CONCESSION AGREEMENT FOR TOURISM INFRASTRUCTURE …. CA for Tourism Infra Complex.pdf · under the...

Setting up of Tourism Infrastructure Complex at Nagpur, Maharashtra on DBFOT basis in PPP ModeNAGPUR

Forest Development Corporation of Maharashtra Ltd.

Request for Qualification cum Proposal Concession Agreement for TourismInfrastructure Complex 1

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CONCESSION AGREEMENT FOR TOURISM INFRASTRUCTURE COMPLEX

BETWEEN

FOREST DEVELOPMENT CORPORATION OF MAHARASHTRA LIMITED[ON BEHALF OFGOVERNMENT OF MAHARASHTRA]

AND

………………………………………………………………………




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CONCESSION AGREEMENT FOR TOURISM INFRASTRUCTURECOMPLEX

THIS AGREEMENT1 is entered into on this the ……………………… day of.........., 20…..

BETWEEN

1 GOVERNMENT OF MAHARASHTRA represented by the FORESTDEVELOPMENTCORPORATION OF MAHARASHTRA LIMITED, a whollyowned Government Company of the Government of Maharashtra duly establishedunder the Companies Act, 1956 having its registered office at___________________________(hereinafter referred to as the “Authority” whichexpression shall, unless repugnant to the context or meaning thereof, include itsadministrators, successors and assigns) of One Part;

AND

2 {............................ LIMITED}, a company incorporated under the provisions of theCompanies Act, 1956 and having its registered office at ........................., (hereinafterreferred to as the “Concessionaire” which expression shall, unless repugnant to thecontext or meaning thereof, include its successors and permitted assigns andsubstitutes) of the Other Part.

WHEREAS:

A. The Authority is established by the Government of Maharashtra inter-alia forimplementation of the recommendations of the National Commission on Agricultureregarding raising of manmade forests, as a wholly owned Government Company ofState of Maharashtra.

B. The Government of Maharashtra had decided and entrusted FDCM to establish theTourism Infrastructure Complex at Gorewada, Nagpur on design, build, finance,operate and transfer (the “DBFOT”) basis in accordance with the terms andconditions to be set forth in this Concession Agreement for Tourism InfrastructureComplex (“Project”);

C. The Authority had accordingly invited proposals by its [Notice / Request for ProposalNo. *** dated ***] (the “Request for Proposal” or “RFP”) for short listing ofbidders who would incorporate the Project Company (“PC/ Concessionaire”), whichwould undertake the construction, operation and maintenance of the Project and hadshortlisted certain bidders including, inter alia, the {the selected bidder / consortiumcomprising ……………………., ……………………. and …………………………

c




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(collectively, the “Consortium”) with ………………….. as its lead member (the“Lead Member”)}.

D. After evaluation of the bids received, the Authority had accepted the 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 incorporation of the PC which shall execute theConcession Agreement for Tourism Infrastructure Complex within [●] days of thedate of issue thereof.

F. By its letter dated …………., the Concessionaire has also joined in the said request ofthe {selected bidder/consortium}to accept it as the entity which shall undertake andperform the obligations and exercise the rights of the {selected bidder/consortium}The Concessionaire has further represented to the effect that it has been promoted bythe selected bidder/ Consortium for the purposes hereof.

G. The Authority has agreed to the said request of the Concessionaire, and hasaccordingly agreed to enter into this Concession Agreement for TourismInfrastructure Complex with the Concessionaire for execution of the Project onDBFOT basis, subject to and on the terms and conditions set forth hereinafter.

NOW, THEREFORE, in consideration of the foregoing and the respective covenants andagreements set forth in this Concession Agreement for Tourism Infrastructure Complex, thereceipt and sufficiency of which is hereby acknowledged, and intending to be legally boundhereby, 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 thisAgreement (including those in Article 26) shall, unless the context otherwise requires,have the meaning ascribed thereto herein, and the words and expressions defined inthe Schedules and used therein shall have the meaning ascribed thereto in theSchedules.

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 suchamendment or re-enactment or consolidation applies or is capable of applying to anytransaction entered into hereunder;

(b) references to laws of India or Indian law or regulations having the force of law shallinclude the laws, acts, ordinances, rules, regulations, bye laws or notifications whichhave the force of law in the territory of India and as from time to time may beamended, modified, supplemented, extended or re-enacted;

(c) references to a “person” and words denoting a natural person shall be construed as areference to any individual, firm, company, corporation, society, trust, government,state or agency of a state or any association or partnership (whether or not havingseparate legal personality) of two or more of the above and shall include successorsand assigns;

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

(e) the words “include” and “including” are to be construed without limitation and shallbe deemed to be followed by “without limitation” or “but not limited to” whetheror not they are followed by such phrases;

(f) references to “construction” or “building” include, unless the context otherwiserequires, investigation, design, developing, engineering, procurement, delivery,transportation, installation, processing, fabrication, testing, commissioning and otheractivities incidental to the construction, and “construct” or “build” shall be construedaccordingly;




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(g) references to “development” include, unless the context otherwise requires, construction,renovation, refurbishing, augmentation, up gradation 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 IndianStandard Time;

(i) any reference to “hour” shall mean a period of 60 (sixty) minutes commencing either onthe hour or on the half hour of the clock, which by way of illustration means 5.00(five), 6.00 (six), 7.00 (seven) and so on being hours on the hour of the clock and 5.30(five thirty), 6.30 (six thirty), 7.30 (seven thirty) and so on being hours on the halfhour of the clock;

(j) any reference to day shall mean a reference to a calendar day;

(k) references to a “business day” shall be construed as a reference to a day (other than aSunday) on which banks in Nagpur, Maharashtra State, India are generally open forbusiness;

(l) any reference to month shall mean a reference to a calendar month as per theGregorian calendar;

(m) 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;

(n) 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 ifthe last day of any period computed under this Agreement is not a business day, thenthe period shall run until the end of the next business day;

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

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

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

(r) “indebtedness” shall be construed so as to include any obligation (whether incurredas principal or surety) for the payment or repayment of money, whether present orfuture, actual or contingent;

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




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(t) 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 beconstrued as reference to that agreement, deed, instrument, licence or other documentas amended, varied, supplemented, modified or suspended at the time of suchreference; provided that this Sub-clause shall not operate so as to increase liabilities orobligations of the Authority hereunder or pursuant hereto in any manner whatsoever;

(u) the Schedules and Recitals to this Agreement form an integral part of this Agreementand will be in full force and effect as though they were expressly set out in the bodyof this Agreement;

(v) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this Agreementshall, except where the context otherwise requires, mean references to Recitals,Articles, Clauses, Sub-clauses and Schedules of or to this Agreement, and referencesto a Paragraph shall, subject to any contrary indication, be construed as a reference toa Paragraph of this Agreement or of the Schedule in which such reference appears;

(w) the damages payable by either Party to the other of them, as set forth in thisAgreement, 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 toreceive 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 theessence.

1.2.2 The rule of construction, if any, that a contract should be interpreted against theparties responsible for the drafting and preparation thereof, shall not apply.

1.2.3 Any word or expression used in this Agreement shall, unless otherwise defined orconstrued in this Agreement, bear its ordinary English meaning and, for thesepurposes, the General Clauses Act, 1897 shall not apply.

1.2.4 Any word or expression used in this Agreement shall, unless otherwise defined orconstrued in this Agreement, shall have the same meaning as ascribed to such word orexpression in the Concession Agreement for Zoo and Night Safari Project.

1.3 Measurements and arithmetic conventions

All measurements and calculations shall be in the metric system and calculations doneto 2 (two) decimal places, with the third digit of 5 (five) or above being rounded upand 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 referredto in this Agreement are to be taken as mutually explanatory and, unless otherwiseexpressly provided elsewhere in this Agreement, the priority of this Agreement and




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other documents and agreements forming part hereof or referred to herein shall, in theevent 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 anddocuments at (b) above.

1.4.2 Subject to the provisions of Clause 1.4.1, in case of ambiguities or discrepancieswithin this Agreement, the following shall apply:

(a) between two or more Clauses of this Agreement, the provisions of a specific Clauserelevant 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 prevailand 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 andStandards, 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, duringthe Concession Period:

(a) construction and procurement of the Tourism Infrastructure Complex on theSite set forth in Schedule-A and as specified Proposed Project Activities asspecified in Schedule-B,

(b) operation and maintenance of the Tourism Infrastructure Complex inaccordance with the provisions of this Agreement; and

(c) performance and fulfilment of all other obligations of the Concessionaire inaccordance with the provisions of this Agreement and matters incidentalthereto or necessary for the performance of any or all of the obligations of theConcessionaire 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 ApplicableLaws and the Applicable Permits, the Authority hereby grants to the Concessionairethe concession set forth herein including the exclusive right, licence and authority todesign, construct, operate and maintain the Project (the “Concession”) for a period of50 (fifty) years commencing from the Appointed Date, and the Concessionairehereby accepts the Concession and agrees to implement the Project subject to and inaccordance with the terms and conditions set forth herein.

Provided further that the Concession specified above under this Agreement shall beco-terminus with the Concession specified under the Zoo and Rescue Centre Project.It is further clarified that in the event Concession Period under the Zoo and RescueCentre Project is extended the Concession specified under this Agreement shall beautomatically extended.

3.1.2 Subject to and in accordance with the provisions of this Agreement, the Concessionhereby 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 theextent conferred by the provisions of this Agreement;

(b) finance and construct the Tourism Infrastructure Complex;

(c) manage, operate and maintain the Tourism Infrastructure Complex andregulate the use thereof by third parties;

(d) demand, collect and appropriate Fees from Users liable for payment of Feefor using the Tourism Infrastructure Complex or any part thereof and refuseentry of any Users if the Fees due is not paid;

(e) perform and fulfil all of the Concessionaire’s obligations under and inaccordance with this Agreement;

(f) bear and pay all costs, expenses and charges in connection with or incidentalto the performance of the obligations of the Concessionaire under thisAgreement; and

(g) neither assign, transfer or sublet or create any lien or Encumbrance on thisAgreement, or the Concession hereby granted or on the whole or any part ofthe Tourism Infrastructure Complex nor transfer, lease or part possessionthereof, save and except as expressly permitted by this Agreement or theSubstitution Agreement.

ARTICLE 4




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CONDITIONS PRECEDENT

4.1 Conditions Precedent

4.1.1 Save and except as expressly provided in Articles 4, 9, 10, 18 or unless the contextotherwise requires, the respective rights and obligations of the Parties under thisAgreement shall be subject to the satisfaction in full of the conditions precedentspecified in this Clause 4.1 (the “Conditions Precedent”).

4.1.2 The Concessionaire may, upon providing the Performance Security to the Authority inaccordance with Article 9, at any time after [90 (ninety)] days from the date of thisAgreement or on an earlier day acceptable to the Authority , by notice require theAuthority to satisfy any or all of the Conditions Precedent set forth in this Clause4.1.2 within a period of 30 (thirty) days of the notice, or such longer period notexceeding 60 (sixty) days as may be specified therein, and the Conditions Precedentrequired to be satisfied by the Authority shall be deemed to have been fulfilled whenthe Authority shall have:

(a) procured for the Concessionaire the Right of Way to the Site in accordancewith the provisions of Clause 10.2.1;

and

[(b) procured all Applicable Permits relating to environmental protection andconservation of the Site:]

Provided that the Authority may from time to time by notice extend, for up toan aggregate of 6 (six) months, the period for procuring the approval set forthin Sub-clause (b) above. For the avoidance of doubt, the approval specified inSub-clauses (b) above shall cease to be a Condition Precedent upon theextension of time under this Proviso.

4.1.3 The Conditions Precedent required to be satisfied by the Concessionaire prior to theAppointed Date shall be deemed to have been fulfilled when the Concessionaire shallhave:

(a) provided Performance Security to the Authority;

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

(c) procured all the Applicable Permits specified in Schedule-C unconditionallyor if subject to conditions, then all such conditions required to be fulfilled bythe date specified therein shall have been satisfied in full and such ApplicablePermits are in full force and effect;

(d) executed the Financing Agreements and delivered to the Authority 3 (three)true copies thereof;




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(e) delivered to the Authority 3 (three) true copies of the Financial Package andthe Financial Model, along with 3 (three) soft copies of the Financial Model inMS Excel version or any substitute thereof, which is acceptable to the SeniorLenders; and

(f) delivered to the Authority a legal opinion from the legal counsel of theConcessionaire with respect to the authority of the Concessionaire to enter intothis Agreement and the enforceability of the provisions thereof:

Provided that upon request in writing by the Concessionaire, the Authority may, in itsdiscretion, waive any of the Conditions Precedent set forth in this Clause 4.1.3. Forthe avoidance of doubt, the Authority may, in its sole discretion, grant any waiverhereunder with such conditions as it may deem fit.

4.1.4 Each Party shall make all reasonable endeavours to satisfy the Conditions Precedentwithin the time stipulated and shall provide the other Party with such reasonablecooperation as may be required to assist that Party in satisfying the ConditionsPrecedent for which that Party is responsible.

4.1.5 The Parties shall notify each other in writing at least once a month on the progressmade in satisfying the Conditions Precedent. Each Party shall promptly inform theother Party when any Condition Precedent for which it is responsible has beensatisfied.

4.2 Damages for delay by the Authority

In the event that (i) the Authority does not procure fulfilment of any or all of theConditions Precedent set forth in Clause 4.1.2 within the period specified in respectthereof, and (ii) the delay has not occurred as a result of breach of this Agreement bythe Concessionaire or due to Force Majeure, the Authority shall pay to theConcessionaire Damages in an amount calculated at the rate of 0.1% (zero point oneper cent) of the Performance Security for each day’s delay until the fulfilment of suchConditions Precedent, subject to a maximum of 20% (twenty per cent) of thePerformance 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 theConditions Precedent set forth in Clause 4.1.3 within a period of 180 (one hundredand eighty) days from the date of this Agreement, and (ii) the delay has not occurredas a result of failure to fulfil the obligations under Clause 4.1.2 or other breach of thisAgreement by the Authority or due to Force Majeure, the Concessionaire shall pay tothe Authority Damages in an amount calculated at the rate of 0.2% (zero point two percent) of the Performance Security for each day’s delay until the fulfilment of suchConditions Precedent, subject to a maximum of 20% (twenty per cent) of thePerformance Security.




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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 Concessionaireshall, at its own cost and expense, procure finance for and undertake the design,engineering, procurement, construction, operation and maintenance of the TourismInfrastructure Complex and observe, fulfil, comply with and perform all itsobligations 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 thisAgreement.

5.1.3 Subject to the provisions of Clauses 5.1.1 and 5.1.2, the Concessionaire shalldischarge its obligations in accordance with Good Industry Practice and as areasonable and prudent person.

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

(a) make, or cause to be made, necessary applications to the relevant GovernmentInstrumentalities with such particulars and details as may be required forobtaining Applicable Permits (other than those set forth in Clause 4.1.2), andobtain and keep in force and effect such Applicable Permits in conformitywith the Applicable Laws;

(b) procure, as required, the appropriate proprietary rights, licences, agreementsand permissions for materials, methods, processes and systems used orrequired for the Tourism Infrastructure Complex;

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

(d) make reasonable efforts to maintain harmony and good industrial relationsamong the personnel employed by it or its Contractors in connection with theperformance of its obligations under this Agreement;

(e) make reasonable efforts to facilitate the acquisition of land required for thepurposes of the Agreement;

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

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




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(h) procure that all facilities and amenities within the Tourism InfrastructureComplex are operated and maintained in accordance with Good IndustryPractice and the Users have non-discriminatory access for use of the same;

(i) ensure that Users are treated with due courtesy and consideration and providedwith ready access to services and information;

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

(k) transfer the Tourism Infrastructure Complex to the Authority uponTermination of this Agreement, in accordance with the provisions thereof.

5.2 Obligations relating to Project Agreements

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

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 theAuthority shall have the right but not the obligation to undertake such review andprovide its comments, if any, to the Concessionaire within 15 (fifteen) days of thereceipt of such drafts. Within 7 (seven) days of execution of any Project Agreement oramendment thereto, the Concessionaire shall submit to the Authority a true copythereof, for its record. For the avoidance of doubt, it is agreed that the review andcomments hereunder shall be limited to ensuring compliance with the terms of thisAgreement. It is further agreed that any failure or omission of the Authority to reviewand/ or comment hereunder shall not be construed or deemed as acceptance of anysuch agreement or document by the Authority. No review and/ or observation of theAuthority and/ or its failure to review and/ or convey its observations on anydocument shall relieve the Concessionaire of its obligations and liabilities under thisAgreement in any manner nor shall the Authority be liable for the same in any mannerwhatsoever.

5.2.3 The Concessionaire shall not make any addition, replacement or amendments to anyof the Financing Agreements without the prior written consent of the Authority ifsuch addition, replacement or amendment has, or may have, the effect of imposing orincreasing any financial liability or obligation on the Authority, and in the event thatany replacement or amendment is made without such consent, the Concessionaireshall not enforce such replacement or amendment nor permit enforcement thereofagainst the Authority. For the avoidance of doubt, the Authority acknowledges andagrees that it shall not unreasonably withhold its consent for restructuring orrescheduling of the Debt of the Concessionaire.




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5.2.4 The Concessionaire shall procure that each of the Project Agreements containsprovisions 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 theAuthority does not exercise such rights of substitution within a period not exceeding90 (ninety) days from the Transfer Date, the Project Agreements shall be deemed tocease to be in force and effect on the Transfer Date without any liability whatsoeveron the Authority and the Covenant shall expressly provide for such eventuality. TheConcessionaire expressly agrees to include the Covenant in all its Project Agreementsand undertakes that it shall, in respect of each of the Project Agreements, procure anddeliver to the Authority an acknowledgment and undertaking, in a form acceptable tothe Authority , from the counter party(ies) of each of the Project Agreements,whereunder such counter party(ies) shall acknowledge and accept the Covenant andundertake to be bound by the same and not to seek any relief or remedy whatsoeverfrom the Authority in the event of Termination or Suspension.

5.2.5 Notwithstanding anything to the contrary contained in this Agreement, theConcessionaire agrees and acknowledges that selection or replacement of an O&MContractor and execution of the O&M Contract shall be subject to the prior approvalof the Authority from national security and public interest perspective, the decision ofthe 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 withoutprior approval of the Authority . For the avoidance of doubt, it is expressly agreed thatapproval of the Authority hereunder shall be limited to national security and publicinterest perspective, and the Authority shall endeavour to convey its decision thereonexpeditiously. It is also agreed that the Authority shall not be liable in any manner onaccount of grant or otherwise of such approval and that such approval or denialthereof shall not in any manner absolve the Concessionaire or its Contractors fromany liability or obligation under this Agreement.

5.3 Obligations relating to Change in Ownership

The Concessionaire shall not undertake or permit any Change in Ownership, duringthe Concession Period. For avoidance of doubt, it is agreed between the Parties thatthe Shareholding of the Concessionaire shall not be altered/modified till the TransferDate of the Project.

5.4 Obligations relating to employment of foreign nationals

The Concessionaire acknowledges, agrees and undertakes that employment of foreignpersonnel by the Concessionaire and/or its contractors and their sub-contractors shallbe subject to grant of requisite regulatory permits and approvals includingemployment/residential visas and work permits, if any required, and the obligation toapply 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 orinability to obtain any such permits and approvals by the Concessionaire or any of itscontractors or sub-contractors shall not constitute Force Majeure Event, and shall not




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in any manner excuse the Concessionaire from the performance and discharge of itsobligations and liabilities under this Agreement.

5.5 Obligations relating to employment of trained personnel

The Concessionaire shall ensure that the personnel engaged by it in the performanceof its obligations under this Agreement are at all times properly trained for theirrespective functions.

5.6 Obligations relating to medical aid

For providing emergency medical aid to Users, the Concessionaire shall, , set up andoperate a medical aid posts at such locations, as may be instructed by the Authority(the “Medical Aid Post”) equipped to render first aid and to assist in accessingemergency medical aid from hospitals in the vicinity.

5.7 Obligations relating to aesthetic quality of the Tourism Infrastructure Complex

The Concessionaire shall maintain a high standard in the appearance and aestheticquality of the Tourism Infrastructure Complex and achieve integration of the TourismInfrastructure Complex with the character of the surrounding landscape through bothappropriate design and sensitive management of all visible elements. TheConcessionaire shall engage professional architects and town planners of repute forensuring that the design of the Tourism Infrastructure Complex meets the aforesaidaesthetic standards.

5.8 Sole purpose of the Concessionaire

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

5.9 Branding of Tourism Infrastructure Complex

The Tourism Infrastructure Complex or any part thereof shall not be branded in anymanner to advertise, display or reflect the name or identity of the Concessionaire orits shareholders. 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 Tourism Infrastructure Complex shall be known,promoted, displayed and advertised by the name of[•].

ARTICLE 6




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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 performall its obligations set out in this Agreement or arising hereunder.

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

(a) upon written request from the Concessionaire, and subject to theConcessionaire complying with Applicable Laws, provide reasonable supportand assistance to the Concessionaire in procuring Applicable Permits requiredfrom any Government Instrumentality for implementation and operation of theTourism Infrastructure Complex;

(b) upon written request from the Concessionaire, provide reasonable assistance tothe Concessionaire in obtaining access to all necessary infrastructure facilitiesand utilities, including water and electricity at rates and on terms no lessfavourable to the Concessionaire than those generally available to[commercial customers] receiving substantially equivalent services;

(c) endeavour that no barriers are erected or placed on or around the TourismInfrastructure Complex by any Government Instrumentality or personsclaiming through or under it, except for reasons of Safety Requirements,Emergency, National Security, or Law and Order;

(d) make best endeavours to procure that no local Tax, toll or charge is levied orimposed on the use of whole or any part of the Tourism InfrastructureComplex ;

(e) subject to and in accordance with the Applicable Laws, grant to theConcessionaire the authority to regulate the Tourism Infrastructure Complex ;

(f) assist the Concessionaire in procuring police assistance for regulation ofmanagement, removal of trespassers and security on or at the TourismInfrastructure Complex;

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

(i) support, cooperate with and facilitate the Concessionaire in theimplementation and operation of the Project in accordance with the provisionsof this Agreement; and

(j) upon written request from the Concessionaire and subject to the provisions ofClause 5.4, provide reasonable assistance to the Concessionaire and any




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expatriate personnel of the Concessionaire or its Contractors to obtainapplicable visas and work permits for the purposes of discharge by theConcessionaire or its Contractors their obligations under this Agreement andthe Project Agreements.

6.2 Obligations relating to Competing Facilities

The Authority shall procure that during the subsistence of this Agreement, neither theAuthority nor any Government Instrumentality shall, at any time before the 25th

(twenty fifth) anniversary of the Appointed Date, construct or cause to be constructedany Competing Facility.

ARTICLE 7




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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 fullpower and authority to execute and perform its obligations under thisAgreement and to carry out the transactions contemplated hereby;

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

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

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

(e) it is subject to the laws of India, and hereby expressly and irrevocably waivesany immunity in any jurisdiction in respect of this Agreement or mattersarising thereunder including any obligation, liability or responsibilityhereunder;

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

(g) the execution, delivery and performance of this Agreement will not conflictwith, result in the breach of, constitute a default under, or accelerateperformance required by any of the terms of its Memorandum and Articles ofAssociation, or any Applicable Laws or any covenant, contract, agreement,arrangement, understanding, decree or order to which it is a party or by whichit or any of its properties or assets is bound or affected;

(h) there are no actions, suits, proceedings, or investigations pending or, to itsknowledge, threatened against it at law or in equity before any court or beforeany other judicial, quasi-judicial or other authority, the outcome of which mayresult in the breach of this Agreement or which individually or in theaggregate may result in any material impairment of its ability to perform anyof 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 anyGovernment Instrumentality which may result in any material adverse effect




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on its ability to perform its obligations under this Agreement and no fact orcircumstance exists which may give rise to such proceedings that wouldadversely affect the performance of its obligations under this Agreement;

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

(k) all its rights and interests in the Tourism Infrastructure Complex shall pass toand 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 ofthe 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 orEncumbrance is retained by any person, save and except as expressly providedin this Agreement;

(l) no representation or warranty by it contained herein or in any other documentfurnished by it to the Government or to any Government Instrumentality inrelation to Applicable Permits contains or will contain any untrue ormisleading statement of material fact or omits or will omit to state a materialfact necessary to make such representation or warranty not misleading;

(m) 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 theConcession or entering into this Agreement or for influencing or attempting toinfluence any officer or employee of the Authority in connection therewith;and

(n) all information provided by the {selected bidder/ Consortium Members} inresponse to the Request for Proposals or otherwise, is to the best of itsknowledge and belief, true and accurate in all material respects.

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 obligationsunder this Agreement and to carry out the transactions contemplated hereinand that it has taken all actions necessary to execute this Agreement, exerciseits rights and perform its obligations, under this Agreement;

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

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




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(d) this Agreement constitutes a legal, valid and binding obligation enforceableagainst 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 anyGovernment Instrumentality which may result in any material adverse effecton the Authority’s ability to perform its obligations under this Agreement;

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

(g) it has good and valid right to the Site, and has power and authority to grant alicence in respect thereto to the Concessionaire.

7.3 Disclosure

In the event that any occurrence or circumstance comes to the attention of either Partythat renders any of its aforesaid representations or warranties untrue or incorrect, suchParty shall immediately notify the other Party of the same. Such notification shall nothave the effect of remedying any breach of the representation or warranty that hasbeen 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 Authority makes no representation whatsoever, express, implicit or otherwise,regarding the accuracy, adequacy, correctness, reliability and/or completeness of anyassessment, assumption, statement or information provided by it and theConcessionaire confirms that it shall have no claim whatsoever against the Authorityin this regard.

8.1.2 The Concessionaire agrees that the Authority shall not be liable for the same in anymanner whatsoever to the Concessionaire, Associates or any person claiming throughor under any of them.

8.1.3 In the event that either Party becomes aware of any mistake or error relating to any ofthe matters, that Party shall immediately notify the other Party, specifying the mistakeor error; provided, however, that a failure on part of the Authority to give any noticepursuant to this Clause 8.1.3 shall not prejudice the disclaimer of the Authority andshall not in any manner shift to the Authority any risks assumed by theConcessionaire pursuant to this Agreement.

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




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Part III

Development and Operations




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ARTICLE 9

PERFORMANCE SECURITY AND PERFORMANCE GUARANTEE

9.1 Performance Security

9.1.1 The Concessionaire shall, for the performance of its obligations hereunder during theConstruction Period, provide to the Authority no later than 180 (one hundred andeighty) days from the date of this Agreement, an irrevocable and unconditionalguarantee from a Bank for a sum equivalent to Rs. 10 .00 Crore (Rupees Ten Croreonly) in the form set forth in Schedule-D (the “Performance Security”). Until suchtime the Performance Security is provided by the Concessionaire pursuant hereto andthe same comes into effect, the Bid Security shall remain in force and effect, and uponsuch provision of the Performance Security pursuant hereto, the Authority shallrelease the Bid Security to the Concessionaire.

9.1.2 Notwithstanding anything to the contrary contained in this Agreement, in the eventPerformance Security is not provided by the Concessionaire within a period of 180(one hundred and eighty) days from the date of this Agreement, the Authority mayencash the Bid Security and appropriate the proceeds thereof as Damages, andthereupon all rights, privileges, claims and entitlements of the Concessionaire underor arising out of this Agreement shall be deemed to have been waived by, and to haveceased with the concurrence of the Concessionaire, and this Agreement shall bedeemed 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 ConditionPrecedent, the Authority shall, without prejudice to its other rights and remedieshereunder or in law, be entitled to encash and appropriate the relevant amounts fromthe Performance Security as Damages for such Concessionaire Default or failure tomeet any Condition Precedent. Upon such encashment and appropriation from thePerformance Security, the Concessionaire shall, within 30 (thirty) days thereof,replenish, in case of partial appropriation, to its original level the PerformanceSecurity, and in case of appropriation of the entire Performance Security provide afresh Performance Security, as the case may be, and the Concessionaire shall, withinthe time so granted, replenish or furnish fresh Performance Security as aforesaidfailing which the Authority shall be entitled to terminate this Agreement inaccordance with Article 19. Upon replenishment or furnishing of a fresh PerformanceSecurity, as the case may be, as aforesaid, the Concessionaire shall be entitled to anadditional Cure Period of 90 (ninety) days for remedying the Concessionaire Defaultor to meet any Condition Precedent, and in the event of the Concessionaire not curingits default or meeting such Condition Precedent within such Cure Period, theAuthority shall be entitled to encash and appropriate such Performance Security asDamages, and to terminate this Agreement in accordance with Article 37.




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9.3 Release of Performance Security

The Performance Security shall remain in force and effect for a period of one yearfrom the Appointed Date, but shall be released the Concessionaire expending onProject construction an aggregate sum that is not less than 20% (twenty per cent) ofthe Total Project Cost; provided, however, that the Performance Security shall not bereleased if the Concessionaire is in breach of this Agreement. Upon request made bythe Concessionaire for release of the Performance Security along with the particularswhich establish satisfaction of the requirements specified under this Clause 9.3, theAuthority shall release the Performance Security forthwith after obtaining requisiteperformance guarantee.

9.4 Performance Guarantee

9.4.1 The Concessionaire shall, for the performance of its obligations hereunder during theConcession Period, provide to the Authority no later than [90] days prior to expiry ofthe Performance Security, an irrevocable and unconditional guarantee from a Bank fora sum equivalent to Rs. 6.30 crore (Rupees Six crore thirty lakh only) in the formset forth in Schedule-E (the “Performance Guarantee”). Until such time thePerformance Guarantee is provided by the Concessionaire pursuant hereto and thesame comes into effect, notwithstanding anything contained in clause 9.3 thePerformance Security shall remain in force and effect, and upon such provision of thePerformance Guarantee pursuant hereto, the Authority shall release the PerformanceSecurity to the Concessionaire.

9.4.2 Notwithstanding anything to the contrary contained in this Agreement, in the eventPerformance Guarantee is not provided by the Concessionaire within a period of [90]days prior to expiry of the Performance Security, the Authority may invoke andencash the Performance Security and appropriate the proceeds thereof as Damages,and thereupon all rights, privileges, claims and entitlements of the Concessionaireunder or arising out of this Agreement shall be deemed to have been waived by, andto have ceased with the concurrence of the Concessionaire, and this Agreement shallbe deemed to have been terminated by mutual agreement of the Parties.

9.5 Appropriation of Performance Guarantee

Upon occurrence of a Concessionaire Default, the Authority shall, without prejudiceto its other rights and remedies hereunder or in law, be entitled to invoke, encash andappropriate the relevant amounts from the Performance Guarantee as Damages forsuch Concessionaire Default. Upon such invocation, encashment and appropriationfrom the Performance Guarantee, the Concessionaire shall, within 30 (thirty) daysthereof, replenish, in case of partial appropriation, to its original level thePerformance Guarantee, and in case of appropriation of the entire PerformanceGuarantee provide a fresh Performance Guarantee, as the case may be, and theConcessionaire shall, within the time so granted, replenish or furnish freshPerformance Guarantee as aforesaid failing which the Authority shall be entitled to




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terminate this Agreement in accordance with Article 37. Upon replenishment orfurnishing of a fresh Performance Guarantee, as the case may be, as aforesaid, theConcessionaire shall be entitled to an additional Cure Period of 90 (ninety) days forremedying the Concessionaire Default, and in the event of the Concessionaire notcuring its default within such Cure Period, the Authority shall be entitled to invoke,encash and appropriate such Performance Guarantee as Damages, and to terminatethis Agreement in accordance with Article 37.

9.6 Release of Performance Guarantee

The Performance Guarantee shall remain in force and effect for the entire period ofthe Concession period and subject to provisions of Article 9.5, shall be released after180 (one hundred and eighty) days of expiry of the Concession Period or Termination,whichever is earlier, in accordance with this Agreement.

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ARTICLE 10

RIGHT OF WAY

10.1 The Site

The site of the Tourism Infrastructure Complex shall comprise the real estatedescribed in Schedule-A and in respect of which the Right of Way shall be providedand granted by the Authority to the Concessionaire as a licensee under and inaccordance with this Agreement (the “Site”). For the avoidance of doubt, it is herebyacknowledged and agreed that references to the Site shall be construed as referencesto the real estate required for the Tourism Infrastructure Complex as set forth inSchedule-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 outany surveys, investigations and soil tests that the Concessionaire may deem necessaryduring the Development Period, it being expressly agreed and understood that theAuthority shall have no liability whatsoever in respect of survey, investigations andtests carried out or work undertaken by the Concessionaire on or about the Sitepursuant hereto in the event of Termination or otherwise.

10.2.2 In consideration of the Concession Fee, this Agreement and the covenants andwarranties on the part of the Concessionaire herein contained, the Authority , inaccordance with the terms and conditions set forth herein, hereby grants to theConcessionaire, commencing from the Appointed Date, leave and licence rights inrespect of all the land (along with any buildings, constructions or immovable assets, ifany, thereon) comprising the Site which is described, delineated and shown inSchedule-A hereto (the “Licensed Premises”), on an “as is where is” basis, free ofany Encumbrances, to develop, operate and maintain the said Licensed Premises,together with all and singular rights, liberties, privileges, easements andappurtenances whatsoever to the said Licensed Premises, hereditaments or premisesor any part thereof belonging to or in any way appurtenant thereto or enjoyedtherewith, for the duration of the Concession Period and, for the purposes permittedunder this Agreement, and for no other purpose whatsoever.

10.2.3 The licence, access and right of way granted by this Agreement to the Concessionaireshall always be subject to existing rights of way and the Concessionaire shall performits obligations in a manner that are open to road traffic at all times during theConstruction Period.




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ARTICLE 11

OPERATION AND MAINTENANCE

11.1 O&M obligations of the Concessionaire

11.1.1 During the Operation Period, the Concessionaire shall operate and maintain theTourism Infrastructure Complex in accordance with this Agreement either by itself, orthrough the O&M Contractor and if required, modify, repair or otherwise makeimprovements to the Tourism Infrastructure Complex to comply with the provisionsof this Agreement, Applicable Laws and Applicable Permits, and conform toSpecifications and Standards and Good Industry Practice. The obligations of theConcessionaire hereunder shall include:

(a) operation and maintenance of all Project Assets diligently and efficiently inaccordance with Good Industry Practice;

(b) maintaining punctuality and reliability in operating the Tourism InfrastructureComplex

(c) maintaining a high standard of cleanliness and hygiene;

(d) complying with Safety Requirements as set out in Article 12;

(e) protection of the environment and provision of equipment and materialstherefor;

(f) routine maintenance of buildings, roads, parks, fences, animal enclosures,water supply system, drains, lighting, communication control & administrativesystems and the entire property of the Tourism Infrastructure Complex;

(g) periodic preventive maintenance of all equipment and infrastructural facilitiesincluding replacement, whenever necessary;

(h) carrying out major maintenance works / repairs, wherever required;

encies for this purpose;

(j) maintaining a public relations unit to interface with and attend to suggestionsfrom the Users, Government agencies, media and others.

11.1.2 The Concessionaire shall remove promptly from the Tourism Infrastructure Complexall surplus construction machinery and materials, waste materials (includinghazardous materials and waste water), rubbish and other debris (including, withoutlimitation, accident debris) and keep the Tourism Infrastructure Complex in a clean,tidy and orderly condition, and in conformity with the Applicable Laws, ApplicablePermits and Good Industry Practice.




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ARTICLE 12

SAFETY REQUIREMENTS

12.1 Safety Requirements

12.1.1 The Concessionaire shall comply with the provisions of this Agreement, ApplicableLaws and Applicable Permits and conform to Good Industry Practice for securing thesafety of the Users. In particular, the Concessionaire shall develop, implement andadminister a surveillance and safety programme for providing a safe environment onor at the Tourism Infrastructure Complex and shall comply safety measures duringDevelopment Period, during Construction Period and during operation period as perthe best industrial practice (the “Safety Requirements”).

The Concessionaire shall be solely responsible to arrange for the safety, security andwelfare of the people employed/engaged by the Concessionaire for rendering servicesat the Project.

Costs and expenses

Costs and expenses incurred in connection with the Safety Requirements will beincurred by Concessionaire.




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ARTICLE 13

SECURITY

13.1 Security

13.1.1 The Authority acknowledges and agrees that unless otherwise specified in thisAgreement it shall, at its own cost and expense, provide or cause to be providedsecurity within the limits of the Tourism Infrastructure Complex for the prevention ofterrorism, sabotage and/or similar acts or occurrences.

13.1.2 The Concessionaire shall provide and maintain perimeter fencing or other suitableprotection around the Tourism Infrastructure Complex and shall be responsible for thesecurity arrangements within the Tourism Infrastructure Complex in order to maintainorderly conduct of its business and the security thereof.




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Part IV

Financial Covenants




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ARTICLE 14

CONCESSION FEE AND REVENUE SHARE

14.1 Upfront Concession Fees

In consideration of the grant of Concession, the Concessionaire shall pay to theAuthority by way of Upfront concession fee (the “Upfront Concession Fee”) a sumof Re. 1 (Rupee one) at the time of signing of concession Agreement withpredetermined condition of payment of Annual Premium to the JVC of Gorewadazoo & Rescue Centre as per clause 14.2 below.

14.2 In consideration of the grant of Concession, the Concessionaire shall pay to the JVCof Gorewada zoo & Rescue Centre by way of Annual concession fee (the “AnnualPremium”) a sum equal to the higher of following two, namely -

a. a sum of Rs 3.0 Crores after completion of 24 months from the appointed date,and, a sum of Rs. 3.0 crores compounded @ 6% per annum after completion ofeach 12 months period thereafter; OrA. b. a sum computed @ Rs 10 per square meter per month on actual

consumed FSI for the tourism infrastructure project after completion of 24months from the appointed date, and, a sum of Rs. 10 per square meter onactual consumed FSI for tourism infrastructure project compounded @6%per annum after completion of each 12 months period thereafter. The firstAnnual Premium shall be due and payable by the Concessionaire onthe completion of 24th (twenty fourth) month from the Appointed Date(i.e. the date on which both the parties met with the respectiveConditions Precedent). The Concessionaire shall deposit the AnnualPremium 7 (seven) days prior to the same date every year..

B. The Annual Premiumshall be payable by the Concessionaire to the JVC inadvance on every year through the Escrow mechanism in the mannerset forth in the Concession Agreement and more particularly in theEscrow Agreement.C. For Illustration, if the date of completion of 24th month from theCompliance Date is 15th April, the Concessionaire shall have to depositthe Annual Premium on or before 8th of April every year during theentire Concession Period.D. In the event of delay up to four weeks in payment by the Concessionaire,the Concessionaire shall be required to pay the JVC interest at the rateof 12%. In the case of delay beyond such four weeks, it shall be aConcessionaire Event of Default.




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ARTICLE 15

USER FEE

15.1 Collection and appropriation of Fee

15.1.1 On and from the COD till the Transfer Date, the Concessionaire shall have the soleand exclusive right to demand, collect and appropriate Fee from the Users

15.1.2 The Concessionaire acknowledges and agrees that upon payment of Fee, any Usershall be entitled to use the Tourism Infrastructure Complex and the Concessionaireshall not place, or cause to be placed, any restriction on such use, except to the extentspecified in any Applicable Law, Applicable Permit or the provisions of thisAgreement.

15.2 Fee Contractor

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

15.3 Fee collection points

The Concessionaire shall be entitled to set up at its own risk and cost, its temporary orpermanent Fee collection counters and gates, or impose such other restrictions onentry to the Tourism Infrastructure Complex, as may reasonably be necessary forpreventing evasion of Fee. For the avoidance of doubt, the Concessionaire herebyacknowledges and agrees that it shall establish and operate a system of Fee collectionin conformity with Good Industry Practice.




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ARTICLE 16

ESCROW ACCOUNT

16.1 Escrow Account

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

16.1.2 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, whichshall be substantially in the form set forth in Schedule-F.

16.2 Deposits into Escrow Account

16.2.1 The Concessionaire shall deposit or cause to be deposited the following inflows andreceipts into the Escrow Account:

(a) all funds constituting the Financial Package;

(b) all Fee and any other revenues from or in respect of the TourismInfrastructure Complex , including the proceeds of any rentals, deposits,capital receipts or insurance claims; and

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

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

16.3 Withdrawals during Concession Period

16.3.1 The Concessionaire shall, at the time of opening the Escrow Account, give irrevocableinstructions, by way of an Escrow Agreement, to the Escrow Bank instructing, interalia, that deposits in the Escrow Account shall be appropriated in the following orderevery month, or at shorter intervals as necessary, and if not due in a month thenappropriated proportionately in such month and retained in the Escrow Account andpaid out therefrom in the month when due:

(a) all taxes due and payable by the Concessionaire for and in respect of theTourism Infrastructure Complex ;

(b) all payments relating to construction of the Tourism Infrastructure Complex,subject to and in accordance with the conditions, if any, set forth in theFinancing Agreements;




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

(d) O&M Expenses and other costs and expenses incurred by the Authority inaccordance with the provisions of this Agreement, and certified by theAuthority 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 itby the Concessionaire;

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

16.3.2 The Concessionaire shall not in any manner modify the order of payment specified inClause 15.3, except with the prior written approval of the Authority.

16.4 Withdrawals upon Termination

16.4.1 Notwithstanding anything to the contrary contained in this Agreement, all amountsstanding to the credit of the Escrow Account shall, upon Termination, beappropriated in the following order:

(a) all taxes due and payable by the Concessionaire for and in respect of the Zooand the Rescue Centre;

(c) outstanding Concession Fee;

(d) all payments and Damages certified by the Authority as due and payable to itby the Concessionaire;

(e) incurred or accrued O&M Expenses;

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

(g) balance, if any, in accordance with the instructions of the Concessionaire:

Provided that no appropriations shall be made under Sub-clause (g) of this Clause16.4.1 until a Vesting Certificate has been issued by the Authority under theprovisions of Article 20.




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16.4.2 The provisions of this Article 16 and the instructions contained in the EscrowAgreement shall remain in full force and effect until the obligations set forth in Clause16.4.1 have been discharged.




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ARTICLE 17

INSURANCE

I. The Developer shall arrange full insurance cover as per the standard practice in the

industry, covering all the applicable risk in respect of the Project and the

Constructions.

II. A certified copy of all such insurance policies shall be provided to the FDCM, within

15 days from the date of receipt of such Policy. In case of any default, the same may

be insured by FDCM at the cost of the Developer;

III. The Developer shall ensure the timely payment of the premium of the policies taken

by the Developer, and will submit the copy of the receipt of the payment of premium

to the FDCM on the quarterly basis along with the instalment.




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Part V

Force Majeure and Termination




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ARTICLE 18

FORCE MAJEURE

18.1 Force Majeure

As used in this Agreement, the expression “Force Majeure” or “Force MajeureEvent” shall mean occurrence in India of any or all of Non-Political Event, IndirectPolitical Event and Political Event, as defined in Clauses 18.2, 18.3 and 18.4respectively, if it affects the performance by the Party claiming the benefit of ForceMajeure (the “Affected Party”) of its obligations under this Agreement and which actor event (i) is beyond the reasonable control of the Affected Party, and (ii) theAffected Party could not have prevented or overcome by exercise of due diligenceand following Good Industry Practice, and (iii) has Material Adverse Effect on theAffected Party.

18.2 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 orradioactive contamination or ionising radiation, fire or explosion (to the extentof contamination or radiation or fire or explosion originating from a sourceexternal to the Site);

(b) strikes or boycotts (other than those involving the Concessionaire, Contractorsor their respective employees/representatives, or attributable to any act oromission of any of them) interrupting supplies and services to the TourismInfrastructure Complex for a continuous period of 24 (twenty four) hours andan aggregate period exceeding 7 (seven) days in an Accounting Year, and notbeing an Indirect Political Event set forth in Clause 18.3;

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

(d) any delay or failure of an overseas contractor to deliver rolling stock orequipment in India if such delay or failure is caused outside India by any eventspecified in Sub-clause (a) above and which does not result in any offsettingcompensation being payable to the Concessionaire by or on behalf of suchcontractor;

(e) any judgement or order of any court of competent jurisdiction or statutoryauthority made against the Concessionaire in any proceedings for reasonsother than (i) failure of the Concessionaire to comply with any ApplicableLaw or Applicable Permit, or (ii) on account of breach of any Applicable Law




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or Applicable Permit or of any contract, or (iii) enforcement of thisAgreement, or (iv) exercise of any of its rights under this Agreement by theAuthority;

(f) the discovery of geological conditions, toxic contamination or archaeologicalremains on the Site that could not reasonably have been expected to bediscovered through a site inspection; or

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

18.3 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 actof foreign enemy, blockade, embargo, riot, insurrection, terrorist or militaryaction, civil commotion or politically motivated sabotage;

(b) industry-wide or State-wide strikes or industrial action for a continuous periodof 24 (twenty four) hours and exceeding an aggregate period of 7 (seven) daysin an Accounting Year;

(c) any civil commotion, boycott or political agitation which prevents collectionof 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 IndirectPolitical Event and which does not result in any offsetting compensation beingpayable 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.

18.4 Political Event

A Political Event shall mean one or more of the following acts or events by or onaccount of any Government Instrumentality:

(a) Change in Law, only if consequences thereof cannot be dealt with under andits effect,

(b) compulsory acquisition in national interest or expropriation of any ProjectAssets or rights of the Concessionaire or of the Contractors;

(c) unlawful or unauthorised or without jurisdiction revocation of, or refusal torenew or grant without valid cause, any clearance, licence, permit,authorisation, no objection certificate, consent, approval or exemptionrequired by the Concessionaire or any of the Contractors to perform their




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respective obligations under this Agreement and the Project Agreements;provided that such delay, modification, denial, refusal or revocation did notresult from the Concessionaire’s or any Contractor’s inability or failure tocomply with any condition relating to grant, maintenance or renewal of suchclearance, licence, authorisation, no objection certificate, exemption, consent,approval or permit;

(d) any failure or delay of a Contractor but only to the extent caused by anotherPolitical Event and which does not result in any offsetting compensation beingpayable 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.

18.5 Duty to report Force Majeure Event

18.5.1 Upon occurrence of a Force Majeure Event, the Affected Party shall by notice reportsuch occurrence to the other Party forthwith. Any notice pursuant hereto shall includefull particulars of:

(a) the nature and extent of each Force Majeure Event which is the subject of anyclaim for relief under this Article 18 with evidence in support thereof;

(b) the estimated duration and the effect or probable effect which such ForceMajeure Event is having or will have on the Affected Party’s performance ofits obligations under this Agreement;

(c) the measures which the Affected Party is taking or proposes to take foralleviating the impact of such Force Majeure Event; and

(d) any other information relevant to the Affected Party’s claim.

18.5.2 The Affected Party shall not be entitled to any relief for or in respect of a ForceMajeure Event unless it shall have notified the other Party of the occurrence of theForce Majeure Event as soon as reasonably practicable, and in any event no later than7 (seven) days after the Affected Party knew, or ought reasonably to have known, ofits occurrence, and shall have given particulars of the probable material effect that theForce Majeure Event is likely to have on the performance of its obligations under thisAgreement.

18.5.3 For so long as the Affected Party continues to claim to be materially affected by suchForce Majeure Event, it shall provide the other Party with regular (and not less thanweekly) reports containing information as required by Clause 18.5.1, and such otherinformation as the other Party may reasonably request the Affected Party to provide.

18.6 Effect of Force Majeure Event on the Concession

18.6.1 Upon the occurrence of any Force Majeure Event prior to the Appointed Date, forachieving Financial Close shall be extended by a period equal in length to the durationof the Force Majeure Event.




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18.6.2 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 ProjectCompletion Schedule shall be extended by a period equal in length to theduration for which such Force Majeure Event subsists; or

(b) after COD, whereupon the Concessionaire is unable to collect Fee despitemaking best efforts or it is directed by the Authority to suspend the collectionthereof during the subsistence of such Force Majeure Event, the ConcessionPeriod shall be extended by a period, equal in length to the period duringwhich the Concessionaire was prevented from collection of Fee on accountthereof; provided that in the event of partial collection of Fee where the dailycollection is less than 90% (ninety per cent) of the Average Daily Fee, theAuthority shall extend the Concession Period in proportion to the loss of Feeon a daily basis.

18.7 Allocation of costs arising out of Force Majeure

18.7.1 Upon occurrence of any Force Majeure Event prior to the Appointed Date, the Partiesshall bear their respective costs and no Party shall be required to pay to the other Partyany costs thereof.

18.7.2 Upon occurrence of a Force Majeure Event after the Appointed Date, the costsincurred and attributable to such event and directly relating to the Project (the “ForceMajeure Costs”) shall be allocated and paid as follows:

(a) upon occurrence of a Non-Political Event, the Parties shall bear theirrespective Force Majeure Costs and neither Party shall be required to pay tothe other Party any costs thereof;

(b) upon occurrence of an Indirect Political Event, all Force Majeure Costsattributable to such Indirect Political Event, and not exceeding the InsuranceCover for such Indirect Political Event, shall be borne by the Concessionaire,and to the extent Force Majeure Costs exceed such Insurance Cover, one halfof such excess amount shall be reimbursed by the Authority to theConcessionaire; and

(c) upon occurrence of a Political Event, all Force Majeure Costs attributable tosuch Political Event shall be reimbursed by the Authority to theConcessionaire.

For the avoidance of doubt, Force Majeure Costs may include interest payments ondebt, O&M Expenses, any increase in the cost of Construction Works on account ofinflation and all other costs directly attributable to the Force Majeure Event, but shallnot include loss of Fee revenues or debt repayment obligations, and for determiningsuch costs, information contained in the Financial Package may be relied upon to theextent that such information is relevant.




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18.7.3 Save and except as expressly provided in this Article 18, neither Party shall be liablein 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 orexistence of any Force Majeure Event or exercise of any right pursuant hereto.

18.8 Termination Notice for Force Majeure Event

If a Force Majeure Event subsists for a period of 180 (one hundred and eighty) daysor more within a continuous period of 365 (three hundred and sixty five) days, eitherParty may in its discretion terminate this Agreement by issuing a Termination Noticeto the other Party without being liable in any manner whatsoever, save as provided inthis Article 18, 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 theTermination 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 solediscretion issue the Termination Notice.

18.9 Dispute resolution

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

18.10 Excuse from performance of obligations

If the Affected Party is rendered wholly or partially unable to perform its obligationsunder this Agreement because of a Force Majeure Event, it shall be excused fromperformance of such of its obligations to the extent it is unable to perform on accountof such Force Majeure Event; provided that:

(a) the suspension of performance shall be of no greater scope and of no longerduration than is reasonably required by the Force Majeure Event;

(b) the Affected Party shall make all reasonable efforts to mitigate or limitdamage to the other Party arising out of or as a result of the existence oroccurrence of such Force Majeure Event and to cure the same with duediligence; and

(c) when the Affected Party is able to resume performance of its obligations underthis Agreement, it shall give to the other Party notice to that effect and shallpromptly resume performance of its obligations hereunder.




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ARTICLE 19

TERMINATION

19.1 In the conditions of concessionaire as the case may be, is violated, the Authority shallhave power to the terminate the Concessionaire and re-enter into the property andforefeet the amount paid to the authority.Provided that before terminating the concessionaire and making re-entry into theproperty, a notice shall be served and reasonably opportunity of hearing shall be givento the concessionaire.

19.2 The restoration of concessionaire may be done if the concessionaire promise and filesa duly notarised affidavit that the breaches for which the concessionaire, as the casemay was terminated within 90 days of notice of resignation on payment of restorationcharge which shall be fixed by the FDCM by shall be revived.

19.3 Where the concessionaire as the case may be, does not pay any part of the annual feesto SPV or service charges or any other charge and the amount remains as balance, theauthority shall have power to recover penal surcharge for delayed period and torecover the balance as arrears of land revenue.Provided that if the arrears remain unpaid for three years, the authority shall havepowers to terminate the concessionaire, as the case may be, and re-enter in to theproperty.

19.4 the event the termination is during the Concession period, the FDCM shall also beentitled to encash the Bank Guarantee provided by the concessionaire under Article 9above and adjust the proceeds thereof against the outstanding Development Premiumand/or Annual Fees including the cost/losses/damages, if any, incurred by FDCM dueto such encashment/devolution of the Bank Guarantee, and the balance, if any, shallbe refunded to the concessionaire

19.5 If the condition of concessionaire is violated, the FDCM shall have power toterminate the concessionaire and re-enter into the project land and forfeit the amountpaid to the FDCM. Provided that before terminating the concessionaire and makingre-entry into the property, a notice shall be served and reasonably opportunity ofhearing shall be given to the concessionaire.

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ARTICLE 20

DIVESTMENT OF RIGHTS AND INTEREST

20.1 Divestment Requirements

20.1.1 Upon Termination, the Concessionaire shall comply with and conform to thefollowing Divestment Requirements:

(a) notify to the Authority forthwith the location and particulars of all ProjectAssets;

(b) deliver forthwith the actual or constructive possession of the TourismInfrastructure Complex, free and clear of all Encumbrances:

(c) cure all Project Assets of all defects and deficiencies so that the TourismInfrastructure Complex is compliant with the Maintenance Requirements;provided that in the event of Termination during the Construction Period, allProject Assets shall be handed over on ‘as is where is’ basis after bringingthem to a safe condition;

(d) deliver and transfer relevant records, reports, Intellectual Property and otherlicences pertaining to the Tourism Infrastructure Complex and its design,engineering, construction, operation and maintenance, including allprogrammes and manuals pertaining thereto, and complete ‘as built’ Drawingsas on the Transfer Date. For the avoidance of doubt, the Concessionairerepresents and warrants that the Intellectual Property delivered hereunder shallbe adequate and complete for the design, engineering, construction, operationand maintenance of the Tourism Infrastructure Complex and shall be assignedto the Authority free of any encumbrance;

(e) transfer and/or deliver all Applicable Permits to the extent permissible underApplicable Laws;

(f) execute such deeds of conveyance, documents and other writings as theAuthority may reasonably require for conveying, divesting and assigning allthe rights, title and interest of the Concessionaire in the Tourism InfrastructureComplex, including manufacturers’ warranties in respect of any plant orequipment and the right to receive outstanding insurance claims, to the extentdue and payable to the Authority, absolutely unto the Authority or itsnominee; and

(g) comply with all other requirements as may be prescribed or required underApplicable Laws for completing the divestment and assignment of all rights,title and interest of the Concessionaire in the Tourism Infrastructure Complex,free from all Encumbrances, absolutely unto the Authority or to its nominee.




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20.1.2 Subject to the exercise by the Authority of its rights under this Agreement or underany of the Project Agreements to perform or procure the performance by a third partyof any of the obligations of the Concessionaire, the Parties shall continue to performtheir obligations under this Agreement, notwithstanding the giving of anyTermination Notice, until the Termination of this Agreement becomes effective inaccordance with its terms.

20.2 Inspection and cure

Not earlier than 90 (ninety) days prior to Termination but not later than 15 (fifteen)days prior to the effective date of such Termination, the Independent Engineer shallverify, after giving due notice to the Concessionaire specifying the time, date andvenue of such verification and/or inspection, compliance by the Concessionaire withthe Maintenance Requirements, and if required, cause appropriate tests to be carriedout at the Concessionaire’s cost for this purpose. Defaults, if any, in the MaintenanceRequirements shall be cured by the Concessionaire at its cost and shall apply, mutatismutandis, in relation to curing of defects or deficiencies under this Article 20.

20.3 Cooperation and assistance on transfer of Project

20.3.1 The Parties shall cooperate on a best effort basis and take all necessary measures, ingood faith, to achieve a smooth transfer of the Project in accordance with theprovisions of this Agreement so as to protect the safety of and avoid undue delay orinconvenience to the Users, other members of the public or the lawful occupiers ofany part of the Site.

20.3.2 The Parties shall provide to each other, 9 (nine) months prior to the Transfer Date inthe event of Termination by efflux of time and immediately in the event of eitherParty conveying to the other Party its intent to issue a Termination Notice, as the casemay be, as much information and advice as is reasonably practicable regarding theproposed arrangements for operation of the Project following the Transfer Date. TheConcessionaire shall further provide such reasonable advice and assistance as theAuthority, its concessionaire or agent may reasonably require for operation of theProject until the expiry of 6 (six) months after the Transfer Date.

20.3.3 The Authority shall have the option to purchase or hire from the Concessionaire at afair market value and free from any encumbrance all or any part of the plant andmachinery used in connection with the Project but which does not form part of theassets specified in Clause 25.1.1 and is reasonably required in connection withoperation of the Project. For the avoidance of doubt, in the event of dispute ordifference relating to fair market value, the Dispute Resolution Procedure shall apply.

20.4 Vesting Certificate

The divestment of all rights, title and interest in the Tourism Infrastructure Complexshall be deemed to be complete on the date when all of the Divestment Requirementshave been fulfilled, and the Authority shall, without unreasonable delay, thereuponissue a certificate substantially in the form set forth in Schedule-G (the “Vesting




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Certificate”), which will have the effect of constituting evidence of divestment by theConcessionaire of all of its rights, title and interest in the Tourism InfrastructureComplex, and their vesting in the Authority pursuant hereto. It is expressly agreedthat any defect or deficiency in the Divestment Requirements shall not in any mannerbe construed or interpreted as restricting the exercise of any rights by the Authority orits nominee on, or in respect of, the Tourism Infrastructure Complex on the footingthat all Divestment Requirements have been complied with by the Concessionaire.

20.5 Divestment costs etc.

20.5.1 The Concessionaire shall bear and pay all costs incidental to divestment of all of therights, title and interest of the Concessionaire in the Tourism Infrastructure Complexin favour of the Authority upon Termination, save and except that all stamp dutiespayable on any deeds or Documents executed by the Concessionaire in connectionwith such divestment shall be borne by the Authority.

20.5.2 In the event of any dispute relating to matters covered by and under this Article 20,the Dispute Resolution Procedure shall apply.




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ARTICLE 21

DISPUTE RESOLUTION

21.1 Dispute Resolution

Any dispute, difference or controversy of whatever nature regarding the validity,interpretation or the rights and obligations arising out of, or in relation to, or howsoeverarising under or in relation to this Concession Agreement between the Parties, and sonotified by either Party to the other Party (the “Dispute”) shall be subject to the disputeresolution procedure set out hereinafter.

21.2 Direct discussion between Parties

The Parties agree that any Dispute that may arise between them shall be first submittedfor direct discussion between the Parties. For this purpose, the notice of Dispute (the“Notice of Dispute”) sent by one Party to the other Party under Article 21.1 shall beconsidered an invitation for direct discussion, and it should specify a reasonable time andvenue for conduct of the negotiation proceedings. In addition, the Notice of Dispute shallspecify the basis of the Dispute and the amount claimed. In the direct discussionproceedings, both the Parties shall be represented by any of its officials or employeeswith sufficient knowledge and authority over the subject matter of the Dispute in orderfor the discussion to be meaningful. At the discussion proceedings, the Party that hasgiven the Notice of Dispute shall present an offer of a settlement, which may form thestarting point of discussions between the two Parties during the discussion proceedings.

21.3 Arbitration or Adjudication

a. In the event that the parties are unable to resolve the Dispute through DirectDiscussion under Article 21.2, the Parties shall submit the Dispute for arbitrationin accordance with the Arbitration and Conciliation Act, 1996. There shall be aBoard of 3 (three) arbitrators of whom 1 (one) shall be appointed by theAuthority, 1 (one) shall be appointed by the Concessionaire and the third shall beappointed by the 2 (two) arbitrators appointed as aforesaid.

b. The Arbitrators shall make a reasoned award, and any award made pursuant tothis Article 21.3 shall be final and binding on the Parties as from the date onwhich it is made, and the Concessionaire and the Authority agree to undertake tocarry out such award without delay.

c. The arbitration proceedings shall be conducted in the English language and inNagpur or such other place as may be agreed between the Parties.




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d. The cost incurred on the process of arbitration including inter alia the fees of thearbitral tribunal and the cost of the proceedings shall be borne by the Parties inequal proportions. Each Party shall bear its own legal fees incurred as a result ofany Dispute under this Article 21.

21.4 Performance during Dispute

Performance of this Concession Agreement shall continue during the settlement of anyDispute under this Article 21. The provisions for dispute settlement shall be bindingupon the successors, assigns and any trustee or receiver of either the Authority or theConcessionaire.




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ARTICLE 22

TAXATION AND CONFIDENTIALITY

22.1 Local Taxation

a. The Contract Period shall include all charges towards import licence, toll,customs duties, import duties, business taxes, etc., that may be levied inaccordance with the Applicable Laws as on the Proposal Acceptance Date inIndia on the Concessionaire's Equipment and Materials (whether permanent,temporary or consumable) acquired for the purpose of this ConcessionAgreement and on the services to be performed under this ConcessionAgreement. Nothing in this Concession Agreement shall relieve theConcessionaire from its responsibility to pay any tax that may be levied in India /Maharashtra on profits made by it in respect of this Concession period.

b. Under the provisions of the Indian Income Tax Act, the Authority is required todeduct tax at source at the rates prevailing in case any payments are envisagedunder this Concession Agreement.

22.2 Income Taxes on Staff

The Concessionaire's staff, Person and labour will be liable to pay personal income taxesin India in respect of their salaries and wages as chargeable under the laws andregulations for the time being in force, and the Concessionaire shall make suchdeductions in respect of such taxes as required by law.

22.3 Confidentiality

Neither of the Parties shall, at any time, before the expiry or termination of thisConcession Agreement , without the consent of the other of them, divulge or suffer orpermit its officers, employees, or agents to divulge to any person (other than to any of itsor their respective officers or employees who require the same to enable them properlyto carry out their duties) any information relating to the negotiations concerning theoperations, contracts, commercial or financial arrangements or affairs of the other Partyor any proprietary information of the other Party.

22.4 Exceptions to Confidentiality

The restrictions imposed by Article 22.3 shall not apply to the disclosure of anyinformation:




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i) Which now or hereafter comes into the public domain otherwise than as a resultof a breach of an undertaking of confidentiality or which is obtained with nomore than reasonable diligence from sources other than the Parties;

ii) Which is required by law to be disclosed to any Person who is authorised by lawto receive the same;

iii) Which is required to be disclosed by the regulations of any recognised exchangeupon which the share capital of the Party making the disclosure is or is proposedto be from time to time listed or dealt in;

iv) To a court, arbitrator or administrative tribunal in the course of proceedingsbefore it to which the disclosing Party is a party;

v) To any consultants, banks, financiers or advisers to the disclosing Party, or;

vi) In accordance with this Concession Agreement.

22.5 Public Announcements

No public announcement or statement regarding the signature of this ConcessionAgreement shall be issued or made unless prior thereto both Parties have been furnishedwith a copy thereof and have approved the same, provided such approval shall not beunreasonably withheld or delayed.




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ARTICLE 23

TRANSFER OF FACILITY

(a) On the Transfer Date, the Concessionaire shall, transfer and assign to theAuthority or its nominated agency, as the case may be, free and clear of anycharges, liens and Encumbrances created or suffered by the Concessionaire afterthe Compliance Date all of the Concessionaire’s right, title and interest in and tothe Project Assets and the Facility. The Concessionaire shall also deliver to theAuthority or its nominated agency on such date such operating manuals if any,plans, reports, accounts and other information as may reasonably be required bythe Authority or its nominated agency to enable it to continue the operation ofthe Facility either directly or by its nominated agency. The personnel of theConcessionaire shall continue to be the employees of the Concessionaire and thetransfer of the Project Assets and the Facility shall not in any manner affect theirstatus as employees of the Concessionaire and they shall have no claim to anytype of employment or compensation from the Authority or its nominatedagency.

(b) The Concessionaire shall to the extent possible assign to the Authority or itsnominated agency at the time of transfer all unexpired guarantees andwarranties by suppliers and all insurance policies. The Concessionaire shallensure that any rights, which are to be so assigned, are capable of assignmentand such assignment has been approved under the terms of the relevant contractby the counterpart to the Concessionaire.

(c) The Concessionaire shall, to the extent possible at the time of transfer assignto the Authority or its nominated agency all contracts, equipment contracts,supply contracts and all other contracts relating to the Project entered into bythe Concessionaire and subsisting at the time of transfer except contracts withemployees.

(d) The transfer of Facility shall be treated as a transfer on a going-concern basis.The transfer of immovable property comprising the Project shall be deemed to bea termination of all contracts in relation to the Facility and the title to all suchimmovable property shall automatically revert to the Authority or its nominatedagency. The Facility shall be deemed to be transferred to the Authority or itsnominated agency by constructive delivery and possession.

(e) At the time of transfer of the Facility, the Facility shall be in such condition as isreasonable in all the circumstances, taking into account their age, the design,materials used, and maintenance carried out.




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(f) 6 (Six) months prior to the Transfer Date, the Authority shall be entitled toappoint any consulting engineer to assess the condition of the Facility along withProject Assets. Such consulting engineer shall be entitled to have free access toinspect the Facility, provided that such inspection is reasonable and is carried outwith minimum disruption to normal operation of the Facility.

(g) Until the Transfer Date, all risks shall lie with the Concessionaire for loss of ordamage to the whole or any part of the Facility, unless the loss or damage is dueto an act or omission of the Authority in contravention of its obligations underthis Concession Agreement.

(h) The Concessionaire shall provide fair and just compensation to suchemployees as required under the Laws or under this Concession Agreement ,and shall indemnify the Authority against any and all claims such employeesmay make for loss of office, redundancy, loss of employment or otherwise.The Authority shall accept absolutely no liability on account of any matterpertaining to the Concessionaire's employees, staff and labour.

(i) The Concessionaire shall be responsible for the costs and expenses, includingstamp duties, taxes, legal fees and expenses, incurred in connection with theTransfer of the Facility to Authority by the Concessionaire.

(j) On the Transfer Date, the Concessionaire shall hand over the possession of theFacility to the Authority or its nominated agency. Furthermore, theConcessionaire and its employees shall vacate the Facility forthwith.

(k) From the Transfer Date, the obligations and the rights of the Concessionaireunder this Concession Agreement shall terminate vis-à-vis the Authority, andthe Authority or its nominated agency shall take over the Facility and the ProjectAssets and their Concessionaire /operation, maintenance & management and anyother rights or obligations arising out of this Contract, which either mayexpressly or implicitly survive termination of this Contract; provided, however,that the Concessionaire may continue with any other business operations arisingother than in connection with this Contract and; provided further that theConcessionaire shall no longer act in its capacity as Concessionaire in relation orpursuant to this Contract.




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ARTICLE 24

MISCELLANEOUS PROVISIONS

24.1 Governing Law and Jurisdiction

This Concession Agreement shall be construed and interpreted in accordance with andgoverned by the laws of India, and the Courts of Nagpur only shall have jurisdiction overall matters arising out of or relating to this Concession Agreement.

24.2 Waiver

Waiver by either Party of any default by the other Party in the observance andperformance of any provisions of or obligations under this Contract:

(a) shall not operate or be construed as a waiver of any other or subsequent defaulthereof or of other provisions of or obligations under this Contract;

(b) shall not be effective unless it is in writing and executed by a duly authorisedrepresentative of the Party ; and

(c) shall not affect the validity or enforceability of this Contract in any manner.

Neither the failure by either Party to insist on any occasion upon the performanceof the terms, conditions and provisions of this Contract, any obligation thereunder nor time or other indulgence granted by a Party to the other Party shall betreated or deemed as waiver of such breach or acceptance of any variation or therelinquishment of any such right hereunder.

24.3 Exclusion of implied warranties

This Contract expressly excludes any warranty, condition or other undertaking implied atlaw or by custom or otherwise arising out of any other Contract between the Parties orany representation by either Party not contained in a binding legal Contract executed byboth Parties.

24.4 Severability

If for any reason whatever any provision of this Contract is or becomes invalid, illegalor unenforceable or is declared by any court of competent jurisdiction or any otherinstrumentality to be invalid, illegal or unenforceable, the validity, legality orenforceability of the remaining provisions shall not be affected in any manner, and the




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Parties will negotiate in good faith with a view to agreeing upon one or moreprovisions which may be substituted for such invalid, unenforceable or illegalprovisions, as nearly as is practicable. Provided failure to agree upon any suchprovisions shall not be subject to dispute resolution under this Concession Agreementor otherwise.

24.5 Entire Agreement

This Agreement and the Schedules together constitute a complete and exclusivestatement of the terms of the Agreement between the Parties on the subject hereof andno amendment or modification hereto shall be valid and effective unless suchmodification or amendment is agreed to in writing by the Parties and duly executed bypersons especially empowered in this behalf by the respective Parties.

24.6 Custody of Documents

The Documents shall be in the custody and care of the Concessionaire. Unless otherwisestated in this Contract, the Concessionaire shall provide three copies for the use of theAuthority.

24.7 Copyright

The Concessionaire, as beneficial Authority, hereby transfers to the Authority copyright,and all other intellectual property rights subsisting in or accruing to the Concessionaire,in relation to the Documents made or to be made by or on behalf of the Concessionaire,during the Contract Period for which such copyright subsists in such works. TheAuthority hereby grants to the Concessionaire non-exclusive royalty-free licence to usesuch documents and drawings solely for the purpose of complying with its obligationsunder this Contract.

24.8 Use of the Authority's Documents

Copyright in the technical requirements and other documents issued by the Authority tothe Concessionaire shall (as between the Parties) remain the property of the Authority.The Concessionaire may, at its cost, copy, use and communicate any such documents forthe purposes of this Contract. They shall not, without the Authority's consent, be used,copied or communicated to a third party by the Concessionaire, except as necessary forthe purposes of this Contract.




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24.9 Compliance with Laws and Directives

a. The Concessionaire shall, in all matters arising in the performance of thisConcession Agreement, comply with, give all notices under, and pay all taxes,levies and other similar charges required by the provisions of any Central orState law or directive or any regulation of any legally constituted public authorityhaving jurisdiction over the Works. The Concessionaire shall obtain all permits,licences or approvals required for any part of the Operations in reasonable time,taking account of the times for delivery of the Materials, etc. The Authority andthe Concessionaire shall comply with all the laws as applicable.

b. In the performance of this Concession Agreement, the Concessionaire shallascertain and comply with all relevant laws and directives. The Authority willprovide such assistance as may be reasonably requested by the Concessionaire inascertaining the nature and extent of such relevant Indian laws and directives.

c. The Concessionaire shall indemnify the Authority, the Authority's officers,employees and agents against all governmental penalties and fines payable to aCompetent Authority, together with any reasonable legal expenses incurred inconnection therewith, to the extent arising out of any failure of theConcessionaire, any employees to comply in the performance of the Works, withany law or directive applicable to the Implementation, start-up, operation andmaintenance activities conducted at the Facility.

24.10 Joint and Several Liability

If the Concessionaire is a joint venture of two or more Persons, all such Persons shallbe jointly and severally liable to the Authority for the fulfilment of the terms of thisConcession Agreement. Such Persons shall designate one of them to act as "LeadMember" with authority to bind the joint venture and each of its members. Thecomposition or the constitution of the joint venture shall not be altered without priorapproval of the Authority and as per the specific provisions in this regard provided inthe Concession Agreement. All the Joint Venture Members shall be jointly andseverally liable towards this Project.

24.11 Notifications

a. Wherever provision is made for the giving or issue of any notice, instruction,consent, approval, certificate or determination by any Person, unless otherwisespecified, such communication shall be in writing and shall not be unreasonablywithheld or delayed. Wherever provision is made for a communication to be"written" or "in writing", this means any hand-written, typewritten or printedcommunication, including the agreed systems of electronic transmission.




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b. All certificates, notices or written orders between the Parties shall either bedelivered by hand against written acknowledgement of receipt or be sent byregistered acknowledgement due pre-paid post or courier or one of the agreedsystems of electronic transmission. In the event of any dispute, unless suchacknowledgement of receipt is provided, the communication shall be treated asnot given.

c. In the case of the Concessionaire, all communication shall be marked for theattention of the person and to the address provided below, or to such other personor address as may be intimated to the Authority by the Concessionaire from timeto time.

Name of Concessionaire’s Representative:Address for communication:

d. In the case of the Authority, all communication shall be addressed to:

24.12 Language

The language of this Contract is the English language. All correspondence, drawings,designs, design data, test reports, certificates, specifications and information shall bein the English language. All other written and printed matter required forImplementation, operation and maintenance, etc. shall be executed in the Englishlanguage. Instructions and notices to the public and staff and all other signs andinformation notices shall be in English, Hindi and Marathi.

24.13 Counterparts

This Contract may be executed in 2 (two) counterparts, each of which when executedand delivered shall constitute an original of this Contract.




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ARTICLE 25

RIGHTS AND TITLE OVER THE SITE

25.1 Licensee rights

For the purpose of this Agreement, the Concessionaire shall have rights to the use ofthe Site as sole licensee subject to and in accordance with this Agreement, and to thisend, it may regulate the entry and use of the Tourism Infrastructure Complex by thirdparties in accordance with and subject to the provisions of this Agreement.

25.2 Access rights of the Authority and others

25.2.1 The Concessionaire shall allow free access to the Site at all times for the authorisedrepresentatives of the Authority, Senior Lenders, and the Independent Engineer, andfor the persons duly authorised by any Government Instrumentality to inspect theTourism Infrastructure Complex and to investigate any matter within their authority,and upon reasonable notice, the Concessionaire shall provide to such personsreasonable assistance necessary to carry out their respective duties and functions.

25.2.2 The Concessionaire shall, for the purpose of operation and maintenance of any utilityor road shall allow free access to the Site at all times for the authorised persons andvehicles of the controlling body of such utility or road.

25.3 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 underApplicable Laws for use of the Site shall not be reimbursed or payable by theAuthority.




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ARTICLE 26

DEFINITIONS

26.1 Definitions

In this Agreement, the following words and expressions shall, unless repugnant to thecontext or meaning thereof, have the meaning hereinafter respectively assigned tothem:

“Accounting Year” means the financial year commencing from the first day of Aprilof any calendar year and ending on the thirty-first day of March of the next calendaryear;

“Affected Party” shall have the meaning set forth in Clause 18;

“Agreement” or “Concession Agreement for Tourism Infrastructure Complex”means this Agreement, its Recitals, the Schedules hereto and any amendments theretomade in accordance with the provisions contained in this Agreement;

“Applicable Laws” means all laws, brought into force and effect by GOI or the StateGovernment including rules, regulations and notifications made thereunder, andjudgements, decrees, injunctions, writs and orders of any court of record, applicable tothis Agreement and the exercise, performance and discharge of the respective rightsand obligations of the Parties hereunder, as may be in force and effect during thesubsistence of this Agreement;

“Applicable Permits” means all clearances, licences, permits, authorisations, noobjection certificates, consents, approvals and exemptions required to be obtained ormaintained under Applicable Laws in connection with the construction, operation andmaintenance of the Tourism Infrastructure Complex during the subsistence of thisAgreement;

“Appointed Date” means the date on which Financial Close is achieved or an earlierdate that the Parties may by mutual consent determine, and shall be deemed to be thedate of commencement of the Concession Period. For the avoidance of doubt, everyCondition Precedent shall have been satisfied or waived prior to the Appointed Dateand in the event all Conditions Precedent are not satisfied or waived, as the case maybe, the Appointed Date shall be deemed to occur only when each and every ConditionPrecedent is either satisfied or waived, as the case may be;

“Approved Valuer” means a firm of valuers recognized as such by the Income TaxDepartment and having experience of valuing at least 5 (five) properties exceedingRs. 100 cr. (Rupees one hundred crore) each in value;

“Arbitration Act” means the Arbitration and Conciliation Act, 1996 and shallinclude modifications to or any re-enactment thereof, as in force from time to time;




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“Associate” or “Affiliate” means, in relation to either Party {and/or ConsortiumMembers}, a person who controls, is controlled by, or is under the common controlwith 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, theownership, directly or indirectly, of more than 50% (fifty per cent) of the votingshares of such person, and with respect to a person which is not a company orcorporation, the power to direct the management and policies of such person, whetherby operation of law or by contract or otherwise);

“Average Daily Fee” means the amount arrived at by dividing the total RealisableFee of the immediately preceding Accounting Year by 365 (three hundred and sixtyfive), and increasing the result thereof by 5% (five per cent); provided that theAverage Daily Fee for any period prior to completion of the first Accounting Yearfollowing COD shall be a simple average of the Fee collected every day during theperiod between COD and the last day of the month preceding the date on which theevent requiring calculation hereof occurred, and in the event that the Fee payable byany segment of traffic has not been realised for any reason, an assessment thereofshall be made by the Independent Engineer to form part of the Average Daily Fee forsuch 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 SeniorLenders, 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 fromtime to time in pursuance of section 49 of the Reserve Bank of India Act, 1934 or anyreplacement 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 accordancewith the provisions thereof;

“COD” or “Commercial Operation Date”

“Change in Law” means the occurrence of any of the following after the date of Bid:

(a) the enactment of any new Indian law as applicable to the State;

(b) the repeal, modification or re-enactment of any existing Indian law;

(c) the commencement of any Indian law which has not entered into effectuntil the date of Bid;

(d) a change in the interpretation or application of any Indian law by ajudgement of a court of record which has become final, conclusive andbinding, as compared to such interpretation or application by a court ofrecord prior to the date of Bid; or




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(e) any change in the rates of any of the Taxes that have a direct effect onthe Project;

“Change in Ownership” means a transfer of the direct and/or indirect legal orbeneficial ownership of any shares, or securities convertible into shares, that causesthe aggregate holding of the Concessionaire below the specified Shareholding for theentire Concession Period;

“Company” means the company acting as the Concessionaire under this Agreement;

“Concession” shall have the meaning set forth in Clause 3.1.1;

“Concessionaire” shall have the meaning attributed thereto in the array of Partieshereinabove as set forth in the Recitals;

“Concession Fee” shall have the meaning set forth in Clause 14.1;

“Concession Period” means the period starting on and from the Appointed Date andending on the Transfer Date;

“Concessionaire Default” shall have the meaning set forth in Clause 20.1;

“Conditions Precedent” shall have the meaning set forth in Clause 4.1.1;

“Construction Period” means the period beginning from the Appointed Date andending on COD;

“Construction Works” means all works and things necessary to complete theTourism Infrastructure Complex accordance with this Agreement and includes tracks,signalling systems and communication systems;

“Contractor” means the person or persons, as the case may be, with whom theConcessionaire has entered into any of the EPC Contract, the O&M Contract, the FeeContract or any other material agreement or contract for construction, operationand/or maintenance of the Tourism Infrastructure Complex or matters incidentalthereto, but does not include a person who has entered into an agreement forproviding financial assistance to the Concessionaire;

“DBFOT” or “Design, Build, Finance, Operate and Transfer” shall have themeaning set forth in Recital (A);

“Damages” shall have the meaning set forth in Sub-clause (w) of Clause 1.2.1;

“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 SeniorLenders under the Financing Agreements;

“Development Period” means the period from the date of this Agreement until theAppointed Date;




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“Dispute” shall have the meaning set forth in Clause 21.1;

“Dispute Resolution Procedure” means the procedure for resolution of Disputes setforth in Article 21;

“Divestment Requirements” means the obligations of the Concessionaire for and inrespect of Termination as set forth in Clause 20.1;

“Document” or “Documentation” means documentation in printed or written form,or in tapes, discs, drawings, computer programmes, writings, reports, photographs,films, cassettes, or expressed in any other written, electronic, audio or visual form;

“Drawings” means all of the drawings , calculations and documents pertaining to theTourism Infrastructure Complex , and shall include ‘as built’ drawings of the TourismInfrastructure Complex; the Concessionaire shall prepare and submit theplans/drawings/designs for entire project to FDCM & various civil agency forapproval within 3 months from the date of Formal Acceptance Letter

“Emergency” means a condition or situation that is likely to endanger the security ofthe individuals on or about the Tourism Infrastructure Complex, including Usersthereof, or which poses an immediate threat of material damage to any of the ProjectAssets;

“Encumbrances” means, in relation to the Tourism Infrastructure Complex and RealEstate Development , any encumbrances such as mortgage, charge, pledge, lien,hypothecation, security interest, assignment, privilege or priority of any kind havingthe effect of security or other such obligations, and shall include any designation ofloss payees or beneficiaries or any similar arrangement under any insurance policypertaining to the Tourism Infrastructure Complex.

“Escrow Account” means an Account which the Concessionaire shall open andmaintain with a Bank in which all inflows and outflows of cash on account of capitaland revenue receipts and expenditures shall be credited and debited, as the case maybe, 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 16.1.2;

“Escrow Bank” shall have the meaning set forth in Clause 16.1.1;

“Escrow Default” shall have the meaning set forth in Schedule-F Clause 6.1;

“Equity” means the sum expressed in Indian Rupees representing the paid up equityshare capital of the Concessionaire for meeting the equity component of the TotalProject Cost, and for the purposes of this Agreement shall include convertibleinstruments or other similar forms of capital, which shall compulsorily convert intoequity share capital of the Company, and any interest-free funds advanced by anyshareholder of the Company for meeting such equity component;




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“Fee” means the charge(s) levied on and payable by a person for use of the TourismInfrastructure Complex .

“Fee Contract” means the contract, if any, entered into by the Concessionaire with aContractor for collection of Fee for and on behalf of the Concessionaire and mattersincidental thereto;

“Fee Contractor” means the person, if any, with whom the Concessionaire hasentered into a Fee Contract;

“Financial Model” means the financial model adopted by Senior Lenders, settingforth the capital and operating costs of the Project and revenues therefrom on the basisof which financial viability of the Project has been determined by the Senior Lenders,and includes a description of the assumptions and parameters used for makingcalculations and projections therein;

“Financial Package” means the financing package indicating the total capital cost ofthe Tourism Infrastructure Complex and the means of financing thereof, as set forth inthe Financial Model and approved by the Senior Lenders, and includes Equity, allfinancial assistance specified in the Financing Agreements and Subordinated Debt, ifany;

“Financing Agreements” means the agreements executed by the Concessionaire inrespect of financial assistance to be provided by the Senior Lenders by way of loans,guarantees, subscription to non-convertible debentures and other debt instrumentsincluding loan agreements, guarantees, notes, debentures, bonds and other debtinstruments, security agreements, and other documents relating to the financing(including refinancing) of the Total Project Cost, and includes amendments ormodifications made in accordance with Clause 5.2.2;

“Force Majeure” or “Force Majeure Event” shall have the meaning ascribed to it inClause 23.1;

“GOI” means the Government of India;

“Good Industry Practice” means the practices, methods, techniques, designs,standards, skills, diligence, efficiency, reliability and prudence which are generallyand reasonably expected from a reasonably skilled and experienced operator engagedin the same type of undertaking as envisaged under this Agreement and which wouldbe expected to result in the performance of its obligations by the Concessionaire inaccordance with this Agreement, Applicable Laws and Applicable Permits in reliable,safe, economical and efficient manner;

“Authority” means the Forest Development Corporation of Maharashtra Ltd

“Government Instrumentality” means any department, division or sub-division ofthe Government of India or the State Government and includes any commission,board, authority, agency or municipal and other local authority or statutory bodyincluding Panchayat under the control of the Government of India or the State




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Government, as the case may be, and having jurisdiction over all or any part of theTourism Infrastructure Complex or the performance of all or any of the services orobligations of the Concessionaire under or pursuant to this Agreement;

“Authority Representative” means such person or persons as may be authorised inwriting by the Authority to act on its behalf under this Agreement and shall includeany person or persons having authority to exercise any rights or perform and fulfil anyobligations of the Authority under this Agreement;

“Indirect Political Event” shall have the meaning set forth in Clause 18.3;

“Insurance Cover” means the aggregate of the maximum sums insured under theinsurances taken out by the Concessionaire pursuant to Article 17, and includes allinsurances required to be taken out by the Concessionaire under Clause 17.II but notactually taken, and when used in the context of any act or event, it shall mean theaggregate of the maximum sums insured and payable or deemed to be insured andpayable in relation to such act or event;

“Intellectual Property” means all patents, trade marks, service marks, logos, get-up,trade names, internet domain names, rights in designs, blue prints, programmes andmanuals, drawings, copyright (including rights in computer software), database rights,semi-conductor, topography rights, utility models, rights in know-how and otherintellectual property rights, in each case whether registered or unregistered andincluding applications for registration, and all rights or forms of protection havingequivalent or similar effect anywhere in the world;

“Lenders’ Representative” means the person duly authorised by the Senior Lendersto act for and on behalf of the Senior Lenders with regard to matters arising out of orin relation to this Agreement, and includes his successors, assigns and substitutes;

“Non-Political Event” shall have the meaning set forth in Clause 18.2;

“O&M” means the operation and maintenance of the Tourism Infrastructure Complexand includes all matters connected with or incidental to such operation andmaintenance, provision of services and facilities, and collection of Fee in accordancewith the provisions of this Agreement;

“O&M Contract” means the operation and maintenance contract that may be enteredinto between the Concessionaire and the O&M Contractor for performance of all orany of the O&M obligations;

“O&M Contractor” means the person, if any, with whom the Concessionaire hasentered into an O&M Contract for discharging O&M obligations for and on behalf ofthe Concessionaire;

“O&M Expenses” means expenses incurred by or on behalf of the Concessionaire orby the Authority, as the case may be, for all O&M including (a) cost of salaries andother compensation to employees, (b) cost of materials, supplies, utilities and otherservices, (c) premia for insurance, (d) all taxes, duties, cess and fees due and payable




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for O&M, (e) all repair, replacement, reconstruction, reinstatement, improvement andmaintenance costs, (f) payments required to be made under the O&M Contract, FeeContract or any other contract in connection with or incidental to O&M, and (g) allother expenditure required to be incurred under Applicable Laws, Applicable Permitsor this Agreement;

“Operation Period” means the period commencing from COD and ending on theTransfer Date;

“Parties” means the parties to this Agreement collectively and “Party” shall meanany 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 18.4;

“Project” means the construction, operation and maintenance of the TourismInfrastructure Complex in accordance with the provisions of this Agreement, andincludes all works, services and equipment relating to or in respect of the Scope of theProject;

“Project Agreements” means this Agreement, the Financing Agreements, EPCContract, O&M Contract, Fee Contract, and any other material agreements orcontracts that may be entered into by the Concessionaire with any person inconnection with matters relating to, arising out of or incidental to the Project, but doesnot include the Escrow Agreement, Substitution Agreement any agreement forprocurement 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 theSite including:

(a) rights over the Site in the form of licence, Right of Way or otherwise;

(b) Project Facilities situated on the Site;

(c) buildings and immovable fixtures or structures forming part of TourismInfrastructure Complex

(d) all rights of the Concessionaire under the Project Agreements;

(e) financial assets, such as receivables, security deposits etc;

(f) insurance proceeds; and

“Tourism Infrastructure Complex” means the

“Re.”, “Rs.” or “Rupees” or “Indian Rupees” means the lawful currency of theRepublic of India;




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“Realisable Fee” means all the Fee due and realisable under this Agreement, but doesnot include Fee that the Concessionaire has not been able to realise after due diligenceand best efforts.;

“Reference Exchange Rate” means, in respect of any one currency that is to beconverted 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 bythe State Bank of India, and in the absence of such rate, the average of similar ratesquoted in Delhi by the Bank of India and the Bank of Baroda;

“Right of Way” means the constructive possession of the Site, together with all wayleaves, easements, unrestricted access and other rights of way, howsoever described,necessary for construction, operation and maintenance of the Tourism InfrastructureComplex Safari and Real Estate Development in accordance with this Agreement;

“Scheduled Completion Date” The date of complication of the construction of theTourism Infrastructure Complex which will be mutually decided between party:

“Scope of the Project” shall have the meaning set forth in Clause 2.1;

“Site” shall have the meaning set forth in Clause 10.1;

“State” means the State of Maharashtra and “State Government” means thegovernment of the State of Maharashtra;

“Taxes” means any Indian taxes including excise duties, customs duties, value addedtax, sales tax, local taxes, cess and any impost or surcharge of like nature (whetherCentral, State or local) on the goods, materials, equipment and services incorporatedin and forming part of the Tourism Infrastructure Complex charged, levied orimposed by any Government Instrumentality, but excluding any interest, penalties andother sums in relation thereto imposed on any account whatsoever. For the avoidanceof doubt, Taxes shall not include taxes on corporate income;

“Termination” means the expiry or termination of this Agreement and theConcession hereunder;

“Termination Notice” means the communication issued in accordance with thisAgreement by one Party to the other Party terminating this Agreement;

“Termination Payment” means the amount payable, under and in accordance withthis Agreement, by the Authority to the Concessionaire upon Termination, andincludes Additional Termination Payment. For the avoidance of doubt, it is expresslyagreed that the amount payable shall be subject to the limitations specified in Clause19.4;

“Transfer Date” means the date on which this Agreement and the Concessionhereunder expires pursuant to the provisions of this Agreement or is terminated by aTermination Notice;




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“User” means a person who uses or intends to use the Tourism InfrastructureComplex or any part thereof on payment of Fee or in accordance with the provisionsof this Agreement and Applicable Laws;

IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVEREDTHIS AGREEMENT AS OF THE DAY, MONTH AND YEAR FIRST ABOVEWRITTEN.

SIGNED, SEALED ANDDELIVEREDFor and on behalf ofTHE Forest Development Corporation ofMaharashtra Ltd: (COMMON SEAL etc.etc.)

(Signature)(Name)

(Designation)

In the presence of:

1.

THE COMMON SEAL OFCONCESSIONAIRE has been affixedpursuant to the resolution passed by theBoard of Directors of the Concessionaireat its meeting held on the ……… day of20…… hereunto affixed in the presence of………......………, Director, who hassigned these presents in token thereof and……………………, company Secretary /Authorised Officer who has countersignedthe same in token thereof $:

2.

c




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