CONCESSION AGREEMENT BETWEEN NATIONAL HIGHWAYS AUTHORITY OF INDIA ( Ministry of Road Transport & Highways ) G-5 & 6, Sector - 10, Dwarka, New Delhi - 110 075 AND VK1 EXPRESSWAY PRIVATE LIMITED 1101, Hiranandani Knowledge Park, 11th Floor, Technology Street, Hill Side Avenue, Opp. Hiranandani Hospital, Powai, Mumbai — 400076 FOR CONSTRUCTION OF EIGHT LANE VADODARA KIM EXPRESSWAY FROM KM 355.00 TO KM 378.740 (PADRA TO VADODARA SECTION OF VADODARA MUMBAI EXPRESSWAY) IN THE STATE OF GUJARAT UNDER NHDP PHASE - VI ON HYBRID ANNUITY MODE (PHASE IA- PACKAGE 1) Concession Agreement Signed On May 9, 2018 VOLUME -1 (PART 1 of 2) CONCESSION AGREEMENT & SCHEDULESNATIGNAL HIGHWAYS AUTHORITY GF INDIA (Ministry of Road, Transport & Highways) Government of India CONCESSION AGREEMENT for Construction of Eight lane Vadodara Kim Expressway from Km 355.00 to Km 378.740 (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity Mode (Phase IA- Package I). BETWEEN NATIONAL HIGHWAYS AUTHORITY OF INDIA G-5 & 6, Sector-10, Dwarka, New Delhi- 110 075 AND VK1 EXPRESSWAY PRIVATE LIMITED 11th Floor/1101, Hiranandani Knowledge Park, Technology Street, Hill Side Avenue, Powai, Mumbai - 400076 VOLUME -| CONCESSION AGREEMENT & SCHEDULES May, 2013 Section of Vadodaro Mumbal Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity mode (Phase (A-Package I).National Highways Auihorty of dia Concession Agreement ‘TABLE OF CONTENTS S.No. Deseription Page Nos. Volume ~I (Part 1 of 2) 1 | Concession Agreement & Schedules 10 131 Volume ~I (Part 2 of 2) 2 | Concession Agreement & Schedules - 133 10476 3 “Annexures of Agreement 477 t0 705 ‘Volume ~ 11 4 Drawings 706 to 858 Construction of Fight lane Vadodara Kim Expressway from Kin 335.00 to Km 378.740 (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity Mode (Phase IA-Package I)ational Highways Authority of ladia Concession Agreement VOLUME ~ 1: (Part 1 of 2) CONCESSION AGREEMENT & SCHEDULES Contents PART I 1 Preliminary 1 Recitals 13 Article 1 Definitions and Interpretation 1.1 Definitions 4 1.2 Interpretation 4-6 1.3. Measurements and arithmetic conventions 6 14 Priority of Agreements and Brrors/Discrepancies 67 PARTI 8 ‘The Concession a Atticle2 Scope of the Project 9 2.1 Scope of the Project 9 Article3 Grant of Concession 10 3.1 The Concession 10 Article4 Conditions Precedent 11-13 4.1 Conditions Precedent 1-12 4.2 Damages for Delay by the Authority 12 4.3 Damages for Delay by the Concessionaire 13 4.4 — Commencement of Concession Period 13 4.5 Deemed Termination upon Delay 13, ArticleS Obligations of the Concessionaire 14-18 5.1, Obligations of the Concessionaire 14-15 5.2 Obligations relating to Project Agreements 15-16 5.3 Obligations relating to Change in Ownership 16-17 5.4 Obligations relating to employment of foreign nationals "7 5.5. Obligations relating to employment of trained personnel 7 5.6 Facilities for differently abled and elderly persons, 18 5.7 Branding of Project 18 5.8 Sole Purpose of the Concessionaire 18 Construction of Fight lane Vadodara Kim Expressway from Kin 355.0 to Kin 378.740 (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity Mode (Phase IA-Package 1)National Highways Authority of Indie Concession Agreement Article6 Obligations of the Authority 19:21 6.1. Obligations of the Authority 19-20 6.2. Maintenance obligations prior to Appointed Date 20 6.3 Obligations relating to refinancing 20-21 Article 7 Representations and Warranties 22-24 7.1 Representations and warranties of the Concessionaire 22-23 7.2 Representations and warranties of the Authority 23-24 7.3 Disclosure 4 Article8 Disclaimer 25 8.1 Disclaimer 25 PARTE 26 Development and Operations 26 Article9 Performance Securit 2 9.1 Performance Security a 9.2 Appropriation of Performance Security n 9.3 Release of Performance Security 28 9.4 Deleted 2B 9.5 Deleted 28 9.6 References to Performance Security 28 9.7 Deleted 28 9.8 Deleted 28 Article 10° Right of Way 29-33 10.1 The Site 29 10.2 Licence, Access and Right of Way 29-30 10.3 Procurement of the Site 30-32 10.4 Site to be free from Encumbrances 32 10.5 Protection of Site from encroachments 32 10.6 Special/temporary right of way 32 10.7 Access to the Authority and Independent Engineer 32 10.8 Geological and archaeological finds 3 10.9 Land for wayside amenities 33 Article 11 Utilities, Associated Roads and Trees 34.35 11.1 Existing utilities and roads 34 11.2. Shifting of obstructing utilities 34 11.3. New utilities and roads 34 114 Felling of Trees 34-35 Construction of Fight lane Vadodara Kim Expressway from Kin 355,00 to Kin 378.740 (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity Mode (Phase IA PackageNational Highways Authority of India Article 12 Article 13 Article 14 Article 15 Article 16 Article 17 Construction of the Project Highway 121 12.2 123 124 125 Obligations prior to commencement of construction Drawings Construction of the Project Maintenance during Construction Period Deleted Monitoring of Construction Ba 13.2 133 B4 13.5 13.6 Monthly progress reports Inspection Tests Delays during construction Suspension of unsafe Construction Works Video recording Completion Certificate 14.1 142 M43 14.4 4s 14.6 Tests Completion Certificate Provisional Certificate Completion of Punch List items Withholding of Provisional Certificate Rescheduling of Tests Entry into Commercial Service 15.1 Commercial Operation Date (COD) 15.2 Damages for Delay Change of Scope 16.1 Change of Scope 16.2. Procedure for Change of Scope 16.3 Payment for Change of Scope 16.4 Restrictions on certain works 16.5 Power of the Authority to undertake works 16.6 Reduction in Scope of the Project 16.7 Effect of Change in Scope on the O&M Costs: Operation and Maintenance 11 17.2 173 174 17.5 116 177 O&M obligations of the Concessionaire Maintenance Requirements Maintenance Manual Maintenance Programme Safety, breakdowns and accidents De-commissioning due to Emergency Project Closure Concession Agreement 36-38 36 36-37 37-38 38 39-41 39) 39, 39-40 40 40-41 4l 42-44 42 42 42-43 43 43-44 45-44 45. 45 45. 46-49 46 46-47 47 47 47-48 48-49 49 50-55 50-51 Sl 51 51-52 92 52 $2.53 Coasuaon of Fight Tne Vadodara Kim Expressway from Kin 385°00 10 Kin 378.740 (Pada to Vadodara Seton of Vadodara Mumbai Expressway) in the State of Gularat under NHDP Phase - VI on Hybrid Anouity Mode (Phase 1A-Package 0)National Highways Authority of dia 178 17.9 17.10 17.11 17.12 17.13 17.14 17.15 17.15 Damages for breach of maintenance obligations Authority's right to take remedial measures Overriding powers of the Authority Restoration of loss or damage to the Project Modifications to the Project Highway Excuse from performance of obligations Deleted Installation and operation of CCTV Advertising on the Site Article 18 Safety Requirements 18.1 18.2 Safety Requirements Expenditure on Safety Requirements Article 19 Monitoring of Operation and Maintenance 19.1 19.2 193, 19.4 19.5 Monthly status reports Inspection. Tests Remedial measures Reports of unusual occurrence Article 20 Regulation and Management 20.1 20.2 20.3 20.4 20.5 20.6 20.7 20.8 ‘Traffic regulation by the Concessionaire Police assistance Buildings for Traffic Aid Posts Medical Aid Posts, Buildings for Medical Aid Posts ‘Computer systems and network Recurring expenditure on Police assistance Recurring expenditure on Medical Aid Posts Article 21. Independent Engineer 2d 21.2 21.3 21.4 215 21.6 21.7 Appointment of Independent Engineer Duties and fimetions Remuneration Termination of appointment Authorised signatories Dispute resolution Interim arrangement Concession Agreement 33 53.54 34 54 54.55 55. 35 35 35 56 356 36 57-58 37 7 58 58 58 59 59 59 59 59 59-60 60 60 61-62 6 61 61 61-62 62 62 62 Construction of ight lane Vadodara Kim Expres yy from Km 353.00 to Km 378,740 (Padra to Vadodara Section ‘of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity Mode (Phase TA Package 1)National Highways Authority of lida Concession Agreement PART IV 63 Financial Covenants 63 Article 22 Financial Close 64 22.1 Financial Close 64 22.2 Termination due to failure to achieve Financial Close 64 Article 23. Payment of Bid Project Cost 65 23.1 Bid Project Cost 65 23.2 Adjusted Bid Project Cost 65 23.3. Payment of Bid Project Cost 65-66 23.4 Payment during Construction Period 66 23.5 Bonus on carly completion 66 23.6 Annuity Payments during Operation Period 66-69 23.7 O&M Payinents 9 23.8 Mobilization Advance 69-70 23.9. Treatment of incomplete works 70 Article 24 Deleted n Article 25 Eserow Account R13 25.1 Escrow Account 2 25.2. Deposits into Escrow Account 2 25.3. Withdrawals during Concession Period 2-73 25.4 Withdrawals upon Termination B Article 26 Insurance 14-76 26.1 _ Insurance during Concession Period "4 26.2 Insurance Cover "4 26.3 Notice to the Authority "4 26.4 Evidence of Insurance Cover 15 26.5 Remedy for failure to insure 5 26.6 Waiver of subrogation 18 26.7 Concessionaire’s waiver 8 26.8 Application of insurance proceeds 8 26.9 Compliance with conditions of insurance pol 16 Article27 Accounts and Audit 17-18 27.1 Audited accounts 1 27.2. Appointment of auditors 1-8 27.3. Certification of claims by Statutory Auditors 78 24 Set-off B Construction o lane Vadodara Kim Expressway from Km 355.00 to Km 378.740 (Padira to Vadodara Section of Vadodara Mombai Expressway) in the State of Guart ander NHDP Phase = VI on Hybrid Annuity Move (Phase 1A-Package 1)National Highways Awhorty of india Concession Agreewent 27.5 Dispute resolution B PART V ” Force Majeure and Termination ” Article 28 Foree Majeure 80-85 28.1 Fore Majeure 80 28.2 Non-Political Event 81 28.3 Indirect Political Event 81 28.4 Political Event 81-82 28.5 Duty to report Force Majeure Event 82 28.6 Effect of Force Majeure Bvent on the Concession 82 28.7 Allocation of costs arising out of Force Majeure 83 28.8 Termination Notice for Force Majeure Event 83 28.9 Termination Payment for Force Majeure Event 83-85 28.10. Dispute resolution 85 28.11 Excuse from performance of obligations 85 28.12 Deleted 85 Article 29 Compensation for Breach of Agreement 86 29.1 Compensation for default by the Concessionaire 86 29.2. Compensation for default by the Authority 86 29.3 Deleted 86 29.4 Mitigation of costs and damage 86 Article 30 Suspension of Concessionaire’s Rights 87-88 30.1 Suspension upon Concessionaire Default 87 30.2 Authority to act on behalf of Concessionaire 87 30.3. Revocation of Suspension 87-88 30.4 Substitution of Concessionaite 88 30.5. Termination 88 Article 31 Termination 89.94 31.1 Termination for Concessionaire Default 89.91 31.2. Termination for Authority Default 91-92 31.3. Termination Payment 92.93 31.4 Certain limitations on Termination Payment 93-94 31.5 Other rights and obligations of the Authority 94 31.6. Survival of rights 94 Article 38 Divestment of Rights and interest 95.97 32.1 Divestment Requirements 95-96 32.2 Inspection and cure 96 ‘Construction of Fight lane Vadodara Kim Expressway from Km 355.00 to Km 378,740 (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity Mode (Phase 1A-Package 1)National Highways Authority of dia 32.3 Cooperation and assistance on transfer of Project. 324 Vesting Certificate 32.5 Divestment costs ete. Article 33 Defects Liability after Termination 33.1 Liability for defects after Termination 33.2 Retention in Escrow Account PART VI Other Provisions Article 34 Assignment and charges 34.1 Restriction on assignment and charges 34.2 Permitted assignment and charges 34.3 Substitution Agreement 34.4 Assignment by the Authority Article 38. Change in Law 35.1 Increase in costs, 38.2 Reduction in costs 35.3 Protection of NPV 35.4 Restriction on cash compensation 35.5 Deleted Article36 Liability and indemnity 36.1. General indemnity 36.2. Indemmity by the Concessionaire 36.3 Notice and contest of claims 36.4. Defence of claims 36.5 No consequential claims 36.6 Survival on Termination Article 37 Rights and Title over the Site 37.1 Licensee rights, 37.2. Access rights of the Authority and others 37.3. Property taxes 37.4 Restriction on sub-letting Article 38 Dispute Resolution 38.1 Dispute resolution 38.2. Conciliation 38.3. Arbitration Concession Agreement 96. 96 97 98-99 98 98-99 100 100 101-102 101 101 101-102 102 103-104 103 103-104 104 104 104 105-107 105 105 105-106 106-107 107 107 108 108 108, 108 108, 109-110 109 109 109-110 Construction of Fight lane Vadodara Kim Expressway from Kim 355.00 to Km 378.740 (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity Mode (Phase TA-Package 1)National Highways Aushority of Ii 38.4 Adjudication by a tribunal Article 39 Disclosure 39.1 Disclosure of Specified Documents 39.2 Disclosure of Documents relating to safety Article 40, Redressal of Public Grievances 40.1 Complaints Register 40.2 Redressal of complaints Article 41. Miscellaneous 41.4 Governing law and jurisdiction 41.2. Waiver of immunity 413. Depreciation 41.4 Delayed payments 41.5 Waiver 41.6 Liability for review of Documents and Drawings 41.7 Exclusion of implied warranties et. 41.8 Survival 41.9. Entire Agreement 41.10. Severability 41.11 No partnership 41.12. Third parties 41.13. Successors and assigns 4114 Notices ALIS Language 41.16 Counterparts 41.17 State Support Agreement Article 42. Definitions 42.1 Definitions Concession Agreement 10 Mi Mm 2 2 2 13-117 113 13 113 13-114 14 4 14 114-115 us us us 115-116 116 116-117 7 7 7 18. 118-129 ‘Consiruction of Bight lane Vadodara Kim Expressway from Kin 355.00 to Kin 378.740 (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Annuity Mode (Phase 1A-Package J)INDIA NON JUDICIAL es Government of National Capital Territory of Delhi e-Stamp Cortiicate No, 2 IN-DL241043592540250 Certificate Issued Date 09-May-2018 12:55 PM ‘Account Reference : IMPACG (SH)/ dishimpt7/ DWARKA/ DL-DLH Unique Doc. Reference SUBIN-DLDLSHIMP1752034003585305Q Purchased by 1 VK1 EXPRESSWAY PRIVATE LIMITED t Description of Document Article 5 General Agreement Property Description + Not Applicable Consideration Price (Rs.) 2 (Zero) First Party VK1 EXPRESSWAY PRIVATE LIMITED Second Party NHAL Stamp Duty Paid By VK1 EXPRESSWAY PRIVATE LiMiTED Stamp Duty Amount(Rs.) : 100 (One Hundred only} Raa a oP AST We : 1 anda agra ovat wftreror aefeereray, 198s a ateter center adr eet Toray maitre ay pfafafaca gear areaer aa & athe rear guna araferer ots wd 6, daze-26, area, ag faee-110075 # f (BRT gaat Gees cM “onaaRUT ae star E fae afro & ore cas Sats ast garay oi Wore a Ogee Gere, Seraankh site TARA ester et) war ae at 2am vaaded wEke fairs, ay duet afer, 2013 by oraenett & set Profs vw aut & faaal argue ya5309THVAZOIseret308159 % sty feat cattge avatery 11 a aifaa/ii01 ‘érrierh, aids! ark, 2aaiaist ee, Ra, args wary, sag, aad were. aree-aoo076 AK (Sea set gee wea “Reareraanét met ara & Rrenfy siftteatas Fara aay BE Beat gerar gph Bf areiarar at at, eee Serer ek ai ymal Kumar Arora gn anger er ere em A) TET AE ret ae a = are oro ‘Kee ™ aunt Nts See ity taste rennin A often Peet 6 gee AO ERTL AE LETTS as or towers NowDebi-75 SeeINDIA NON JUDICIAL Government of National Capital Territory of Delhi e-Stamp Certificate No, 2 IN-DL24105069635030 Certificate Issued Date 2 09-May-2018 12:56 PM Account Reference 2 IMPAGG (SH) dishimp17/ DWARKAY DL-DLH Unique Doc. Reference ‘SUBIN-DLDLSHIMP1752036579513087 Purchased by V1 EXPRESSWAY PRIVATE LIMITED. Description of Document Article § General Agreement Property Description Not Appiicable Consideration Price (Rs.) 0 (Zero) First Party 2 VK1 EXPRESSWAY PRIVATE LIMITED Second Party 2 NHAI Stamp Duty Paid By Vk} EXPRESSWAY PRIVATE LIMITED Stamp Duty Amount(Rs.) : 100 (One Hundred only) CONCESSION ~ AGREEMENT entered into on this the 09th day of May, 2018 BETWEEN. r HIGHWAYS AUTHORITY OF INDIA, established under the National Highways cod Authoriy oF i at 1088, ropresentiadisyiteeChirmbetamnhhdiving its principal ofices at G-6. 5, Sector. . 10, Dwarka, New Delhi-110075 (hereinafter referred to as the "Authority" which expression shalt, unless repugnant to the context or meaning thereof, include its administrators, successors and assigns} of One Part AND 2 VK1 EXPRESSWAY PRIVATE LIMITED, a company incorporated under the provisions ot the Companies Act, 2013 with CIN: U45309MH2018PTC30B159 and having its registered office at 11th Floor/1101 Hiranandani, Knowledge Park, Teciioiegy Steet, Hil, Side Avenue, Powai, Mumbai, Maharashtra, India-400076 {hereinafter referred to as the “Cancessionaire’ which expression shal, uniess repugnant to the context or meaning thereof, include its successors and permitted assigns and substitutes) of the Other Pa yen art ean A 2 EE le és AL cats aed sara ghee Nees crane peti screenees yo2m 6 ATEN EFT TS As ica cary doervoncy Beate gy pe greene tO;Owarka, New Dak -75WHEREAS: 3 (A) The Government of india had entrusted to the Authority the development, maintenance and management of Vadodara Kim Expressway (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on HAM mode (Phase |A-Package |) including the section from km 355.000 to km 378.740 (approx. 23,740 km). The Authority had resolved to construct the Vadodara Kim Expressway from (Padra to Vadodara Section of Vadodara Mumbai Expressway) (Phase IA-Package |) from km 365,000 to km 378.740 (approximately 23.740 km) in the State of Gujarat by Eight-Laning thereof (the “Project’) on design, build, operate and transfer (te ‘DBOT Annuity’ or “Hybrid Annuity’) basis, which shall be partly financed by the Concessionaire who shall recover its investment and costs through payments to be made by the Authority, in accordance with the terms and conditions to be set forth in concession agreement to be entered into (8) The Authority had adopted a single stage two envelope bidding process and accordingly invited proposals by its Request for Proposals dated 08.01.2018 (the "Request for Proposals” or REP’) for qualification and short listing of bidders for construction, operation and maintenance of the above referred Project on Hybrid Annuity basis. (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. (0) After evaluation of the bids received, the Authority had technically qualified certain bidders including, interalia, the selected bidder comprising M/s IRB Infrastructure Developers Limited, and accepted the financial bid of the selected bidder and issued its Letter of Award No. NHAIVME Phase IAHAM/Pkg 1/2018/114817 dated 20.03.2018 (hereinafter called the "LOA’) fo the selected bidder requiring, inter alia, the execution of this Concession Agreement within 45 (forty five) days of the date of issue thereot (€) The selected bidder has since promoted and incorporated the Concessionaire as a limited liability company under the Companies Act 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 under the LOA, including the obligation to enter into this Concession Agreement pursuant fo the LOA for undertaking the Project ) By its letter dated 02.05.2018 the Concessionaire has also joined in the said request of the selected bidder to the Authority 10 accep! i! as the entity which shall undertake and perform the obligations and exercise the rights of the selected bidder 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 for the purposes hereof and has delivered to the Authority a legal opinion with respect to the authority of the Concessionaire to enter into this, Concession Agreement and the enforceability ofthe provisions thereof. (G) The Authority has agreed to the said request of the selected bidder and the Concessionaire, and has accordingly agreed to enter into this Concession Agreement with the Concessionaire for implementation of the Project on Hybrid Annuity basis, subject to and on the terms and conditions sel forth hereinafter NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth in this Concession Agreement, the receipt and sufficiency of which is hereby acknowledged, and intending tobe legally bound hereby, the Parties agree 2s follows: Te ceencneyttract a vaedta 3 f wife wl Dsgre Et on Apo e eae os {insty of Rosé Tensport& Highways) ahh we 6,daet-10, ana, feet-75 6-86, Sector -10,DWarka, New Doli - 75,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 42) 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. Inthis Agreement, unless the context otherwise requires, in thereof shall include amendment (a) references to any legislation or any provi 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; (a) 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, investigation, design, engineering, procurement, delivery, transportation, installation, processing, fabrication, testing, commissioning and other activities incidental to the construction, and “construct” or “build” shall be construed accordingly; (e) construction, renovation, refurbishing, augmentation, upgradation and/ activities incidental thereto, and “develop” shall be construed accordinglf=// ts; ction of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - V1 on Hybrid Annilty~ ‘mode (Phase IA-Package I).(h) Ww a tk) 0 (m) (n) (0) (p) (a) (s) any reference to any period of time shall mean a reference to that according to Indian Standard Time; any reference to day shall mean a reference to a calendar day; Reference to a “business day” shall be construed as reference to a day (other than a Sunday} on which banks in the State are generally open for business; any reference to month shall mean a reference to a calendar month as per the Gregorian calendar; 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; any reference to any period commencing “from” a specified day or date and “till” or “until” a specified day or date shall include both suich 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; the words importing singular shall include plural and vice versa; References to any gender shall include the other and the neutral gender; “lakh” means a hundred thousand (100,000) and “crore” means ten million (10,008,000); “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; references to the “winding-up”, 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; save and except as othentise provided in this Agreement, any reference, at any time, to any agreement, deed, instrument, license or document of any description shall be construed as reference to that agreement, deed, instrument, license or other document as amended, varied, supplemented, modified or suspended at the time of such reference; provided that this Sub- clause (5) shall not operate so as to increase liabilities or obligations of the ‘Authority hereunder or pursuant hereto in any manner whatsoever; ‘any agreement, consent, approval, information or report required under or pursuant to this Agreement fr Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHOP Phase - VI on ee ‘mode (Phase IA-Package I).1.22 1.2.3 12.4 13 6 {u) the Schedules and Recitals to this Agreement and the Request for Proposals ("RFP") forms 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, Provisos or Schedules in this Agreement shall, except where the context otherwise requires, mean references to Recitals, Articles, Clauses, Sub-clauses, Provisos and Schedules of or to this Agreement; reference to an Annex shall, subject to anything to the contraty specified therein, be construed as a reference to an Annex to the ‘Schedule in which such reference occurs; and reference to a Paragraph shall, subject to anything to the contrary specified therein, be construed as a reference to a Paragraph of the Schedule or Annex, as the case may be, in which such reference appears; ‘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. 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. 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. Any word or expression used in this Agreement shall, unless otherwise defined or construed in this Agreement, bear its ordinary English meaning and, for these purposes, the General Clauses Act 1897 shall not apply. ‘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 14.1 This Agreement, and all other agreements and documents forming part of or ieee in this agreement are to be taken as mutually explanatory and, unless expressly provided elsewhere in this Agreement, the priority of this Agr {ection of Vadodara Mumbai Expressway) in the State of Gujarat under NHDP Phase - VI on Hybrid Armmaity” ‘mode (Phase 1A-Package |) La7 (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 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; {€)__ between any two Schedules, the Schedule relevant to the issue shall prevail; (a) 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. ‘onstruction of Eight lane Vadodara Kim Expressway from Km 355.00 to Km 378.740 (Padra to Vadodara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHOP Phase - V1 on Hybrid Annuity mode (Phase /A-Package |).Part Il The Concession Section of Vadodara Mumbai Expressway) In the State of Gujarat under NHDP Phase - VI on Hybrid Anoulty mode (Phase &-PackageARTICLE 2 SCOPE OF THE PROJECT 241 Scope of the Project The scope of the Project (the “Scope of the Project”) shall mean and include, during the Concession Period: (2} 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- 0; (b) operation and maintenance of-the Project in accordance with the provisions of this Agreement; and ()___ performance and fulfillment 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 Construction of Eight lane Vadodara Kim Expressway from Km 358.00 to Km 378.740 (Padra to Vadodara Section of Vadodara Mumbai Expresswuy) In the State of Gujarat under NHOP Phase - VI on Hybrid Annuity ‘mode (Phase 1A-Package I.10 ARTICLE 3 GRANT OF CONCESSION 3.1 The Concession 3.1.1 Subject to and in accordance with the provisions of this Agreement, Applicable Laws and Applicable Permits, the Authority hereby grants to the Concessionaire the concession set, forth herein including the exclusive right, license and authority to construct, operate and maintain the Project (the “Concession”) during the Construction Period of 730 (seven hundred and thirty) days and Operation Period of 15 (Fifteen) years commencing from COD, 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. 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 license to the Site for the purpose of and to the extent conferred by the provisions of this Agreement; (b) finance and construct the Project; (c)__ manage, operate and maintain the Project; (a) perform and fulfill all of the Concessionaire’s obligations under and in accordance with this Agreement; (e) save as otherwise expressly provided in this Agreement, bear and pay all costs, expenses and charges in connection with or incidental to the performance of the obligations of the Concessionaire under this Agreement; and (f) 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. Section of Vadodara Mumbal Expressway) in the State of Gujarat under NHOP Phase - YI on Hybrid Annuliy— mode (Phase 1A-Package !).il ARTICLE 4 CONDITIONS PRECEDENT 4.1 Conditions Precedent 4.1.1 Save and except as expressly provided in Articles 4, 5, 6, 7, 8, 9, 10, 22, 28,38 and 41, or unless the context otherwise requires, the respective tights 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 30 (thirty) days from the date of this Agreement or on an earlier day acceptable te the Authority, by notice require the Authority to satisfy all of the Conditions Precedent set forth in this Clause 4.1.2 within a period of 120 {one hundred and twenty) days thereafter. The Conditions Precedent required to be satisfied by the Authority shall be deemed to have been fulfilled when the Authority shall have: (2) procured for the Concessionaire the Right of Way to the Site in accordance with the provisions of Clauses 10.3.1 and 10.3.2; (b) 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; (©) 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; and (4) procured approval of the General Arrangement Drawings for the road over bridges/under bridges at level crossings on the Project. Provided that the Authority shall be entitied to an additional period, not exceeding 90{ninety) days beyond the period of 150 days without being liable for payment of any damages, for fulfillment of the Conditions Precedent set forth in this Clause. 4.1.3 The Conditions Precedent required to be satisfied by the Concessionaire within a period of 150{one hundred and fifty) days from the date of this Agreement shall be deemed to have been fulfilled when the Concessionaire shall have: (a) provided Performance Security to the Authority alongwith the Additional Performance Security, if required in terms of Clause 9.1 and Clause 9.7 of this Agreement. For the avoidance of doubt it is clarified and agreed that the Concessionaire is required to provide the Performance Security and the Additional Performance Security, if required, within 30 days of signing of this Agreement; (b) executed and procured execution of the Escrow Agreement; ag St a ()__ executed and procured execution of the Substitution Agreement; ) procured all the Applicable Permits specified in Part of unconditionally or if subject to conditions, then all such conditions r s od a fon of Eight lane Vadodara Kim Expressway from Km 355.00 to Km 378.740 (Padra to V eis a ‘of Vadodara Mumbai Expressway) Inthe State of Gujarat under NHOP Phase - VI on Hybrid Anmitry ‘mode (Phase lA-Package !)414 415 42 12 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, 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; and (g) delivered to the Authority confirmation of the correctness of the representations and warranties set forth in Sub-clauses (k), (I] and (m) of Clause 7.1 of this Agreement 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, Subject only to payment of Damages, itis. agreed between the Parties that the obligation to fulfill each parties’ Conditions Precedent is an independent obligation of the respective Party. ‘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 Damages for delay by the Authority In the event that (i) the Authority does not procure fulfillment of any or all of the Conditions Precedent set forth in Clause 4.1.2 within the period specified in respect thereof, and (i) 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 0.2% (zero point two per cent) of the Performance Security for each day’s delay until the fulfilment of such Conditions Precedent, subject to the maximum limit equal to the amount of the Bid Security and upon reaching such limit, the Concessionaire may, in its sole discretion terminate the Agreement. The Damages payable hereunder shall be the sole remedy available to the Concessionaire for delay by the Authority. Provided further that in the event of delay by the Concessionaire in procuring fulfillment of the Conditions Precedent specified in Clause 4.1.3, no Damages shall be due or payable by the Authority under this Clause 4.2 until the date on which the Concessionaire shall have procured fulfillment of the Conditions Precedent specified in Clause 4.1.3. Section of Vadodara Mumbai Expressway) Inthe State of Gujrat under NHOP Phase VI on yd Anny mode (Phase |A-Package |).43 44 4s 13 Damages for delay by the Concessionaire In the event that (i) the Concessionaire does not procure fulfillment of any or all of the Conditions Precedent set forth in Clause 4.1.3 within the period specified in respect thereof, and (ii) the delay has not occurred as a result of failure to fulfill 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 0.3% (zero point three per cent) of the Performance Security for each day's delay until the fulfilment of such Conditions Precedent. Provided, however, that the Damages payable hereunder shall be subject to the maximum limit equal to the amount of the Bid Security and upon reaching such limit, the Authority may, in its sole discretion and subject to the provisions of Clause 9.2, terminate the Agreement. Provided further that in the event of delay by the Authority in procuring fulfillment of the Conditions Precedent specified in Clause 4.1.2, no Damages shall be due or payable by the Concessionaire under this Clause 4.3 until the date on which the Authority shall have procured fulfillment of the Conditions Precedent specified in Clause 4.1.2. Commencement of Concession Period ‘The date on which Financial Close is achieved and all the Conditions Precedent specified in Clause 4.1 are satisfied shall be the Appointed Date which shall be the date of commencement of the Concession Period. For the avoidance of doubt, the Parties agree that the Concessionaire may, upon occurrence of the Appointed Date hereunder, by notice convey the particulars thereof to the Authority, and shall thereupon be entitled to commence construction on the Project. Deemed Termination upon delay Without prejudice to the provisions of Clauses 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 ‘st (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 non-occurrence of the Appointed Date is for reasons attributable to the Concessionaire, the Performance Security and the Additional Performance Security, if any, of the Concessionaire shall be encashed and appropriated by the Authority as Damages thereof. ‘Grstruction of Eight lane Vadodara Kim Expressway from Km 355.00 to Km 378.740 (Padra to Vadodara’ Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHOP Phase - VI on Hybrid Annuity mode (Phase IA-Package |).5.4 saa 5.1.2 5.13 514 14 ARTICLE 5 OBLIGATIONS OF THE CONCESSIONAIRE Obligations of the Concessionaire Subject to and on the terms and conditions of this Agreement, the Concessionaire shall, at its own cost and expense, procure finance for and undertake the design, engineering, procurement, construction, operation and maintenance of the Project and abserve, fulfil, comply with and perform all its obligations set out in this Agreement or arising hereunder, The Concessionaire shall comply with all Applicable Laws and Applicable Permits (including renewals as required) in the performance of its obligations under this Agreement. Save and except as otherwise provided in this Agreement or Applicable Laws, as the case may be, the Concessionaire shall, in discharge of alt its obligations under this Agreement, conform with and adhere to Good Industry Practice at all times. The Concessionaire shall, at its own cost arid 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 abtain and keep in force and effect such Applicable Permits in conformity with Applicable Laws; (b) procure, as required, the appropriate proprietary rights, licenses, agreements and permissions for materials, methods, processes, know-how and systems used or incorporated into the Project; (c) perform and fulfill its obligations under the Financing Agreements; (4) 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; (e) 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; (f) 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; always act in a manner consistent with the provisions of this Agreement a cause or fail to do any act, deed or thing, whether intentionally or which may in any manner be violative of any of the provis Agreement; Construction of Eight lane Vadodara Kim Exaressway from Km 355.00 to km 378.740 (Padra t\Yatamara Section of Vadodara Mumbai Expressway) in the State of Gujarat under NHOP Phase - VI on Hybrid Annes mode (Phase 1A-Package !).