONS IN TRAFFIC GROWTH

29.1 Effect of variations in traffic growth

29.1.1 The Authority and the Concessionaire acknowledge that the traffic (the “Target
Traffic”) as on the dates mentioned in the Table below (the “Target Date”) is
expected to be as under:

Target Traffic on Ropeway

Target Date (in No. of passengers both
directions)
31-Mar-32 174986
31-Mar-37 734800
31-Mar-42 1627867
31-Mar-47 2528522
31-Mar-52 2791693
31-Mar-57 3082255
31-Mar-62 3403058
31-Mar-66 3683578

and hereby agree that for determining the modifications to the Concession
Period under this Article 29, the actual traffic on each Target Date shall be
derived based on latest technologies and procedures prescribed by the Authority
(the “Actual Traffic”). In order to calculate the Actual Traffic, the daily
passengers for the operational period, 365 days prior to the Target Date shall be
assessed by the Authority by computing the total passengers of all the Ropeway
Stations of the Project.

For the avoidance of doubt, in the event of any Dispute relating to Actual
Traffic, the Dispute Resolution Procedure shall apply.

29.1.2 In the event that the Actual Traffic shall have fallen short of the Target Traffic
by more than 5% (five per cent) thereof or exceeded the Target Traffic by more
than 5% (five per cent) thereof the Concession Period shall be modified in
accordance with Clause 29.2 in accordance with Clause 29.2 though a
Supplementary Agreement

29.2 Modification in the Concession Period

29.2.1 In the event Actual Traffic shall have fallen short of the Target Traffic by more
than 5% (five percent), then for every 1% (one per cent) shortfall as compared to
the Target Traffic, the remaining Concession Period shall, subject to payment of
Concession Fee in accordance with this Agreement, be increased by 1% (one per
cent) thereof; provided that such increase in Concession Period shall not in any
case exceed 20% (twenty per cent) of the Concession Period. For decrease in
traffic in fraction of one percent or part thereof beyond 5% variation shall result
in increase in Concession period on pro-rata basis. Further, it is clarified that the

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subsequent Target Traffic as specified in 29.1.1 shall be reduced by the same

percentage. For the avoidance of doubt, and by way of illustration, it is agreed
that in the event the Target Traffic is expected to be as follows:

S. 365 days Annual Traffic Remaining Target Date

No. period for last 365 Concession
ending on days Period (in
Yrs)
1 1 Apr 2032 1,00,000 34 Target Date 1
2 1 Apr 2037 2,00,000 29 Target Date 2
3 1 Apr 2042 3,00,000 24 Target Date 3
4 1 Apr 2047 4,00,000 19 Target Date 4

and in case the Actual Traffic for Target Date 1 is 87500 Passengers, then the remaining
Concession Period shall be increased by 7.5% (seven point five per cent) thereof to 36.5
years and the subsequent target traffic shall be revised to:

S. 365 days Annual Traffic for last 365 Target Date

No. period days
ending on
1 1 Apr 2032 2,00,000X(1-7.5%) = 1,85,000 Target Date 2
2 1 Apr 2037 2,77,500 Target Date 3

29.2.2 In the event Actual Traffic shall have exceeded the Target Traffic by more than
5% (five percent), then for every 1% (one per cent) increase as compared to the
Target Traffic, the Concession Period shall be reduced by 1% (one per cent)
thereof; provided that such reduction in Concession Period shall not in any case
exceed 20% (twenty per cent) of the Concession Period. For increase in traffic
in fraction of one percent or part thereof beyond 5% variation shall result in
decrease in Concession period on pro-rata basis. Further, it is clarified that the
subsequent Target Traffic as specified in 29.1.1 shall be increased by the same
percentage. For the avoidance of doubt and by way of illustration, it is agreed
that in the event the Target Traffic is expected to be as follows:

S. 365 days Annual Traffic Remaining Target Date

No. period ending for last 365 Concession
on days Period (in
Yrs)
1 1 Apr 2032 1,00,000 34 Target Date 2
2 1 Apr 2037 2,00,000 29 Target Date 3

and in case the Actual Traffic in the 365-day period ending on 1 Apr 2032 is
1,12,500 passengers, then the remaining Concession Period shall be decreased by
7.5% (Seven point five per cent) thereof to 32.5 years and the subsequent Target
Traffic shall be revised to:
S. No. 365 days Annual Traffic for last Target Date
period ending 365 days
on
1 1 Apr 2037 2,15,000 Target Date 3

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29.2.3 Notwithstanding anything to the contrary contained in this Agreement, if the

Annual traffic in any two Accounting Years in a block of three continuous
Accounting Years shall exceed the design capacity of the Project, the Authority
shall Buy Back the Project in accordance with the provisions of Clause 37.2A.
In order to calculate the design capacity, the Annual traffic for Accounting Year
shall be assessed by the Authority.

For the avoidance of doubt, the Parties agree that an annual traffic of both
direction is 3683578 Passengers shall be deemed to be the design capacity of the
Project.

29.2.4 Deleted.

29.2.5 In case of modification in the Concession Period in accordance with Clause

29.2.1 or Clause 29.2.2 for a period of more than 6 months, the outstanding debt
specified in Schedule X shall be modified upto the said period proportionately
from the next quarter following the Target Date, as illustrated below:

Illustration: In a case of Concession Period of 20 years (including Construction

Period of 30 months), the repayment was to be made over 15 years with
moratorium of two quarters. After end of 50th quarter from COD, if the
Concession Period is increased by 6 months, the Schedule X shall be modified
as under;

Quarter
wise
Quar Outstan deferment Revised
ter Repay ding of Revised Outstanding
end ment debt repayment Repayment debt

E = (B-D) and
balance
repayment
D= (2 equally
quarters/12 distributed in
quarters)* extended
A B C B period F=(C-E)

51 2.15% 27.50% 0.36% 1.79% 27.86%

52 2.20% 25.30% 0.37% 1.83% 26.03%

53 2.26% 23.04% 0.38% 1.88% 24.14%

54 2.31% 20.73% 0.39% 1.93% 22.22%

55 2.37% 18.36% 0.40% 1.98% 20.24%

56 2.43% 15.93% 0.41% 2.03% 18.22%

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57 2.49% 13.44% 0.42% 2.08% 16.14%

58 2.55% 10.89% 0.43% 2.13% 14.02%

59 2.62% 8.27% 0.44% 2.18% 11.83%

60 2.68% 5.59% 0.45% 2.23% 9.60%

61 2.75% 2.84% 0.46% 2.29% 7.31%

62 2.84% 0.00% 0.47% 2.37% 4.94%

63 2.47% 2.47%

64 2.47% 0.00%

29.65
4.94%
Total % 29.65%

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ARTICLE 30
CONSTRUCTION OF ADDITIONAL ROPEWAY
30.1 Restriction on construction of Additional Ropeway

30.1.1 Notwithstanding anything to the contrary contained in this Agreement but

subject always to Clause 30.2, the Authority shall not construct, and shall procure
that no Government Instrumentality shall construct or cause to be constructed,
any ropeway upto Kedarnath in the State of Uttarakhand (collectively the
“Additional Ropeway”) for use by traffic at any time during the Concession
Period. For the avoidance of doubt, Additional Ropeway does not include any
ropeway connecting, inter alia, Sonprayag with any other Kedarnath in the State
of Uttarakhand.

30.1.2 If the Authority shall be in breach of the provisions of Clause 30.1.1, the
Concessionaire shall be entitled to receive compensation from the Authority
under and in accordance with the provisions of Clause 35.4 and enhancement in
the Concession Period under and in accordance with the provisions of Clause
30.2.

30.2 Modification in the Concession Period

If the Authority shall be in breach of the provisions of Clause 30.1.1, the

Concessionaire shall be entitled to an enhancement of Concession Period in
accordance with Clause 29.2.1 and such enhancement shall be deemed to cure
the breach of this Agreement. This shall, however, be subject to provisions of
Clause 29.2.3 of the Agreement.

30.3 Minimum Fee for the Project

Upon commissioning of the Additional Ropeway, the Concessionaire shall

continue to collect the Fee, and shall not offer any discounts or reductions in such
Fee except with the prior written consent of the Authority; provided that the
Concessionaire may continue, in the same form and manner, any discounts or
reductions that it had offered to any general or special class of Users for a
continuous period of three years prior to the opening of the Additional Ropeway
to traffic.

30.4 Minimum Fee for Additional Ropeway

The Authority agrees and undertakes to procure that the fee to be levied and
collected during the subsistence of this Concession from any user using the
Additional Ropeway shall at no time be less than 25% (twenty five percent)
higher than the Fee levied and collected from similar users using the Project.

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ARTICLE 31
ESCROW ACCOUNT

31.1 Escrow Account

31.1.1 The Concessionaire shall, prior to the Appointed Date, open and establish an
Escrow Account with a Bank (the “Escrow Bank”) in accordance with this
Agreement read with the Escrow Agreement.

31.1.2 The nature and scope of the Escrow Account are fully described in the agreement
(the “Escrow Agreement”) to be entered into amongst the Concessionaire, the
Authority, the Escrow Bank and the Senior Lenders through the Lenders’
Representative, which shall be substantially in the form set forth in Schedule-S.

31.1.3 The Escrow Bank shall also provide to the Authority the facility for online
viewing and downloading the account statement of Escrow Account at all times
during the Concession Period.

31.2 Deposits into Escrow Account

The Concessionaire shall deposit or cause to be deposited the following inflows

and receipts into the Escrow Account from COD or partial COD, wherever
applicable on a monthly basis:

(a) all funds constituting the Financial Package;

(b) all Fee and any other revenues from or in respect of the Project, including
the proceeds of any rentals, license fees, deposits, capital receipts or
insurance claims or any compensation amount received; and

(c) all payments by the Authority, after deduction of any outstanding

Concession Fee:

Provided that the Senior Lenders may make direct disbursements to the EPC
Contractor in accordance with the express provisions contained in this behalf in
the Financing Agreements.

31.3 Withdrawals during Concession Period

31.3.1 The Concessionaire shall, at the time of opening the Escrow Account, give
irrevocable instructions, by way of an Escrow Agreement, to the Escrow Bank
instructing, inter alia, that deposits in the Escrow Account shall be appropriated
in the following order every month, or at shorter intervals as necessary, 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:
(a) all taxes due and payable by the Concessionaire for and in respect of the
Project;

(b) all payments relating to construction of the Project, subject to and in

accordance with the conditions, if any, set forth in the Financing
Agreements;

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(c) O&M Expenses, subject to the ceiling, if any, set forth in the Financing
Agreements;

(d) O&M Expenses and other costs and expenses incurred by the Authority
in accordance with the provisions of this Agreement, and certified by the
Authority as due and payable to it;

(e) Concession Fee due and payable to the Authority;

(f) monthly proportionate provision of Debt Service due in an Accounting

Year;

(g) all payments and Damages certified by the Authority as due and payable
to it by the Concessionaire, including repayment of Revenue Shortfall
Loan; Concessionaire hereby agrees to give irrevocable instructions to
the Escrow Bank to make payment from the Escrow Account in
accordance with the instructions of the Authority under Clause 17.9.2 and
debit the same to O&M Expenses.

(h) monthly proportionate provision of debt service payments due in an

Accounting Year in respect of Subordinated Debt;

(i) any reserve requirements set forth in the Financing Agreements; and

(j) balance, if any, in accordance with the instructions of the Concessionaire.

31.3.2 The Concessionaire shall not in any manner modify the order of payment
specified in Clause 31.3.1, except with the prior written approval of the
Authority.

31.4 Withdrawals upon Termination

31.4.1 Notwithstanding anything to the contrary contained in this Agreement, all

amounts standing to the credit of the Escrow Account shall, upon Termination,
be appropriated in the following order:
(a) all taxes due and payable by the Concessionaire for and in respect of the
Project;

(b) outstanding Concession Fee;

(c) 90% (ninety per cent) of Debt Due excluding Subordinated Debt;

(d) all payments and Damages certified by the Authority as due and payable
to it by the Concessionaire, including repayment of Revenue Shortfall
Loan and any claims in connection with or arising out of Termination;

Concessionaire hereby agrees to give irrevocable instructions to the

Escrow Bank to make payment from the Escrow Account in accordance
with the instructions of the Authority under Clause 17.9.2 and debit the
same to O&M Expenses.

(e) retention and payments relating to the liability for defects and

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deficiencies set forth in Article 39;

(f) outstanding Debt Service including the balance of Debt Due;

(g) outstanding Subordinated Debt;

(h) incurred or accrued O&M Expenses;

(i) any other payments required to be made under this Agreement; and

(j) balance, if any, in accordance with the instructions of the

Concessionaire:

Provided that no appropriations shall be made under Sub-clause (j) of

this Clause 31.4.1 until a Vesting Certificate has been issued by the
Authority under the provisions of Article 38.

31.4.2 The provisions of this Article 31 and the instructions contained in the Escrow
Agreement shall remain in full force and effect until the obligations set forth in
Clause 31.4.1 have been discharged.

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ARTICLE 32
INSURANCE

32.1 Insurance during Concession Period

The Concessionaire shall effect and maintain at its own cost, during the
Construction Period and the Operation Period, such insurances for such
maximum sums not less than the engineering, procurement and construction cost
under the Financing Agreements, and the Applicable Laws, and such insurances
as may be necessary or prudent in accordance with Good Industry Practice. The
Concessionaire shall also effect and maintain such insurances as may be
necessary for mitigating the risks that may devolve on the Authority as a
consequence of any act or omission of the Concessionaire during the
Construction Period. The Concessionaire shall procure that in each insurance
policy, the Authority shall be a co-insured and that the insurer shall pay the
proceeds of insurance into the Escrow Account. For the avoidance of doubt, the
level of insurance to be maintained by the Concessionaire after repayment of
Senior Lenders’ dues in full shall be determined on the same principles as
applicable for determining the level of insurance prior to such repayment of
Senior Lenders’ dues.

Without prejudice to the above provisions, the Concessionaire shall, after the
COD, procure and maintain Insurance Cover including but not limited to the
following:

(a) Loss, damage or destruction of the Project Assets, including assets

handed over by the Authority to the Concessionaire, at replacement
value;

(b) Comprehensive third-party liability insurance including injury to or death

of personnel of the Authority or others caused by the Project;

(c) The Concessionaire’s general liability arising out of the Concession;

(d) Liability to third parties for goods or property damage;

(e) Workmen’s compensation insurance; and

(f) passenger accident insurance for the passengers on-board the ropeway
project having a valid ticket. For the avoidance of doubt, the
Concessionaire shall procure an insurance equivalent to at least Rs.10
lakhs in case of any fatality and at least Rs.2 lakhs in case of any type of
injury; and

(g) any other insurance that may be necessary to protect the Concessionaire
and its employees, including all Force Majeure Events that are insurable
at commercially reasonable premiums and not otherwise covered in
items(a) to (f) above

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32.2 Notice to the Authority

Not later than 45 (forty-five) days prior to commencement of the Construction
Period or the Operation Period, as the case may be, the Concessionaire shall by
notice furnish to the Authority, in reasonable detail, information in respect of the
insurances that it proposes to effect and maintain in accordance with this Article
32. Within 30 (thirty) days of receipt of such notice, the Authority may require
the Concessionaire to effect and maintain such other insurances as may be
necessary pursuant hereto, and in the event of any difference or disagreement
relating to any such insurance, the Dispute Resolution Procedure shall apply.

32.3 Evidence of Insurance Cover

All insurances obtained by the Concessionaire in accordance with this Article 32

shall be maintained with insurers on terms consistent with Good Industry
Practice. Within 15 (fifteen) days of obtaining any insurance cover, the
Concessionaire shall furnish to the Authority, notarised true copies of the
certificate(s) of insurance, copies of insurance policies and premia payment
receipts in respect of such insurance, and no such insurance shall be cancelled,
modified, or allowed to expire or lapse until the expiration of at least 45 (forty
five) days after notice of such proposed cancellation, modification or non-
renewal has been delivered by the Concessionaire to the Authority.

32.4 Remedy for failure to insure

If the Concessionaire shall fail to effect and keep in force all insurances for which
it is responsible pursuant hereto, the Authority shall have the option to either
keep in force any such insurances, and pay such premia and recover the costs
thereof from the Concessionaire, or in the event of computation of a Termination
Payment, treat an amount equal to the Insurance Cover as deemed to have been
received by the Concessionaire.

32.5 Waiver of subrogation

All insurance policies in respect of the insurance obtained by the Concessionaire

pursuant to this Article 32 shall include a waiver of any and all rights of
subrogation or recovery of the insurers thereunder against, inter alia, the
Authority, and its assigns, successors, undertakings and their subsidiaries,
affiliates, employees, insurers and underwriters, and of any right of the insurers
to any set-off or counterclaim or any other deduction, whether by attachment or
otherwise, in respect of any liability of any such person insured under any such
policy or in any way connected with any loss, liability or obligation covered by
such policies of insurance.

32.6 Concessionaire’s waiver

The Concessionaire hereby further releases, assigns and waives any and all rights
of subrogation or recovery against, inter alia, the Authority and its assigns,
undertakings and their subsidiaries, affiliates, employees, successors, insurers
and underwriters, which the Concessionaire may otherwise have or acquire in or
from or in any way connected with any loss, liability or obligation covered by
policies of insurance maintained or required to be maintained by the

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Concessionaire pursuant to this Agreement (other than third party liability

insurance policies) or because of deductible clauses in or inadequacy of limits of
any such policies of insurance.

32.7 Application of insurance proceeds

The proceeds from all insurance claims, except life and injury, shall be paid to
the Concessionaire by credit to the Escrow Account and it shall, notwithstanding
anything to the contrary contained in Clause 31.3, apply such proceeds for any
necessary repair, reconstruction, reinstatement, replacement, improvement,
delivery or installation of the Project, and the balance remaining, if any, shall be
applied in accordance with the provisions contained in this behalf in the Financing
Agreements.

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ARTICLE 33
ACCOUNTS AND AUDIT

33.1 Audited accounts

33.1.1 The Concessionaire shall maintain books of accounts recording all its receipts
(including all Realisable Fees and other revenues derived/collected by it from or
on account of the Project and/or its use), income, expenditure, payments
(including payments from the Escrow Account), assets and liabilities, in
accordance with this Agreement, Good Industry Practice, Applicable Laws and
Applicable Permits. The Concessionaire shall provide 2 (two) copies of its
Balance Sheet, Cash Flow Statement and Profit and Loss Account, along with a
report thereon by its Statutory Auditors, within 180 (one hundred and eighty)
days of the close of the Accounting Year to which they pertain and such audited
accounts, save and except where expressly provided to the contrary, shall form
the basis of payments by either Party under this Agreement. The Authority shall
have the right to inspect the records of the Concessionaire during office hours
and require copies of relevant extracts of books of accounts, duly certified by the
Statutory Auditors, to be provided to the Authority for verification of basis of
payments, and in the event of any discrepancy or error being found, the same
shall be rectified and such rectified account shall form the basis of payments by
either Party under this Agreement.

33.1.2 The Concessionaire shall, within 30 (thirty) days of the close of each quarter of
an Accounting Year, furnish to the Authority its unaudited financial results in
respect of the preceding quarter, in the manner and form prescribed by the
Securities and Exchange Board of India for publication of quarterly results by
the companies listed on a stock exchange.

33.1.3 On or before the thirty-first day of May each Year, the Concessionaire shall
provide to the Authority, for the preceding Accounting Year, a statement duly
audited by its Statutory Auditors giving summarised information on (a) the
traffic count of Passengers using the Project and liable for payment of Fee
therefor, (b) Fee charged and received, Realisable Fee and other revenues derived
from the Project, and (c) such other information as the Authority may reasonably
require.

33.2 Appointment of auditors

33.2.1 The Concessionaire shall appoint, and have during the subsistence of this
Agreement as its Statutory Auditors, a firm chosen by it from the mutually agreed
list of 10 (ten) reputable firms of chartered accountants (the “Panel of Chartered
Accountants”), such list to be prepared substantially in accordance with the
criteria set forth in Schedule-T. All fees and expenses of the Statutory Auditors
shall be borne by the Concessionaire.

33.2.2 The Concessionaire may terminate the appointment of its Statutory Auditors
after a notice of 45 (forty five) days to the Authority, subject to the replacement
Statutory Auditors being appointed from the Panel of Chartered Accountants.

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33.2.3 Notwithstanding anything to the contrary contained in this Agreement, the

Authority shall have the right, but not the obligation, to appoint at its cost from
time to time and at anytime, another firm (the “Additional Auditors”) as may
be decided by the Authority to audit and verify all those matters, expenses, costs,
realisations and things which the Statutory Auditors are required to do, undertake
or certify pursuant to this Agreement.

33.2.4 The Authority shall have the right, but not the obligation, to appoint at its cost,
for the duration of the Construction Period, another firm (the “Concurrent
Auditors”) as may be decided by the Authority to undertake concurrent audit of
the Concessionaire’s accounts.

33.3 Certification of claims by Statutory Auditors

Any claim or document provided by the Concessionaire to the Authority in

connection with or relating to receipts, income, payments, costs, expenses,
accounts or audit, and any matter incidental thereto shall be valid and effective
only if certified by its Statutory Auditors. For the avoidance of doubt, such
certification shall not be required for exchange of information in the normal
course of business including the submission of Monthly Fee Statements under
Clause 19.5 or any periodic information in pursuance of the provisions of this
agreement, save and except where such certification is expressly provided.

33.4 Set-off

In the event any amount is due and payable by the Authority to the
Concessionaire, it may set-off any sums payable to it by the Concessionaire and
pay the balance remaining. Any exercise by the Authority of its rights under this
clause shall be without prejudice to any other rights or remedies available to it
under this Agreement or otherwise.

33.5 Dispute resolution

In the event of there being any difference between the findings of the Additional
Auditors or the Concurrent Auditors, as the case may be, and the certification
provided by the Statutory Auditors, such Auditors shall meet to resolve the
differences and if they are unable to resolve the same, such Dispute shall be
resolved by the Authority by recourse to the Dispute Resolution Procedure

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Part V
FORCE MAJEURE AND TERMINATION

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ARTICLE 34
FORCE MAJEURE

34.1 Force Majeure

As used in this Agreement, the expression “Force Majeure” or “Force Majeure

Event” shall mean occurrence in India of any or all of Non-Political Event,
Indirect Political Event and Political Event, as defined in Clauses 34.2, 34.3 and
34.4 respectively, if it affects the performance by the Party claiming the benefit
of Force Majeure (the “Affected Party”) of its obligations under this Agreement
and which act or event (i) is beyond the reasonable control of the Affected Party,
and (ii) the Affected Party could not have prevented or overcome by exercise of
due diligence and following Good Industry Practice, and (iii) has Material
Adverse Effect on the Affected Party.

34.2 Non-Political Event

A Non-Political Event shall mean one or more of the following acts or events:

(a) act of God, epidemic, extremely adverse weather conditions, lightning,

earthquake, landslide, cyclone, flood, volcanic eruption, chemical or
radioactive contamination or ionising radiation, fire or explosion (to the
extent of contamination or radiation or fire or explosion originating from
a source external to the Site);

(b) strikes or boycotts (other than those involving the Concessionaire,

Contractors or their respective employees/representatives, or attributable
to any act or omission of any of them) interrupting supplies and services
to the Project for a continuous period of 24 (twenty four) hours and an
aggregate period exceeding 7 (seven) days in an Accounting Year, and
not being an Indirect Political Event set forth in Clause 34.3;

(c) any failure or delay of a Contractor but only to the extent caused by
another Non-Political Event and which does not result in any offsetting
compensation being payable to the Concessionaire by or on behalf of
such Contractor;

(d) any judgement or order of any court of competent jurisdiction or statutory

authority made against the Concessionaire in any proceedings for reasons
other than (i) failure of the Concessionaire to comply with any Applicable
Law or Applicable Permit, or (ii) on account of breach of any Applicable
Law or Applicable Permit or of any contract, or (iii) enforcement of this
Agreement, or (iv) exercise of any of its rights under this Agreement by
the Authority;

(e) the discovery of geological conditions, toxic contamination or

archaeological remains on the Site that could not reasonably have been
expected to be discovered through a site inspection; or

(f) any event or circumstances of a nature analogous to any of the foregoing.

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34.3 Indirect Political Event

An Indirect Political Event shall mean one or more of the following acts or
events:
(a) 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;
(b) industry-wide or State-wide strikes or industrial action for a continuous
period of 24 (twenty four) hours and exceeding an aggregate period of 7
(seven) days in an Accounting Year;
(c) any civil commotion, boycott or political agitation which prevents
collection of Fee by the Concessionaire for an aggregate period
exceeding 7 (seven) days in an Accounting Year;
(d) any failure or delay of a Contractor to the extent caused by any Indirect
Political Event and which does not result in any offsetting compensation
being payable to the Concessionaire by or on behalf of such Contractor;
(e) any Indirect Political Event that causes a Non-Political Event; or
(f) any event or circumstances of a nature analogous to any of the foregoing.
(g) any political or economic upheaval, disturbance, movement, struggle or
similar occurrence which could not have been anticipated or foreseen by
a prudent person and which causes the construction or operation of the
Project to be financially unviable or otherwise not feasible
(h) failure of the Authority to permit the Concessionaire to continue its
Construction Works, with or without modifications, in the event of
stoppage of such works after discovery of any geological or
archaeological finds or for any other reason;

34.4 Political Event

A Political Event shall mean one or more of the following acts or events by or
on account of any Government Instrumentality:
(a) Change in Law, only if it causes reduction in traffic and consequent
increase in Concession Period is beyond 20% of the Concession Period
as per Clause 29.2.1 and the Concessionaire invokes the event;
(b) compulsory acquisition in national interest or expropriation of any
Project Assets or rights of the Concessionaire or of the Contractors;
(c) unlawful or unauthorised or without jurisdiction revocation of, or refusal
to renew or grant without valid cause, any clearance, licence, permit,
authorisation, no objection certificate, consent, approval or exemption
required by the Concessionaire or any of the Contractors to perform their
respective obligations under this Agreement and the Project Agreements;
provided that such delay, modification, denial, refusal or revocation did
not result from the Concessionaire’s or any Contractor’s inability or
failure to comply with any condition relating to grant, maintenance or
renewal of such clearance, licence, authorisation, no objection certificate,
exemption, consent, approval or permit;

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(d) any failure or delay of a Contractor but only to the extent caused by
another Political Event and which does not result in any offsetting
compensation being payable to the Concessionaire by or on behalf of
such Contractor; or
(e) any event or circumstance of a nature analogous to any of the foregoing.

34.5 Duty to report Force Majeure Event

34.5.1 Upon occurrence of a Force Majeure Event, the Affected Party shall by notice
report such occurrence to the other Party forthwith. Any notice pursuant hereto
shall include full particulars of:
(a) the nature and extent of each Force Majeure Event which is the subject
of any claim for relief under this Article 34 with evidence in support
thereof;
(b) the estimated duration and 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;
(c) the measures which the Affected Party is taking or proposes to take for
alleviating the impact of such Force Majeure Event; and
(d) any other information relevant to the Affected Party’s claim.

34.5.2 The Affected Party shall not be entitled to any relief for or in respect of a Force
Majeure Event unless it shall have notified the other Party of the occurrence of
the Force Majeure Event as soon as reasonably practicable, and in any event not
later than 7 (seven) days after the Affected Party knew, or ought reasonably to
have known, of its occurrence, and shall have given particulars of the probable
material effect that the Force Majeure Event is likely to have on the performance
of its obligations under this Agreement.

34.5.3 For so long as the Affected Party continues to claim to be materially affected by
such Force Majeure Event, it shall provide the other Party with regular (and not
less than weekly) reports containing information as required by Clause 34.5.1,
and such other information as the other Party may reasonably request the
Affected Party to provide.

34.6 Effect of Force Majeure Event on the Concession

34.6.1 Upon the occurrence of any Force Majeure Event prior to the Appointed Date,
the period set forth in Clause 24.1.1 for achieving Financial Close shall be
extended by a period equal in length to the duration of the Force Majeure Event.

34.6.2 At any time after the Appointed Date, if any Force Majeure Event occurs:
(a) before COD, the Concession Period and the dates set forth in the Project
Completion Schedule shall be extended by a period equal in length to the
duration for which such Force Majeure Event subsists; or
(b) after COD, whereupon the Concessionaire is unable to collect Fee despite

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making best efforts or it is directed by the Authority to suspend the

collection thereof during the subsistence of such Force Majeure Event,
the Concession Period shall be extended by a period, equal in length to
the period during which the Concessionaire was prevented from
collection of Fee on account thereof; provided that in the event of partial
collection of Fee where the collection is less than 90% (ninety per cent)
of the Average Fee, the Authority shall extend the Concession Period in
proportion to the loss of Fee on a daily basis. For the avoidance of doubt,
loss of 25% (twenty-five per cent) in collection of Fee as compared to the
Average Fee for four days shall entitle the Concessionaire to extension
of one day in the Concession Period.

34.7 Allocation of costs arising out of Force Majeure

34.7.1 Upon occurrence of any Force Majeure Event prior to the Appointed Date, the
Parties shall

bear their respective costs and no Party shall be required to pay to the other Party
any costs thereof.

34.7.2 Upon occurrence of a Force Majeure Event after the Appointed Date, the costs
incurred and attributable to such event and directly relating to the Project (the
“Force Majeure Costs”) shall be allocated and paid as follows:
(a) upon occurrence of a Non-Political Event, the Parties shall bear their
respective Force Majeure Costs and neither Party shall be required to pay
to the other Party any costs thereof;
(b) upon occurrence of an Indirect Political Event, all Force Majeure Costs
attributable to such Indirect Political Event, and not exceeding the
Insurance Cover for such Indirect Political Event, shall be borne by the
Concessionaire, and to the extent Force Majeure Costs exceed such
Insurance Cover, one half of such excess amount shall be reimbursed by
the Authority to the Concessionaire; and
(c) upon occurrence of a Political Event, all Force Majeure Costs attributable
to such Political Event shall be reimbursed by the Authority to the
Concessionaire.

For the avoidance of doubt, upon occurrence of a Force Majeure Event after the
Appointed Date till achievement of COD, Force Majeure Costs may include
interest payments on Debt Due and all other costs directly attributable to the
Force Majeure Event, but shall not include loss of Fee revenues or debt
repayment obligations, and such Force Majeure Costs shall be determined as
under.
i) escalation on value of incomplete work to be determined on the basis of
variation in WPI from the initial date set forth for the Scheduled
Completion Date in Schedule G till achievement of COD, proportionately
for the period of delay attributable to the Force Majeure Event;
ii) prolongation costs equal to 8% of value of incomplete work multiplied
by the period of delay attributable to the Force Majeure Event divided by
the period specified in Clause 12.4.1;

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iii) interest on Debt Due for the period of delay attributable to the Force
Majeure Event;

For the avoidance of doubt, the incomplete work shall mean the incomplete work
attributable only to the Force Majeure Event. The value of such work shall be
assessed as on the Bid Due Date by Independent Engineer as per the
methodology provided in Clause 16.2.2 (c).

Provided, upon occurrence of a Force Majeure Event after the COD till Transfer
Date, Force Majeure Costs may include (a) interest on Debt Due and
(b) O&M expenses as determined from original Financing Agreements.

34.7.3 Save and except as expressly provided in this Article 34, neither Party shall be
liable in any manner whatsoever to the other Party in respect of any loss, damage,
cost, expense, claims, demands and proceedings relating to or arising out of
occurrence or existence of any Force Majeure Event or exercise of any right
pursuant hereto.

34.8 Termination Notice for Force Majeure Event

If a Force Majeure Event subsists for a period of 180 (one hundred and eighty)
days or more within a continuous period of 365 (three hundred and sixty five)
days, either Party may in its discretion terminate this Agreement by issuing a
Termination Notice to the other Party without being liable in any manner
whatsoever, save as provided in this Article 34, and upon issue of such
Termination Notice, this Agreement shall, notwithstanding anything to the
contrary contained herein, stand terminated forthwith; provided that before
issuing such Termination Notice, the Party intending to issue the Termination
Notice shall inform the other Party of such intention and grant 15 (fifteen) days
time to make a representation, and may after the expiry of such 15 (fifteen) days
period, whether or not it is in receipt of such representation, in its sole discretion
issue the Termination Notice.

34.9 Termination Payment for Force Majeure Event

34.9.1 If Termination is on account of a Non-Political Event, the Authority shall make

a Termination Payment to the Concessionaire in an amount equal to 90% (ninety
per cent) of the Debt Due less Insurance Cover.

34.9.2 If Termination is on account of an Indirect Political Event, the Authority shall

make a Termination Payment to the Concessionaire in an amount equal to:
(a) Debt Due less Insurance Cover; provided that if any insurance claims
forming part of the Insurance Cover are not admitted and paid, then 80%
(eighty per cent) of such unpaid claims shall be included in the
computation of Debt Due; and
(b) 110% (one hundred and ten per cent) of the Adjusted Equity.

34.9.3 If Termination is on account of a Political Event, the Authority shall make a

Termination Payment to the Concessionaire in an amount that would be payable
under Clause 37.3.2 as if it were an Authority Default.

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34.10 Dispute resolution

In the event that the Parties are unable to agree in good faith about the occurrence
or existence of a Force Majeure Event, such Dispute shall be finally settled in
accordance with the Dispute Resolution Procedure; provided that the burden of
proof as to the occurrence or existence of such Force Majeure Event shall be
upon the Party claiming relief and/or excuse on account of such Force Majeure
Event.

34.11 Excuse from performance of obligations

If the Affected Party is rendered wholly or partially unable to perform its

obligations under this Agreement because of a Force Majeure Event, it shall be
excused from performance of such of its obligations to the extent it is unable to
perform on account of such Force Majeure Event; provided that:
(a) the suspension of performance shall be of no greater scope and of no
longer duration than is reasonably required by the Force Majeure Event;
(b) the Affected Party shall make all reasonable efforts to mitigate or limit
damage to the other Party arising out of or as a result of the existence or
occurrence of such Force Majeure Event and to cure the same with due
diligence; and
(c) when the Affected Party is able to resume performance of its obligations
under this Agreement, it shall give to the other Party notice to that effect
and shall promptly resume performance of its obligations hereunder.

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ARTICLE 35
COMPENSATION FOR BREACH OF AGREEMENT
35.1 Compensation for default by the Concessionaire

Subject to provisions of Clause 35.6 and 37.6, in the event of the Concessionaire
being in material default or breach of this Agreement, it shall pay to the Authority
by way of compensation, all direct costs suffered or incurred by the Authority as
a consequence of such material default or breach, within 30 (thirty) days of
receipt of the demand supported by necessary particulars thereof; provided that
no compensation shall be payable under this Clause 35.1 for any material breach
or default in respect of which Damages are expressly specified and payable under
this Agreement or for any consequential losses incurred by the Authority.

35.2 Compensation for default by the Authority

Subject to provisions of Clause 35.6 and 37.6, in the event of the Authority being
in material default or breach of this Agreement at any time after the Appointed
Date till achievement of COD, it shall pay to the Concessionaire by way of
compensation, for the direct costs suffered or incurred by the Concessionaire and
loss of Fee revenues but shall not include debt repayment obligations as a
consequence of such material default or breach within 30 (thirty) days of receipt
of the demand supported by necessary particulars thereof; provided that no such
compensation shall be payable for any material breach or default in respect of
which Damages have been expressly specified in this Agreement. For the
avoidance of doubt, compensation payable directly attributable to such material
breach shall be worked out as under.
i) escalation on value of incomplete work to be determined on the basis of
variation in WPI from the initial date set forth for the Scheduled
Completion Date in Schedule G till achievement of COD, proportionately
for the period of delay attributable to the Authority.
ii) prolongation costs equal to 8% of value of incomplete work multiplied
by the period of delay attributable to the Authority divided by the period
specified in Clause 12.4.1.
iii) loss of Fee revenues for the period of delay attributable to the Authority
arrived at by multiplying such period with 90% of Average Daily Fee of
one year period immediately following the COD. This amount, without
any interest, shall be payable within 60 days from end of one year period
following the COD.

For the avoidance of doubt, the incomplete work shall mean the incomplete work
attributable only to the Authority. The value of such work shall be assessed as
on the Bid Due Date by the Independent Engineer as per the methodology
provided in Clause 16.2.2 (c).

Provided however, in the event of the Authority being in material default or

breach of this Agreement at any time after the achievement of COD, the
provision of Clause 35.3 shall be applicable.

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35.3 Compensation and extension of Concession Period for default by the

Authority

Subject to the provisions of Clause 35.6, in the event a material default or breach
of this Agreement at any time after achievement of COD leads to suspension of
or reduction in collection of Fee, as the case may be, the Authority shall, in
addition to payment of compensation for such period of suspension or reduction,
comprising of (a) interest on Debt Due and (b) O&M expenses as determined
from the original Financing Agreements, extend the Concession Period. Such
extension being equal in duration to the period for which the collection of Fee
remained suspended on account thereof; and in the event of reduction in
collection of Fee where the daily collection is less than 90% (ninety per cent) of
the Average Daily Fee, the Authority shall, extend the Concession Period in
proportion to the loss of Fee on a daily basis. For the avoidance of doubt, loss of
25% (twenty five per cent) in collection of Fee as compared to the Average Daily
Fee for four days shall entitle the Concessionaire to extension of one day in the
Concession Period.

35.4 Compensation for Additional Ropeway

35.4.1 Subject to the provisions of Clause 35.6, in the event that an Additional
Ropeway, is opened to traffic in breach of this Agreement, the Authority shall
pay to the Concessionaire, for each day of breach, compensation in a sum equal
to the difference between the average daily Realisable Fee and the projected daily
Fee (the “Projected Fee”) until the breach is cured on the immediately following
Target Date in accordance with Clause 29.2.1.The Projected Fee hereunder shall
be an amount equal to the Average Daily Fee, increased at the close of every
month by 0.5% (zero point five per cent) thereof and revised in accordance with
Clause 27.2. For the avoidance of doubt, the Average Daily Fee for the purposes
of this Clause shall be the amount so determined in respect of the Accounting
Year or period, as the case may be, occurring prior to such opening or operation
of an Additional Ropeway.

35.4.2 Payment of compensation under this Clause 35.4 shall be deemed to cure the
breach of this Agreement so long as the Authority continues to pay compensation
hereunder.

35.5 Compensation to be in addition

Compensation payable under this Article 35 shall be in addition to, and not in
substitution for, or derogation of, Termination Payment, if any.

35.6 Mitigation of costs and damages

The Party not in breach shall make all reasonable effort to mitigate or limit the
costs and damage arising out of or as a result of breach of Agreement by the
other Party.

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ARTICLE 36
SUSPENSION OF CONCESSIONAIRE’S RIGHTS

36.1 Suspension upon Concessionaire Default

Upon occurrence of a Concessionaire Default, the Authority shall be entitled,

without prejudice to its other rights and remedies under this Agreement including
its rights of Termination hereunder, to (i) suspend all rights of the Concessionaire
under this Agreement including the Concessionaire’s right to collect Fee, and
other revenues pursuant hereto, and (ii) exercise such rights itself and perform
the obligations hereunder or authorise any other person to exercise or perform
the same on its behalf during such suspension (the “Suspension”). Suspension
hereunder shall be effective forthwith upon issue of notice by the Authority to
the Concessionaire and may extend up to a period not exceeding 180 (one
hundred and eighty) days from the date of issue of such notice; provided that
upon written request from the Concessionaire and the Lenders’ Representative,
the Authority shall extend the aforesaid period of 180 (one hundred and eighty)
days by a further period not exceeding 90 (ninety) days.

36.2 Authority to act on behalf of Concessionaire

36.2.1 During the period of Suspension, the Authority shall, on behalf of the
Concessionaire, collect all Fee and revenues under and in accordance with this
Agreement and deposit the same in the Escrow Account. The Authority shall be
entitled to make withdrawals from the Escrow Account for meeting the costs
incurred by it for remedying and rectifying the cause of Suspension, and
thereafter for defraying the expenses specified in Clause 31.3.

36.2.2 During the period of Suspension hereunder, all assets and liabilities in relation
to the Project shall continue to vest in the Concessionaire and all things done or
actions taken, including expenditure incurred by the Authority for discharging
the obligations of the Concessionaire under and in accordance with this
Agreement and the Project Agreements, shall be deemed to have been done or
taken for and on behalf of the Concessionaire and the Concessionaire undertakes
to indemnify the Authority for all costs incurred during such period. The
Concessionaire hereby licences and sub-licences respectively, the Authority or
any other person authorised by it under Clause 36.1 to use during Suspension,
all intellectual property belonging to or licenced to the Concessionaire with
respect to the Project and its design, engineering, construction, operation and
maintenance, and which is used or created by the Concessionaire in performing
its obligations under the agreement.

36.3 Revocation of Suspension

36.3.1 In the event that the Authority shall have rectified or removed the cause of
Suspension within a period not exceeding 90 (ninety) days from the date of
Suspension, it shall revoke the Suspension forthwith and restore all rights of the
Concessionaire under this Agreement. For the avoidance of doubt, the Parties
expressly agree that the Authority may, in its discretion, revoke the suspension
at any time, whether or not the cause of suspension has been rectified or removed

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hereunder.

36.3.2 Upon the Concessionaire having cured the Concessionaire Default within a
period not exceeding 90 (ninety) days from the date of Suspension, the Authority
shall revoke the Suspension forthwith and restore all rights of the Concessionaire
under this Agreement.

36.4 Substitution of Concessionaire

At any time during the period of Suspension, the Lenders’ Representative, on

behalf of Senior Lenders, shall be entitled to substitute the Concessionaire under
and in accordance with the Substitution Agreement, and upon receipt of notice
thereunder from the Lenders’ Representative, the Authority shall withhold
Termination for a period not exceeding 180 (one hundred and eighty) days from
the date of Suspension, and any extension thereof under Clause 36.1, for
enabling the Lenders’ Representative to exercise its rights of substitution on
behalf of Senior Lenders.

36.5 Termination

36.5.1 At any time during the period of Suspension under this Article 36, the
Concessionaire may by notice require the Authority to revoke the Suspension
and issue a Termination Notice. Subject to the rights of the Lenders’
Representative to undertake substitution in accordance with the provisions of
this Agreement and within the period specified in Clause 36.4, the Authority
shall, within 15 (fifteen) days of receipt of such notice, terminate this Agreement
under and in accordance with Article 37.

36.5.2 Notwithstanding anything to the contrary contained in this Agreement, in the

event that Suspension is not revoked within 180 (one hundred and eighty) days
from the date of Suspension hereunder or within the extended period, if any, set
forth in Clause 36.1, the Concession Agreement shall, upon expiry of the
aforesaid period, be deemed to have been terminated by mutual agreement of the
Parties and all the provisions of this Agreement shall apply, mutatis mutandis, to
such Termination as if a Termination Notice had been issued by the Authority
upon occurrence of a Concessionaire Default.

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ARTICLE 37
TERMINATION

37.1 Termination for Concessionaire Default

37.1.1 Save as otherwise provided in this Agreement, in the event that any of the
defaults specified below shall have occurred, and the Concessionaire fails to cure
the default within the Cure Period set forth below, or where no Cure Period is
specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall
be deemed to be in default of this Agreement (the “Concessionaire Default”),
unless the default has occurred solely as a result of any breach of this Agreement
by the Authority or due to Force Majeure. The defaults referred to herein shall
include:

(a) the Performance Security has been encashed and appropriated in

accordance with Clause 9.2 and the Concessionaire fails to replenish or
provide fresh Performance Security within a Cure Period of 30 (thirty)
days;

(b) subsequent to the replenishment or furnishing of fresh Performance

Security in accordance with Clause 9.2, the Concessionaire fails to cure,
within a Cure Period of 90 (ninety) days, the Concessionaire Default for
which whole or part of the Performance Security was appropriated;

(c) the Concessionaire does not achieve the latest outstanding Project
Milestone due in accordance with the provisions of Schedule-G and
continues to be in default for 120 (one hundred and twenty) days;

(d) the Concessionaire abandons or manifests intention to abandon the

construction or operation of the Project without the prior written consent
of the Authority;

(e) Project Completion Date does not occur within the period specified in
Clause 12.4.3;

(f) the Punch List items have not been completed within the period set forth
in Clause 14.4.1;

(g) the Concessionaire is in breach of the Maintenance Requirements or the

Safety Requirements, as the case may be;

(h) the Concessionaire has failed to make any payment to the Authority
within the period specified in this Agreement;

(i) an Escrow Default has occurred and the Concessionaire fails to cure the
default within a Cure Period of 15 (fifteen) days;

(j) upon occurrence of a Financial Default, the Lenders’ Representative has

by notice required the Authority to undertake Suspension or Termination,
as the case may be, in accordance with the Substitution Agreement and

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the Concessionaire fails to cure the default within the Cure Period
specified in hereinabove;

(k) a breach of any of the Project Agreements by the Concessionaire has

caused a Material Adverse Effect;

(l) the Concessionaire creates any Encumbrance in breach of this

Agreement;

(m) the Concessionaire repudiates this Agreement or otherwise takes any

action or evidences or conveys an intention not to be bound by the
Agreement;

(n) a Change in Ownership has occurred in breach of the provisions of Clause

5.3;

(o) there is a transfer, pursuant to law either of (i) the rights and/or
obligations of the Concessionaire under any of the Project Agreements,
or of (ii) all or part of the assets or undertaking of the Concessionaire,
and such transfer causes a Material Adverse Effect;

(p) an execution levied on any of the assets of the Concessionaire has caused
a Material Adverse Effect;

(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or

receiver is appointed for the Concessionaire or for the whole or material
part of its assets that has a material bearing on the Project;

(r) the Concessionaire has been, or is in the process of being liquidated,

dissolved, wound-up, amalgamated or reconstituted in a manner that
would cause, in the reasonable opinion of the Authority, a Material
Adverse Effect;

(s) a resolution for winding up of the Concessionaire is passed, or any

petition for winding up of the Concessionaire is admitted by a court of
competent jurisdiction and a provisional liquidator or receiver is
appointed and such order has not been set aside within 90 (ninety) days
of the date thereof or the Concessionaire is ordered to be wound up by
Court except for the purpose of amalgamation or reconstruction;
provided that, as part of such amalgamation or reconstruction, the entire
property, assets and undertaking of the Concessionaire are transferred to
the amalgamated or reconstructed entity and that the amalgamated or
reconstructed entity has unconditionally assumed the obligations of the
Concessionaire under this Agreement and the Project Agreements; and
provided that:

(i) the amalgamated or reconstructed entity has the capability and

operating experience necessary for the performance of its
obligations under this Agreement and the Project Agreements;

(ii) the amalgamated or reconstructed entity has the financial standing

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to perform its obligations under this Agreement and the Project

Agreements and has a credit worthiness at least as good as that of
the Concessionaire as at the Appointed Date; and

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

(t) any representation or warranty of the Concessionaire herein contained

which is, as of the date hereof, found to be materially false, incorrect or
misleading or the Concessionaire is at any time hereafter found to be in
breach thereof;

(u) the Concessionaire submits to the Authority any statement, notice or

other document, in written or electronic form, which has a material effect
on the Authority’s rights, obligations or interests and which is false in
material particulars;

(v) the Concessionaire has failed to fulfil any obligation, for which failure
Termination has been specified in this Agreement; or

(w) the Concessionaire commits a default in complying with any other

provision of this Agreement if such a default causes a Material Adverse
Effect on the Authority.

(x) the Concessionaire fails in achieving the rate of progress as per revised
schedule in accordance with Clause 13.4 of this Agreement.

37.1.2 Without prejudice to any other rights or remedies which the Authority may have
under this Agreement, upon occurrence of a Concessionaire Default, the
Authority shall be entitled to terminate this Agreement by issuing a Termination
Notice to the Concessionaire; provided that before issuing the Termination
Notice, the Authority shall by a notice inform the Concessionaire of its intention
to issue such Termination Notice and grant 15 (fifteen) days to the
Concessionaire to make a representation, and may after the expiry of such 15
(fifteen) days, whether or not it is in receipt of such representation, issue the
Termination Notice, subject to the provisions of clause 37.1.3.

37.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of
intention to issue a Termination Notice referred to in Clause 37.1.2 to inform the
Lenders’ Representative and grant 30 (thirty) days to the Lenders’
Representative, for making a representation on behalf of the Senior Lenders
stating the intention to substitute the Concessionaire in accordance with the
Substitution Agreement. In the event the Authority receives such representation
on behalf of Senior Lenders, it shall, in its discretion, either withhold
Termination for a period not exceeding 180 (one hundred and eighty) days from
the date of such representation or exercise its right of Suspension, as the case
may be, for enabling the Lenders’ Representative to exercise the Senior Lenders’
right of substitution in accordance with the Substitution Agreement:

Provided that the Lenders’ Representative may, instead of exercising the Senior
Lenders’ right of substitution, procure that the default specified in the notice is
cured within the aforesaid period of 180 (one hundred and eighty) days, and upon

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such curing thereof, the Authority shall withdraw its notice referred to above and
restore all the rights of the Concessionaire:

Provided further that upon written request from the Lenders’ Representative and
the Concessionaire, the Authority shall extend the aforesaid period of 180 (one
hundred and eighty) days by such further period not exceeding 90 (ninety) days,
as the Authority may deem appropriate.

37.2 Termination for Authority Default

37.2.1 In the event that any of the defaults specified below shall have occurred, and the
Authority fails to cure such default within a Cure Period of 90 (ninety) days or
such longer period as has been expressly provided in this Agreement, the
Authority shall be deemed to be in default of this Agreement (the “Authority
Default”) unless the default has occurred as a result of any breach of this
Agreement by the Concessionaire or due to Force Majeure. The defaults referred
to herein shall include:
(a) The Authority commits a material default in complying with any of the
provisions of this Agreement and such default has a Material Adverse
Effect on the Concessionaire;

(b) the Authority has failed to make any payment to the Concessionaire
within the period specified in this Agreement;

(c) the Authority repudiates this Agreement or otherwise takes any action
that amounts to or manifests an irrevocable intention not to be bound by
this Agreement; or

(d) the State commits a material default in complying with the provisions of
the State Support Agreement if such default has a Material Adverse
Effect on the Concessionaire and the breach continues for a period of 90
(ninety) days from the date of notice given in this behalf by the
Concessionaire to the Authority.

(e) The Authority fails to provide, within a period of 180 (one hundred and
eighty days) from the Appointed Date, statutory clearances required for
construction of the Project despite Concessionaire meeting all eligibility
requirements and having fulfilled all application requirements and
documentation satisfactorily and not being in breach of any condition for
grant of relevant clearance; or

(f) Any defect in the title, ownership and possession of the Authority with
respect to the Site area that has a Material Adverse Effect on the Project
as certified by the Independent Auditor;

(g) A breach of any express representation or warranty by the Authority

which has a Material Adverse Effect and such breach is not remedied
within 120 days of receipt of written notice from the Concessionaire
specifying such breach and requiring the Authority to remedy the same;

(h) The Authority fails to provide Right of Way, under the terms of Article
10

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37.2.2 Without prejudice to any other right or remedy which the Concessionaire may
have under this Agreement, upon occurrence of an Authority Default, the
Concessionaire shall, subject to the provisions of the Substitution Agreement, be
entitled to terminate this Agreement by issuing a Termination Notice to the
Authority; provided that before issuing the Termination Notice, the
Concessionaire shall by a notice inform the Authority of its intention to issue the
Termination Notice and grant 30 (thirty) days to the Authority to make a
representation, and may after the expiry of such 30 (thirty) days, whether or not
it is in receipt of such representation, issue the Termination Notice.

37.3 Termination Payment

37.3.1 Upon Termination on account of a Concessionaire Default during the Operation

Period, the Authority shall pay to the Concessionaire, by way of Termination
Payment, an amount equal to 90% (ninety per cent) of the Debt Due less
Insurance Cover; provided that if any insurance claims forming part of the
Insurance Cover are not admitted and paid, then 80% (eighty per cent) of such
unpaid claims shall be included in the computation of Debt Due. The
Concessionaire hereby acknowledges that no Termination Payment shall be due
or payable on account of a Concessionaire Default occurring prior to COD save
and except in accordance with Clause 37.8.

37.3.2 Upon Termination on account of an Authority Default, the Authority shall pay
to the Concessionaire, by way of Termination Payment, an amount equal to:
(a) Debt Due; and

(b) 150% (one hundred and fifty per cent) of the Adjusted Equity.

Provided that the Termination Payment shall not be less than an amount equal to
the product of 6 (six) and the average monthly Fee actually realised 12 (twelve)
months prior to the Transfer Date.
37.3.3 Termination Payment shall become due and payable to the Concessionaire
within 30 (thirty) days of a demand being made by the Concessionaire to the
Authority with the necessary particulars, and in the event of any delay, the
Authority shall pay interest at a rate equal to 3% (three per cent) above the Bank
Rate on the amount of Termination Payment remaining unpaid; provided that
such delay shall not exceed 90 (ninety) days. For the avoidance of doubt, it is
expressly agreed that Termination Payment shall constitute full discharge by the
Authority of its payment obligations in respect thereof hereunder.

37.3.4 The Concessionaire expressly agrees that Termination Payment under this
Article 37 shall constitute a full and final settlement of all claims of the
Concessionaire on account of Termination of this Agreement for any reason
whatsoever and that it shall not have any further right or claim under any law,
treaty, convention, contract or otherwise.

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37.4 Other rights and obligations of the Authority

Upon Termination for any reason whatsoever, the Authority shall:

(a) be deemed to have taken possession and control of the Project forthwith;

(b) take possession and control of all materials, stores, implements,

construction plants and equipment on or about the Site;

(c) be entitled to restrain the Concessionaire and any person claiming

through or under the Concessionaire from entering upon the Site or any
part of the Project;

(d) require the Concessionaire to comply with the Divestment Requirements

set forth in Clause 38.1; and

(e) succeed upon election by the Authority, without the necessity of any
further action by the Concessionaire, to the interests of the
Concessionaire under such of the Project Agreements as the Authority
may in its discretion deem appropriate, and shall upon such election be
liable to the Contractors only for compensation accruing and becoming
due and payable to them under the terms of their respective Project
Agreements from and after the date the Authority elects to succeed to the
interests of the Concessionaire. For the avoidance of doubt, the
Concessionaire acknowledges and agrees that all sums claimed by such
Contractors as being due and owing for works and services performed or
accruing on account of any act, omission or event prior to such date shall
constitute debt between the Concessionaire and such Contractors, and the
Authority shall not in any manner be liable for such sums. It is further
agreed that in the event the Authority elects to cure any outstanding
defaults under such Project Agreements, the amount expended by the
Authority for this purpose shall be deducted from the Termination
Payment.

37.5 Survival of rights

Notwithstanding anything to the contrary contained in this Agreement, but

subject to the provisions of clause 37.3.4, any Termination pursuant to the
provisions of this Agreement shall be without prejudice to the accrued rights of
either Party including its right to claim and recover money damages, insurance
proceeds, security deposits, and other rights and remedies, which it may have in
law or contract. All rights and obligations of either Party under this Agreement,
including Termination Payments and Divestment Requirements, shall survive
the Termination to the extent such survival is necessary for giving effect to such
rights and obligations.

37.6 Limitation of Liability

Neither Party shall be liable to the other for any loss of profit, loss of business,
loss of production, loss of contracts or for any indirect or other consequential
loss or damage whatsoever that may be suffered by the other Party, except to the

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extent that such consequential loss or damage is attributable to gross negligence,

deliberate default, fraud, fraudulent misrepresentation or wilful misconduct by
the defaulting Party, its personnel or agents.

The aggregate liability of either Party, under or in connection with the

Agreement other than those provided under Clause 37.7 and 37.8 of this
Agreement, shall not exceed [one hundred percent (100%)] of the Total Project
Cost. Provided however, the aggregate liability of the Authority under Clause
37.3 of this Agreement, shall not exceed one hundred fifteen percent (115%) of
the Total Project Cost.

37.7 Mutual Foreclosure

37.7.1 Without prejudice to any provision of this Agreement, the Authority and
Concessionaire may foreclose this Agreement by mutual consent in
circumstances which does not constitute any Party’s default. Such a foreclosure
can occur in any of the following 2 (two) categories as per the mutual consent of
the Authority and the Concessionaire:
a. Type A Foreclosure: Foreclosure with mutual consent without any
liability or consequential future liability for either Party
b. Type B Foreclosure: Foreclosure with mutual consent with compensation
to the Concessionaire including any pending settlements / claims as per
the provisions under Clause 37.7.2

37.7.2 Should a Party intend to foreclose this Agreement by mutual consent, the
intending Party shall issue a notice to the other Party and upon issuance of such
notice, the other Party may within a reasonable time-frame either agree to such
foreclosure or raise objection(s) to the same by intimating either of the two
possible positions to the intending Party in writing.

37.7.3 In either case of the other Party agreeing to the proposed foreclosure or
otherwise, and with prior written approval of the Lenders’ Representative, the
Parties may negotiate the terms and conditions of the Mutual Foreclosure
Agreement and this Agreement shall stand terminated upon execution of the
Mutual Foreclosure Agreement

37.7.4 In the event the Parties mutually agree to foreclose this Agreement as a Type B
Foreclosure under Clause 37.7.1, the Authority shall be liable to compensate the
Concessionaire as per the provisions under Clause 37.7.3.

37.7.5 Any attempt or endeavour for foreclosure by mutual agreement under this clause
shall, subject to the rights and obligations of the Parties surviving under this
Clause, be without prejudice to the rights and obligations of the Parties herein
and the factum of such an attempt or exercise shall not stop either of the Parties
from discharging their contractual obligations under this Agreement. For the
avoidance of doubt, it is agreed by the Concessionaire that all its the rights, and
claims, and obligations of either party arising under this Agreement shall cease
upon execution of the Mutual Foreclosure Agreement hereunder.

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37.7.6 For the avoidance of doubt, it is clarified that such foreclosure shall not affect
the Concessionaire in any way if it wishes to bid in future projects of the
Authority.

37.8 Upon Termination on account of Concessionaire Default occurring prior to

COD, no Termination Payment shall be due and payable if Physical Progress is
less than 40% (forty per cent), and in the event of Physical Progress exceeding
40% (forty per cent), the provisions of Clause 37.3.1 shall, to the extent
applicable to Debt Due, apply in respect of the expenditure exceeding 40% (forty
per cent) of Total Project Cost. For the avoidance of doubt and by way of
illustration, the Parties agree that if the total expenditure incurred prior to
Termination is 90% (ninety per cent) of the Total Project Cost, the expenditure
eligible for computation of Termination Payment hereunder shall be 50% (fifty
per cent) of the Total Project Cost and the Termination Payment due and payable
in such event shall not exceed 45% (forty five per cent) of the Total Project Cost.
The Parties further agree that for the purposes of this Clause 37.8, Total Project
Cost shall mean the amount specified in Sub-clause (c) of the definition of Total
Project Cost in Clause 49.1. The Parties also agree that for determining the
Termination Payment under this Clause 37.8, the expenditure comprising the
latest Payment Milestone shall also be reckoned.

37.9 Continuity upon Termination

In case of Termination under Clause 37 and notwithstanding pendency of any

judicial/quasi-judicial proceedings, the Authority, in accordance with its
responsibility of developing and maintaining Ropeways may appoint/engage
another contractor to execute or complete the Project with or without appropriate
changes or modifications. Such an appointment or engagement shall be without
prejudice to Concessionaire's liabilities and obligations under Clause 39 and
similar such clauses. In case termination of this Agreement is found to be invalid
or untenable pursuant to legal or quasi-judicial proceedings, the Authority shall
put the Concessionaire to the same financial position as if such termination had
never happened.

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ARTICLE 38
DIVESTMENT OF RIGHTS AND INTEREST
38.1 Divestment Requirements

38.1.1 Upon Termination, the Concessionaire shall comply with and conform to the
following Divestment Requirements:

(a) notify to the Authority forthwith the location and particulars of all Project
Assets;

(b) deliver forthwith the actual or constructive possession of the Project, free
and clear of all Encumbrances, save and except to the extent set forth in
the Substitution Agreement;

(c) cure all Project Assets, of all defects and deficiencies so that the Project
is compliant with the Maintenance Requirements; provided that in the
event of Termination during the Construction Period, all Project Assets
shall be handed over on ‘as is where is’ basis after bringing them to a safe
condition;

(d) deliver and transfer relevant records, reports, Intellectual Property and
other licences pertaining to the Project and its design, engineering,
construction, operation and maintenance, including all programmes and
manuals pertaining thereto, and complete ‘as built’ Drawings as on the
Transfer Date. For the avoidance of doubt, the Concessionaire represents
and warrants that the Intellectual Property delivered hereunder shall be
adequate and complete for the design, engineering, construction,
operation and maintenance of the Project and shall be assigned to the
Authority free of any encumbrance;

(e) transfer and/or deliver all Applicable Permits to the extent permissible
under Applicable Laws;

(f) execute such deeds of conveyance, documents and other writings as the
Authority may reasonably require for conveying, divesting and assigning
all the rights, title and interest of the Concessionaire in the Project Assets,
including manufacturers’ warranties in respect of any plant or equipment
and the right to receive outstanding insurance claims to the extent due
and payable to the Authority, absolutely unto the Authority or its
nominee; and

(g) comply with all other requirements as may be prescribed or required

under Applicable Laws for completing the divestment and assignment of
all rights, title and interest of the Concessionaire in the Project, free from
all Encumbrances, absolutely unto the Authority or to its nominee.

38.1.2 Subject to the exercise by the Authority of its rights under this Agreement or
under any of the Project Agreements to perform or procure the performance by
a third party of any of the obligations of the Concessionaire, the Parties shall
continue to perform their obligations under this Agreement, notwithstanding the

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giving of any Termination Notice, until the Termination of this Agreement

becomes effective in accordance with its terms.

38.2 Inspection and cure

Not earlier than 90 (ninety) days before Termination but not later than 15
(fifteen) days prior to the the effective date of such Termination, the Independent
Engineer shall verify, after giving due notice to the Concessionaire of the time,
date and venue of such verification, compliance by the Concessionaire with the
Maintenance Requirements, and if required, cause appropriate tests to be carried
out at the Concessionaire’s cost for this purpose. Defaults, if any, in the
Maintenance Requirements shall be cured by the Concessionaire at its cost and
the provisions of Article 39 shall apply, mutatis mutandis, in relation to curing
of defects or deficiencies under this Article 38.

38.3 Cooperation and assistance on transfer of Project

38.3.1 The Parties shall cooperate on a best effort basis and take all necessary measures,
in good faith, to achieve a smooth transfer of the Project in accordance with the
provisions of this Agreement so as to protect the safety of and avoid undue delay
or inconvenience to the Users, other members of the public or the lawful
occupiers of any part of the Site.

38.3.2 The Parties shall provide to each other, 9 (nine) months prior to the Transfer Date
in the event of Termination by efflux of time and immediately in the event of
either Party conveying to the other Party its intent to issue a Termination Notice,
as the case may be, as much information and advice as is reasonably practicable
regarding the proposed arrangements for operation of the Project following the
Transfer Date. The Concessionaire shall further provide such reasonable advice
and assistance as the Authority, its concessionaire or agent may reasonably
require for operation of the Project until the expiry of 6 (six) months after the
Transfer Date.

38.3.3 The Authority shall have the option to purchase or hire from the Concessionaire
at a fair market value and free from any encumbrance all or any part of the plant
and machinery used in connection with the Project but which does not form part
of the assets specified in Clause 38.1.1 and is reasonably required in connection
with operation of the Project. For the avoidance of doubt, in the event of dispute
or difference relating to fair market value, the Dispute Resolution Procedure shall
apply.

38.4 Vesting Certificate

The divestment of all rights, title and interest in the Project shall be deemed to
be complete on the date when all of the Divestment Requirements have been
fulfilled, and the Authority shall, without unreasonable delay, thereupon issue a
certificate substantially in the form set forth in Schedule-U (the “Vesting
Certificate”), which will have the effect of constituting evidence of divestment
by the Concessionaire of all of its rights, title and interest in the Project, and their
vesting in the Authority pursuant hereto. It is expressly agreed that any defect or
deficiency in the Divestment Requirements shall not in any manner be construed

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or interpreted as restricting the exercise of any rights by the Authority or its

nominee on, or in respect of, the Project on the footing that all Divestment
Requirements have been complied with by the Concessionaire.

38.5 Additional Facilities

Notwithstanding anything to the contrary contained in this Agreement, all

Additional Facilities shall continue to vest in the Concessionaire upon and after
Termination.

38.6 Divestment costs etc.

38.6.1 The Concessionaire shall bear and pay all costs incidental to divestment of all of
the rights, title and interest of the Concessionaire in the Project Assets in favour
of the Authority upon Termination, save and except that all stamp duties payable
on any deeds or Documents executed by the Concessionaire in connection with
such divestment shall be borne by the Authority.

38.6.2 In the event of any dispute relating to matters covered by and under this Article
38, the Dispute Resolution Procedure shall apply.

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ARTICLE 39
DEFECTS LIABILITY AFTER TERMINATION
39.1 Liability for defects after Termination

The Concessionaire shall be responsible for all defects and deficiencies in the
Project for a period of 120 (One hundred and twenty) days after Termination,
and it shall have the obligation to repair or rectify, at its own cost, all defects and
deficiencies observed by the Independent Engineer in the Project during the
aforesaid period. In the event that the Concessionaire fails to repair or rectify
such defect or deficiency within a period of 15 (fifteen) days from the date of
notice issued by the Authority in this behalf, the Authority shall be entitled to get
the same repaired or rectified at the Concessionaire’s risk and cost so as to make
the Project conform to the Maintenance Requirements. All costs incurred by the
Authority hereunder shall be reimbursed by the Concessionaire to the Authority
within 15 (fifteen) days of receipt of demand thereof, and in the event of default
in reimbursing such costs, the Authority shall be entitled to recover the same
from the funds retained in the Escrow Account or from the Performance
Guarantee provided thereunder. For the avoidance of doubt, the provisions of
Article 39 shall not apply if the termination occurs prior to COD.

39.2 Retention in Escrow Account

39.2.1 Notwithstanding anything to the contrary contained in this Agreement, but

subject to the provisions of Clause 39.2.3, a sum equal to 5% (five per cent) of
the total Realisable Fee for the year immediately preceding the Transfer Date
shall be retained in the Escrow Account for a period of 120 (one hundred and
twenty) days after Termination for meeting the liabilities, if any, arising out of
or in connection with the provisions of Clause 39.1.

39.2.2 Without prejudice to the provisions of Clause 39.2.1, the Independent Engineer
shall carry out an inspection of the Project at any time between 210 (two hundred
and ten) and 180 (one hundred and eighty) days prior to the Termination and if
it recommends that the status of the Project is such that a sum larger than the
amount stipulated in Clause 39.2.1 should be retained in the Escrow Account and
for a period longer than the aforesaid 120 (one hundred and twenty) days, the
amount recommended by the Independent Engineer shall be retained in the
Escrow Account for the period specified by it.

39.2.3 The Concessionaire may, for the performance of its obligations under this Article
39, provide to the Authority in the form of Insurance Surety Bond (issued by
Insurance Company authorized by Insurance Regulatory and Development
Authority of India in the form set forth in Annexure I of Schedule – F), Account
Payee Demand Draft, Banker’s Cheque or e-bank guarantee from a Bank for a
sum equivalent to the amount determined under Clause 39.2.1 or 39.2.2, as the
case may be, and for the period specified therein, substantially in the form set
forth in Schedule-F (the “Performance Guarantee”), to be modified, mutatis
mutandis, for this purpose, and the Authority shall, without prejudice to its other
rights and remedies hereunder or in law, be entitled to encash and appropriate

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the required amounts from the Performance Guarantee for undertaking the
repairs or rectification at the Concessionaire’s risk and cost in accordance with
the provisions of this Article 39. Upon furnishing of a Performance Guarantee
under this Clause 39.2.3, the retention of funds in the Escrow Account in terms
of Clause 39.2.1 or 39.2.2, as the case may be shall be dispensed with.

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Part VI
OTHER PROVISIONS

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ARTICLE 40
ASSIGNMENT AND CHARGES
40.1 Restrictions on assignment and charges

40.1.1 Subject to Clauses 40.2 and 40.3, this Agreement shall not be assigned by the
Concessionaire to any person, save and except with the prior consent in writing
of the Authority, which consent the Authority shall be entitled to decline without
assigning any reason.

40.1.2 Subject to the provisions of Clause 40.2, the Concessionaire shall not create nor
permit to subsist any Encumbrance, or otherwise transfer or dispose of all or any
of its rights and benefits under this Agreement or any Project Agreement to
which the Concessionaire is a party except with prior consent in writing of the
Authority, which consent the Authority shall be entitled to decline without
assigning any reason.

40.2 Permitted assignment and charges

The restraints set forth in Clause 40.1 shall not apply to:

(a) liens arising by operation of law (or by an agreement evidencing the

same) in the ordinary course of business of the Project;

(b) mortgages/pledges/hypothecation of goods/assets other than Project

Assets, and their related documents of title, a charge on the Escrow
Account, arising or created in the ordinary course of business of the
Project, and a charge on Receivables of the Concessionaires as security
only for indebtedness to the Senior Lenders under the Financing
Agreements and/or for working capital arrangements for the Project;

(c) assignment of rights, interest and obligations of the Concessionaire to or

in favour of the Lenders’ Representative as nominee and for the benefit
of the Senior Lenders, to the extent covered by and in accordance with
the Substitution Agreement as security for financing provided by Senior
Lenders under the Financing Agreements; and

(d) liens or encumbrances required by any Applicable Law.

40.3 Substitution Agreement

40.3.1 The Lenders’ Representative, on behalf of Senior Lenders, may exercise the right
to substitute the Concessionaire or the Selected Bidder/Consortium Members of
the Concessionaire pursuant to the agreement for substitution of the
Concessionaire (the “Substitution Agreement”) to be entered into amongst the
Concessionaire, the Authority and the Lenders’ Representative, on behalf of
Senior Lenders, substantially in the form set forth in Schedule-V.

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40.3.2 Upon substitution of the Concessionaire or the Selected Bidder/Consortium

Members of the Concessionaire under and in accordance with the Substitution
Agreement, the Nominated Company substituting the Concessionaire or the
Selected Bidder/Consortium Members of the Concessionaire shall be deemed to
be the Concessionaire under this Agreement and shall enjoy all rights and be
responsible for all obligations of the Concessionaire under this Agreement as if
it were the Concessionaire; provided that where the Concessionaire is in breach
of this Agreement on the date of such substitution, the Authority shall by notice
grant a Cure Period of 120 (one hundred and twenty) days to the Concessionaire
for curing such breach.

40.4 Assignment by the Authority

Notwithstanding anything to the contrary contained in this Agreement, the

Authority may, after giving 60 (sixty) days’ notice to the Concessionaire, assign
any of its rights and benefits and/or obligations under this Agreement to an
assignee who is, in the reasonable opinion of the Authority, capable of fulfilling
all of the Authority’s then outstanding obligations under this Agreement.

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ARTICLE 41
CHANGE IN LAW
41.1 Increase in costs

If as a result of Change in Law, the Concessionaire suffers an increase in costs

or other financial burden, the aggregate financial effect of which exceeds the
higher of Rs. 7.18 Crore (Rupees Seven Crore and Eighteen Lakh Only) and
0.5% (zero point five percent) of the Realisable Fee in any Accounting Year, the
Concessionaire may so notify the Authority and propose amendments to this
Agreement so as to place the Concessionaire in the same financial position as it
would have enjoyed had there been no such Change in Law resulting in the cost
increase or other financial burden as aforesaid. Upon notice by the
Concessionaire, the Parties shall meet, as soon as reasonably practicable but no
later than 30 (thirty) days from the date of notice, and either agree on
amendments to this Agreement or on any other mutually agreed arrangement:

Provided that if no agreement is reached within 90 (ninety) days of the aforesaid

notice, the Concessionaire may by notice require the Authority to pay an amount
that would place the Concessionaire in the same financial position that it would
have enjoyed had there been no such Change in Law, and within 15 (fifteen) days
of receipt of such notice, along with particulars thereof, the Authority shall pay
the amount specified therein; provided that if the Authority shall dispute such
claim of the Concessionaire, the same shall be settled in accordance with the
Dispute Resolution Procedure. For the avoidance of doubt, it is agreed that this
Clause 41.1 shall be restricted to changes in law directly affecting the
Concessionaire’s costs of performing its obligations under this Agreement.

Provided however, if as a result of Change in Law, there is reduction in traffic,

the consequences thereof shall be dealt with under and in accordance with the
provision of Clause 29.2.1.

41.2 Reduction in costs

If as a result of Change in Law, the Concessionaire benefits from a reduction in

costs or other financial gains, the aggregate financial effect of which exceeds the
higher of Rs. 7.18 Crore (Rupees Seven Crore and Eighteen Lakh Only) and
0.5% (zero point five percent) of the Realisable Fee in any Accounting Year, the
Authority may so notify the Concessionaire and propose amendments to this
Agreement so as to place the Concessionaire in the same financial position as it
would have enjoyed had there been no such Change in Law resulting in the
decreased costs or other financial gains as aforesaid. Upon notice by the
Authority, the Parties shall meet, as soon as reasonably practicable but no later
than 30 (thirty) days from the date of notice, and either agree on such
amendments to this Agreement or on any other mutually agreed arrangement:

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Provided that if no agreement is reached within 90 (ninety) days of the aforesaid

notice, the Authority may by notice require the Concessionaire to pay an amount
that would place the Concessionaire in the same financial position that it would
have enjoyed had there been no such Change in Law, and within 15 (fifteen) days
of receipt of such notice, along with particulars thereof, the Concessionaire shall
pay the amount specified therein to the Authority; provided that if the
Concessionaire shall dispute such claim of the Authority, the same shall be
settled in accordance with the Dispute Resolution Procedure. For the avoidance
of doubt, it is agreed that this Clause 41.2 shall be restricted to changes in law
directly affecting the Concessionaire’s costs of performing its obligations under
this Agreement.

41.3 [Deleted]

41.4 Restriction on cash compensation

The Parties acknowledge and agree that the demand for cash compensation
under this Article 41 shall be restricted to the effect of Change in Law during
the respective Accounting Year and shall be made at any time after
commencement of such year, but no later than one year from the close of such
Accounting Year. Any demand for cash compensation payable for and in respect
of any subsequent Accounting Year shall be made after the commencement of
the Accounting Year to which the demand pertains, but no later than two years
from the close of such Accounting Year.

41.5 No claim in the event of recovery from Users

Notwithstanding anything to the contrary contained in this Agreement, the

Authority shall not in any manner be liable to reimburse to the Concessionaire
any sums on account of a Change in Law if the same are recoverable from the
Users.

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ARTICLE 42
LIABILITY AND INDEMNITY
42.1 General indemnity

42.1.1 The Concessionaire will indemnify, defend, save and hold harmless the
Authority and its officers, servants, agents, Government Instrumentalities and
Government owned and/or controlled entities/enterprises, (“the Authority
Indemnified Persons”) against any and all suits, proceedings, actions, demands
and claims from third parties for any loss, damage, cost and expense of whatever
kind and nature, whether arising out of any breach by the Concessionaire of any
of its obligations under this Agreement or any related agreement or on account
of any defect or deficiency in the provision of services by the Concessionaire to
any User or from any negligence of the

Concessionaire under contract or tort or on any other ground whatsoever, except

to the extent that any such suits, proceedings, actions, demands and claims have
arisen due to any negligent act or omission, or breach or default of this
Agreement on the part of the Authority Indemnified Persons.

42.1.2 The Authority will indemnify, defend, save and hold harmless the
Concessionaire against any and all suits, proceedings, actions, demands and
claims from third parties for any loss, damage, cost and expense of whatever kind
and nature arising out of (i) defect in title and/or the rights of the Authority in the
land comprised in the Site, and/or (ii) breach by the Authority of any of its
obligations under this Agreement or any related agreement, which materially and
adversely affect the performance by the Concessionaire of its obligations under
this Agreement, save and except that where any such claim, suit, proceeding,
action, and/or demand has arisen due to a negligent act or omission, or breach of
any of its obligations under any provision of this Agreement or any related
agreement and/or breach of its statutory duty on the part of the Concessionaire,
its subsidiaries, affiliates, contractors, servants or agents, the same shall be the
liability of the Concessionaire.

42.2 Indemnity by the Concessionaire

42.2.1 Without limiting the generality of Clause 42.1, the Concessionaire shall fully
indemnify, hold harmless and defend the Authority and the Authority
Indemnified Persons from and against any and all loss and/or damages arising
out of or with respect to:
(a) failure of the Concessionaire to comply with Applicable Laws and
Applicable Permits;

(b) payment of taxes required to be made by the Concessionaire in respect of

the income or other taxes of the Concessionaire’s contractors, suppliers
and representatives; or

(c) non-payment of amounts due as a result of materials or services furnished

to the Concessionaire or any of its contractors which are payable by the
Concessionaire or any of its contractors.

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42.2.2 Without limiting the generality of the provisions of this Article 42, the
Concessionaire shall fully indemnify, hold harmless and defend the Authority
Indemnified Persons from and against any and all suits, proceedings, actions,
claims, demands, liabilities and damages which the Authority Indemnified
Persons may hereafter suffer, or pay by reason of any demands, claims, suits or
proceedings arising out of claims of infringement of any domestic or foreign
patent rights, copyrights or other intellectual property, proprietary or
confidentiality rights with respect to any materials, information, design or
process used by the Concessionaire or by the Concessionaire’s Contractors in
performing the Concessionaire’s obligations or in any way incorporated in or
related to the Project. If in any such suit, action, claim or proceedings, a
temporary restraint order or preliminary injunction is granted, the Concessionaire
shall make every reasonable effort, by giving a satisfactory bond or otherwise,
to secure the revocation or suspension of the injunction or restraint order. If, in
any such suit, action, claim or proceedings, the Project, or any part thereof or
comprised therein, is held to constitute an infringement and its use is permanently
enjoined, the Concessionaire shall promptly make every reasonable effort to
secure for the Authority a licence, at no cost to the Authority, authorising
continued use of the infringing work. If the Concessionaire is unable to secure
such licence within a reasonable time, the Concessionaire shall, at its own
expense, and without impairing the Specifications and Standards, either replace
the affected work, or part, or process thereof with non-infringing work or part or
process, or modify the same so that it becomes non-infringing.

42.3 Notice and contest of claims

In the event that either Party receives a claim or demand from a third party in
respect of which it is entitled to the benefit of an indemnity under this Article 42
(the “Indemnified Party”) it shall notify the other Party (the “Indemnifying
Party”) within 30 (thirty) days of receipt of the claim or demand and shall not
settle or pay the claim without the prior approval of the Indemnifying Party,
which approval shall not be unreasonably withheld or delayed. In the event that
the Indemnifying Party wishes to contest or dispute the claim or demand, it may
conduct the proceedings in the name of the Indemnified Party, subject to the
Indemnified Party being secured against any costs involved, to its reasonable
satisfaction.

42.4 Defence of claims

42.4.1 The Indemnified Party shall have the right, but not the obligation, to contest,
defend and litigate any claim, action, suit or proceeding by any third party alleged
or asserted against such Party in respect of, resulting from, related to or arising
out of any matter for which it is entitled to be indemnified hereunder, and
reasonable costs and expenses thereof shall be indemnified by the Indemnifying
Party. If the Indemnifying Party acknowledges in writing its obligation to
indemnify the Indemnified Party in respect of loss to the full extent provided by
this Article 42, the Indemnifying Party shall be entitled, at its option, to assume
and control the defence of such claim, action, suit or proceeding, liabilities,
payments and obligations at its expense and through the counsel of its choice;
provided it gives prompt notice of its intention to do so to the Indemnified Party
and reimburses the Indemnified Party for the reasonable cost and expenses

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incurred by the Indemnified Party prior to the assumption by the Indemnifying

Party of such defence. The Indemnifying Party shall not be entitled to settle or
compromise any claim, demand, action, suit or proceeding without the prior
written consent of the Indemnified Party, unless the Indemnifying Party provides
such security to the Indemnified Party as shall be reasonably required by the
Indemnified Party to secure the loss to be indemnified hereunder to the extent so
compromised or settled.

42.4.2 If the Indemnifying Party has exercised its rights under Clause 42.3, the
Indemnified Party shall not be entitled to settle or compromise any claim, action,
suit or proceeding without the prior written consent of the Indemnifying Party
(which consent shall not be unreasonably withheld or delayed).

42.4.3 If the Indemnifying Party exercises its rights under Clause 42.3, the Indemnified
Party shall nevertheless have the right to employ its own counsel, and such
counsel may participate in such action, but the fees and expenses of such counsel
shall be at the expense of the Indemnified Party, when and as incurred, unless:

(a) the employment of counsel by such party has been authorised in writing
by the Indemnifying Party; or

(b) the Indemnified Party shall have reasonably concluded that there may be
a conflict of interest between the Indemnifying Party and the Indemnified
Party in the conduct of the defence of such action; or

(c) the Indemnifying Party shall not, in fact, have employed independent
counsel reasonably satisfactory to the Indemnified Party, to assume the
defence of such action and shall have been so notified by the Indemnified
Party; or

(d) the Indemnified Party shall have reasonably concluded and specifically
notified the Indemnifying Party either:

(i) that there may be specific defences available to it which are different
from or additional to those available to the Indemnifying Party; or

(ii) that such claim, action, suit or proceeding involves or could have a
material adverse effect upon it beyond the scope of this Agreement:

Provided that if Sub-clauses (b), (c) or (d) of this Clause 42.4.3 shall be
applicable, the counsel for the Indemnified Party shall have the right to
direct the defence of such claim, demand, action, suit or proceeding on
behalf of the Indemnified Party, and the reasonable fees and
disbursements of such counsel shall constitute legal or other expenses
hereunder.

42.5 No consequential claims

Notwithstanding anything to the contrary contained in the Article 42, the

indemnities herein provided shall not include any claim or recovery in respect of
any cost, expense, loss or damage of an indirect, incidental or consequential
nature, including loss of profit, except as expressly provided in this Agreement.

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42.6 Survival of Termination

The provisions of this Article 42 shall survive Termination.

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ARTICLE 43
RIGHTS AND TITLE OVER THE SITE
43.1 Licensee rights

For the purpose of this Agreement, the Concessionaire shall have rights to the
use of the Site as sole licensee subject to and in accordance with this Agreement,
and to this end, it may regulate the entry and use of the Project by third parties
in accordance with and subject to the provisions of this Agreement.

43.2 Access rights of the Authority and others

43.2.1 The Concessionaire shall allow free access to the Site at all times for the
authorised representatives and vehicles of the Authority, Senior Lenders, and
the Independent Engineer, and for the persons and vehicles duly authorised by
any Government Instrumentality to inspect the Project or to investigate any
matter within their Authority, and upon reasonable notice, the Concessionaire
shall provide to such persons reasonable assistance necessary to carry out their
respective duties and functions.

43.2.2 The Concessionaire shall, for the purpose of operation and maintenance of any
utility or road specified in Article 11, allow free access to the Site at all times
for the authorised persons and vehicles of the controlling body of such utility or
road.

43.3 Property taxes

All property taxes on the Site shall be payable by the Authority as owner of the
Site. Provided, however, that any such taxes payable by the Concessionaire
under Applicable Laws for use of the Site shall not be reimbursed or payable by
the Authority. For the avoidance of doubt, the Parties agree that stamp duties, if
any, due and payable on the grant of license comprising this Agreement shall be
paid by the Authority. Provided, however, that the Authority may require the
Concessionaire to pay such stamp duties, which shall be reimbursed by the
Authority to the Concessionaire within 15 (fifteen) days of receiving the demand
thereof.

43.4 Restriction on sub-letting

The Concessionaire shall not sublicense or sublet the whole or any part of the
Site, save and except as may be expressly set forth in this Agreement; provided
that nothing contained herein shall be construed or interpreted as restricting the
right of the Concessionaire to appoint Contractors for the performance of its
obligations hereunder including for operation and maintenance of all or any part
of the Project.

However, the Concessionaire, subject to the limitations & restrictions and the
terms and conditions of Clause 5.18 herein before, shall be allowed to grant on
license or lease or on franchise basis any built up space located within the
Terminal Stations or part thereof for undertaking and carrying out any activities

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permitted under this Agreement and subject to the Applicable Laws provided
always that any and all such arrangements shall be subject to and in conformity
with the terms of this Agreement and shall always be coterminous with this
Agreement. Further any such license or lease shall not allow or permit creation
of any sub-lease or sub-license or any sub-delegation of franchise rights.

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ARTICLE 44
DISPUTE RESOLUTION
44.1 Dispute resolution

44.1.1 In the event of any dispute, difference or controversy of whatever nature

howsoever arising under or out of or in relation to this Agreement (including its
interpretation) between the Parties, and so notified in writing by either Party to
the other Party (the “Dispute”) either Party may call upon the Independent
Engineer, to mediate and assist the Parties in arriving at an amicable settlement
thereof.

44.1.2 The Parties agree to use their best efforts for resolving all Disputes arising under
or in respect of this Agreement promptly, equitably and in good faith, and further
agree to provide each other with reasonable access during normal business hours
to all non-privileged records, information and data pertaining to any Dispute.

44.1.3 Dispute Resolution Board (DRB)

Failing mediation by the Independent Engineer or without the intervention of

the Independent Engineer, either Party may require such Dispute to be referred
to the Dispute Resolution Board ("DRB") in accordance with the procedure set
forth in Schedule W to the Concession Agreement. The decision(s) of the
Dispute Resolution Board shall be binding on both parties who shall promptly
give effect to unless and until the same is revised/ modified, as hereinafter
provided, in a Conciliation/ Arbitral Tribunal.

44.2 Conciliation

If either the Authority or the Concessionaire is dissatisfied with any decision of

the DRB, and/ or if the DRB is unable to resolve the dispute, either Party may
refer the Dispute to arbitration in accordance with the provisions of Clause 44.3
but before resorting to such arbitration, the parties agree to explore conciliation
by the Conciliation Committees of Independent Experts set up by the Authority
in accordance with the procedure decided by the panel of such experts and
notified by the Authority on its website including its subsequent amendments. In
the event of the conciliation proceedings being successful, the parties to the
dispute would sign the written settlement agreement and the conciliators would
authenticate the same. Such settlement agreement would then be binding on the
parties in terms of Section 73 of the Arbitration Act. In case of failure of the
conciliation process even at the level of the Conciliation Committee, either party
may refer the Dispute to arbitration in accordance with the provisions of Clause
44.3.

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44.3 Arbitration

44.3.1 Any Dispute which is not resolved amicably by conciliation, as provided in

Clause 44.2, shall be finally settled by arbitration as set forth below:

i. The Dispute shall be finally referred to Society for Affordable Resolution

of Disputes (hereinafter called as SAROD), a Society registered under
Society’s Act, 1860 vide Registration no. S/RS/SW1049/2013 duly
represented by Authority and National Highways Builders Federation
(NHBF). The dispute shall be dealt with in terms of Rules of SAROD.
The detailed procedure for conducting Arbitration shall be governed by
the Rules of SAROD and provisions of Arbitration & Conciliation Act,
1996, as amended from time to time. The Dispute shall be governed by
Substantive Law of India.

ii. The appointment of Tribunal, Code of conduct for Arbitrators and fees
and expenses of SAROD and Arbitral Tribunal shall also be governed by
the Rules of SAROD as amended from time to time.

iii. Subject to the provisions of THE LIMITATION ACT, 1963, as amended

from time to time, Arbitration may be commenced during or after the
Concession Period, provided that the obligations of Authority and the
Concessionaire shall not be altered by reason of the Arbitration being
conducted during the Concession Period.

iv. The venue of Arbitration shall be New Delhi or a place selected by

governing body of SAROD and the language for all documents and
communications between the parties shall be English.

v. The expenses incurred by each party in connection with the preparation,

presentation, etc., of arbitral proceedings shall be shared by each party
itself.

44.3.2 The arbitrators shall make a reasoned award (the “Award”). Any Award made
in any arbitration held pursuant to this Article 44 shall be final and binding on
the Parties as from the date it is made, and the Concessionaire and the Authority
agree and undertake to carry out such Award without delay.

44.3.3 The Concessionaire and the Authority agree that an Award may be enforced
against the Concessionaire and/or the Authority, as the case may be, and their
respective assets wherever situated.

44.3.4 This Agreement and the rights and obligations of the Parties shall remain in full
force and effect, pending the Award in any arbitration proceedings hereunder.
Further, the parties unconditionally acknowledge and agree that notwithstanding
any dispute between them, each party shall proceed with the performance of its
respective obligations, pending resolution of Dispute in accordance with this
Article.

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44.4 Adjudication by Regulatory Authority, Tribunal or Commission

In the event of constitution of a statutory Regulatory Authority, Tribunal or

Commission as the case may be with powers to adjudicate upon disputes between
the Concessionaire and the Authority, all Disputes arising after such constitution
shall, instead of reference to arbitration under Clause 44.3, be adjudicated upon
by such Regulatory Authority, Tribunal or Commission in accordance with the
Applicable Law and all references to Dispute Resolution Procedure shall be
construed accordingly. For the avoidance of doubt, the Parties hereto agree that
the adjudication hereunder shall not be final and binding until an appeal against
such adjudication has been decided by an appellate tribunal or High Court or
competent jurisdiction, as the case may be, or no such appeal has been preferred
within the time specified in the Applicable Law.

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ARTICLE 45
DISCLOSURE
45.1 Disclosure of Specified Documents

The Concessionaire shall make available for inspection by any person, copies
of this Concession Agreement, the Maintenance Manual, the Maintenance
Programme and the Maintenance Requirements (hereinafter collectively
referred to as the “Specified Documents”), free of charge, during normal
business hours on all working days at the Site and Concessionaire’s Registered
Office. The Concessionaire shall prominently display at the Site, public notices
stating the availability of the Specified Documents for such inspection and shall
make copies of the same available to any person upon payment of copying
charges on a ‘no profit no loss’ basis.

45.2 Disclosure of Documents relating to safety

The Concessionaire shall make available for inspection by any person copies of
all Documents and data relating to safety of the Project, free of charge, during
normal business hours on all working days, at the Concessionaire’s Registered
Office. The Concessionaire shall make copies of the same available to any
person upon payment of copying charges on a ‘no profit no loss’ basis.

45.3 Notwithstanding the provisions of Clauses 45.1 and 45.2, the Authority shall be
entitled to direct the Concessionaire, from time to time, to withhold the
disclosure of Protected Documents (as defined hereinbelow) to any person in
pursuance of the aforesaid Clauses.

Explanation:

The expression Protected Documents shall mean such of the Specified

Documents or documents referred to in Clause 45.1 and 45.2, or portions
thereof, the disclosure of which the Authority is entitled to withhold under the
provisions of the Right to Information Act, 2005.

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ARTICLE 46
REDRESSAL OF PUBLIC GRIEVANCES
46.1 Complaints Register

46.1.1 The Concessionaire shall maintain a public relations office at the Site where it shall
keep a register (the “Complaint Register”) open to public access at all times for
recording of complaints by any person (the “Complainant”). Information relating to
the availability of and access to the Complaint Register shall be prominently displayed
by the Concessionaire at the Site so as to bring it to the attention of all Users.

46.1.2 The Complaint Register shall be securely bound and each page thereof shall be duly
numbered. It shall have appropriate columns including the complaint number, date,
name and address of the Complainant, substance of the complaint and the action taken
by the Concessionaire. Immediately after a complaint is registered, the Concessionaire
shall give a receipt to the Complainant stating the date and complaint number.

46.1.3 Without prejudice to the provisions of Clauses 46.1.1 and 46.1.2, the Authority may,
in consultation with the Concessionaire, specify the procedure for making complaints
in electronic form and for responses thereto. The Concessionaire shall also maintain an
accurate record of the entries in the Complaint Register in an electronic form along
with response / remedial measures taken.

46.2 Redressal of complaints

46.2.1 The Concessionaire shall inspect the Complaint Register every day and take prompt
and reasonable action for redressal of each complaint. The action taken shall be briefly
noted in the Complaint Register and a reply stating the particulars thereof shall be sent
by the Concessionaire to the Complainant under a certificate of posting.

46.2.2 Within 7 (seven) days of the close of each month, the Concessionaire shall send to the
Authority and to the Independent Engineer a true photocopy each of all the pages of
the Complaint Register on which any entry has been recorded during the course of such
month, and upon perusal thereof, the Authority may, in its discretion, advise the
Concessionaire to take such further action as the Authority may deem appropriate for
a fair and just redressal of any grievance. The Concessionaire shall consider such
advice and inform the Authority of its decision thereon, and if the Authority is of the
opinion that the Complainant is entitled to further relief, it may refer the matter to the
competent forum for its disposal under the Consumer Protection Act, 1986, and advise
the Complainant to pursue the complaint at his own risk and cost.

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ARTICLE 47
MISCELLANEOUS
47.1 Governing law and jurisdiction

This Agreement shall be construed and interpreted in accordance with and governed
by the laws of India, and the courts in New Delhi shall have exclusive jurisdiction
over matters arising out of or relating to this Agreement.

47.2 Waiver of immunity

Each Party unconditionally and irrevocably:

(a) agrees that the execution, delivery and performance by it of this Agreement
constitute commercial acts done and performed for commercial purpose;

(b) agrees that, should any proceedings be brought against it or its assets, property
or revenues in any jurisdiction in relation to this Agreement or any transaction
contemplated by this Agreement, no immunity (whether by reason of
sovereignty or otherwise) from such proceedings shall be claimed by or on
behalf of the Party with respect to its assets;

(c) waives any right of immunity which it or its assets, property or revenues now
has, may acquire in the future or which may be attributed to it in any
jurisdiction; and

(d) consents generally in respect of the enforcement of any judgement or award

against it in any such proceedings to the giving of any relief or the issue of any
process in any jurisdiction in connection with such proceedings (including the
making, enforcement or execution against it or in respect of any assets,
property or revenues whatsoever irrespective of their use or intended use of
any order or judgement that may be made or given in connection therewith).

47.3 State Support Agreement

The Concessionaire acknowledges that it has received from the Authority a certified
true copy of the agreement executed between MORTH and the State Government for
providing the support and services specified therein (the “State Support
Agreement”), and the Parties hereto agree to make their best endeavours to procure
the support of the State Government.

47.4 Depreciation and Interest

47.4.1 For the purposes of depreciation under the Applicable Laws, the property representing
the capital investment made by the Concessionaire in the Project shall be deemed to
be acquired and owned by the Concessionaire. For the avoidance of doubt, the
Authority shall not in any manner be liable in respect of any claims for depreciation

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to be made by the Concessionaire under the Applicable Laws.

47.4.2 Unless otherwise specified, any interest payable under this Agreement shall accrue on
a daily outstanding basis and shall be compounded on the basis of quarterly rests.

47.5 Delayed payments

The Parties hereto agree that payments due from one Party to the other Party under the
provisions of this Agreement shall be made within the period set forth therein, and if
no such period is specified, within 30 (thirty) days of receiving a demand along with
the necessary particulars. In the event of delay beyond such period, the defaulting Party
shall pay interest for the period of delay calculated at a rate equal to 4% (four per cent)
above the Bank Rate, and recovery thereof shall be without prejudice to the rights of
the Parties under this Agreement including Termination thereof.

47.6 Waiver

47.6.1 Waiver, including partial or conditional waiver, by either Party of any default by the
other Party in the observance and performance of any provision of or obligations under
this Agreement:-

(a) shall not operate or be construed as a waiver of any other or subsequent default
hereof or of other provisions of or obligations under this Agreement;

(b) shall not be effective unless it is in writing and executed by a duly authorised
representative of the Party; and

(c) shall not affect the validity or enforceability of this Agreement in any manner.

47.6.2 Neither the failure by either Party to insist on any occasion upon the performance of
the terms, conditions and provisions of this Agreement or any obligation thereunder
nor time or other indulgence granted by a Party to the other Party shall be treated or
deemed as waiver of such breach or acceptance of any variation or the relinquishment
of any such right hereunder.

47.7 Liability for review of Documents and Drawings

Except to the extent expressly provided in this Agreement:

(a) no review, comment or approval by the Authority or the Independent Engineer

of any Project Agreement, Document or Drawing submitted by the
Concessionaire nor any observation or inspection of the construction, operation
or maintenance of the Project nor the failure to review, approve, comment,
observe or inspect hereunder shall relieve or absolve the Concessionaire from
its obligations, duties and liabilities under this Agreement, the Applicable Laws
and Applicable Permits; and

(b) the Authority shall not be liable to the Concessionaire by reason of any review,

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comment, approval, observation or inspection referred to in Sub-clause (a)

above.

47.8 Exclusion of implied warranties etc.

This Agreement expressly excludes any warranty, condition or other undertaking

implied at law or by custom or otherwise arising out of any other agreement between
the Parties or any representation by either Party not contained in a binding legal
agreement executed by both Parties.

47.9 Survival

47.9.1 Termination shall:

(a) not relieve the Concessionaire or the Authority, as the case may be, of any
obligations hereunder which expressly or by implication survive Termination
hereof; and

(b) except as otherwise provided in any provision of this Agreement expressly

limiting the liability of either Party, not relieve either Party of any obligations
or liabilities for loss or damage to the other Party arising out of, or caused by,
acts or omissions of such Party prior to the effectiveness of such Termination
or arising out of such Termination.

47.9.2 All obligations surviving Termination shall only survive for a period of 3 (three) years
following the date of such Termination.

47.10 Entire Agreement

This Agreement and the Schedules together constitute a complete and exclusive
statement of the terms of the agreement between the Parties on the subject hereof, and
no amendment or modification hereto shall be valid and effective unless such
modification or amendment is agreed to in writing by the Parties and duly executed by
persons especially empowered in this behalf by the respective Parties. All prior written
or oral understandings, offers or other communications of every kind pertaining to this
Agreement are abrogated and withdrawn. For the avoidance of doubt, the Parties hereto
agree that any obligations of the Concessionaire arising from the Request for Proposals,
as the case may be, shall be deemed to form part of this Agreement and treated as such.

47.11 Severability

If for any reason whatever, any provision of this Agreement is or becomes invalid,
illegal or unenforceable or is declared by any court of competent jurisdiction or any
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected in any manner, and the
Parties will negotiate in good faith with a view to agreeing to one or more provisions
which may be substituted for such

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invalid, unenforceable or illegal provisions, as nearly as is practicable to such invalid,

illegal or unenforceable provision. Failure to agree upon any such provisions shall not
be subject to the Dispute Resolution Procedure set forth under this Agreement or
otherwise.

47.12 No partnership

This Agreement shall not be interpreted or construed to create an association, joint

venture or partnership between the Parties, or to impose any partnership obligation or
liability upon either Party, and neither Party shall have any right, power or Authority
to enter into any agreement or undertaking for, or act on behalf of, or to act as or be an
agent or representative of, or to otherwise bind, the other Party.

47.13 Third Parties

This Agreement is intended solely for the benefit of the Parties, and their respective
successors and permitted assigns, and nothing in this Agreement shall be construed to
create any duty to, standard of care with reference to, or any liability to, any person not
a Party to this Agreement.

47.14 Successors and Assigns

This Agreement shall be binding upon, and inure to the benefit of the Parties and their
respective successors and permitted assigns.

47.15 Notices

Unless the law requires to follow the specified mode of communication only as
prescribed therein, any notice or other communication to be given by one contracting
Party to the other Party under or in connection with the matters contemplated by this
Agreement shall be routed through NHAI Data Lake or through NHLML IT Platform
under the hand of the authorized representative and shall:

(a) in the case of the Concessionaire, be given through NHAI Data Lake or
through NHLML IT Platform and marked for attention of the person set out
below or to such other person as the Concessionaire may from time to time
designate by notice to the Authority;

{Attention:
Designation:
Address:
Fax No:
Email ;}

(b) in the case of the Authority, be given through NHAI Data Lake or through
NHLML IT Platform and be addressed to the person named below with a copy
delivered to the Authority Representative or such other person as the Authority
may from time to time designate by notice to the Concessionaire;

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{Attention:
Designation:
Address:
Fax No:
Email ;} and

(c) any notice or communication by one contracting Party to the other Party, given
in accordance herewith, shall be deemed to have been delivered when given
through or made on the NHAI data lake or through NHLML IT Platform.

47.16 Supplementary Agreement

The Parties agree that the Parties may execute a Supplementary Agreement
novating any terms and conditions of this Agreement.

47.17 Language

All notices required to be given by one Party to the other Party and all other
communications, Documentation and proceedings which are in any way relevant to
this Agreement shall be in writing and in English language.

47.18 Counterparts

This Agreement may be executed in two counterparts, each of which, when executed
and delivered, shall constitute an original of this Agreement.

47.19 Memorandum of Understanding

A draft of the Memorandum of Understanding with the brief roles and responsibilities
of Authority and State Government is provided in Schedule – Y.

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ARTICLE 48
KEY PERFORMANCE INDICATORS
Without prejudice to the obligations specified in this Agreement, the Concessionaire
shall operate the Projects such that it achieves or exceeds the performance indicators
specified in this Article 48 (the “Key Performance Indicators”)
48.1 Operation of Ropeway Cable cars
Notwithstanding anything to the contrary contained in this Agreement, the
Concessionaire shall at all times ensure as under:
(a) the ropeway cable cars are clean, hygienic, and free of odor; and
(b) there is adequate lighting and alarm bell system within the passenger cable cars
in conformity with the Specifications and Standards
(c) the number of passengers shall not exceed the design capacity of the passenger
cable cars
(d) the rope speed is variable and can be adjusted to meet the traffic requirements
subject to a maximum of 6 (six) meters/second for monocable systems, 8 (eight)
meters/second for tricable systems, 12 (twelve) meters/second for aerial
tramway systems and 14 (fourteen) meters/second for cable liners (automated
people mover) systems
(e) design, procure and install and keep in ready operational mode an automatic
power back up system to meet any contingency of power failure or malfunction
(including any variations in the voltage) for a duration of at least 45 minutes
(forty-five) minutes or at least the time necessary to disembark all the in-transit
passengers, whichever is longer. The contingency power back system shall
include mechanism for load forecast for on next 24 hours basis during the
Operations Period.
(f) Install and maintain in good working conditions all required safety measures
and facilitators for the safe and convenient boarding and de-boarding of the
Users (including minors, senior citizens and persons requiring special
assistance);
(g) Concessionaire shall not hold or allow any person to store, bring transport,
transfer at Site or allow any person to carry any prohibited material or
substance in the ropeway cable cars;
(h) Concessionaire shall ensure and provide, at all times professional, efficient and
prompt, polite and courteous services to all Users without discrimination
whatsoever and in an honest and businesslike manner and shall improve the
standard of services offered if deemed unsatisfactory by Authority.

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(i) Concessionaire shall appoint a functionally qualified and experienced manager

who shall represent the Concessionaire on a full-time basis and be available on
a full-time basis during the operational and maintenance hours to ensure the
safe, smooth and efficient operation of the Project. The concerned manager shall
liaise with the Authority to ensure efficient service delivery.

(j) Concessionaire shall employ only well-trained and healthy persons of good
character and integrity after carrying out proper security verification acceptable
to Authority and to ensure that they are attired in uniforms, bearing name tags
or other identification badges approved by Authority. The persons employed by
the Concessionaire should reasonably be able to understand and
converse/communicate, among other, in English and Hindi language

48.2 Design and Construction of the stations:

Notwithstanding anything to the contrary contained in this Agreement, the design and
construction of the stations shall be such that, in compliance with:

(a) a User alighting at the platform should be able to reach a point outside the station
in not more than [10 (ten)] minutes of brisk walking and a User crossing the fee
collection point should be able to reach the platform in not more than [5 (five)]
minutes of brisk walking; and

(b) in case of emergency, evacuation from any point on the platform to a point of
safety in an open space within or outside the station shall not exceed [200 (two
hundred)] meters

(c) the station area should have enough seats in the waiting area to accommodate at
least [100] passengers at a time.

48.3 Operation of Stations

Notwithstanding anything to the contrary contained in this Agreement. The
Concessionaire shall at all times ensure as under:

(a) the Stations and its toilets are clean, hygienic and free of odor including all the
counters, fixtures, signboards, lighting and all additions thereto, clean and in
good condition and to do all repairs and works, necessary to put and keep them
in such repair and good condition, and to maintain a high standard of cleanliness
as per international standards.

(b) there is adequate lighting within the Stations in conformity with the
Specifications and Standards;

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(c) all lifts, escalators, walkalators, train information systems, public address
systems and lighting systems function efficiently, and their availability is no less
than 95% in a month; and

(d) [xx]% percent of all phone calls relating to the Project are answered within 30
(thirty) seconds.

(e) Proper security mechanism for the safety and protection of the Users, employees
of the Concessionaire / Contractors, visitors to the Project and for the safety and
protection of the Project and its assets is set in place on 24x7 basis with CCTV
coverage of all vital areas of the Project in place.

(f) The response time to any call for rescue and retrieval or in case of any
Emergency of any kind shall be equivalent to the best industry norms and
practices with the helpline numbers displayed prominently at prominent
locations at the Stations and inside the cable cars.

(g) The Concessionaire shall on regular basis keep a record of all such calls with
details of response time and action taken. Such record shall be available for
inspection of the Authority and the Independent Engineer.

(h) The Concessionaire shall in collaboration with the concerned authorities on a

regular basis, at least once in 06 (six) undertake, undertake security and
evacuation drills for the training of its staff.

(i) Concessionaire shall comply with Fire & Safety norms as specified by Authority
/ concerned department of the State

(j) Concessionaire shall review operational time table of the ropeway cable cars on
a regular basis to minimize queuing at the platform or outside the Terminal
Station. The Concessionaire on need basis shall deploy additional manpower in
order to facilitate smoother movement of Users and vehicles.

(k) Concessionaire shall except for the priority and preferential use that may be
authorized in terms of guidelines issued by the relevant authorities / emergency
circumstances, manage and operate the Project Facilities and services on a first
come - first serve, common-user basis, open to any and all Users, and refrain
from indulging in any unfair or discriminatory practice against any user or
potential User thereof

(l) maintain the CCTV’s for entire Project Area to give an overall view of Project
Area, entry and exit points and security systems (if applicable) etc.

(m) create, operate an app where users can rate their experience in terms of hygiene,
service quality and safety. The feedback from the customers will be recorded on

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an online server to be maintained at the authority premise. The Concessionaire

shall endeavor to minimize negative feedback through measures to improve
service quality. The data on the customer reviews shall be consolidated in the
monthly reports to be submitted by the Independent Engineer

48.4 Monthly status report

During the Operation Period, the Concessionaire shall, no later than 7 (Seven) days
after the close of each month, furnish a monthly report stating in detail the compliance
with all the Key Performance Indicators specified in this Article 48 along with an
analysis of the reasons for failures, if any, and the strategies for addressing the same
and for otherwise improving the operational performance of the Project.
48.5 Penalty for shortfall in performance
The Concessionaire shall ensure and procure compliance of each of the Key
Performance Indicators specified in this Article 48 and for any shortfall in performance
it shall pay Damages as per Clause 48.8 (Table- A) which shall be recovered from the
Performance Guarantee furnished and after the release of the Performance Guarantee
the amount of the damages incurred shall be recovered from the Revenue payments
collected from the ropeway operations.
The Damages due and payable under this Clause 48.5 shall be determined at the rates
mentioned under clause 48.8 for every shortfall in any single performance indicator
specified in this Article 48; provided, however, that the Authority may, upon a
representation made by the Concessionaire on this account with all reasonable
evidences in support, waive the Damages, in part or full, if it is satisfied that the
Concessionaire has been carrying out its obligations diligently and efficiently and that
the shortfall to be waived was on account of reasons beyond the control of the
Concessionaire.
48.6 ISO certification
48.6.1 The Concessionaire shall, within 6 (six) months from COD, achieve and thereafter
maintain throughout the Concession Period, ISO 9001:2015 certification or a substitute
thereof for all the facilities at the Project, and shall provide a certified copy thereof to
the Authority forthwith.
48.6.2 In the event of default in obtaining the certification specified in Clause 48.6.1, the
Concessionaire shall, within 15 (fifteen) days thereof, submit to the Authority an action
plan that sets out the actions proposed to be taken by the Concessionaire for rectifying
its deficiencies and obtaining such certification for all facilities at the Project.
48.6.3 If the period of default in obtaining the ISO certification under this Clause 48.6 shall
exceed a continuous period of 3 (three) months, the Concessionaire shall thereafter pay
Damages to the Authority in an amount equal to 2% (two per cent) of the total
Realizable Fee for every 1 (one) day of default.

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48.7 Passenger Charter

The Concessionaire shall publish and implement a charter articulating the rights and
expectations of Users (the “Passenger Charter”) substantially in the form specified in
Schedule-W The Concessionaire shall at all times be accountable and liable to Users in
accordance with the provisions of the Passenger Charter and Applicable Laws.
48.8 Damages for Performance Shortfall:
Without prejudice to the any other provisions and covenants of the Agreement, inter-
alia relating payment of penalties or damages for breach or default in performance, the
Damages in respect of the performance shortfall as mentioned Table -A below shall be
computed and be payable by the Concessionaire to the Authority , inter-alia, in terms
as mentioned therein. For the avoidance of doubt in case of any penalty incurred by the
Concessionaire due to shortfall in performance, as defined in Clause 48.8, the amount
to be paid by the Concessionaire will be deducted as follows:

i. Till the Performance Security is active:

Amount calculated as damages to be deducted from the Performance Security.

The Concessionaire shall replenish the Performance Security as per the terms
of this Agreement.

ii. After Performance Security expires:

1. During the Construction Period: Amount calculated as damages to be deducted

directly from the payments to be paid by the Authority as Grant to the
Concessionaire during the Construction Period, as defined in Article 25 or to be
paid directly by the Concessionaire if the Premium is provided by the
Concessionaire, as defined in Article 25.

2. During the Operation Period: Amount calculated as damages shall be paid

directly from the realizable Fee by the Concessionaire to the Authority.

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Table –A – Key Performance Area

Measurement of Damages for
# Performance Area Cure Period
KPI Shortfall
1. Ropeway / Cable cars
1% of
Through system
Performance
Not keeping a record of all emergency or physical
Security
calls with details of response time and verification by IE Earliest
1 (Penalty to be
action taken including accidents / or as captured resolution1
levied per
unscheduled breakdowns through CCTV
instance of
by IE
default)
2% of
Through system
Performance
Initial response time for rescue and or physical
Security
evacuation to handle any emergencies verification by IE Earliest
2 (Penalty to be
exceeds 10 (ten) minutes and total rescue or as captured resolution3
levied per
time exceed more than 3 (three) hours through CCTV
instance of
by IE
default)
Through system
Non-availability of facilitators for the
or physical 0.2% of
safe and convenient boarding and de-
verification by IE Performance
3 boarding of the Users (including minors, 5 days3
or as captured Security per
senior citizens and persons requiring
through CCTV day
special assistance);
by IE
Through physical
Ropeway cable cars are kept unclean for verification by IE
Rs. 10,000 per
4 more than 4 (four) hours in a day (within or as captured 2 days2
day
the operational hours) through CCTV
by IE
Through physical
0.2% of
Non-availability of standby arrangement verification by IE
Performance
5 for non-interruption of Ropeway or as captured 1 day3
Security per
operations through CCTV
day
by IE
Non-availability of emergency power
back-up arrangements in place with Through physical
0.2% of
inadequate quantity of diesel stored in a verification by IE
Performance
6 safe manner, for a duration of at least 60 or as captured 1 day3
Security per
minutes (sixty) minutes or at least the through CCTV
day
time necessary to disembark all the in- by IE
transit passengers, whichever is longer

1
Authority shall issue an immediate termination notice to the Concessionaire in case of non-resolution of the issue
within the Cure Period defined in Table-A, Clause 48.8
2
Authority may provide an additional cure period, in addition to the Cure Period defined in Table-A, Clause 48.8,
in consultation with the Independent Engineer, for resolution of the issue, on a case-to-case basis

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Non-availability of a functionally
0.2% of
qualified and experienced manager who Through system
Performance
7 shall represent the Concessionaire on a or physical 14 days3
Security per
full-time basis during operational and verification by IE
day
maintenance hours
Through system
or physical 0.1% of
Non-availability of experienced and verification by IE Performance
8 1 day5
trained staff or as captured Security per
through CCTV day
by IE
Through physical
Not adhering to the O&M schedule 0.1% of
verification by IE
mentioned in the O&M manual for all Performance
9 or as captured 1 day5
components of the Ropeway System for Security per
through CCTV
regular maintenance & service day
by IE
2. Stations
Insufficiently equipped or staffed Through physical
0.2% of
Medical Aid Post / Traffic Aid Post (non- verification by IE
Performance
10 compliance with standards mentioned in or as captured 5 days3
Security per
the Contract Agreement / Maintenance through CCTV
day
Manual) by IE
Through physical
0.2% of
Non-coverage of Stations of the Project verification by IE
Performance
11 through CCTV & non-availability of or as captured 5 days3
Security per
CCTV footage 24x7 through CCTV
day
by IE
Non-compliance with Fire & Safety
Through physical
norms as per the codal requirement by 0.1% of
verification by IE
concerned department of the State (non- Performance
12 or as captured 1 day3
compliance with standards mentioned in Security per
through CCTV
the Contract Agreement/ Maintenance day
by IE
Manual)
Through physical
Station including any utilities / amenities verification by IE
Earliest Rs. 10,000 per
13 area kept unclean for more than 1 day or as captured
resolution5 day
(within the operational hours) through CCTV
by IE
Station including any utilities / amenities Through physical
area kept non-functional for more than verification by IE
Rs. 10,000 per
14 6 hours (within the operational hours), or as captured 1 day5
day
which hinders the operations of the through CCTV
Ropeway System by IE
Public announcement system Through physical
Rs. 5000 per
15 nonfunctional or defective voice relay for verification by IE 5 days5
day
more than 1 day (non-compliance with or as captured

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standards mentioned in the Contract through CCTV

Agreement/ Maintenance Manual) by IE

Poor or inadequate lightning arrangement Through physical

at Station, entry / exit point near the verification by IE
Rs. 10,000 per
16 Terminal building (non-compliance with or as captured 1 day5
day
standards mentioned in the Contract through CCTV
Agreement / Maintenance Manual) by IE
Inadequate security or trained marshals Through physical
0.1% of
deployment at platform, help-desk etc. verification by IE
Performance
17 (non-compliance with standards or as captured 5 days3
Security per
mentioned in the Contract Agreement / through CCTV
day
Maintenance Manual) by IE
All lifts, escalators, walkalators, function Through physical
0.1% of
efficiently, and their availability is not verification by IE
Performance
18 less than 95% during operating hours or as captured 30 days5
Security per
(except scheduled shutdown and on through CCTV
day
standby power arrangement) by IE
Signage’s and notice boards are not Through physical
properly placed and are un-clear and verification by IE
Rs. 5000 per
19 illegible (non-compliance with standards or as captured 1 day5
day
mentioned in the Contract Agreement/ through CCTV
Maintenance Manual) by IE
Temperature in retail and commercial
100 no. of user
areas is below the prescribed limit (non-
complaints / Rs. 10,000 per
20 compliance with standards mentioned in 1 day5
1,00,000 day
the Contract Agreement/ Maintenance
passengers
Manual)
3. Overall Project Area
Inadequate security / surveillance
arrangement in the Project Area Through physical
including poor lightning arrangements in verification by IE
Rs. 10,000 per
21 areas outside the Station but still under or as captured 5 days3
day
the obligation of the Concessionaire through CCTV
(non-compliance with standards by IE
mentioned in the Contract Agreement)
Through physical
Unauthorized constructions / installations 0.2% of
verification by IE
made by the Concessionaire in areas Earliest Performance
22 or as captured
under the obligation of the resolution5 Security per
through CCTV
Concessionaire day
by IE
Through physical
No scientific arrangement for collection, 0.2% of
verification by IE
segregation and disposal of waste Performance
23 or as captured 5 days5
material in accordance with MSW Security per
through CCTV
collection & disposal guidelines / day
by IE

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conditions issued by the local authorities

& Statutory bodies

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ARTICLE 49
DEFINITIONS

49.1 Definitions

In this Agreement, the following words and expressions shall, unless repugnant to the
context or meaning thereof, have the meaning hereinafter respectively assigned to
them:

“Accounting Year” means the financial year commencing from the first day of April
of any calendar year and ending on the thirty-first day of March of the next calendar
year;

“Additional Facilities” means the facilities such as motels, restaurants, shopping areas
and amusement parks which the Concessionaire may, in its discretion and subject to
Applicable Laws, provide or procure for the benefit of the Users, and which are in
addition to the Project Facilities, and not situated on the Site;

“Additional Ropeway” shall have the meaning set forth in Clause 30.1.1;

“Adjusted Equity” means the Equity funded in Indian Rupees and adjusted on the first
day of the current month (the “Reference Date”), in the manner set forth below, to
reflect the change in its value on account of depreciation and variations in WPI, and
for any Reference Date occurring:

(a) on or before COD, the Adjusted Equity shall be a sum equal to the Equity
funded in Indian Rupees and expended on the Project, revised to the extent of
one half of the variation in WPI occurring between the first day of the month
of Appointed Date and the Reference Date;

(b) from COD and until the 4th (fourth) anniversary thereof, an amount equal to
the Adjusted Equity as on COD shall be deemed to be the base (the “Base
Adjusted Equity”) and the Adjusted Equity hereunder shall be a sum equal to
the Base Adjusted Equity, revised at the commencement of each month
following COD to the extent of variation in WPI occurring between COD and
the Reference Date;

(c) after the 4th (fourth) anniversary of COD, the Adjusted Equity hereunder shall
be a sum equal to the Base Adjusted Equity, reduced by 0.40% (zero point four
zero per cent) thereof at the commencement of each month following the 4th
(fourth) anniversary of COD and the amount so arrived at shall be revised to
the extent of variation in WPI occurring between COD and the Reference Date;

For the avoidance of doubt, the Adjusted Equity shall, in the event of Termination, be
computed as on the Reference Date immediately preceding the Transfer Date; provided
that no reduction in the Adjusted Equity shall be made for a period equal to the
duration, if any, for which the Concession Period is extended, but the revision on

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account of WPI shall continue to be made;

“Affected Party” shall have the meaning set forth in Clause 34.1;

“Agreement” or “Concession Agreement” means this Agreement, its Recitals, the

Schedules hereto and any amendments thereto made in accordance with the provisions
contained in this Agreement;

“Appendix” shall have the meaning set forth in Clause 10.3.1;

“Applicable Laws” means all laws, brought into force and effect by GOI or the State
Government including rules, regulations and notifications made thereunder, and
judgements, decrees, injunctions, writs and orders of any court of record, applicable to
this Agreement and the exercise, performance and discharge of the respective rights
and obligations of the Parties hereunder, as may be in force and effect during the
subsistence of this Agreement;

“Applicable Permits” means all clearances, licences, permits, authorisations, no

objection certificates, consents, approvals and exemptions required to be obtained or
maintained under Applicable Laws in connection with the construction, operation and
maintenance of the Project during the subsistence of this Agreement;

“Appointed Date” means the date of fulfilment of all Conditions Precedents, to be

declared by the Authority with the consent of the Concessionaire determine, and shall
be deemed to be the date of commencement of the Concession Period; For the
avoidance of doubt, every Condition Precedent shall have been satisfied prior to the
Appointed Date, save and except those specified in Clause 4.1.2 (b) and Clause 4.1.2
(d), which may be waived by the Authority for the purpose of declaration of Appointed
Date.;

“Arbitration” shall have the meaning set forth in Clause 44.3;

“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;

“Associate” or “Affiliate” means, in relation to either Party {and/or Consortium

Members}, a person who controls, is controlled by, or is under the common control
with such Party {or Consortium Member} (as used in this definition, the expression
“control” means, with respect to a person which is a company or corporation, the
ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares
of such person, and with respect to a person which is not a company or corporation,
the power to direct the management and policies of such person, whether by operation
of law or by contract or otherwise);

“Authority Default” shall have the meaning set forth in Clause 37.2.1;

“Authority Representative” means such person or persons as may be authorised in

writing by the Authority to act on its behalf under this Agreement and shall include

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any person or persons having Authority to exercise any rights or perform and fulfil any
obligations of the Authority under this Agreement;

“Average Daily Fee” means the amount arrived at after dividing the total Realisable
Fee of the immediately preceding Accounting Year by number of operational days, and
increasing the result thereof by 5% (five per cent); provided that the Average Daily Fee
for any period prior to completion of the first Accounting Year following COD shall
be a simple average of the Fee collected every day during the period between COD and
the last day of the month preceding the date on which the event requiring calculation
hereof occurred, and in the event that the Fee payable by any segment of traffic has not
been realised for any reason, an assessment thereof shall be made by the Independent
Engineer to form part of the Average Daily Fee for such period;

“Bank” means a bank incorporated in India and having a minimum net worth of Rs.
1,000 crore (Rupees one thousand crore) or any other bank acceptable to Senior
Lenders, but does not include a bank in which any Senior Lender has an interest;

“Bank Rate” means the rate of interest specified by the Reserve Bank of India from
time to time in pursuance of section 49 of the Reserve Bank of India Act, 1934 or any
replacement of such Bank Rate for the time being in effect;

“Bid” means the documents in their entirety comprised in the bid submitted by the
{selected bidder/Consortium} in response to the Request for Proposals in accordance
with the provisions thereof and “Bids” shall mean the bids submitted by any and all
prequalified bidders;

“Bid Security” means the security provided by the Concessionaire to the Authority
along with the Bid in a sum of Rs. 35.89 Crore (Rupees Thirty-Five Crores and
Eighty-Nine Lakhs Only), in accordance with the Request for Proposals, and which
is to remain in force until substituted by the Performance Security;

“Bus” means any passenger motor vehicle with a registered carrying capacity
exceeding 32 (thirty two) excluding the driver;

“Buy Back” shall have the meaning set forth in Clause 37.2A.

“COD” or “Commercial Operation Date” shall have the meaning set forth in clause
15.1;

“Car” means and includes any mechanical vehicle being alight motor vehicle, car,
jeep, van, omnibus, or three-wheeled motor vehicle with a Gross Vehicle Weight not
exceeding 7,500 (seven thousand five hundred) kilograms or a registered carrying
capacity not exceeding 12 (twelve) excluding the driver, but does not include a Motor
Cycle, Tractor or road roller;

“Change in Law” means the occurrence of any of the following after the date of Bid
that have a direct effect on the Project:

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(a) the enactment of any new Indian law;

(b) the repeal, modification or re-enactment of any existing Indian law;

(c) the commencement of any Indian law which has not entered into effect until
the date of Bid;

6. Calculated @1% (one per cent) of the amount specified in the definition of Total Project Cost. The Authority
may, if deemed necessary, prescribe a higher bid security not exceeding 2% of the Total Project Cost. In case of
a project having a Total Project Cost of Rs. 2,000 cr. or above, the Authority may reduce the bid security, but
not less than 0.5% in any case.

(d) a change in the interpretation or application of any Indian law by a judgement

of a court of record which has become final, conclusive and binding, as
compared to such interpretation or application by a court of record prior to the
date of Bid; or
(e) any change in the rates of any of the Taxes;

“Change in Ownership” means a transfer of the direct and/or indirect legal or

beneficial ownership of any shares, or securities convertible into shares, that causes the
aggregate holding of the {selected bidder/ Consortium Members}, together with
{its/their} Associates, in the total Equity to decline below 51% (fifty one per cent)
thereof during Construction Period and one year thereafter; provided that any material
variation (as compared to the representations made by the Concessionaire during the
bidding process for the purposes of meeting the minimum conditions of eligibility or
for evaluation of its application or bid, as the case may be,) in the proportion of the
equity holding of {the selected bidder/ any Consortium Member} to the total Equity,
if it occurs prior to completion of a period one year from the date the project achieves
/ is granted completion certificate, shall constitute Change in Ownership;

“Change of Scope” shall have the meaning set forth in Clause 16.1;

“Company” means the Company acting as the Concessionaire under this Agreement;
“Completion Certificate” shall have the meaning set forth in Clause 14.2;

“Concession” shall have the meaning set forth in Clause 3.1.1;

“Concessionaire” shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals;

“Concession Fee” shall have the meaning set forth in Clause 26.1;

“Concession Period” means the period starting on and from the Appointed Date and
ending on the Transfer Date;
“Concessionaire Default” shall have the meaning set forth in Clause 37.1.1;

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“Conditions Precedent” shall have the meaning set forth in Clause 4.1.1;

{“Consortium” shall have the meaning set forth in Recital (C);}

{“Consortium Member” means a company specified in Recital (C) as a member of

the Consortium;}

“Construction Period” means the period beginning from the Appointed Date and
ending on the Project Completion Date

“Construction Works” means all works and things necessary to complete the Project
in accordance with this Agreement;

“Construction Zone” consists of the Main Alignment, RoU, areas for Station
Buildings and Towers, and a parallel working space for accommodating Material
Ropeway, if any.

“Contractor” means the person or persons, as the case may be, with whom the
Concessionaire has entered into any of the EPC Contract, the O&M Contract, or any
other material agreement or contract for construction, operation and/or maintenance of
the Project or matters incidental thereto, and shall include any person engaged by the
Authority for rendering any services in connection with and in terms of this Agreement,
but does not include a person who has entered into an agreement for providing financial
assistance to the Concessionaire;

“Cure Period” means the period specified in this Agreement for curing any breach or
default of any provision of this Agreement by the Party responsible for such breach or
default and shall:

(a) commence from the date on which a notice is delivered by one Party to the
other Party asking the latter to cure the breach or default specified in such
notice;

(b) not relieve any Party from liability to pay Damages or compensation under the
provisions of this Agreement; and

(c) not in any way be extended by any period of Suspension under this Agreement;
provided that if the cure of any breach by the Concessionaire requires any
reasonable action by the Concessionaire that must be approved by the Authority
or the Independent Engineer hereunder, the applicable Cure Period shall be
extended by the period taken by the Authority or the Independent Engineer to
accord their approval;

“DBFOT” or “Design, Build, Finance, Operate and Transfer” shall have the
meaning set forth in Recital (B);

“Damages” shall have the meaning set forth in Sub-clause (w) of Clause 1.2.1;

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“Debt Due” means the aggregate of the following sums expressed in Indian
Rupees outstanding on the Transfer Date:

(a) the principal amount of the debt provided by the Senior Lenders under the
Financing Agreements for financing the Total Project Cost (the “principal”) but
excluding any part of the principal that had fallen due for repayment one year
prior to the Transfer Date, limited to maximum outstanding amount one year
prior to the Transfer Date computed as per Schedule X.

(b) all accrued interest, financing fees and charges payable under the Financing
Agreements on, or in respect of, the debt referred to in Sub-clause (a) above
until the Transfer Date but excluding (i) any interest, fees or charges that had
fallen due one year prior to the Transfer Date, (ii) any penal interest or charges
payable under the Financing Agreements to any Senior Lender, and (iii) any pre-
payment charges in relation to accelerated repayment of debt except where such
charges have arisen due to Authority Default; and

(c) any Subordinated Debt which is included in the Financial Package and disbursed
by lenders for financing the Total Project Cost

provided that if all or any part of the Debt Due is convertible into Equity at the option
of Senior Lenders and/or the Concessionaire, it shall for the purposes of this Agreement
be deemed to be Debt Due even after such conversion and the principal thereof shall be
dealt with as if such conversion had not been undertaken;

provided further that the Debt Due shall in no case exceed 85% (eighty five percent) of
the Total Project Cost;

“Debt Service” means the sum of all payments on account of principal, interest,
financing fees and charges due and payable in an Accounting Year to the Senior Lenders
under the Financing Agreements;

“Development Period” means the period from the date of this Agreement until the
Appointed Date;

“Dispute” shall have the meaning set forth in Clause 44.1.1;

“Dispute Resolution Board” shall have the meaning set forth in Clause 44.2 a and
Schedule ‘W’.

“Dispute Resolution Procedure” means the procedure for resolution of Disputes set
forth in Article 44;

“Divestment Requirements” means the obligations of the Concessionaire for and in

respect of Termination as set forth in Clause 38.1;

“Document” or “Documentation” means documentation in printed or written form, or

in tapes, discs, drawings, computer programmes, writings, reports, photographs, films,

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cassettes, or expressed in any other written, electronic, audio or visual form;

“Drawings” means all of the drawings, calculations and documents pertaining to the
Project as set forth in Schedule-H, and shall include ‘as built’ drawings of the Project;

“EPC Contract” means the engineering, procurement and construction contract or

contracts entered into by the Concessionaire with one or more Contractors for, inter
alia, engineering and construction of the Project in accordance with the provisions of
this Agreement;

“EPC Contractor” means the person with whom the Concessionaire has entered into
an EPC Contract;

“Emergency” means a condition or situation that is likely to endanger the security of

the individuals on or about the Project, including Users thereof, or which poses an
immediate threat of material damage to any of the Project Assets;

“Encumbrances” means, in relation to the Project, any encumbrances such as

mortgage, charge, pledge, lien, hypothecation, security interest, assignment, privilege
or priority of any kind having the effect of security or other such obligations, and shall
include any designation of loss payees or beneficiaries or any similar arrangement
under any insurance policy pertaining to the Project, where applicable herein but
excluding utilities referred to in Clause 11.1;

“Equity” means the sum expressed in Indian Rupees representing the paid up equity
share capital of the Concessionaire for meeting the equity component of the Total
Project Cost, and shall for the purposes of this Agreement include convertible
instruments or other similar forms of capital, which shall compulsorily convert into
equity share capital of the Company, and any interest-free funds advanced by any
shareholder of the Company for meeting such equity component;

“Escrow Account” means an Account which the Concessionaire shall open and
maintain with a Bank in which all inflows and outflows of cash on account of capital
and revenue receipts and expenditures shall be credited and debited, as the case may
be, in accordance with the provisions of this Agreement, and includes the Sub-
Accounts of such Escrow Account;

“Escrow Agreement” shall have the meaning set forth in Clause 31.1.2;

“Escrow Bank” shall have the meaning set forth in Clause 31.1.1;

“Escrow Default” shall have the meaning set forth in Schedule-S;

“Exempted User” means a user exempted from payment of Fee under and in
accordance with the Fee Rules;

“Fee” means the charge levied on and payable for using the ropeway facility or a part
thereof, in accordance with the Fee Rules issued by the Authority but shall exclude any

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user charges and levies charged and collected by the Concessionaire in respect of any
services or amenities, as permitted, provided by the Concessionaire to the Users at the
Project;

“Financial Close” means the fulfilment of all conditions precedent to the initial
availability of funds under the Financing Agreements;

“Financial Default” shall have the meaning set forth in Schedule-V;

“Financial Model” means the financial model adopted by Senior Lenders, setting forth
the capital and operating costs of the Project and revenues there from on the basis of
which financial viability of the Project has been determined by the Senior Lenders, and
includes a description of the assumptions and parameters used for making calculations
and projections therein;

“Financial Package” means the financing package indicating the total capital cost of
the project and the means of financing thereof, as set forth in the Financial Model and
approved by the Senior Lenders, and includes Equity, all financial assistance specified
in the Financing Agreements, Subordinated Debt and Equity Support, if any ;

“Financing Agreements” means the agreements executed by the Concessionaire in

respect of financial assistance to be provided by the Senior Lenders by way of loans,
guarantees, subscription to non-convertible debentures and other debt instruments
including loan agreements, guarantees, notes, debentures, bonds and other debt
instruments, security agreements, and other documents relating to the financing
(including refinancing) of the Total Project Cost, and includes amendments or
modifications made in accordance with Clause 5.2.2;

“Force Majeure” or “Force Majeure Event” shall have the meaning ascribed to it in
Clause 34.1;

“GOI” means the Government of India;

“Good Industry Practice” means the practices, methods, techniques, designs,

standards, skills, diligence, efficiency, reliability and prudence which are generally and
reasonably expected from a reasonably skilled and experienced operator engaged in the
same type of undertaking as envisaged under this Agreement and which would be
expected to result in the performance of its obligations by the Concessionaire in
accordance with this Agreement, Applicable Laws and Applicable Permits in reliable,
safe, economical and efficient manner;

“Government” means the Government of India;

“Government Instrumentality” means any department, division or subdivision of the

Government or the State Government and includes any commission, board, Authority,
agency or municipal and other local Authority or statutory body including Panchayat
under the control of the Government or the State Government, as the case may be, and
having jurisdiction over all or any part of the Project or the performance of all or any of

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the services or obligations of the Concessionaire under or pursuant to this Agreement;

“Grant” shall have the meaning set forth in Clause 25.1.1;

“Indemnified Party” means the Party entitled to the benefit of an indemnity pursuant
to Article 42;

“Indemnifying Party” means the Party obligated to indemnify the other Party pursuant
to Article 42;
“Independent Engineer” shall have the meaning set forth in Clause 23.1;

“Indirect Political Event” shall have the meaning set forth in Clause 34.3;

“Insurance Cover” means the aggregate of the maximum sums insured under the
insurances taken out by the Concessionaire pursuant to Article 32, and includes all
insurances required to be taken out by the Concessionaire under Clause 32.1 but not
actually taken, and when used in the context of any act or event, it shall mean the
aggregate of the maximum sums insured and payable or deemed to be insured and
payable in relation to such act or event;

“Intellectual Property” means all patents, trademarks, service marks, logos, get-up,
trade names, internet domain names, rights in designs, blue prints, programs and
manuals, drawings, copyright (including rights in computer software), database rights,
semi-conductor, topography rights, utility models, rights in know-how and other
intellectual property rights, in each case whether registered or unregistered and
including applications for registration, and all rights or forms of protection having
equivalent or similar effect anywhere in the world;

“LOA” or “Letter of Award” means the letter of award referred to in Recital (E);

“Lead Member” shall have the menaning set forth in Recital (E);

“Lenders’ Representative” means the person duly authorised by the Senior Lenders
to act for and on behalf of the Senior Lenders with regard to matters arising out of or in
relation to this Agreement, and includes his successors, assigns and substitutes;

“Licensed Premises”/ “Project Area” shall have the meaning as set forth in Clause
10.2.2;

“MORTH” means the Ministry of Road Transport and Highways or any substitute
there of dealing with National Highways;

“Maintenance Manual” shall have the meaning ascribed to it in Clause 17.3;

“Maintenance Programme” shall have the meaning ascribed to it in Clause 17.4.1;

“Maintenance Requirements” shall have the meaning set forth in Clause 17.2;

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“Material Adverse Effect” means a material adverse effect of any act or event on the
ability of either Party to perform any of its obligations under and in accordance with
the provisions of this Agreement and which act or event causes a material financial
burden or loss to either Party;
[“Medical Aid Post” shall have the meaning set forth in Clause 21.1;]

“Mutual Foreclosure Agreement” shall mean the agreement executed under Clause
37.7 pursuant to the execution of which all rights, claims, and obligations of the
Parties arising under the Agreement shall cease;

“Nominated Company” means (i) a company selected by the Lenders’ Representative

and proposed to the Authority for substituting the Concessionaire in accordance with
the provisions of the Substitution Agreement or (ii) wherever the Selected
Bidder/Consortium Members of the Concessionaire are sought to be substituted in
accordance with Clause 3A of the Substitution Agreement, the Concessionaire itself;

“Non-Political Event” shall have the meaning set forth in Clause 34.2;

“O&M” means the operation and maintenance of the Project and includes all matters
connected with or incidental to such operation and maintenance, provision of services
and facilities, and collection of Fee in accordance with the provisions of this
Agreement;

“O&M Contract” means the operation and maintenance contract that may be entered
into between the Concessionaire and the O&M Contractor for performance of all or
any of the O&M obligations;

“O&M Contractor” means the person, if any, with whom the Concessionaire has
entered into an O&M Contract for discharging O&M obligations for and on behalf of
the Concessionaire;

“O&M Expenses” means expenses incurred by or on behalf of the Concessionaire or

by the Authority, as the case may be, for all O&M including (a) cost of salaries and
other compensation to employees, (b) cost of materials, supplies, utilities and other
services, (c) premia for insurance, (d) all taxes, duties, cess and fees due and payable
for O&M, (e) all repair, replacement, reconstruction, reinstatement, improvement and
maintenance costs, (f) payments required to be made under the O&M Contract, or any
other contract in connection with or incidental to O&M, and (g) all other expenditure
required to be incurred under Applicable Laws, Applicable Permits or this Agreement;
“O&M Inspection Report” shall have the meaning set forth in Clause 19.2;

“Operation Period” means the period commencing from COD and ending on the
Transfer Date;

“Panel of Chartered Accountants” shall have the meaning set forth in Clause 33.2.1;

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“Parties” means the parties to this Agreement collectively and “Party” shall mean any
of the parties to this Agreement individually;
“Performance Security” shall have the meaning set forth in Clause 9.1;

“Political Event” shall have the meaning set forth in Clause 34.4;

{“Premium” shall have the meaning set forth in Clause 25.4;}

“Project” means the design, finance, construction, operation and maintenance of the
Ropeway System in accordance with the provisions of this Agreement, and includes all
works, services and equipment relating to or in respect of the Scope of the Project in
Site and all Project Assets, and its subsequent development and augmentation in
accordance with this Agreement and handing over of the Project , in terms of this
Agreement, to the Authority on the Transfer Date;

“Project Agreements” means this Agreement, the Financing Agreements, EPC

Contract, O&M Contract, and any other material agreements or contracts that may be
entered into by the Concessionaire with any person in connection with matters relating
to, arising out of or incidental to the Project, but does not include the Escrow
Agreement, Substitution Agreement, or any agreement for procurement of goods and
services involving a consideration of upto Rs.5 (five) crore;

“Project Assets” means all physical and other assets relating to and forming part of
the Site including:

(a) rights over the Site in the form of license, Right of Way or otherwise;

(b) tangible assets such as civil works and equipment including but not limited to
ropeway asset, Stations, systems, IT Network;

(c) Project Facilities situated on the Site;

(d) all rights of the Concessionaire under the Project Agreements;

(e) financial assets, such as receivables, security deposits etc.;

(f) insurance proceeds; and

(g) Applicable Permits and authorizations relating to or in respect of the Project, but
does not include Additional Facilities;

“Project Completion Date” means the date on which the Completion Certificate or
the Provisional Certificate, as the case may be, is issued under the provisions of Article
14;

“Project Completion Schedule” means the progressive Project Milestones set forth
in Schedule-G for completion of the Project on or before the Scheduled Completion

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Date;

“Project Facilities” means all the amenities and facilities situated on the Site, as
described in Schedule-C;

“Project” means the Ropeway System and all Project Assets, and its subsequent
development and augmentation in accordance with this Agreement;
“Project Milestones” means the project milestones set forth in Schedule-G;

“Provisional Certificate” shall have the meaning set forth in Clause 14.3;

“Punch List” shall have the meaning ascribed to it in Clause 14.3

“RBI” means the Reserve Bank of India, as constituted and existing under the Reserve
Bank of India Act, 1934, including any statutory modification or replacement thereof,
and its successors;

“Re.”, “Rs.” or “Rupees” or “Indian Rupees” means the lawful currency of the
Republic of India;

“Realisable Fee” means all the Fee due and realisable under this Agreement, but does
not include fees that the Concessionaire has not been able to realise after due diligence
and best efforts. For the avoidance of doubt, Realisable Fee shall, save as provided in
Clause 26.5, be the amount so declared by the Concessionaire on the basis of its
provisional accounts or the audited accounts, as the case may be, and in the event of a
dispute thereto, the Dispute Resolution Procedure shall apply;

“Reference Exchange Rate” means, in respect of any one currency that is to be

converted into another currency in accordance with the provisions of this Agreement,
the exchange rate as of 12.00 (twelve) noon on the relevant date quoted in Delhi by the
State Bank of India, and in the absence of such rate, the average of similar rates quoted
in Delhi by the Bank of India and the Bank of Baroda;

“Request for Proposals” or “RFP” shall have the meaning set forth in Recital ‘C’;

“Revenue Share shall have the meaning as ascribed to it under Clause 5.18

“Revenue Shortfall Loan” shall have the meaning set forth in Clause 28.1.1;

“Right of Way” means the constructive possession of the Site, together with all way
leaves, easements, unrestricted access and other rights of way, to be read in conjunction
with “Construction Zone”, howsoever described, necessary for construction, operation
and maintenance of the Project in accordance with this Agreement;
"Ropeway Section" means segment of the Project between two adjacent

Terminal Stations

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“Ropeway System” shall comprise of all components of any ropeway including but
not limited to all necessary safeties, towers, etc. facilitating the transportation of
passengers from starting point to designated point through ropes and / or cables
“Safety Audit” shall have the meaning as set forth in Clause 17.1

“Safety Consultant” shall have the meaning set forth in Clause 18.1.2;

“Safety Fund” shall have the meaning set forth in Clause 18.2;

“Safety Requirements” shall have the meaning set forth in Clause 18.1.1;

“Scheduled Completion Date” shall have the meaning set forth in Clause 12.4.1;

“Scope of the Project” shall have the meaning set forth in Clause 2.1;

“Senior Lenders” means the financial institutions, banks, non-banking financial

companies, multilateral lending agencies, trusts, funds and agents or trustees of
debenture holders, including their successors and assignees, who have agreed to
guarantee or provide finance to the Concessionaire under any of the Financing
Agreements for meeting all or any part of the Total Project Cost and who hold charge
on the assets, rights, title and interests of the Concessionaire. Provided that for the
purpose of this definition, financial institutions, banks, and multilateral lending
agencies shall at least have a net worth of Rs. 1,000 Crore (Rs. one thousand crore),
and non-banking financial companies shall at least have a net worth of Rs 500 Crore
(Rs. Five hundred crore);

“Site” shall have the meaning set forth in Clause 10.1;

“Specifications and Standards” means the specifications and standards relating to the
quality, quantity, capacity and other requirements for the Project, as set forth in
Schedule-D, and any modifications thereof, or additions thereto, as included in the
design and engineering for the Project submitted by the Concessionaire to, and
expressly approved by, the Authority;

“State” means the State in which Ropeway is being planned and “State Government”
means the government of that State Uttarakhand;

“State Support Agreement” shall have the meaning set forth in Clause 47.3;

“Station” refers to both Technical Station and Terminal Station

“Statutory Auditors” means a reputable firm of chartered accountants acting as the

statutory auditors of the Concessionaire under the provisions of the Companies Act,
1956 including any statutory modification or re-enactment thereof, for the time being
in force, and appointed in accordance with Clause 33.2.1;

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“Subordinated Debt” means the aggregate of the following sums expressed in Indian
Rupees or in the currency of debt, as the case may be, outstanding as on the Transfer
Date:

(a) the principal amount of debt provided by lenders or the Concessionaire’s

shareholders for meeting the Total Project Cost and subordinated to the
financial assistance provided by the Senior Lenders, limited to maximum
outstanding amount on Transfer Date computed as per Schedule X; and

(b) all accrued interest on the debt referred to in Sub-clause (a) above but
restricted to the lesser of actual interest rate and a rate equal to 5% (five per
cent) above the Bank Rate in case of loans expressed in Indian Rupees and
lesser of the actual interest rate and six-month LIBOR (London Inter Bank
Offer Rate) plus 2% (two per cent) in case of loans expressed in foreign
currency, but does not include any interest that had fallen due one year prior
to the Transfer Date;

provided that if all or any part of the Subordinated Debt is convertible into Equity at
the option of the lenders and/or the Concessionaire’s shareholders, it shall for the
purposes of this Agreement be deemed to be Subordinated Debt even after such
conversion and the principal thereof shall be dealt with as if such conversion had not
been undertaken;

“Subsistence Revenue” means the total amount of Fee revenue that is required by the
Concessionaire in an Accounting Year to meet the sum of (a) O&M Expenses, subject
to an annual ceiling of 3% (three per cent) of the Total Project Cost, {plus Grant, if
any,} & during the first Accounting Year after COD, to be revised for each subsequent
year to reflect the variations in WPI occurring between COD and commencement of
such Accounting Year, and (b) Debt Service in such Accounting Year, but excluding
any interest paid by the Authority under clause 34.7.2 or 35.2;

“Substitution Agreement” shall have the meaning set forth in Clause 40.3;

“Suspension” shall have the meaning set forth in Clause 36.1;

“Supplementary Agreement” shall mean the agreement executed between the Parties
novating any term and/or condition of the Agreement, upon the execution of which all
rights and claims of the Concessionaire in respect of the novated terms and conditions
shall cease;

“Technical Station” means the built up structure on the Site along the ropeway line
where any embarking and disembarking of passengers from the ropeway cabins,
associated office and related amenities shall be allowed only in case of an emergency
and shall include administrative offices, control rooms / control panels, wherever
applicable;

“Terminal Station” means the built up structure on the Site at both the ends of the
ropeway carrier line and shall include any intermediate station(s) along the ropeway

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PUBLIC PRIVATE PARTNERSHIP IN DBFOT

line for the embarking and disembarking of passengers from the ropeway cabins,
associated office and related amenities, Project Facilities and Project Assets and shall
include administrative offices, control rooms / control panels, wherever applicable;

“Taxes” means any Indian taxes including excise duties, customs duties, GST, value
added tax, sales tax, local taxes, cess and any impost or surcharge of like nature
(whether Central, State or local) on the goods, materials, equipment and services
incorporated in and forming part of the Project charged, levied or imposed by any
Government Instrumentality, but excluding any interest, penalties and other sums in
relation thereto imposed on any account whatsoever. For the avoidance of doubt, Taxes
shall not include taxes on corporate income;

“Termination” means the expiry or termination of this Agreement and the Concession
hereunder;

“Termination Notice” means the communication issued in accordance with this

Agreement by one Party to the other Party terminating this Agreement;

“Termination Payment” means the amount payable by the Authority to the

Concessionaire upon Termination and may consist of payments on account of and
restricted to the Debt Due and Adjusted Equity, as the case may be, which form part of
the Total Project Cost in accordance with the provisions of this Agreement; provided
that the amount payable in respect of any Debt Due expressed in foreign currency shall
be computed at the Reference Exchange Rate for conversion into the relevant foreign
currency as on the date of Termination Payment. For the avoidance of doubt, it is
agreed that within a period of 60 (sixty) days from COD, the Concessionaire shall
notify to the Authority, the Total Project Cost as on COD and its disaggregation
between Debt Due and Equity, and only the amounts so conveyed shall form the basis
of computing Termination Payment. It is further agreed that at any time during the
Concession Period, the aggregate of Debt Due and Adjusted Equity shall be limited to
Total Project Cost for the purpose of computing the Termination Payment;

“Tests” means the tests set forth in Schedule-I to determine the completion of Project
in accordance with the provisions of this Agreement

“Total Project Cost” means the lowest of:

(a) the capital cost of the Project, {less Equity Support} as set forth in the
Financial Package;

(b) the actual capital cost of the Project upon completion of the Project {less
Equity Support}; and

(c) a sum of Rs. 3589.17 Crore (Rupees Three Thousand Five Hundred Eighty
Nine Crore and Seventeen Lakhs Only), less Equity Support;

provided that in the event of Termination, the Total Project Cost shall be deemed to
be modified to the extent of complete works, if any, and further to the extent of

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variation in WPI or Reference Exchange Rate occurring in respect of Adjusted Equity

and Debt Due, as the case may be, in accordance with the provisions of this
Agreement; provided further that in the event WPI increases, on an average, by more
than 6% (six per cent) per annum for the period between the date hereof and COD, the
Parties shall meet, as soon as reasonably practicable, and agree upon revision of the
amount hereinbefore specified such that the effect of increase in WPI, in excess of
such 6% (six per cent), is reflected in the Total Project Cost;

“Traffic Aid Post” shall have the meaning set forth in Clause 20.2;

“Transfer Date” means the date on which this Agreement and the Concession
hereunder expires pursuant to the provisions of this Agreement or is terminated by a
Termination Notice;

“User” means a person who uses or intends to use the Project or any part thereof upon
payment of Fees (as prescribed from time to time in respect of each service or facility
offered) or as per the schedule of charges prescribed by the Concessionaire, as the case
may be, in accordance with the provisions of this Agreement and Applicable Laws

“Vesting Certificate” shall have the meaning set forth in Clause 38.4; and

“WPI” means the Wholesale Price Index for all commodities as published by the
Ministry of Industry, GOI and shall include any index which substitutes the WPI, and
any reference to WPI shall, unless the context otherwise requires, be construed as a
reference to the WPI published for the period ending with the preceding month.

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IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED

THIS AGREEMENT AS OF THE DAY, MONTH AND YEAR FIRST ABOVE
WRITTEN.

SIGNED, SEALED AND DELIVERED THE COMMON SEAL OF

For CONCESSIONAIRE has been affixed
and on behalf of THE AUTHORITY by: pursuant to the resolution passed by the
Board of Directors of the Concessionaire at
its meeting held on the XX day of XX
20XX hereunto affixed in the presence of
Director, who has signed these Presents in
token thereof and, Company
Secretary/Authorized Officer who
countersigned the same in token thereof:

(Signature) (Signature)

(Designation) (Designation)

(Name) (Name)

(Address) (Address)

(Fax No.) (Fax No.)

(e-mail) (e-mail)

In the presence of

1.

2.

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