Operational Guidelines for Setting Up TMs

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Operational Guidelines forOperational Guidelines forOperational Guidelines forOperational Guidelines forSetting up of Setting up of Setting up of Setting up of

Terminal Market ComplexTerminal Market ComplexTerminal Market ComplexTerminal Market Complex

December 2006



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Contents

S.No. Chapter PageNo.

1 Operational Guidelines for setting up of Terminal MarketComplex under National Horticulture Mission

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Annexures

I Role and Responsibilities of the Concerned Agencies 11

II Rights and Obligations of Nodal Officer 15

III Request for Qualification (RFQ) 16

IV Request for Proposals (RFP) 70

V Minimum Infrastructure Facilities to be Provided at the TMCAnd CC

89

VI Operation Management Development Agreement (OMDA) 90



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Operational Guidelines for setting up of Terminal Market Complex underNational Horticulture Mission.

1. Background

The National Horticulture Mission was launched during 2005-06 for the holistic

development of horticulture by adopting an integrated approach duly ensuring

backward and forward linkages including marketing. In view of the immense

thrust being given to the development of horticulture and other allied sectors,

production of related commodities is likely to see a quantum jump in the near

future. The high levels of production can be sustained only if there is adequate

infrastructure for post harvest management and marketing. The NHM provides

for setting up of different types of markets viz. Wholesale Markets, Rural

Markets and Apni Mandis/Direct Markets. The present marketing system is

characterized by a long, fragmented supply chain and high wastages. The

system is also deficient in providing a fair share of consumer price to the

producer and in ensuring high quality and hygiene of the produce. This calls for

an alternative marketing structure that provides multiple choices to farmers for

sale of produce alongwith a comprehensive solution to meet key needs of the

stakeholders. With this in view, the Terminal Markets (TM) have been

conceptualized and introduced as a new item under the NHM, which will be

implemented in a Public Private Partnership (PPP) mode.

2. Objectives

The main objectives of setting up Terminal Markets Complex (TMC) are:

i) To link the farmers to the markets by shortening the supply chain of

perishables and enhance their efficiency and thus increase farmers income,

ii) Provide professionally managed competitive alternative marketing

structures that provide multiple choices to farmers for sale of their

agricultural produce,



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iii) To drive reforms in the agricultural marketing sector resulting in accelerated

development of marketing and post harvest infrastructure including cool

chain infrastructure in the country through private sector investment.

iv) To bring transparency in the market transactions and price fixation for

agricultural produce and through provision of backward linkages to enable

the farmers to realise higher price and thus higher income to the farmers.

3. Salient Features

(i) The TMC will be set up in those Sates that undertake reforms in their

laws dealing with agricultural marketing to provide direct marketing

and permit the setting up of markets in private and cooperative sectors.

(ii) The TMC would operate on a Hub-and-Spoke Format wherein the

Terminal Market (the hub) would be linked to a number of Collection

Centres (CC) (the spokes).

(iii) The spokes would be conveniently located at key production centres to

allow easy farmer access and the catchment area of each spoke would

be based on meeting the convenient needs of farmers, operational

efficiency and effective capital utilisation of the investment.(iv) TMC would establish backward linkages with farmers through the

collection centres and forward linkages through wholesalers,

distribution centres, retail cash and carry stores, processing units and

exporters.

(v) Collection Centres in the villages would integrate producers and

retailers, processing units and exporters into the market system.

(vi) An electronic auction system would be established to ensure

transparency in price fixation and competition.

(vii) The Scheme will attract and facilitate private sector investment in the

agribusiness sector, by assisting the key stakeholders – entrepreneurs,

producers, processing industry and exporters.



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(viii) Producers, farmers and their associations and other market

functionaries from any part of the country may use the infrastructure

and facilities of the TMC directly or through the collection centres.

(ix) TMC would provide one-stop solution in terms of providing logistics

support including transport services and cool chain facility.

4. Eligibility

TM project would be built, owned and operated by the selected Private

Enterprise (PE) through Competitive Bidding process. PE includes individuals,

Group of Farmers/Growers/Consumers, Partnership/ Proprietary firms,

Companies, Marketing Boards, Corporations, Co-operatives, Producer

Organisations and Self Help Groups. The PE could also be a consortium of

entrepreneurs from, inter-alia, agri-business, cold chain, logistics, warehousing,

agri-infrastructure and related background.

5. Commodities

The commodities to be marketed by the TMC will include all perishables, inter-

alia, fruits, vegetables, flowers, aromatics, herbs, meat, poultry etc. Non-

perishables can also be handled in the TMC. However, the proportion of Non-

Perishables shall not exceed 15% of the total through put of the market.

Similarly, the proportion of non horticultural products within the perishable

commodities shall not exceed 15% of the total through put of the market.

6. Location

The State Government will approve the number and indicative location of the

TMCs based on the demand, economic viability, commercial considerations etc.



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7. Roles and Responsibilities of the Stakeholders

The stakeholders involved are the Private Enterprise, State Government / State

Horticulture Mission (SHM) and National Horticulture Mission (NHM). The

State Government can participate in the equity of the project either in the form of

direct investment or by offering the assets in the form of existing market / area

(land) etc. However, the combined total equity of the State Government and

NHM can not exceed 49% of the project equity. The details of the roles and

responsibilities are given in Annexure – I.

8. Selection of Private Enterprise

PE will be selected through competitive bidding process. The PE, based on their

business plan, may seek the assistance in the form of equity to the maximum

extent of 49% of the project equity and the enterprise requiring the least quantum

of equity participation will be selected for implementing the project.

9. State level Coordination

The State Government would play a pro-active role and designate an officer at

the level of Secretary to the State Government as Nodal Officer who will be the

single contact point for the PE and other coordination work. The State Level

Executive Committee of the State Horticulture Mission will coordinate all aspects

relating to the TMC project. The Nodal Officer will also be nominated as a

member of the SLEC for this purpose.

The functions of the Nodal Officer are given in Annexure- II.

10. Procedure for approval of TMC project:-



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(i) The SHM shall appoint a reputed Financial Institution (FI) having

project and financial appraisal capacity for each terminal market

for assisting the Nodal Officer in the bidding process, evaluation,

short-listing of the Private Enterprise, entering into agreements.

(ii) The SHM will select FI for each terminal market by adopting a

suitable procedure or from the panel of agencies approved by the

Department of Agriculture & Cooperation. The cost of engaging FI

for the complete project will be borne from the Mission

Management funds cost of the SHM.

(iii) SHM will select the PE for each terminal market based on

competitive bidding, following two-bid system. Initially, the

interested PE will be technically short-listed based on their

suitability as per the approved criteria. The financial proposals

will be taken thereafter from the technically qualified enterprises.

The model bid documents for (i) Request for Qualification (RFQ)

and (ii) Request For Proposals (RFP) is given at Annexure-III and

Annexure IV respectively.

(iv) The Nodal Officer shall prescribe the scope of the

project/throughput volumes/ broad infrastructure to be created

which will become part of the RFQ/RFP. In any case the PE is

expected to provide minimum infrastructure facilities at the

TMC/CC as indicated in Annexure V.

(v) The PE shall have freedom to formulate the business plan and

submit it along with the bid in response to the RFP. The business

plan should meet the requirements prescribed for executing the

project as given in the scope of the project for the prescribed

throughput volumes for each TMC.

(vi) The PE shall have freedom to compete for more than one TMC.

However, the financial capability requirement will have to be in

commensurate with the number of TMC they propose to



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implement. If the PE is bidding for more than one TMC, then they

must give the order of priority which the PE would like to retain, if

selected for more than one project. The allocation of the TMC will

be based on the financial capability and the order of priority

indicated by the PE.

(vii) The business plan/Detailed Project Report (DPR) submitted by the

PE in response to the “RFP” shall be apprised by the FI both from

technical and commercial angle.

(viii) Based on the techno-economic evaluation of the PE responded to

the RFP, the SHM will recommend the PE and the

percentage/quantum of equity to be contributed from the

Horticulture Mission funds. This recommendation along with

detailed comparative statement of the bids received from the PE in

response to the RFP, will be forwarded to Agricultural Marketing

Adviser, Ministry of Agriculture after due approval of SLEC.

(ix) The Executive Committee (EC) of the NHM will take a decision on

the recommendations of the SHM and finalise the private

participation and quantum of equity participation for each market.

(x) The SLEC shall be the final authority for adjudicating the matters

of technical qualification.

(xi) The EC of NHM will be the final authority on selection of the

Private Enterprise or on the quantum of equity participation.

11. Procedure for operationalising TMC

i) The Nodal Officer shall enter into an agreement called “Operation

Management Development Agreement (OMDA)” with the selected

Private Enterprise. The OMDA specifies the concessions to be provided

by State (Concession Agreement), roles and responsibility, etc. of

various players, etc. A model OMDA is given at Annexure VI for



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guidance to the SHMs. This could suitably modified to suit the local

requirements. However, such modifications should not alter the basic

structure of the model OMDA.

ii) The Nodal Officer shall facilitate the clearances required for entering

into OMDA with PE.

iii) The State Horticulture Mission may encourage the involvement of agri-

clinics and agri-business centres under each collection centre that can

play an important role in establishing the backward linkages and

organizing the farmers.

iv) The PE shall take adequate precaution for segregating the facilities for

handling perishable commodities and the meat in the TMC.

v) The SHM/State Government may provide land required for the TMC

on lease/ commercial rates/nominal rent as may be decided by the

State so as to attract good PE for their TMC project. The State may also

consider converting an existing market/APMC into a Terminal Market.

In such case, the value of assets of the existing market can be evaluated

and provided as an incentive or towards the equity participation in the

project. If the State decides to participate in the equity either in the

form of land or transfer equity as valuated, the Private Enterprise may

bid for the balance amount of equity, the total of which shall not

exceed 49%.

vi) An Independent Consultant (IC) will be appointed to each TM for

monitoring the implementation of the TM. Selection and functioning of

IC is detailed in DOMA. IC shall submit progress reports from time to

time to the Nodal Officer. The Nodal Officer shall monitor the progress

of implementation of the project through IC.

vii) There will be a nominee of the State Government in the Governing

Body/Board of the PE implementing the terminal market project.



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viii) The State Government shall ensure the involvement of the local

Panchayatraj Institutions in establishing the backward linkages to the

collection centres.

12. Service Charges

The PE has full freedom to fix the service charges based on commercial and

viability considerations. The service levels as prescribed in the OMDA agreement

will have to be met by the PE.

13. Disinvestment of Government Equity

Disinvestment of Government equity will be done at an appropriate time at

market/ fair value as per the procedure prescribed by the Executive Committee

of NHM.

14. Monitoring & Progress Reporting

The SHM will monitor the successful implementation of the Terminal

Market Projects through the Nodal Officer. The Nodal Officer will take the help

of PMA of each terminal market for this purpose. The State Horticulture Mission

will submit monthly reports on the progress of implementation of TMs to the

Mission Director, National Horticulture Mission. They will also furnish a

monthly progress report through web enabled progress monitoring system of

NHM (www.nhm.nic.in).

15. General Awareness and Training Programme/Project DevelopmentFacility

General Awareness, publicity and training of various stakeholders shall be taken

up through Ch. Charan Singh National Institute of Agriculture Marketing, Jaipur

and other National and State level Institutions or empanelled professional

institutions. The Project Development may also be taken up through above

arrangement.

http://www.nhm.nic.in/

http://www.nhm.nic.in/



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Annexure – I

ROLE AND RESPONSIBILITIES OF THE CONCERNED AGENCIES

For the successful operation of the Terminal Market Complex Projects, the

role and responsibility of the concerned agencies in implementation and

operation of the project is envisaged to be as follows:

i) Role of the Private Enterprise

The Private Enterprise would have the following rights and obligations:

a. The enterprise would have to mandatorily provide the infrastructure

facilities and services to be prescribed at the TM as well as CC complex in

the ‘Hub-and –Spoke’ Format;

b. The Terminal Market (the hub) would be linked to a number of Collection

Centres (the spokes). The Collection Centres would be located at key

production centres to establish backward linkage with growers and to

allow easy access to farmers for the marketing of their produce;

c. The enterprise would have the option to provide additional facilities to

render complimentary services such as input supply, processing, agro

machinery and equipments, durables etc.;

d. The enterprise would have the option to deal in non perishable

commodities not exceeding the prescribed limits, at the terminal market

complex in order to attain volumes and economic viability of the project;

e. The Private Enterprise would have the freedom to buy the commoditiesfrom the farmer directly or through the TM/ CC;

f. The enterprise would facilitate the farmers in making direct supply to

processing units, retail chain and exports, at their choice;

g. The enterprise would provide advisory services to farmers on inputs,

prices, quality, multi-model transport and exports;



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h. Farmers would be free to sell their produce either through the CC/ TM or

the TM directly or to any other marketing channel not related with the

project;

i. The enterprise would promote Farmers’ Associations and progressively

involve them in the operation and management of the CCs;

j. The enterprise would be responsible for the acquisition of land for setting

up of the TM and the CCs and obtain necessary licenses, clearances and

approvals for the establishment and operation of the market;

k. Investment from the Private Enterprise in the complex must be at least 51

percent of the project equity;

l. The enterprise would be free to collect user charges (determined by

commercial considerations) from market participants and producers, for

the infrastructure and services provided by it.

ii) Role of the State Government

The State Government would play a pro-active role and designate, an officer

of the rank of Secretary to the Government as Nodal Officer to function under

an SLEC of the SHM for the purpose of terminal market complexes. The

responsibility of the Committee would include

a. Approval of the number and location of the terminal market complexes;

b. Approval of the bidding process and implementation modalities of the

project;

c. Technical Financial appraisal of the detailed business plan of the

complex;

d. Regulatory Clearances, issue of licenses and granting of permission for

facilitating establishment and operation of market complexes and the

collection centres;

e. Identification of land and when necessary provision of Government land

for TM and CC;

f. Convergence with other development programmes for infrastructure

support to TM/CC such as road connectivity, power and water supply;



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g. May participate in the equity of the project either through direct funding,

land/ infrastructure support and/ or transfer of existing market assets.

h. Selection of the Private Enterprise through an open, transparent

competitive bidding process, and entering into Operation, Management,

Development Agreement with the successful PE.

i. Ensure the involvement of Panchayati Raj Institutions in establishing

backward linkages to the Collection Centres.

j. Encourage the involvement of agri-clinics and agri-business centres under

each collection centre that can play an important role in establishing the

backward linkages and organizing the farmers.

k. The Project will be awarded to the bidder with the request for least equity

participation.

l. Make recommendations to Central Government for the release of equity

and for its disinvestment..

m. Set up institutional mechanism for resolution of disputes, if any, arising

out of the implementation of the terminal market complex.

(iii) Role of the Central Government (Department of Agriculture &

Cooperation, Ministry of Agriculture)

The Central Government will support the project through participation in

its equity capital. The terms for participation would be as follows:

a. Central Government would provide equity assistance upto 49% of

project equity, returnable at market/fair value to be decided at

appropriate time.

b. Central/ State Government participating in equity capital will retain

option to allocate on redemption, its equity in favour of farmers

organizations feeding business to the market complex.

c. In the eventuality of farmers organizations not coming forward, the

promoter of the enterprise will be given the option to buy back the



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Government equity capital at market/fair value to be fixed, at

appropriate time.

d. Assist the State governments in fixation of throughput per day and

yearly handling capacity of the terminal market complex for the

detailed project reports (DPR).



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Annexure-II

RIGHTS AND OBLIGATIONS OF NODAL OFFICER

Rights

1. Detail the rules of operation of the Terminal Market Complex

2. Progress report on the development of the Terminal Market Complex

3. Levying liquidated damages on the PE equivalent on delay in commencement

of construction of such Mandatory Capital Project.

4. Levying liquidated damages on PE for the completion of any Mandatory

Capital Project

5. Progress and achievement of ISO within the defined time frame

6. Collection of %age of Revenue in the event of default of PE in achieving

Objective Service Quality as per the Master Plan

Obligations

1. Approve the Master Plan

2. Assistance in obtainment of Clearances for the PE

3. Assistance in obtainment of land by the PE

4. Provide regulatory facilitation for purposes of co-ordination between the

aggrieved party and the concerned regulatory agency.



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Annexure-III

AWARDER

Request for Qualification

Design, Engineering, Financing, Procurement, Construction, Operationand Maintenance of the Terminal Project Complex located at [______] in

the State of [________]

Date: [month] [date], [year]

AWARDER



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Disclaimer

The information contained in this Request for Qualification (“RFQ”) document orsubsequently provided to Applicant(s), whether verbally or in documentary formby or on behalf of the Awarder [Government of the State of (_______)](“Government Representative”) or any of their employees or advisors, isprovided to Applicant(s) on the terms and conditions set out in this RFQdocument and any other terms and conditions subject to which such informationis provided.

This RFQ document is not an agreement and is not an offer or invitation by theGovernment Representative to any other party. The purpose of this RFQdocument is to provide interested parties with information to assist in theformulation of their Application for Qualification. The RFQ document does notpurport to contain all the information each Applicant may require. This RFQ

document may not be appropriate for all persons, and it is not possible for theGovernment Representative, its employees or advisors to consider theinvestment objectives, financial situation and particular needs of each party whoreads or uses this RFQ document. Certain Applicants may have a betterknowledge of the proposed Project than others. Each Applicant should conduct

its own investigations and analysis and should check the accuracy, reliability andcompleteness of the information in this RFQ document and obtain independentadvice from appropriate sources. The Government Representative, its employeesand advisors make no representation or warranty and shall incur no liability

under any law, statute, rules or regulations as to the accuracy, reliability orcompleteness of the RFQ document.

The Government Representative may in its absolute discretion, but without beingunder any obligation to do so, update, amend or supplement the information inthis RFQ document.





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Schedule of Bidding Process

The AWARDER would endeavor to adhere to the following schedule:

S.no. Event description Time Frame to befollowed

Qualification Stage

1 Last Date for Receiving Queries 15 days from the

date of release of

Global Tender

Notice

2 AWARDER's Response to Queries latest by 40 days from the

date of release of

Global Tender

notice

3 Last date for Sale of RFQ documents 45 days from the

date of release of

Global Tender

notice

4 Application Due Date

(Both hardcopy & soft copy required)

50 days from the

date of release of

Global Tender

notice

5 Announcement of Qualified Applicants 75 days from the

date of release of

Global Tender

notice

Proposal Stage

1 Issue of RFP to Qualified Applicants 2 days from the day

of announcement

of Qualified

Applicants2 Last Date for receiving queries 9 days from the day

of announcement

of Qualified

Applicants

3 Pre-Proposal Meeting 15 days from the

day of



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announcement of

qualified applicants

4 Proposal Due Date 45 days from the

day of

announcement of

qualified applicants5 Evaluation of Proposals 75 days from the

day of

announcement of


6 Issue of Letter of Intent 90 days from the

day of

announcement of




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AWARDER(The Government of the State of (_________))

GLOBAL TENDER NOTICE

Invitation for Qualification for -----

AWARDER invites applications from reputed players in the field of Agribusiness*,orInfrastructure development (Applicants) , as individual applicant or as Consortium, inaccordance with the Request for Qualification (RFQ) Document in order to shortlistcompetent parties who can subsequently bid for the Terminal Market Project.

The Successful Applicant at the end of the bidding process may be awarded a Contract 1 by the AWARDER to implement the Project on a BOO basis. The Bidder (the SuccessfulApplicant, in case the Contract is awarded to it) shall be responsible for the Designing,Constructing, Developing, Engineering, Financing, Procurement, Construction,Operation and Maintenance of the Terminal Market Project Complex located at [______]in the state of [________] , under the Operation, Management and DevelopmentAgreement (hereinafter referred to as the “OMDA”, which expression shall, unlessrepugnant to the context or meaning thereof, include its successors and assigns )executed between the PE and the Government of the State of (_________) (hereinafterreferred to as the “GOS”, which expression shall, unless repugnant to the context ormeaning thereof, include its successors and assigns)

The Successful Bidder shall be entitled to collect User charges from the Users,according to market conditions, for Market service and Non Market Servicesduring the Period of the Agreement to compensate the successful Bidder for the

capital cost and the operating expenses of the Project and returns thereon

The indicative construction cost of the Terminal Market Project Complex Project

is estimated at Rs. XXXXX million (USD XXX million)2. A summary of the keycomponents of the project includes

S.No Key Components of the Project Estimated Cost (Rs.)3

*Agribusiness will include entities involved in Agriculture/Horticulture / Floriculture/ Fisheries/ Dairy /

Processed Food including Farmers Associations and entities providing basic facilities, services, and

installations needed for agricultural operations including post harvest operations and processing of

agricultural products. Also includes commodity exchanges

1Also referred to in this document and outlined in Appendix 1B

2To be filled in by the GOS for the particular Terminal Market Project

3To be filled in by the GOS for the particular Terminal Market Project



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Important particulars regarding the RFQ document are tabled below:

Sale of RFQ Document Up to 45 days from the date of release of GlobalTender notice on all working days between 1000

hrs and 1700 hrs IST

Cost of RFQ document Rs. 10000 (USD250) in the form of a crosseddemand draft (non-refundable) drawn in favor of‘The GOS( State Name), payable on any scheduledbank at [location], [state]

Last Date for submission ofcompleted RFQ Document

50 days from the date of release of Global Tendernotice up to 1700 hours IST

The RFQ Document containing the Project Profile, Instructions to Applicants and

Criteria Evaluation may be obtained from the office of:

[Name of the official][Designation],[Address][City] [Pin code][Phone][Fax][email id]

The RFQ Document could be obtained by post/courier upon a written requestaccompanied by the cost of the document. Alternatively, the same could be

downloaded from AWARDER website [insert website name] Applicantssubmitting the downloaded version would need to pay the cost of the RFQDocument along with their Application in the manner described above.

AWARDER will not be responsible for any delay, loss or non-receipt of RFQDocument sent by post/courier.

AWARDER will not be responsible for any delay, loss or non-receipt of RFQDocument sent by post/courier.

(Signed)

[Insert name of nodal officer]



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Request for Qualification

For

Designing, Engineering, Financing, Procurement, Constructing, Operating andMaintaining the Terminal Market Project Complex located at [______] in the

state of [________]



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Contents

Section I: Introduction to the Project

Section II: Instruction to Applicants

Section III: Criteria for Evaluation



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SECTION I

INTRODUCTION TO THE PROJECT



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1. INTRODUCTION

1.1 Project Background

The Terminal Market Project (TMP) would endeavor to integratefarm production with buyers by offering multiple choices to farmersfor sale of produce such as electronic auctioning and facility for directsale to exporter, processor and retail chain network under a single

roof. In addition, the market would provide storage infrastructurethus offering the choice to trade at a future date to the participants. Itis envisaged to offer a one stop solution that provides Logisticssupport including transport services & cool chain support and facilityfor storage (including warehouse, cold storage, ripening chamber,storage shed), facility for cleaning, grading, sorting, packaging and

palletisation of produce and extension support and advisory tofarmers. Each of these services would be provided in lieu of a usercharge. The TM would be built, owned and operated by a Corporate/Private/Co-operative entity (hereinafter called as Private Enterprise)either by itself or through adoption of an outsourcing model. Theenterprise could be a consortium of enterprises in the field of of Agri-Business or Infrastructure Development or Service Provider

In view of the above, AWARDER proposes to make the TerminalMarket Project Complex at [Specify location Name] in the state of

[name of state] on a BOO basis.The Successful Applicant at the end of the bidding process may beawarded a Contract by AWARDER to implement the Project on aBOO basis.

Bidder4 (The Successful Applicant, in case the Concession is awardedto it) shall be responsible for the Designing, Engineering, Financing,Procurement, Constructing, Operating, and Maintaining of the

Terminal Market Project under the Contract Agreement to beexecuted by the Successful Bidder and the AWARDER.

The Successful Bidder shall be entitled to collect User charges fromthe Users of the Terminal Market Project during the Term of theAgreement ( which shall be for 15 year with extendability upto 25years) in the Request for Proposal documents to compensate theSuccessful Bidder for the capital cost and the operating expenses of

the Project and returns thereon.

4Also referred to in this document as PE



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The construction cost of the Project is estimated at Rs. XXXX million(USD XX million) and the completion time is expected to be 24months.

Brief Description of Bidding Process

1.2.1 AWARDER intends to follow a 2-stage process for selection of thePreferred Bidder for the Project comprising Qualification followed bya Proposal stage.

1.2.2 The first stage of the process involves Qualification of interested

parties (Applicants). This RFQ Document deals with the first stage(Qualification stage) wherein, Applicants would be required tofurnish the information specified in this RFQ Document. At the endof the Qualification stage AWARDER shall announce a shortlist ofQualified Applicants for the second stage (Proposal stage)

1.2.3 In the Proposal stage, the Qualified Applicants will be invited to bidby submitting detailed Proposals (Proposal) in respect of the Projectin accordance with a Request for Proposal (RFP) Document. TheQualified Applicants bidding (Bidders) in the Proposal stage shall beevaluated on the basis of technical and other submissions relating tothe project and the financial bids as detailed in the RFP document.

1.2.4 During the Proposal stage, Qualified Applicants would be expectedto examine the Project in further details, and to carry out such studies

as may be required to submit Proposals for the implementation of theProject.

1.2.5 The Project would be awarded to the Bidder quoting the lowest

equity support5 amount to be required from AWARDER for theimplementation of the Project subject to the Bidder fulfilling all other

requirements of the selection process.

1.2.6 The Successful Bidder would be entitled to collect User charges6 fromthe users of the Terminal Market Project.

1.2.7 Further details of the process to be followed at the Proposal Stagewould be spelt out in the RFP Document (to be provided to QualifiedApplicants).

5 Equity to be provided by GOS through National Horticultural Mission

6 As defined in OMDA



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Section II

INSTRUCTIONS TO APPLICANTS

A. GENERAL

2.1. Scope of Bid

2.1.1 During this RFQ stage, AWARDER invites Applications for

Qualification from Applicants in order to qualify experienced and

capable Applicants for the RFP stage.

2.1.2 Throughout these bidding documents, the terms ‘bid’ and ‘tender’and their derivatives (bidder, bid/tender, bidding/tendering etc.) are

synonymous, and “day” means calendar day.

2.2. Eligible Applicants

2.2.1 The Applicant may be a single entity or a group of entities

(hereinafter referred as Consortium), coming together to implement

the project. The term Applicant used hereinafter would therefore

apply to both a single entity and a Consortium as the case may be.

2.2.2 The Consortium shall comprise of a maximum of 5 members with at

least one member from the field of Agribusiness. The other members

of the consortium can be Infrastructure Development and any other

field.

2.2.2.1 The eligible candidates for applying in the category of Individual

applicants should have relevant experience in the following fields:

A) Agribusiness

B) Project execution of Agribusiness project/ Infrastructure project

or any other project

2.2.3 The Applicant should submit a Power of Attorney as per the format

enclosed at Appendix 2A authorizing the signatory of the application

to commit the Applicant.



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2.2.4 In case, the Applicant is a Consortium, the applications submitted

must describe the roles and responsibilities of each Member of the

Consortium.

2.2.5 An individual Applicant cannot at the same time be a member of a

Consortium applying for the project. Further, a member of a

particular Consortium cannot be a member of any other Consortium

applying for this project.

Any Applicant who submits or participates in more than one

application will be disqualified and will also lead to the

disqualification of the Consortia of which it is a member.

2.2.6 Any entity which has been barred by AWARDER from participating

in AWARDER projects (BOO or other wise) and the bar subsists as on

the Application Due Date, would not be eligible to submit an

application, either individually or as a member of a Consortium

2.2.7 In case of a Consortium, members of the Consortium shall nominate

one member as the Lead Technical Member (LTM) and one member

as Lead Financial Member (LFM).However, the Lead Financial

Member’s nomination(s) shall be supported by a power of attorney as

per the format enclosed at Appendix 2B signed by all the members.

The Members of the consortium shall be required to meet the criteriaspecified in this RFQ Document. The Lead Member of the

Consortium shall provide the Power of Attorney as per the format

enclosed at Appendix 2a. The Lead Member shall be one amongst the

lead Financial or Lead Technical Member.

2.2.8 Members of the Consortium (Indian or Foreign7) shall enter into a

Legal agreement (LA) for the purpose of making the application and

submitting the Proposal in the event of being short-listed. The LA

shall be governed by the laws, rules and regulations of India andwould be subject to jurisdiction of Indian Courts only.

The LA shall, inter alia:

7 subject to the condition that the consortium that has Foreign member as one of

its constituent members will not enter into retail business anywhere in India



30

(i) Convey the intent to form a joint venture company, with

shareholding commitment(s) in accordance with Clause no.

3.7 of this RFQ, which would enter into the Contract

Agreement and subsequently carry out all the

responsibilities as Successful Bidder in terms of the Contract

Agreement, in case the Contract to undertake the project is

awarded to the Consortium.

(ii) Clearly outline the proposed roles and responsibilities of

each member at each stage

(iii) Include a statement to the effect that all members of the

Consortium shall be liable jointly and severally for the

execution of the project in accordance with the terms of the

Contract Agreement.

(iv) Clearly outline the flexibility for introduction of GOI and/or

the GOS as the Shareholders in the PE/SPV so formed.

2.2.9 A copy of the LA should be submitted with the application. The LA

entered into between the members of the Consortium should be

specific to this project and should contain the above requirements

failing which the application shall be considered non-responsive

under the provision of Clause 2.25 of this RFQ Document.

2.2.10 The purchaser of the RFQ document must be the Applicant itself or a

member of the consortium submitting the application

2.3 Change in Consortium Composition

2.3.1 Change in the composition of a Consortium will not be permitted by

AWARDER during the qualification stage.

2.4. Project Inspection and Site Visits.



31

2.4.1 The Applicant, at the Applicant's own responsibility and risk is

encouraged to visit to examine the site of works and its surroundings

and obtain all information that may be necessary for preparing the

application of Qualification. The site may be a state asset proposed by

the GOS [state] or it may be proposed by the applicant. The costs of

visiting the site shall be borne by the Applicant. AWARDER shall not

be liable for such costs, regardless of the outcome of the selection

process.

2.4.2 It would be deemed that by submitting the application, Applicant

has:

(i) Made a complete and careful examination of the RFQ.

(ii) Received all relevant information requested from

AWARDER.

2.4.3 AWARDER shall not be liable for any mistake or error on the part

of the Applicant in respect of the above.

2.5. Application preparation cost

2.5.1 The Applicant shall be responsible for all costs associated with the

preparation of its application and its participation in the Qualification

process. AWARDER will not be responsible nor in any way liable for

such costs, regardless of the conduct or outcome of the Qualification

process.

2.6. Right to accept or reject any application and to reject any or all

Applications or Bids during the Selection Process

2.6.1 Notwithstanding anything contained in this RFQ, AWARDER

reserves the right to accept or reject any application and to annul theselection process and reject all applications/proposals at any time

without any liability or any obligation for such acceptance, rejection

or annulment, without assigning any reasons therefore.

2.6.2 AWARDER reserves the right to reject any application If:



32

(i) At any time a material misrepresentation is made or

Uncovered or

(ii) The Applicant does not respond promptly and thoroughly to

requests for supplemental information required for the

evaluation of the application.

This would lead to the disqualification of the Applicant. If the

Applicant were part of a Consortium then the entire Consortium

would be disqualified or rejected.

2.6.3 If such disqualification/rejection occurs during the Proposal stage,

after the price proposals have been opened and the lowest bidder

gets disqualified/ rejected, then AWARDER reserves the right to;

(i) Either invite the next lowest bidder with the second lowest

Financial Bids

(ii) Take any such measures as may be deemed fit in the sole

discretion of AWARDER, including annulment of the

bidding process.

B. Documents.

2.7. Contents of RFQ.

The RFQ document comprises the contents as listed below and would

additionally include any addenda in accordance with clause 2.10.

Invitation for Qualification

Section 1 Introduction to the Project

Section 2 Instructions to Applicants

Section 3 Criteria for Evaluation

Appendices

1A Detailed Project Report



33

1B Outline of OMDA (for more details please refer

to the OMDA Agreement)

2A Format for Power of Attorney for signing of

Application

2B Format for Power of Attorney for Lead Member of

Consortium.

3 Format of Application.

4 Details of Eligible Projects.

5 Guidelines for providing information related to

experience.

2.8. Updating Pre-Qualification Information

2.8.1 Successful Applicants shall be required to update the financial and

other information used for pre-qualification at the time of submitting

their bids, to confirm their continued compliance with the

Qualification criteria and verification of the information provided. A

bid shall be rejected if the Applicant's Qualification for the Threshold

levels are no longer valid at the time of the bidding process.

2.9. Clarifications

2.9.1 A prospective Applicant requiring any clarification on the RFQ

documents may notify the AWARDER in writing or facsimile. The

Applicant should send in their queries latest by the Last Date for

Receiving Queries as given in the 'Schedule of Bidding Process'.

2.9.2 Copies of the AWARDER response will be available to all purchasers

of the RFQ documents, including a description of the enquiry but

without identifying its source through the email. The same will also

be communicated to those who have downloaded the RFQ document

from the AWARDER website and have duly intimated to



34

AWARDER, their particulars including email address for

communication (Registered Applicants).

2.10. Amendment of RFQ Documents

2.10.1 Before the deadline for submission of applications, AWARDER may

modify the RFQ Documents by issuing an addendum.

2.10.2 Any addendum thus issued shall be part of the RFQ Documents and

shall be communicated in writing or by cable to all the purchasers of

the RFQ Documents. Applicants shall acknowledge receipt of each

addendum in writing or by cable to AWARDER. AWARDER will

assume no responsibility for postal delays. The same will also be

communicated to the Registered Applicants.

2.10.3 To give prospective Applicants reasonable time in which to take

addendum into account in preparing their bids, AWARDER may, at

its sole discretion, extend the Application Due Date.

C. Preparation and submission of Application

2.11 Language of the Application.

The Application and related documents and correspondence shall be

in the English language. Supporting documents and printed

literature furnished by Applicant with the application may be in any

other language provided that they are accompanied by translations in

the English language. Supporting materials, which are not translated

into English, may not be considered. For the purpose of

interpretation and evaluation of the application, the English language

translation shall prevail.

2.12 Currencies of Application and Payment

The currency for the purpose of this RFQ shall be the Indian Rupees

(INR). For the purpose of evaluation the conversion to Indian rupees

shall be based on the following exchange rates:



35

Country Currency Code Exchange Rate *

United States of

America

USD [insert rate#]

United Kingdom GBP [insert rate#]

Europe EUR [insert rate#]

Canada CAD [insert rate#]

Australia AUD [insert rate#]

Japan JPY** [insert rate#]

Kuwait KWD [insert rate#]

Bahrain BHD [insert rate#]

United Arab Emirates AED [insert rate#]

Saudi Arabia SAR [insert rate#]

Malaysia MYR [insert rate#]

* Indian Rupees (INR) for one unit of foreign currency

** INR for 100 units of currency

For currencies other than those indicated above, an average of the TT

Buying and TT Selling rates of State Bank of India as on [month]

[date], [year] shall be used. In case if the exchange rate for any

currency is not available as per the provisions of this section, then

AWARDER reserves the right to use the rate available from an

alternate source at its sole discretion.

In the event that any of the details of the Applicant or a member of a

Consortium, as the case may be, is available in foreign currency, the

original figures in the relevant foreign currency and the INR

equivalent thereof must be given. The exchange rate applied must be

clearly stated.

2.13 Application Validity period

Application shall remain valid for a period of 30 weeks from the

Application Due Date. (Application Validity Period). AWARDER

reserves the right to reject any Application which does not meet the

requirement.



36

2.14 Extension of Application Validity period

In exceptional circumstances, prior to expiry of the original

Application Validity Period, AWARDER may request that the

Applicants extend the period of validity for a specified additional

period. The request and the Applicants’ responses shall be made in

writing.

2.15 Format and Signing of Application

2.15.1 The Applicant would provide all the information as per this RFQ.

AWARDER would evaluate only those applications that are received

in the required format and complete in all respects.

2.15.2 The Applicant shall prepare one original of the document comprising

the application and clearly marked “ORIGINAL”. In addition the

Applicant shall make one (1) copy of the application clearly marked

“COPY” as appropriate. In the event of discrepancy between original

and the copy, the original shall prevail.

2.15.3 The original and the copy of the application shall be typed or written

in indelible ink. Each page of the application shall be signed by a

person or persons duly authorized to sign on behalf of the Applicant

holding the Power of Attorney as per the format provided in

Appendix 2A.

2.15.4 The application shall contain no alterations or additions, except those

to comply with instructions issued by AWARDER, or as necessary to

correct errors made by the Applicant, in which case such corrections

shall be initiated by the person or persons signing the application.

2.16 Sealing and Marking of Application

2.16.1 The Applicant shall seal the original and copy of the application in

separate envelopes, duly marking the envelopes as “ORIGINAL”

and “COPY”. These two envelopes (called as inner envelopes) shall

then be put inside one outer envelope.



37

2.16.2 Each envelope shall contain:

(i) Covering letter stating clearly the validity of the application.

(ii) Application in the prescribed format (Appendix 3) along

with supporting documents.

(iii) Power of Attorney as per the format in Appendix 2A.

(iv) Power of Attorney as per the format in Appendix 2B in case

of a Consortium.

(v) Copy of LA in case of a Consortium

(vi) Documentary proof of Annual peak volumes handled.

The envelopes shall clearly bear the following identification

‘Application for Qualification for the Designing, Engineering,

Financing, Procurement, Constructing, Operating and Maintaining of

the Terminal Market Project Complex located at [______] in the State

of [________]’

2.16.3 In addition to the identification required in Sub-clauses 2.16.2, each of

the envelopes shall indicate the name and address of the Applicant to

enable the application to be returned unopened in case it is declared

late, pursuant to Clause 2.18.1 or AWARDER declares the application

as non responsive pursuant to Clause 2.25.

2.16.4 If the outer envelope is not sealed and marked as above, AWARDER

will assume no responsibility for the misplacement or premature

opening of the application.

2.17 Application Due Date

2.17.1 Application should be submitted before 1700 hours Indian Standard Time

(IST), on the Application Due Date, as stated in the 'Schedule of Bidding

Process', at the under noted address, in the manner and form as detailed in

the RFQ. Applications submitted by either facsimile transmission or telex

will not be accepted.



38

[Name of the official][Designation],[Address][City] [Pin code][Phone][Fax]

2.17.2 AWARDER may, in exceptional circumstances and at its sole discretion,

extend the Application Due Date by issuing an Addendum in accordance

with Clause 2.10 uniformly for all Applicants.

2.18. Late Applications

2.18.1 Any Application received by AWARDER after 1700 hrs IST on the

Application Due Date will be returned unopened to the Applicant.

2.19. Modifications / Substitution / Withdrawal of Applications

2.19.1 The Applicant may modify, substitute, or withdraw its application after

submission, provided that written notice of the modification, substitution,

or withdrawal is received by AWARDER by the Application Due Date. No

application shall be modified, substituted, or withdrawn by the Applicant

after the Application Due Date.

2.19.2 The modification, substitution, or withdrawal notice shall be prepared

sealed, marked, and delivered in accordance with Clause 2.16, with the

enveloped being additionally marked “MODIFICATION”,

"SUBSTITUTION” OR “WITHDRAWAL”, as appropriate.

D. Evaluation of Application

2.20 AWARDER would open the applications on any working day within 15

Days of the Application Due Date for the purpose of evaluation.

2.21 Applications for which an acceptable notice of withdrawal has been

submitted in accordance with Clause 2.19 shall not be opened.

2.22 AWARDER would subsequently examine and evaluate applications in

accordance with the criteria set out in Section 3.

2.23 Confidentiality



39

Information relating to the examination, clarification, evaluation, and

recommendation for the Qualified Applicants shall not be disclosed to any

person not officially concerned with the process. AWARDER will treat all

information submitted as part of application in confidence and would

require all those who have access to such material to treat the same in

confidence. AWARDER will not divulge any such information unless it isordered to do so by any authority that has the power under law to require

its disclosure.

2.24 Tests of responsiveness

2.24.1 Prior to evaluation of applications, AWARDER will determine whether

each application is responsive to the requirements of the RFQ. An

application shall be considered responsive if the application:

(i) Is received by the Application Due Date including any extensionthereof pursuant to Clause 2.17.2

(ii) Is signed, sealed and marked as stipulated in Clause 2.15 and 2.16

(iii) Is accompanied by the Power(s) of Attorney as specified in Clause

2.2.3.

(iv) Contains all the information as requested in the RFQ.

(v) Contains information in formats same as those specified in thisRFQ.

(vi) Mentions the validity period as set out in Clause 2.13

(vii) Is accompanied by the LA (for Consortium) as stipulated in Clause

2.2.8 and Power of Attorney as stipulated in Clause 2.2.7.

(viii) Is accompanied by payment towards cost of the RFQ Document in

case the same has not been paid while procuring the RFQ

Document.

(ix) Is accompanied by the valid documentary proof of Annual peak

volumes handled , projects executed and certified copies of the last

three year financial statements along with undertaking if not

audited.



40

2.24.2 AWARDER reserves the right to reject any application which is non-

responsive and no request for alteration, modification, substitution or

withdrawal shall be entertained by AWARDER in respect of such

applications.

2.25 ClarificationsTo facilitate evaluation of Applications, AWARDER may, as its sole

discretion, seek clarifications in writing from any Applicant regarding its

application. Notwithstanding anything contained in the RFQ, AWARDER

reserves the right to not take into consideration any such clarifications

sought by it for evaluation of the application.

E. Qualification and Notification

2.26 After the evaluation of applications, AWARDER would announce a short

list of Qualified Applicants (Bidders). The Qualified Applicants would benotified in writing by AWARDER and issued a set of Request for Proposal

(RFP) Documents. At the same time, AWARDER would notify the other

Applicants that their applications have been unsuccessful.

2.27 The Qualified Applicants would be requested to submit a detailed Proposal

in the form and manner to be set out in the RFP Document.



41

Section III

CRITERIA FOR EVALUATION



42

3.0. Criteria for Evaluation

A. Technical Evaluation of Applicants

1)

Categorization of Applicants: would be done on the basis of multiple criteria in order to arrive at an objective result.

a) Individual/Consortium Basis:i) Individual Applicants: Those applicants who apply as an

individual business entity8. Only applicants who qualify theminimum eligible score requirement of volume and project cost willbe qualified to apply individually.

ii) Consortium Applicants: Applicants who apply in consortiumwhere at least one of the members necessarily belongs to theAgribusiness category.

b) Core Competency Basis:i) Agribusiness: This category would include applicants with a core

competency in the field of Agribusiness. The applicants in thiscategory would be further classified as :(1) Class “AB” : This category includes applicants involved in the

business of Agri-Inputs or Agri- Logistics or Trading of Agri-

Commodities or Agri-Processing or Marketing/Whole selling ofAgri-Commodities or Storage and Warehousing of Agri-Commodities & Food Retailing or agri services or agriinfrastructure development9 or commodity exchanges are

included in this categoryii) Infrastructure Developers (ID) : This category would include

applicants with a core competency in the field of InfrastructureDevelopment10.

iii) Others: This category would include applicant with competenciesin other areas other than agribusiness and InfrastructureDevelopers.

c) Commodity categories : The agricultural commodities are divided intothe following categories :

1) Fruits and Vegetables

2) Grains: Wheat/Paddy

8Business entity may be a Firm/ Private limited company/ public limited company/ farmer

association/ farmers association9Agri infrastructure will include infrastructure used for production and storage of agri

input, infrastructure used for production & harvesting of agri commodities, infrastructure

used for processing of agri produce, infrastructure used for distribution, retailing and

export of agri commodities10

For Infrastructure development other than agri infrastructure development.



43

3) Milk and Milk products4) Meat & Meat Products5) Condiments and spices6) Others

B. Parameters followed: The following parameters have been followed forcalculation of scores for screening of the prospective applicants:

a) Volume (P1): The first parameter that will be considered is theannual highest volumes handled (in MT) of different commoditycategories by the applicant over the last ten years. Each commodity

is divided into three bands Low, medium and high based as shownin the table below:

Categories Low Medium High

F & V 5000-40000 40000-80000 >80000

Grains 5000-50000 50000-200000 >200000

Milk(in liters) &

Milk Products(in Kgs) 5000-25000 25000-70000 >70000

Meat & MeatProduct 5000-40000 40000-150000 >150000

Condiments &Spices 50-2000 2000-10000 >10000

others 1000-50000 50000-200000 >200000

Volume Factor: It is the weight age assigned to Volumes ofdifferent commodity categories of applicants. The volume factor

that would be followed for screening process is given below:

Annual Peak volume handled (inMT)PARAMETER

Commoditycategories

Low Medium High

F & V 3 6 9

Grains 3 5 8

Milk & Milk Products 3 4 7

Meat & Meat Product 3 4 6

Condiments & Spices 2 3 6

VOLUMEFACTOR (P1)

others 2 3 6



44

b) Project Cost Levels (P2): The Project Cost is the cost of thelargest project completed over last ten years 011. Based on the valueof project (in crores) the different projects will be divided into lowmedium and high categories as per the table given below:

(in crores)

CategoriesAgri InfrastructureDevelopment

Infrastructure Development(other than Agri)

Low 10-50 100-1000

Medium50-150 1000-3000

High>150 >3000

Project Cost Factor: It is the weight age assigned to individualProject Cost. The Project Cost Factors for different categories isgiven below:

C. Scoring Model

1. Scoring: Depending on the feeder value for an applicant, the feeder sheetwould calculate the corresponding value of Volume Factor and ProjectCost Factor for each of the applicants. This value may be regarded as the

score of the applicant on the parameters P1 and P2.

11 The financial year would be the same as followed by the Applicant for its annual report. Year I will be the financial

[insert the most recent financial year]. Year 2 shall be the year immediately preceding Year 1 and Year 3 shall be the year

immediately preceding Year 2.

Annual Cost of Projectshandled

(in Rs crore)Parameter

InfrastructureCategories

Low Medium High

Agri InfrastructureDevelopment * 4 6 8Project factor

(P2) InfrastructureDevelopment (otherthan Agri) 2 4 7



45

2. Interpretation of the Score:A) For Individual Applicants : For individual applicants, thecorresponding score for each of the parameter P1 and P2 will be taken asthe score for screening at the RFP stage. The range of scores for P1 and P2would vary from 0- 9.

B) For Consortium: Each member of consortium will get an individualscore on P1 and P2. For the screening purpose of consortium the highestvalue of P1 and P2 among the individual values of all the members of theconsortium will be regarded as the score of the consortium.

3. Minimum Qualifying Score for Individual:There would be a minimum qualifying value for P1 and P2 for individualapplicants and for each member of the consortium. The minimum qualifyingvalues would be as follows:

A) Minimum Qualifying for Individual

B) Minimum Qualifying for Consortium

ParameterMinimumEligibility

Volume Factor(P1) 3

Project Factor

(P2) 4

4. Minimum Qualifying Score of Consortium :The consortium can have maximum of 5 members. The minimumqualifying score for the consortium will be 9.

ParameterMinimumEligibility

Volume Factor(P1) 3

Project Factor(P2) 4



46

5. Financial Evaluation of the Applicant:

The Financial evaluation of the applicant is measured on the followingParametersNet worth (P3): The Net worth of an applicant includes the share holdercapital and Reserves and Surplus as calculated from the latest financialstatements of the year as specified in RFQ. If the applicant hasbid/implementing another Terminal Market Project, additional networthwill be required, as given below, for calculation of the eligibility of theapplicant for the new Terminal Market Project

The minimum eligibility for individual Applicant on the Net worth shallbe Rs 20 crores.

6. Financial Evaluation of Consortium :The Minimum Net worth of Lead Financial Member (LFM) of theconsortium should be 50 crores.

3.2.1 General Information Regarding Evaluation of RFQ application:

Applicant shall quote experience in respect of a particular eligible

project for Project Cost factor under any one category only.

3.2.2 In the event that two or more members of a Consortium have

participated in the same project, only one member should mention

the project. In case more than one member mentions the same

project, the project cost factor of the member with the highest project

cost Factor, as defined in Clause 3.2.(C)6, for that project shall be

considered and the project cost factor of the other members shall not

be considered for the purpose of evaluation of the RFQ.

However in case two or more members intending to quote project

cost have participated in the same project, then these members may

quote the same project provided that their scope(s) of work were

independent. The scope of work shall not be considered to be

independent in case of any project if:

i) Any member/s is/are sub-contractor/s of another member/s.

ii) Payment to any member/s has been made out of project fees

of the other member/s



47

iii) Payments of project fees have been made jointly to the

members as a consequence of a joint contract with the party

making the payment specifically providing for such joint

payment.

3.3 For the purpose of RFQ

3.3.1 The Applicant should furnish the details of Eligible volume factor

and Project Cost as on date of submission of RFQ

3.3.2 The Entity claiming Project execution under the Project Cost Factor

should have held minimum of 26% of the equity including

management control in the project as on date of commissioning.

3.3.3 The Applicant should furnish adequate evidence to support its claim

as per Appendix 4.

3.3.2.1 The Applicant should provide the necessary information as per

Appendix 3, Bid Response Sheet 2.

3.3.4 The application should be accompanied by the audited annual

reports of the Applicant (of each Member in case of a Consortium)

for the last three financial years.

3.3.5 A certificate from the Applicant's statutory auditor must support the

response sheet

3.3.6 In case the annual accounts for the last three financial years are not

audited and therefore the Applicant could not make it available, the

Applicant shall give an undertaking to the same effect and the

statutory auditor shall certify the same. In any case, the audited

annual reports for three financial years preceding the latest financialyear have to be provided, failing which the application shall be

rejected as non-responsive.



48

3.4 Minimum Equity Holding

The Applicant will be required to incorporate a Special Purpose

Vehicle (SPV) to domicile the Project prior to the start of

implementation of the Project. The members of the Consortium shall

be required to commit to a minimum equity holding in the SPV as:

(i) In case of a member of the Consortium who is not a Lead

Technical Member or a Lead Financial Member, the member

would be required to hold his initial equity stake in the SPV

at all times for a period of 3 years from the date of

commencement of commercial operations.

(ii) In case of the Lead Technical Member and Lead Financial

Member of a Consortium, both would be required to hold his

initial equity stake in the SPV for a period of 5 years from the

date of commencement of commercial operations.

3.8 Minimum Equity Holding for a Sole Applicant

The sole Applicant will be required to incorporate a Special Purpose

Vehicle (SPV) to domicile the Project prior to the start of

implementation of the Project. The Applicant would be required to

commit to hold a minimum equity stake equal to 100% of the

aggregate shareholding of the SPV at all times during a period which

shall not be less than 5 years from the date of commencement of

commercial operations. In addition, the sole Applicant would be

required to commit to hold a minimum equity stake equal to 51% of

the aggregate shareholding of the SPV at all times during a period

which shall not be less than 10 years from the date of commencement

of commercial operations.

3.9 AWARDER may, at its sole discretion and prior to the conclusion ofthe bidding process, provide for the Bidder to induct institutional

investors into the SPV to an extent to be specified by AWARDER.



49

Appendices



50

APPENDIX 1A

The following is an outline of the proposed contract terms for the Project

and is indicative in nature. The proposed OMDA Agreement would formpart of the Request for Proposal (RFP) and would be provided to bidders at

the Proposal Stage.

1. Contract Period

The Contract Period would be 15 years from the Effective date extendable

further by 10 years.

2. Grant

The GOS will authorize/ permit the PE to operate the Terminal

Market Complex through a single license in the state, source

Agriculture Produce directly from farmers and sell directly the

produce to the end users.

3 Rights to collect User Charges

The PE will be entitled to levy User charges on Market services and

Non Market Services and essential services (as per the relevant

agreements) from the users of TMC .

4. Initial Development Plan and Master Plan:

The qualified bidders who are invited to participate in the RFP stage

are required to submit an Initial Development Plan (along with the

other Documents required along with RFP) that includes business

plans for achieving the required business volumes in the proposed

TMC and for providing the specified services to the users of TMC

and technical & architectural plans for required for developing the

necessary infrastructure for the proposed TMC.

The Master Plan, to be provided by PE, will cover the details of the

development of entire TMC over a time frame of 15 years and will

specify the volume forecast and the overall development of TMC in

consistency with the time frame and the level of service quality,

development and product standards (as specified in OMDA). The



51

development of individual facilities will be time bound activities

with specified target dates for each facility. The proposed Master

Plan including the target dates shall be approved by the Nodal

Officer and the Independent Consultant.

5. Conditions Precedent to be satisfied by PE

The PE needs to fulfill these conditions over and above the bidding

criterion in order to qualify to avail the TMC project. These

conditions includes furnishing the Performance bond (in form of

Bank Guarantee) of the specified amount, manage and develop the

TMC and execution of necessary agreements such as lease deed, TRA

agreement ,Share holders agreement and the Master Plan.

6. Mandatory Capital Projects

The PE is obliged to complete the capital projects within a specified

time frame as specified in OMDA. Also, in case of non fulfillment of

this condition, the PE shall be levied damages (more specifically as

specified in OMDA)

7 Service Quality, Development and Product Standards

In order to render the TMC comparable to the major International

Markets, a high level of quality standard will be required at the TMC.The quality standards are fixed for Service Quality, Development and

Products that will be handled by TMC. The quality standards include

NBC (National Building Code), Indian standard code and other

specified standards for Development Quality and AGMARK,

EurepGAP, ISO17025 and other standards for Product Quality.

Specific service quality standards for each service needs to be

attained. These quality standards need to be provided in the TMC

within a specified time frame.

The PE is liable to specified default norms in the event of not meeting

the service quality requirement.



52

8. Independent Consultant

An Independent Consultant (IC) shall be appointed for the purpose of

determining and ensuring compliance with technical standards,

specifications, costs and time schedules during any operation,

development, design, repair, maintenance, replacement or construction at

the Terminal Market Complex Site. There would be a panel of three

consultants appointed by the Nodal Officer (NO). The duties of IC

includes review of designs, drawings and procurement documents,

Monitoring of the construction, operation and management of the TMC,

monitoring the progress of monitory capital projects to be undertaken by

the PE, approval and review of Master Plan submitted by PE and other

relevant duties.

9. Defaults:

Each of the following events or circumstances, to the extent not caused by

a Force Majeure, shall be considered for the purposes of this Agreement as

events of default of which, if not cured within the time period permitted,

shall provide the Counterparty (PE or the GOS as the case may be) the

right to terminate this Agreement in accordance OMDA.

The conditions that will be classified as events of default on part of PE

includes: breach of terms of agreement, material breach, non achievement

of ISO standards, breach of obligations under Objective Service Quality

Requirements, Product Standards, or Development Standards and

Requirements for a period, non completion of the Project in the given

period and setting up of lower capacities/ incurring lower investments

than what is prescribed.

10. Force Majeure

The PE, or GOS, as the case may be, shall be entitled to suspend or excuseperformance of its respective obligations under this Agreement to the

extent that the PE or GOS, as the case maybe, is unable to render such

performance by an event of Force Majeure (a "Force Majeure"). The

conditions that may qualify for the execution of Force Majeure includes

but not restricted to war, revolution, riot, nuclear explosion, strike,

epidemic and other conditions. The Force Majeure will be executed as per



53

the specified procedure.



54

APPENDIX 2A

FORMAT FOR POWER OF ATTORNEY FOR SIGNING OF APPLICATION

POWER OF ATTORNEY

Know all men by these presents, we_________ (name and address of theregistered office) do hereby constitute, appoint and authorize Mr. / Ms. __ (name and address of residence) who is presently employed with us and holdingthe position of ____ as our attorney, to do in our name and on our behalf, all suchacts, deeds and things necessary in connection with or incidental to our bid forthe project envisaging Designing, Engineering Financing, Procurement,Constructing, Operating and Maintaining the Terminal Market Project Complex

located at [______] in the State of [________] , including signing and submissionof all documents and providing information / responses to (AWARDER),representing us in all matters before AWARDER, and generally dealing with

AWARDER in all matters in connection with our bid for the said Project.

We hereby agree to ratify all acts, deeds and things lawfully done by our said

attorney pursuant to this Power of Attorney and that all acts, deeds and things

done by our aforesaid attorney shall and shall always be deemed to have been

done by us.

For _____

(Signature)

(Name, Title and Address)

Accept

…….. (Signature)

(Name, Title and Address of the Attorney)

Notes:



55

• To be executed by the sole Applicant and/ or the Lead Member, as the case

may be, in case of a Consortium.

• The mode of execution of the Power of Attorney should be in accordance with

the procedure, if any, laid down by the applicable law and the charter

documents of the executant (s) and when it is so required the same should be

under common seal affixed in accordance with the required procedure.

• Also, wherever required, the executant(s) should submit for verification the

extract of the charter documents and documents such as a resolution / power

of attorney in favor of the Person executing this Power of Attorney for the

delegation of power hereunder on behalf of the executants(s).



56

APPENDIX 2B

FORMAT FOR POWER OF ATTORNEY FOR LEAD FINANCIAL MEMBER

OF CONSORTIUM

POWER OF ATTORNEY

Whereas the Awarder of India (AWARDER) has invited applications from interested

parties for Designing, Engineering, Financing, Procurement, Construction, Operation and

Maintenance of the Terminal Market Project Complex located at [______] in the state of

[________] (“the Project”).

Whereas, the member of the Consortium are interested in bidding for the Project

and implementing the Project in accordance with the terms and conditions of the

Request for Qualification (RFQ Document), Request for Proposal (RFP

Document) and other connected documents in respect of the Project, and

Whereas, it is necessary under the RFQ Document for the members of the

Consortium to designate one of them as the Lead Financial Member with all

necessary power and authority to do for and on behalf of the Consortium, all

acts, deeds and things as may be necessary in connection with the Consortium’sbid for the Project

NOW THIS POWER OF ATTORNEY WITNESSETH THAT:

We, M/s. _____, M/s. _____ and M/s. _____ (the respective names and addresses of the

registered office) do hereby designate M/s. __________ (name and address of the

registered office) being one of the members of the Consortium, as the Lead Financial

Member of the Consortium (name and address of the registered office) being one of the

members of the Consortium, to do on behalf of the Consortium, all or any of the acts,

deed or things necessary or incidental to the Consortium’s bid for the Project, including

submission of application / Proposal, participating in conference, responding to queries,

submission of information / documents and generally to represent the Consortium in all

its dealings with AWARDER, any other Government Agency or any person, in



57

connection with Project until culmination of the process of bidding and thereafter till the

Concession Agreement is entered into with AWARDER.

We hereby agree to ratify all acts, deeds and things lawfully done by Lead Financial

Member our said attorney pursuant to this Power of Attorney and that all acts, deeds and

things done by our aforesaid attorney shall and shall always be deemed to have been doneby us.

Dated this the ______day of _______ [year]

_____________

(Executants)

(To be executed by all the members of the Consortium)

Note :

• The mode of execution of the Power of Attorney should be in accordance with the

procedure, if any, laid down by the applicable law and the charter documents of the

executant (s) and when it is so required the same should be under common seal affixed

in accordance with the required procedure.

• Also wherever required, the executant(s) should submit for verification the extract of

the charter documents and documents such as resolution/ power of attorney in favor of

the person executing this power of attorney for the designation of power hereunder on

behalf of the bidder.



58

APPENDIX 3

LETTER OF APPLICATION

(On the Letter head of the Applicant (in case of Single Applicant) or Member

responsible (in case of a Consortium / Joint Venture)

Date:

To

Mr. [Name of the official]-------------

[Designation]

GOS [state name]

[Address 1],

[Address 2]

[city] [State] – [Pin]

Ref : Designing, Engineering, Financing, Procurement, Constructing, Operating and

Maintaining the Terminal Market Project Complex located at [______] in the state

of [________] (“the Project”)

Sir,

Being duly authorized to represent and act on behalf of _____ (hereinafter referred to as

“the Applicant”), and having reviewed and fully understood all of the pre-qualification

requirements and information provided, the undersigned hereby apply for qualification

for the project referred above.

We are enclosing our Application for Qualification in One original plus one copy, with

the details as per the requirements of the RFQ, for your evaluation.

(Authorized Signatory)



59

Bid Response Sheet No.1

Details of Applicant

1 (a) Name

(a) Country of Incorporation

(b) Address of the corporate

headquarters and its

branch office (s), if any, in

India

(c) Date of incorporation and /

or commencement of business

2 Brief description of the business entity including details of its main

lines of business and proposed roles and responsibilities in this Project.

3 Details of individual (s) who will serve as the point of contract /

communication for AWARDER within the Company

(a) Name:

(b) Designation:

(c) Business Entity:

(d) Address:

(e) Telephone No. :

(f) E-mail Address:

(g) Fax No. :

4 Name, Designation, Address and Phone Nos. of Authorized Signatory

of the Applicant:

(a) Name:

(b) Designation:

(c) Address:

(c) Telephone No. :

(d) E-mail address:

(e) Fax No. :

5 In case of a Consortium:



60

a. The information above (1-4) should be provided for all the Members

of the Consortium

b. Information regarding role of each Member should be provided as

per table below:

Sr. No. Name of

Member

Role of the Member*

1

2

3

* Specify whether Lead Technical/Financial Member or Member and the Lead Member



61

Bid Response Sheet No. 2

Experience of the Applicant#

Applicant

Type ##

Member

Code *

Core

Competencies

**

Categorization of

Applicant***

Volume

Factor###

Project

Cost

Factors

****

Single

Entity

Applicant

Consortium

Member 1

Consortium

Member 2

Consortium

Member 3

Maximum Volume Score =

Maximum Project Cost Score=

# The Applicant should provide details of only those projects undertaken by it

under its own name. Project experience of the Applicant’s parent company or its

subsidiary or any Associate company (who is not a member of the Consortium)

will not be considered for computation of the volume score

## Any Applicant consisting of a single entity should fill in details as per the row titled

Single Entity Applicant and ignore the other rows mentioned below. In case of a

Consortium, the details need to be provided as per the lower rows depending upon the

number of Consortium Members and the row titled Single Entity Applicant may be

ignored.

### Refer to clause 3 B(a,b) also in the event that two or more members of a

Consortium had participated in the same project, only one member should

mention the project. In case more than one member mentions the project, the

Project cost score of the member with the highest project cost score for that



62

project shall be considered and the experience of the other members shall not be

considered for the purpose of evaluation of the RFQ.

However in case that two or more members intending to quote Project cost have

participated in the same project, then these members may quote same project provided

that their scope of work were independent. The scope of work shall not be considered to

be independent in case of any project if:

i) Any member/s is/are sub-contractor/s of another member/s.

ii) Payment of project(s) to any member/s has been made out of Payment of

project(s) of the other member/s

iii) Payments of projects have been made jointly to the members as a

consequence of a joint contract with the party making the paymentspecifically providing for such joint payment.

* Member codes

NA = Not Applicable in case of a single entity Applicant.

LTM = Lead Technical Member

LFM = Lead Financial Member

M = Member.

** Refer to clause 3 A(b): Eligible project details. Add more rows if necessary.

*** Refer Clause 3.2.(a)

**** refer to Clause 3.2.B (c).



63

Bid Response Sheet No. 3

Financial Capability of the Applicant #

Applicant Type ## Member Code * Net Worth

Last Audited Financial

not older than FY 06

Single Entity Applicant

Consortium Member 1

Consortium Member 2

Consortium Member 3

Consortium

Member 4

Consortium Member 5

# The Applicant should provide the Financial Capability based on its own financial

statements. Financial capability of the Applicant’s parent company or its subsidiary or

any associate company (who are not Members of the Consortium) will not be considered

for computation of the Financial Capability of the Applicant.

## Any Applicant consisting of a single entity should fill in details as per the row titled

Single entity Applicant and ignore the other rows mentioned below. In case of a

Consortium, the details need to be provided as per the lower rows depending upon the

number of Consortium Members and the row titled Single Entity Applicant may be

ignored.

* Member codes

NA = Not Applicable in case of a single entity Applicant.


LFM = Lead Financial Member M = Member.



64

Instructions

1. Net Worth = Subscribed and Paid-up Equity + any compulsorily

convertible instrument issued and paid up and due for conversion into

fully paid up equity shares of the company within a period of twelve

months from the date of the Balance Sheet + Reserves – (Revaluation

reserves + Miscellaneous expenditure not written off)

2. In case of a Consortium comprising of members with holdings in each

other, the cross holdings between the group companies comprising part of

the Consortium will be deducted for the purpose of net worth

Calculations.

3. The financial year would be the same as followed by the Applicant for its

annual report. Year I will be the financial [insert the most recent financial

year]. Year 2 shall be the year immediately preceding Year 1 and Year 3

shall be the year immediately preceding Year 2.

4. The Applicant shall provide audited Annual reports as required under this

RFQ.



65

APPENDIX 4

ELIGIBLE PROJECT DETAILS

Project Code: Member Code:

Refer Instruction Applicant to fill

up the details

here.

Category 5

Year Code 6

Title & Nature of the

Project

Entity for which the

project was constructed/

developed

7

Location

Project Cost 8

Date of Commencement

of Project

Date of Completion/

Commissioning

9

Equity Shareholding 10

Instructions

1. Applicants are expected to provide information in respect of Eligible

Projects in this section. The Projects cited must comply with the

eligibility criteria specified in Clause 3.(C).4. Information provided in

this section is intended to serve as a back up for information

provided in accordance with Appendix 3, Bid Response Sheet 2.

Applicants are also required to refer to Appendix 5 for Guidelines for

providing related to experience.

iv) For a single entity Applicant, or individual member of consortium:Core Competencies would include .1. Agribusiness: (Class “AB”)and 2. Infrastructure Developers: (Class “ID”) This category wouldinclude applicants with a core competency in the field ofInfrastructure Development.



66

2. A separate sheet should be filled for each of the Eligible Projects.

3. Member codes shall be

NA = Not Applicable in case of a Single entity Applicant,


LFM = Lead Financial Member

M = Member.

LM = Lead Member

4. Refer Clause 3.(A).1 for Category

5. Figures may be provided for the past five years. The financial year

would be the same as the one normally followed by the Applicant for

its Annual Report. Year 1 refers to the latest financial year [insert the

most recent financial year]; Year 2 refers to the financial year before

Year 1, Year 3 refers to the financial year before Year 2, Year 4 refers

to the financial year before Year 3 and Year 5 refers to the financial

year before Year 4.

6. For applicant in in Agribusiness or Infrastructure Development ,

largest value Project Cost should be provided till the most recent

year.

7. For applicant in infrastructure development in Agribusiness or

Infrastructure Development, date of commissioning should be

provided. and the date of completion should be provided.

8. For applicants, the equity shareholding of the Applicant in the project

as on date of commissioning needs to be given.

9. Certificate from the client or a certificate from the Applicant’s

statutory auditor must be furnished stating the following details (as

provided in Appendix 5):

a) Date of completion/ date of commissioning of the project

b) Cost of project



67

c) Equity shareholding as on date of commissioning (only in case

of relevant categories)

It may be noted that in the absence of any one of the above (including the

certificate from the client), the information would be considered inadequate and

could Lead to exclusion of the relevant project in computation of project cost

Score.



68

Appendix 5

Guidelines for Providing Information related to Project cost

If the Applicant is claiming experience under relevant Category, the Applicant

should provide certificate from the client , which should contain the following

minimum details:

1. Title & Nature of the Project

2. Entity for which the Project was constructed. (in the event not constructed

for itself)

3. Work executed by the Applicant.

4. Names of all the Consortium Members (in case of jobs/ contracts which

have been executed as part of a Consortium).

5. Value of the job/ contract/ certified billing

6. Date of completion/ certified billing.

a. It may be noted that in the absence of any one of the above, the

information would be considered inadequate and could lead to

exclusion of the relevant project in computation of Experience Score

b. In case of a particular job/ contract has been jointly executed by the

Applicant (as part of a Consortium), he should further support his

claim for the share in work done for that particular job / contract by

producing a certificate from his statutory auditor or the client/employer in the format given below. This certificate would be in

addition to the above-mentioned certificate from the client.

Certificate from the Statutory Auditor / Client

This is to certify that _______________(Name and Registered office of the

Applicant) has constructed ___________(Title of the Project).

We further certify that ______________ (Name and Registered office ofthe Applicant) has executed /earned an income from executing this

project of_________(Amount).



69

Signature of the Name Place

Date

Authorized Signatory

It may be noted that in the absence of any detail from the above certificate, the

information would be considered inadequate and could Lead to an exclusion of

the relevant project in computation of Experience Score.

2. If the Applicant is claiming experience under relevant Category the

Applicant should provide a certificate from his statutory auditor in

the format given below:

Certificate from the Statutory Auditor

This is to certify that _____ (Name and Registered office of the Applicant)

has promoted ___ (Title & Nature of the Project). This Project was

commissioned on _____ (Date of commissioning of the Project) and ____

(Name and Registered office of the Applicant) held ___ % of the equity

capital in the Project as on the date of commissioning.

We further certify that total cost of the Project as on the date of

commissioning was _____

Signature of the Name Place

Date

Authorized Signatory

It may be noted that in the absence of any detail from the above certificate, the

information would be considered inadequate and could lead to exclusion of the

relevant project in computation of experience score.



70

Annexure-IV

Request for Proposal

ForDesign, Engineering, Financing, Procurement, Construction, Operation and

Maintenance of the Terminal Project Complex located at [______] in the State of

[________]

Dated: __/___/200__

Last Date of Submission of RFP: __/___/200__ upto 1200 hoursTo be Opened on__/___/200__ at _______hours in the Office of

_______________________, Department of _____________,Government of _________________

Name ofCompany/Firm

Address forCorrespondence

Telephone No:

Fax No:

Price: Rs.10,00, 000/-



71

TABLE OF CONTENTS

S.No. Name of Schedule Page No.

1 Project Profile 72

2 Scope of Work 72

3 Deliverables 73

4 Time Schedule 74

5 Bidding Process 75

6 General Terms and Conditions 76

7 Disqualification 79

8 Bid Submission 79

9 Earnest Money Deposit(EMD)/Bank Guarantee 80

10 Terms and Definitions 80

11. Appendix C1- Project evaluation and bidding criteria 87



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1. Project Profile

The Terminal Market Project (TMP) Project would endeavor to integrate farmproduction with buyers by offering multiple choices to farmers for sale of produce suchas electronic auctioning and facility for direct sale to exporter, processor and retail chainnetwork under a single roof. In addition, the market would provide storage

infrastructure, thus offering the choice to trade at a future date to the participants. It isenvisaged to offer a one stop solution that provides Logistics support includingtransport services & cool chain support and facility for storage (including warehouse,cold storage, ripening chamber, storage shed), facility for cleaning, grading, sorting,packaging and palletisation of produce and extension support and advisory to farmers.Each of these services would be provided in lieu of a user charge. The TM would bebuilt, owned and operated by a Corporate/ Private/Co-operative entity (hereinaftercalled as Private Enterprise) either by itself or through adoption of an outsourcingmodel. The enterprise could be a consortium of entrepreneurs from agri-business, coldchain, logistics, warehousing, agri-infrastructure and related background.

2. Scope of Work12

a. The GOS [State Name] intends that the PE shall design, engineer, finance,procure, construct, operate and maintain the Terminal Market ProjectComplex to bring it to and maintain it at a world class standard for majorinternational Terminal Market Project Complexes in terms of the quality ofthe facilities, Terminal Market Project Complex management and the qualityof service provided to all Terminal Market Project Complex Users. Thesewould be achieved through a set of guidelines and standards, which need tobe implemented within a given time frame

b. The PE shall establish and operate the Terminal Market Complex as perinternational Service quality requirements, development standards and

product standards of a capacity of --------------------- at a minimum investmentof -------------------------

c. The PE shall at all times provide Market Services and Essential Services at theTerminal Market Project Complex for the Term. The list of services includingEssential Services, Market and Non Market Services has been provided inSchedule 1 of OMDA.

d. Subject to the provisions of this Agreement, PE shall have the right to grantaccess to all parts of the Terminal Market Project Complex Site to suchEntities as it shall determine.

e. The PE shall be entitled to collect Market Fee (wherever not exempted) and

Market Charges for Agricultural Produce which is transacted through the

electronic transaction system and other assets of the TMC. The Market

Charges shall de decided by PE on the prevailing market conditions.

12For details refer the Operation, Management and Development Agreement. Wherever there is

discrepancy, the Operation, Management and Development Agreement shall prevail.



73

3. Deliverables

a. Master Plan

The PE shall prepare a Master Plan (including Major Development Plans) for theTerminal Market Project Complex setting out the proposed development for the

entire Terminal Market Project Complex, planned over a 15 year time horizon. TheMaster Plan shall include volume forecasts for this period and link all planned majordevelopment to these forecasts. The Master Plan shall be prepared in accordancewith and to include the following:

1. A Statement of the Development Strategy and Philosophy;2. The Development Planning Principles set forth in Schedule 6 hereof.3. Details of planned developments separately for each aspect of the project,4. Details of volume forecasts and volume trigger points for all developments

which are linked to volume growth, indicating at what volume level the projectwould commence and finish and to be divided between domestic and exportvolumes

5. Vision of how the Terminal Market Project Complex and each of its precinctswould be at the end of 15 years and at critical intermediate stages and the socio-economic impact on the key stakeholders at the end of the period when it reachesfull capacity;

6. Report on the outcome of consultations with users, community, businesses andthe government and such other matters that may be specified by the GOI.

This plan shall be in line with the Initial Master Development Plan, which theSuccessful Applicant has submitted at the time of the bidding.

b. Mandatory Capital Projects

1. The PE shall, latest within 2 years of the Effective Date, complete the MandatoryCapital Projects at the times set forth therein and in accordance with the termsand conditions set forth therein. The PE shall be providing quarterly updates onthe progress to the Nodal Officer and the Independent Consultant. The NodalOfficer and the Independent Consultant shall be responsible for monitoring theprogress of aforesaid on its timeliness and quality.

2. In the event that the PE delays in commencement of construction of a MandatoryCapital Project at the time and no explanation for delay is provided by the PE toIC that is satisfactory to IC(at its sole discretion), NO on the recommendation ofIC shall have the right to levy liquidated damages on the PE equivalent to 0.5% ofthe estimated capital cost of the such Mandatory Capital Project for each month

(or part thereof) of delay in commencement of construction of such MandatoryCapital Project.

3. NO, on the recommendation of the IC, shall further have the right to levyliquidated damages on PE at the same rate in the event the time period for thecompletion of any Mandatory Capital Project exceeds the time period forcompletion of such Mandatory Capital Project, subject to the delay not being onaccount of delay in commencement, in respect of which liquidated damages havebeen paid by PE to the GOS.



74

4. Provided however that the total liability of the PE under this Clause 3.b.3 for

delay in respect of a particular Mandatory Capital Project shall not exceed 10percent of the capital cost of the relevant Mandatory Capital Project.

4. Time Schedule

The Bidder would have to adhere to the following time schedules related to theTerminal Market Project:

S.No. Deliverable Timeline Remarks

1 Issue of RFP to Qualified

Applicants

2 days from the day

of announcement of

Qualified Applicants

2 Last Date for receiving

queries

9 days from the day

of announcement of

Qualified Applicants

3 Pre-Proposal Meeting 15 days from the dayof announcement of


4 Proposal Due Date 40 days from the day

of announcement of


5 Evaluation of Proposals 75 days from the day

of announcement of


6 Issue of Letter of

Intent/Award

90 days from the day

of announcement of


7 Signing of Agreementsafter the Government hasinvited the bidder as perClause 5 (e)

Within 7 working

days

By the selected bidder and,in the case of a biddingentity, each member of thebidding entity which shallform an SPV for thispurpose

11 Master Plan and MajorDevelopment Plan

Within 4 months ofthe signing ofAgreement



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5. Bidding Process

a. A Bidder (Qualified Applicant) is permitted to bid for all the Terminal MarketProject Complex provided he has the Bid capacity. The Bid capacity at anypoint is total Feeder scores minus the score used for bidding/implementing a

Terminal Market Complex Project. (at the rate of 8 score per Project)b. Within 6 days of Last date of receiving queries from the Qualified Applicants

of RFP stage the bidders will be called for pre proposal meeting.c. The criterion on which the bids are invited and the methodology for

evaluation of bids is as given in Appendix “C1”. Based on the methodologydetailed in Appendix “C1”, the successful Applicant shall be identified.

d. Subsequent to the completion of bidding process the Government shall invitethe successful candidate. The successful Applicant shall form an SPV/PEwhich shall sign the Agreement with the GOS.

e. Other Conditions

1. Each of the Bidders and the consortium members duly accept the terms

and conditions of this RFP and RFP documents.

2. The bids to be given shall be unconditional. The bids, which are

conditional, are liable to be rejected.

3. By giving the Bids, each of the bidders shall be taken to have agreed and

accepted that they will as a condition keep the bids valid for acceptance

by Government for a period of 180 days from the last date fixed for

submission of the bids and shall not be entitled to withdraw or vary thebids submitted at any time during the said period.

4. The Bids will be given based on bidding documents including finalized

drafts of the agreements circulated to the bidders as provided in Clause 5

5. It is a condition of the Bid that the bidders accept the documents

(including the tripartite agreements) and agree to be bound by the terms

and conditions therein. Government shall have no obligation to the

bidders to discuss or negotiate any agreement or terms thereof either

before or after the submission of the bids.



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f. Documents Provided To Bidders

The following documents are being made available to bidders with the RFP:-

1. OMDA (Appendix C1).

2. GOS’s Guideline Detailed Project Report

3. Draft Bank Guarantee to be furnished by the bidders

4. Comfort letter from the banker of individual applicant or the Lead

Financial member of Consortium

6. General Terms and Conditions

a. The RFP documents are being distributed to and are meant only for the use by

the bidders or bidding entity recognized by Government. The RFP documents arenot to be used by any other person.

b. The Government reserves the right to reject all or any of the bids, if it considers it

necessary to do so, and/or to withdraw from the proposed modernization or any

part of the process or to vary any of its terms at any time without giving any

reason therefore and/or to require Bidders to submit revised Bids on such basis

as the Government may determine.

c. The Government, at its sole discretion, is entitled to assign any of its rights under

this document or otherwise nominate any company owned or controlled by the

Government, to undertake the work on behalf of the Government under this

document.

d. The GOS also reserves the right to change the timing and any other aspect of the

Proposed Modernization (including whether to proceed with the Proposed

Modernization) at any time without giving any reason therefore.

e. Each Bidder/Bidding Entity has responsibility for all costs, expenses and

liabilities incurred by it in connection with the proposed Modernization,

including (without limitation) in connection with the preparation and/or

submission of the bids.

f. Requesting and/or receiving the Bids will not constitute a commitment by the

GOS [State Name]to enter into any agreement, undertaking or covenant with a

Bidder/Bidding Entity.





78

pertinent to the proposed Modernization and to seek its own professional advice

on the legal, financial, regulatory and taxation consequences of entering into any

agreement or arrangement relating to the Proposed Modernization.

l. The RFP Documents include certain statements, estimates, projections, targets

and forecasts with respect to Terminal Market Project Complex. Such statements,

estimates, projections, targets and forecasts reflect various assumptions which

may or may not prove to be correct. No representation or warranty is given as to

the reasonableness of, and no reliance should be placed on, any statements,

estimates, projections, targets or forecasts or the assumptions on which they may

be based and nothing in the RFP Documents is, or should be relied on as, a

promise, representation or warranty.

m. The RFP Documents have been prepared by and are issued by GOS [State Name].

Information and references relating to Government of India (GoI), GOS [State

Name] and Terminal Market Project Complex are considered to be correct at the

time of issue of the RFP Documents but they have not been approved by said

authorities for inclusion in the relevant RFP Document in the form and context in

which they appear. The GOS [State Name]consequently makes no representation

as to the accuracy of such information and references and it cannot be inferred

from the RFP Documents or any part thereof that GoI, GOS [State Name],

Terminal Market Project Complex or YES BANK Limited as National Consultant

accepts responsibility for, or agrees with, them or any part of them.

n.

QUESTIONS FROM BIDDING ENTITIES

1. Questions will be entertained only from, and clarification provided only

to Bidders duly accredited and authorized officers of the Bidders.

Questions must be submitted in writing addressed to [Designation of

Officer] [Department], [Organization] [Address] [City],[State Name],[Pin

Code] and to no other person.

2. The Bidders shall consider only those replies and clarification issued

under the signatures of [Designation of Officer] [Department],

[Organization] or any other person duly authorized in writing by

[Designation of Officer] [Department], [Organization] and Bidders shall

not entertain any communication from other persons unless it is duly

initialed and forwarded by the said authorized persons.

3. The GOS reserves the right to defer answering any such questions or to

decline to answer any such questions which it considers inappropriate.



79

4. Copies of answers by the GOS and the questions to which they apply will

be provided to all bidders without disclosing the source of the questions.

o. In case the bidder mentions negative GOI equity requirement the GoS will reservea right to hold the equity contribution from the GoI through NHM/ any other GOIentity.

o. The Equity of GoI through NHM/ any other GOI entity shall be put in theTerminal Market Project within a time period of 1 year from the date of signingthe agreement between PE and GoS.

7. Disqualification

1. GOS, may in its sole discretion and at any time during the processing of RFP,disqualify any bidder from the RFP process if the bidder has –a. Submitted the RFP after the scheduled date and time.b. Non submission of the DPR/ Initial Master Development Planc. Made misleading or false representations in the forms, statements andd. Attachments submitted in proof of the eligibility requirements.e. If found to have a record of poor performance such as abandoning works, not

properly completing the Project, inordinately delaying completion, beinginvolved in litigation or financial failures, etc.

f. RFP which is not accompanied by required documentation and Earnestg. Money Deposit (EMD) will be treated as non-responsive.h. Failed to provide clarifications related thereto, when sought.i. Submitted more than one RFP. This will cause disqualification of all or

subsequent to first or last RFP submitted by such applicants.2. Applicants who are found to canvass, influence or attempt to influence the

qualification or selection process, in any manner that may be, by offering bribes

or other illegal gratification, shall be disqualified from the process at any stage.

3. A Bid not valid for at least 180 days shall be considered as non-responsive andwould be disqualified

8. Bid Submission

a. The bids should be submitted before 12.00 hours IST on [date],[month][year]at the address mentioned in Clause 2.17.1 in the manner and form detailed inthis RFP.

b. The Bids should be submitted in two separate sets. One comprising of theTechnical Bid and the other the Financial Bid. The Technical bid comprising

of the Initial Master Development Plan/DPR and a repeat set of thedocuments submitted in the RFQ should be in three copies. The Financial Bidshould be submitted in a sealed envelope separately.

c. The GOS, at its sole discretion, may extend the last date of Submissions of theBids, in terms of the provisions of Clause 6





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competitive bidding procedure undertaken by GOS for the purposes of theselection of the private participants in the PE

3. “Business Plan” means the plan for the Terminal Market Project Complexbusiness, updated each Year, which sets out how it is intended to construct,operate, manage and develop the Terminal Market Project Complex over a

planning horizon and will include financial projections for the planning period

4. “Clearance” means any consent, license, approval, permit, ruling, exemption, noobjection certificate or other authorization or permission of whatsoever nature which isrequired to be obtained from and/or granted by the GOI and the Government of the Stateof required from time to time in connection with the performance of obligationshereunder.

5. “Consortium Members” shall mean [names to be inserted].

6. “Debt” means the quantum of outstanding principal payable to Lenders as ofTransfer Date, in respect of financial assistance provided by the Lenders on an

arms-length basis by way of loans, guarantees, subscription to non-convertibledebentures and other debt instruments including loan agreements, guarantees,notes, debentures, bonds and other debt instruments, security agreements, andother documents relating to the financing (including refinancing) of capitalexpenditure for the development and up gradation of the Transfer Assetspursuant to the terms hereof. It is clarified that debt repayments (principal,interest, levies, charges, penal charges, penalties and/ or damages) payable priorto Transfer Date, on which the PE has defaulted shall not constitute Debt. It isclarified that any working capital facilities relating to Transfer Assets shall notconstitute Debt. It is further clarified that any financial assistance of any naturewhatsoever relating to Non-Transfer Assets shall not constitute Debt.

7. “Debt Due” shall mean to be the lesser of:a. 66.6 % of the Book Value of the Transfer Assets; orb. The ratio of the then prevalent Debt to Book Value of the Transfer Assets

of the PE expressed as a percentage, of the Book Value of the TransferAssets. As an Illustration, if the ratio of the then prevalent Debt to BookValue of the Transfer Assets is 60:40, then the Debt Due under (ii) aboveshall be 60% of the Book Value of the Transfer Assets.

8. “Development Standards and Requirements” mean the standards set forth inSchedule 4 hereof of the OMDA

9. “Effective Date” means the date on which the Conditions Precedent have been satisfied or

waived according to the terms hereof and shall be deemed to be the date of commencementof the OMDA.

10. “Entity” means any person, body corporate, trust, partnership firm or otherassociation of person/ individuals whether registered or not.





83

27. “Indian Entity” means any Entity incorporated/formed/resident (as the casemaybe) in India.

28. “Initial Development Plan” shall mean the development plan for thedevelopment of the Terminal Market Project Complex submitted by theBidder/Applicant or Successful Bidder to GOS during the internationalcompetitive bidding process for development of the Terminal Market ProjectComplex and annexed hereto as Schedule 13.

29. “Lease Deed” means the lease deed entered into between GOS and the JVC inrelation to lease of the TMC Site and the assets thereon, on or about the datehereof.

30. “Lenders” means the financing institutions, banks, and similar bodiesundertaking lending business or their trustees/ agents including their successorsand assignees, who have agreed to guarantee or provide finance to the PE underany of the Financing Documents for meeting costs of all or any part of the

development of the Market Assets and Essential assets as per the terms hereof.

31. “Mandatory Capital Projects” means the capital projects associated with the

Market Assets and Essential Assets

32. “Market Services” shall have the meaning assigned hereto in Schedule 1 hereof.

33. “Master Plan” means the master plan for the development of the Terminal Market

Project Complex, evolved and approved as described in the State Support

Agreement, which sets out the plans for the phased development of the fullTerminal Market Project Complex area, covering Market Services, Essential

Services and Non Market Services which is for a15

year time horizon and which

is updated and each such updation is subject to approval of the Nodal Office in the

manner described in the State Support Agreement.

34. “Material Adverse Effect” shall mean a material adverse effect on the business, condition(financial or otherwise), liabilities, assets, operations (or the results of operations) or prospects of the PE or the Project Complex.

35. “National Consultant” means the entity appointed by the national committee fordeveloping the framework for development of Terminal Market Project

Complexes for perishables in major urban centres of the country

15To be inserted



84

36. “National Horticulture Mission (NHM)” shall mean the mission launched under theCentral Sector Scheme of the Union ministry of agriculture to promote the holistic growth of the horticulture sector

37. “Nodal Office (NO)” shall have the meaning assigned thereto in 6.6 of OMDA

38. “Non Market Assets” shall mean all assets required or necessary for the performance of Non Market Services as located at the Terminal Market Project Complex (irrespective of whether they are owned by the PE or any third Entity); to the extent such assets (a) arelocated within or form part of any Terminal Market Project complex building; (b) areconjoined to any other Market Assets, asset included in para (i) above or Essential Assets,and such assets are incapable of independent access and independent existence); or (c) are predominantly servicing/ catering any Terminal Market Complex building and shallspecifically include all property and structures thereon acquired or leased during theTerm, in relation to such Non Market Assets.

39. “Non Market Services” shall have the meaning assigned hereto in Schedule 2 hereof.

40. “Objective Service Quality Requirements” mean the standards set forth inSchedule 5 of OMDA

41. “Operation, Management and Development Agreement” or “OMDA” means the

operation management and development agreement entered into, on or about the

date hereof, between GOS and the PE;

42. “Operations and Maintenance Standards and Requirements” shall mean the standardsset forth in Schedule 5 of OMDA

43. “Performance Bond” shall mean an unconditional and irrevocable bank guaranteeenforceable and encashable at 16 of a value and validity set forth in Clause 6.8 of OMDA.

44. “PE” or SPV shall refer to the Private Enterprise (individual or a consortium) that

is successful bidder and is awarded the Project to Design, Engineering,

Financing, Procurement, Construction, Operation and Maintenance of the

Terminal Market Complex by the GOS.

45. “Prime Member” shall mean [insert names of Prime Members17 ]

46. “Private Participants” shall have the same meaning ascribed to the term in theShareholders Agreement entered into, on or about the date hereof, between GOS andPrivate Participants;

47. “Product Standards” mean the standards set forth in Schedule 6 hereof.

16Relevant location based on State Specific Terminal Market Complex

17This would be a shareholder of PE (other than NHM) holding 10% or more shares in the PE

and whose qualifications have been evaluated for the purposes of evaluation of the PE during thecompetitive bidding process adopted by the GOS for the purposes of the selection of the privateparticipants in the PE.



85

48. “Project Agreements” shall mean the following agreements:

a. OMDA Agreement;b. The Lease /Sale Deed;c. Shareholders Agreement;d. Terminal Market Project Complex Operator Agreement if any; and

e. Project Agreement shall mean any one of them.

49. “Project” means the design, engineer, finance, procurement, construction,operation and maintenance of the TMC as provided for under the OMDA;

50. “Relevant Authority” includes the GOI, GOS, Union Ministry of Agriculture,state government, any local authority or any other authority empowered by theApplicable Laws.

51. “Revenue” means all pre-tax gross revenue of PE, excluding the following: (a)

payments made by PE, if any, for the activities undertaken by RelevantAuthorities; (b) Insurance proceeds except insurance indemnification for loss ofrevenue; (c) any amount that accrues to PE from sale of any capital assets oritems; (d) Payments and/or monies collected by PE for and on behalf of anygovernmental authorities under Applicable Law.

52. “Shareholders Agreement” means the shareholders agreement dated on the about the datehereof entered into between the shareholders of PE.

53. “State Assets” shall mean the land acquired and Sold/leased by GOS to the PE for establishment of TMC

54. “Substitution Agreement” shall mean the agreement to be entered into betweenshareholders of TMC, PE and the Lenders in the form set forth in Schedule 8 hereof.

55. “Terminal Market Project Complex (TMC)” shall mean assets both at the

collection centers and the central Terminal Market Complex for providing

essential services, market services and non-market services 18

56. “Terminal Market Project Complex Assets” shall mean those assets including all

land, property and structures thereon acquired or leased during the Term, which

are necessary or required for the performance of Market Services, Non Market

Services and Essential Services.

57. “Terminal Market Project Complex Business” shall mean the business of

constructing, operating and managing the Terminal Market Project Complex, and

providing all Market Services, Non Market Services and Essential Services.

18Insert, the location and name of the Terminal Market Complex



86

58. “Terminal Market Project Complex Services” shall mean the services constituting Market Services, Non Market Services and Essential Services rendered by the TMC tothe Users for the discharge of its various functions and obligations as stated in Clause 2.2of OMDA

59. “Terminal Market Project Complex Site” shall mean the demised premises as set forth in

the Lease Deed / Sale Deed

60. “Termination” means the termination of this Agreement hereunder. In the event

the Agreement does not get terminated, it shall expire at the Termination Date.

61. “Transfer Assets” shall mean to include Market Assets and Non- Market Assets.

62. “Transfer Date” shall mean the date on which PE transfers possession of the Terminal Market Project Complex to GOS or its nominee in accordance with the terms hereof,which shall be the date of termination as per the relevant notice of termination issued byPE or GOS, as the case may be of this Agreement.

63. “Third Party” shall mean any Entity not party to this Agreement.

64. “Trust and Retention Account (cess/tax)” shall mean the account established pursuantto/ under the TRA Agreement.

65. “Trust and Retention Agreement (TRA)” shall mean the agreement to be entered intobetween the GOS, PE and a bank in the form set forth in Schedule 9 hereof.

66. “User Charges” shall refer to Market charges/ service charges for Market services, Non

Market Services and Essential Services and shall have the meaning assigned thereto inClause 10 of OMDA.

67. “User(s)” shall mean to include all entities using the Terminal Market ProjectComplex Services

68. “Year” shall mean a period of 12 consecutive months ending on March 31 of any

year; provided however that the first Year shall mean the period commencing on

the Effective Date and ending on the immediately succeeding March 31.





88

1. The complete bids send by qualified applicants will be evaluated on the basis of

Minimum GOI equity (in Rs crores) and the corresponding equity percentage19

support from the GOI. The bidder with the minimum government equity support

in crores shall be awarded the Project. 20 In case of tie in GOI equity support in

crores, the bidder with the corresponding lower equity amount (in INR) shall beawarded the Project.

2 In Case of Tie among bidders on the criterion mentioned in pt no. 1, the bidder

who has prescribed the Maximum project outlay in the Initial Master

Development Plan/DPR will be awarded the Project.21

3 In case of Tie among bidders on criterions mentioned in pts 1 and 2 the applicant

with the maximum Experience Score (as mentioned in clause 3.2.6 and 3.2.7 of

RFQ) will be awarded the Project.

4 In case there is tie among bidders on criterions mentioned in Points 1,2,3 a Draw

of Lots will be done to select the candidate for awarding the Project.

19In case of negative equity given by the applicant the contribution made by GoI through NHM

will be kept with GoS on behalf of GoI20

Subject to fulfillment of other eligibility21

Subject to fulfillment of other eligibility



89

Annexure-V

MINIMUM INFRASTRUCTURE FACILITIES TO BE PROVIDED AT THE TMC

AND CC

Core Facilities

Automatic weighing Platforms

Auction Platforms

Loading, Unloading & Dispatch section

Cleaning, Sorting & Grading Facilities

Price Display Mechanism

Office rooms

Information Centers

Packaging & Labeling unit

Drying Yards

Storage/Cold rooms

Ripening Chambers

Public Address System

Service Infrastructure

Rest rooms

Parking facility

Sanitary Facilities

Support Infrastructure

Water Supply

Power

Drainage

Room for Posts & Telephones

Room for Banking facilities

Input Supply / Daily necessity outlets for

POL

Computerised Systems

Rain proofing



90

Annexure-VI

Operation, Management and Development Agreement

between

Government of the State of22

and

[ 23 ] Limited

for

[ 24] Terminal Market Complex25

22Name of concerned State to be inserted

23Name of the Company formed by PE to be inserted

24Location of Terminal Market Complex to be inserted

25To be vetted by a competent legal authority



91

CONTENTS

Chapter Description of the Chapter Page No

I DEFINITIONS AND INTERPRETATION 95

II GRANT FOR OPERATION, MANAGEMENT AND DEVELOPMENT

OF TMC

108

III CONDITIONS PRECEDENT 111

IV REPRESENTATIONS AND WARRANTIES 114

V ACCEPTANCE OF SITE 116

VI CONSTRUCTION , DEVELOPMENT, OPERATION AND

MANAGEMENT

119

VII SERVICE QUALITY REQUIREMENTS, DEVELOPMENT STANDARDSAND PRODUCT STANDARDS

128

VIII MONITORING AND INFORMATION 132

IX MARKET FEE 135

X USER CHARGES 137

XI FINANCING ARRANGEMENT AND SECURITY 138

XII STEP IN RIGHTS OF GOS 140

XIII DISPUTES 142

XIV FORCE MAJEURE 144

XV DEFAULT 146

XVI TERM, EXPIRY AND TRANSFER 151

XVII TRANSFER PROVISIONS 153

XVIII GENERAL 157

Schedules

I MARKET SERVICES 166

II NON MARKET SERVICES 169

III ESSENTIAL SERVICES 170

IV DEVELOPMENT STANDARDS AND REQUIREMENTS 171

V OPERATIONS AND MAINTENANCE STANDARDS AND

REQUIREMENTS

174

VI PRODUCT STANDARDS 177

VII MANDATORY CAPITAL PROJECTS 178

VIII FORM OF SUBSTITUTION AGREEMENT 179

IX TRA AGREEMENT 180

X INITIAL DEVELOPMENT PLAN 198



92

XI FORM OF BID BOND GUARANTEE 199

XII FORM OF PERFORMANCE GUARANTEE 202

XIII DUTIES OF INDEPENDENT CONSULTANT 207

XIV GOVERNMENT EQUITY HOLDING FEATURES OF THE PE 208

XV RIGHTS AND OBLIGATIONS OF NODAL OFFICER 209

XVI RIGHTS AND OBLIGATIONS OF THE PE 210



93

OPERATION, MANAGEMENT AND DEVELOPMENT AGREEMENT

This Operation, Management and Development Agreement (the “OMDA”) made on this __day of __, ___

BY AND BETWEEN

1. The Government of the State of22 , (hereinafter referred to as the “GOS”,which expression shall, unless repugnant to the context or meaning thereof,include its successors and assigns) of the FIRST PART; and

2. [ ], a company incorporated under the Companies Act, 1956 having itsregistered office at [ ] (hereinafter referred to as the “PE”, which expressionshall, unless repugnant to the context or meaning thereof, include its successorsand permitted assigns) of the SECOND PART.

GOS and PE are hereinafter collectively referred to as “Parties” and individually as

“Party”.

WHEREAS

(A) GOS is an authority which is responsible for the development Terminal MarketComplexes on a public-private-partnership (PPP) basis through a BOO model fordesigning , engineering, financing, procuring, constructing, operationalizing andmaintaining of the Terminal Market Complex in the State.

(B) PE is a company established inter-alia with the objectives of designing, constructing,developing, financing, managing, operating, maintaining, the Terminal MarketComplex (as defined herein)

(C) PE has been selected, and hereby agrees to operate, maintain, develop, design,construct, finance and manage the Terminal Market Complex on and subject to theterms and conditions contained herein.

(D) GOS had accordingly invited Proposals for shortlisting of bidders for the aforesaidunder its Notice inviting Proposals No……….. dated ……. (“the Tender Notice”),inter alia, for the design, engineering, financing, procurement, construction, operationand maintenance of the Terminal Market Complex on a Build Operate Own basissubject to and on the terms and conditions contained in the Tender Notice and hadpursuant thereto shortlisted certain bidders including, inter alia, the consortiumcomprising ………….., ……………….. and ……………….. (collectively the

“Consortium”) with ……………. as its Leader.

(E) GOS had, pursuant to the Tender Notice, laid down and prescribed the technical andcommercial terms and conditions and had invited Bids from the bidders shortlistedpursuant to the Tender Notice for undertaking, inter alia, the work referred to inRecital ‘A’ above on Build Operate Own basis through an RFP

(F) After evaluation of the Bids so received GOS accepted the Bid of the individualapplicant or a Consortium and issued its Letter of Acceptance No………….. dated





95

CHAPTER IDEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, the following words and expressions shall, unless

repugnant to the context or meaning thereof, have the meaning hereinafterrespectively assigned to them:

1. “Agreement” or “this Agreement” shall mean the OMDA

2. “Amendment to the APMC Act” shall mean the Amendment to theexisting provisio of the state APMC Act

3. “APMC Act” shall mean the The ____ State Agricultural ProduceMarketing (Development and Regulation) Act,27 passed by the State of

4. “Applicable Law” means all laws, brought into force and effect by GOI,

GOS and the local laws of the land including rules, regulations andnotifications made thereunder and judgements, decrees, injunctions, writsand orders of any court of record, as may be in force and effect during thesubsistence of this Agreement

5. “Bid Bond” shall mean the bank guarantee of Rs. 28 from a reputed

Scheduled Commercial Bank in India submitted by the bidders to the GOSduring the competitive bidding procedure undertaken by GOS for thepurposes of the selection of the private participants in the PE

6. “BOO” shall mean Build , Operate and Own

7. “Book Value” shall mean the written down value in the books of the PE ofa specific asset or class of asset in accordance with generally accepted

Indian accounting principles using depreciation rates as set forth in theIndian Companies Act, 1956

8. “Chartered Accountancy Firm” shall mean a firm (either of Indian orforeign origin) which is permitted by the Institute of CharteredAccountants of India (ICAI) to practice its services in India

9. “Change in Law” means the occurrence of any of the following (other thanin respect of any tax laws or any environmental laws) after the date ofsubmission of a binding offer or bid for the TMC by the privateparticipants during the international competitive bidding process initiated

27As per the State wherein the Terminal Complex is located

28To be provided



96

by the GOS for the purposes of selection of the Private Participants (the“Bid Date”):

a. the modification, amendment, variation, alteration or repeal of any existingIndian law or the enactment of any new Indian law, by the Indian Parliament;

b. the commencement of any Indian law enacted by the Indian Parliamentwhich has not yet come into effect except to the extent where suchIndian law was enacted prior to the Bid Date with a commencementdate after the date hereof and such Indian law takes effect on thatcommencement date without any material amendment or a change in

the interpretation, application or enforcement of any Indian law by theSupreme Court of India or GOS;

c. after the date of grant of any Clearance a change in the terms andconditions attaching to such Clearance or the attachment of any newterms or conditions or such Clearance ceasing in part or in whole toremain in full force and effect otherwise than on account of any action

or inaction of the PE;Provided however that the creation or introduction of a Regulatory

Authority (including the framing of rules and regulations in relation

thereto or there under) having jurisdiction over the TMC shall not

constitute a Change in Law.

Provided further an event, the adverse effect of which can be insured

against, shall not constitute Change in Law.

10. “Clearance” means any consent, licence, approval, permit, ruling,exemption, no objection certificate or other authorisation or permission of

whatsoever nature which is required to be obtained from and/or grantedby the GOI and the GOS of required from time to time in connectionwith the performance of obligations hereunder other than the DeemedClearance

11. “COD” means the commercial operations date of the Market Assets and

Essential Assets as per the Independent Consultant

12. “Company” means the special purpose vehicle formed by the PE for

executing the Project.



97

13. “Conditions Precedent” shall mean collectively the GOS ConditionsPrecedent, the PE Conditions Precedent and the Common ConditionsPrecedent.

14. “Consortium Members” shall mean [names to be inserted].

15. “Debt” means the quantum of outstanding principal payable to Lenders asof Transfer Date, in respect of financial assistance provided by the Lenderson an arms-length basis by way of loans, guarantees, subscription to non-convertible debentures and other debt instruments including loanagreements, guarantees, notes, debentures, bonds and other debtinstruments, security agreements, and other documents relating to thefinancing (including refinancing) of capital expenditure for thedevelopment and upgradation of the Transfer Assets pursuant to theterms hereof. It is clarified that debt repayments (principal, interest, levies,charges, penal charges, penalties and/ or damages) payable prior toTransfer Date, on which the PE has defaulted shall not constitute Debt. Itis clarified that any working capital facilities relating to Transfer Assetsshall not constitute Debt. It is further clarified that any financial assistanceof any nature whatsoever relating to Non-Market Assets shall notconstitute Debt.

16. “Debt Due” shall mean to be the lesser of:

a. 66.6 % of the Book Value of the Transfer Assets; orb. The ratio of the then prevalent Debt to Book Value of the Transfer

Assets of the PE expressed as a percentage, of the Book Value of theTransfer Assets. As an Illustration, if the ratio of the then prevalent

Debt to Book Value of the Transfer Assets is 60:40, then the DebtDue under (ii) above shall be 60% of the Book Value of the TransferAssets.

17. “Deemed Clearances” means authorization/ permission to operate theTerminal Market Complex through a single license in the state, source

Agriculture Produce directly from farmers and sell directly the produce tothe end users.

18. “Development Standards and Requirements” mean the standards set forthin Schedule 4 hereof.







100

41. “Lease Deed” means the lease deed entered into between GOS and theSPV in relation to lease of the TMC Site and the assets thereon, on or aboutthe date hereof.

42. “Lenders” means the financing institutions, banks, and similar bodies

undertaking lending business or their trustees/ agents including theirsuccessors and assignees, who have agreed to guarantee or providefinance to the PE under any of the Financing Documents for meeting costsof all or any part of the development of the Market Assets and Essentialassets as per the terms hereof.

43. “Mandatory Capital Projects” means the capital projects associated withthe Market Assets and Essential Assets





102

up to end of such economic life) expected to be generated by the said assetfrom the valuation date for the economic life or life of such asset asintended under the current Master Plan whichever is lower, assuming noresidual value of the asset at the end of such economic life or life intendedunder the Master Plan.

54. “Nodal Officer (NO)” shall have the meaning assigned thereto in Clause6.6 hereof.

55. “Non Market Assets” shall mean all assets required or necessary for theperformance of Non Market Services as located at the Terminal MarketComplex (irrespective of whether they are owned by the PE or any thirdEntity); to the extent such assets (a) are located within or form part of anyterminal market complex building; (b) are conjoined to any other MarketAssets, asset included in para (i) above or Essential Assets, and such assetsare incapable of independent access and independent existence); or (c) are

predominantly servicing/ catering any terminal market complex buildingand shall specifically include all property and structures thereon acquiredor leased during the Term, in relation to such Non Market Assets.

56. “Non Market Services” shall have the meaning assigned hereto inSchedule 2 hereof.

57. “ Non Market Charges” shall be the charges levied at the Terminal MarketComplex by the PE for Non Market Services

58. “Perishable Agricultural Produce” means all produce and commodities

that of nature, and are likely to be subjected to natural decay, spoilage ordestruction, whether processed or unprocessed, of agriculture,

horticulture, apiculture, livestock, forest produce and or as declared by the

government by notification from time to time

59. “Objective Service Quality Requirements” mean the standards set forth in

Schedule 5 hereof.

60. “Operation, Management and Development Agreement” or “OMDA”

means the operation management and development agreement entered

into, on or about the date hereof, between GOS and the PE;





104

70. “Relevant Authority” includes the GOI, GOS, Union Ministry ofAgriculture, state government, any local authority or any other authorityempowered by the Applicable Laws.

71. “Representative” shall mean the authorized representative of GOS,

nominated by GOS, from time to time;

72. “Revenue” means all pre-tax gross revenue of PE, excluding the following:(a) payments made by PE, if any, for the activities undertaken by Relevant

Authorities; (b) Insurance proceeds except insurance indemnification forloss of revenue; (c) any amount that accrues to PE from sale of any capitalassets or items; (d) Payments and/or monies collected by PE for and onbehalf of any governmental authorities under Applicable Law.

73. “Sale/ Lease Deed” means the sale/ lease deed entered into between theapplicant and [Party Name] in relation to lease of the Terminal

Market Complex Site and the assets thereon, on or about the date hereof.

74. “Shareholders Agreement” means the shareholders agreement dated on

the about the date hereof entered into between the shareholders of PE.

75. “State Assets” shall mean the land acquired and Sold/leased by GOS tothe PE for establishment of TMC

76. “Substitution Agreement” shall mean the agreement to be entered intobetween shareholders of TMC, PE and the Lenders in the form set forth inSchedule 8 hereof.

77. “Surplus Account” shall have the meaning assigned thereto in the TRAAgreement.

78. “Terminal Market Complex (TMC)” shall mean assets both at the

collection centers and the central terminal market for providing Essential

Services, Market Services and Non-Market Services 33

79. “Terminal Market Complex Assets” shall mean those assets including all

land, property and structures thereon acquired or leased during the Term,

which are necessary or required for the performance of Market Services,Non Market Services and Essential Services.




105

80. “Terminal Market Complex Business” shall mean the business of

constructing, operating and managing the Terminal Market Complex, and

providing all Market Services, Non Market Services and Essential Services.

81. “Terminal Market Complex Services” shall mean the services constituting

Market Services, Non Market Services and Essential Services rendered bythe TMC to the Users for the discharge of its various functions andobligations as stated in Clause 2.2

82. “Terminal Market Complex Site” shall mean the demised premises as setforth in the Lease Deed / Sale Deed

83. “Termination” means the expiry or termination of this Agreement

hereunder. Unless terminated , the Agreement shall expire on the

Termination Date

84. “Termination Date” means the date on which this Agreement hereunder

expires pursuant to the provisions of this Agreement or is terminated by a

Termination Notice.

85. “Termination Notice” means the communication issued in accordance

with this Agreement by any one Party to the other Party terminating this

Agreement.

86. “Transfer Assets” shall mean to include Market Assets and EssentialAssets.

87. “Transfer Date” shall mean the date on which PE transfers possession ofthe Terminal Market Complex to GOS or its nominee in accordance with

the terms hereof, which shall be the date of termination as per the relevantnotice of termination issued by PE or GOS, as the case may be of this

Agreement.

88. “Third Party” shall mean any Entity not party to this Agreement.



106

89. “Trust and Retention Account (cess/tax)” shall mean the accountestablished pursuant to/ under the TRA Agreement.

90. “Trust and Retention Agreement (TRA)” shall mean the agreement to beentered into between the GOS, PE and a bank in the form set forth inSchedule 9 hereof.

91. “User Charges” shall refer to service charges for Market services, NonMarket Services and Essential Services and shall have the meaning

assigned thereto in Clause 10.

92. “User(s)” shall mean to include all entities using the Terminal MarketComplex Services

93. “Year” shall mean a period of 12 consecutive months ending on March 31

of any year; provided however that the first Year shall mean the period

commencing on the Effective Date and ending on the immediatelysucceeding March 31.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

A reference to the singular shall include a reference to the plural and vice-versa;and a reference to any gender shall include a reference to the other

gender.

A reference to any Article, Clause, Appendix, Schedule, Attachment or Annexshall be to an Article, Clause, Appendix, Schedule, Attachment or Annexof this Agreement.

The Appendices, Schedules, Attachments and Annexes form an integral part ofthis Agreement. In the event of any conflict between any provision of theClauses and any provision of the Appendices, Schedules, Attachments orAnnexes, the provision of the Clauses shall prevail.

Reference to any law or regulation having the force of law includes a reference to

that law or regulation as from time to time amended, modified,supplemented extended or re-enacted.

Any reference to time shall, except where the context otherwise requires, beconstrued as a reference to the time in India. Any reference to thecalendar shall be construed as reference to the Gregorian calendar.





108

CHAPTER II

GRANT FOR OPERATION, MANAGEMENT AND DEVELOPMENT OF TMC

2.1 Grant

2.1.1 GOS hereby grants to the PE, to the full extent that it lies within the powerof GOS so to grant, the right and authority during the Term34 to operate, maintain,develop, design, construct, upgrade, modernize, finance and manage the TerminalMarket Complex and to perform services and activities constituting Market Services,Non Market Services and Essential Services at the Terminal Market Complex and the

PE hereby agrees to operate, maintain, develop, design, construct, finance andmanage and at all times keep in good repair and operating condition the TerminalMarket Complex and to perform services and activities constituting Market Services,Non Market Services and Essential Services at the Terminal Market Complex, inaccordance with the terms and conditions of this Agreement (the “Grant”).35

2.1.2 Without prejudice to the aforesaid, GOS recognizes the right of the PE during theTerm, in accordance with the terms and conditions of this Agreement, to:

(i) Design, engineer, finance, procure, construct, operate , maintain, and toregulate the use by third parties of the Terminal Market Complex;

(ii) Enjoy complete and uninterrupted possession and control of the TerminalMarket Complex Site and the Existing Assets for the purpose of providingMarket Services, Non Market Services and Essential Services

(iii) Determine, demand, collect, retain and appropriate charges from theUsers of the Terminal Market Complex in accordance with Clause 12hereto.

(iv) Operate the Teminal Market Complex through a single license all over the

state, source Agriculture Produce directly from farmers and sell directly

the produce to the end users.

2.2 Purpose of the PE

2.2.1 Market Services, Non Market Services and Essential Services

Subject to the foregoing and to Applicable Law, PE shall undertake/provideMarket Services and Essential Services at the Terminal Market Complex Site as

described in Schedule 1 and 2. PE may undertake/provide Non Market Servicesat the Terminal Market Complex Site, provided however the same should have

34 the term of the agreement shall continue in full force and effect from its

commencement from the Effective Date until the 10 th anniversary of the Effective Date(unless terminated within this period) 35

The provision of the Grant and the execution of the Agreement by GOS provides PE

the Deemed Clearances..



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been a part of the Master Plan. PE and NO shall upon mutual agreement betweenthe Parties update list of Non Market Services to include such other activities, asrequested by PE. The Non Market Services are described in Schedule 3.

2.2.2 Notwithstanding anything contained in this Agreement, the PE shall notundertake any activities at the Terminal Market Complex Site other than Market

Services, Non Market Services and Essential Services.

2.2.2.1 Clearances

2.2.2.1.1 The execution of the Agreement provides for Deemed Clearances to PE for

operating the Terminal Market Complex Business. The Parties hereby

expressly acknowledge and agree that it shall be the sole responsibility and

obligation of the PE to obtain and, at all times, continue to maintain all other

Clearances which are required by Applicable Law for undertaking and

implementing the Project as set forth in detail in the OMDA. Towards thisend, GOS shall, upon application by the PE in full compliance and sustenance

with Applicable Law (and provided under Applicable Law the PE is entitled to

receive such Clearance), to grant such Clearances as are required for or in

connection with the Project, within the relevant statutory period (if any), and

where no statutory period is prescribed, GOS shall facilitate and ensure

securing such Clearances as are required for or in connection with the Project

within forty five (45) days after the relevant application duly completed and in

full compliance with Applicable Laws has been submitted

2.2.2.1.2. The PE hereby undertakes that in order to expedite the grant ofClearances excluding Deemed Clearances, it will, in a diligent and

timely manner, (i) prepare and file applications, which are in full

compliance with the Applicable Law, with the concerned authorities;

(ii) follow-up the aforesaid applications with the concerned authorities;

and (iii) respond in a timely manner to all requests for further

information and clarifications.

.

2.3 Other Material Investments

Without prejudice to the generality of Clause 2.2, the PE shall not during theTerm, without the consent of the GOS hold any shares, ownership participationor any other ownership interest in any undertaking other than the TerminalMarket Complex.



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2.4 Employees / Agents

The PE shall not require, permit or suffer any of its employees, PE, sub-PE36,partner, business associate, licensee, sub-licensee, sub-lessee or agent to carry onany activity or business at, or in relation to, the Terminal Market Complex or theTerminal Market Complex Site, which the PE is prohibited from engaging in or

conducting under this Agreement.

2.5 PE Ownership StructureThe PE Ownership Structure will be as per the Shareholders Agreement (to be

structured) as defined in this Agreement.Central Govt Equity will have certain features as given in Schedule 14 thereof.GOS, as its discretion, can have Equity in the PE as per features given in Schedule

14 thereof.

2.6 Right of First Refusal

2.6.1 The “Right of First Refusal (ROFR)” with regard to the second TMC inthe vicinity (as per the extant policy with regard to second TMC) will begiven to the PE by following a competitive bidding process, in which thePE can also participate, provided that the PE has performed satisfactorilyfor 2 years of operation after construction. In the event, the PE is not thesuccessful bidder, the PE will have the ROFR by matching the first rankedbid in terms of the selection criteria for the second TMC , provided theexisting PE has satisfactory performance without any material defaultunder the terms of the OMDA at the time of exercising the ROFR .

2.6.2 Notwithstanding anything contained herein, the rights granted to the PEunder this Clause 3.7.1 (in particular, the Right of First Refusal granted to

the PE) shall apply only if each of the Persons identified as Prime Members(alongwith the Evaluated Entities, if any, as defined in the OMDA) on thedate hereof individually continues to hold at least 10% of the issued andpaid up share capital of the PE and the Prime Members collectively hold atleast 26% of the issued and paid up share capital of the PE on the date thatsuch Right of First Refusal is sought to be exercised.

36 a sub-PE is any subsidiary of the PE



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CHAPTER III

CONDITIONS PRECEDENT

Conditions Precedent

3.1 Conditions Precedent to be satisfied by the GOS

The obligations of the PE hereunder are subject to the satisfaction by the GOS ofthe following conditions precedent (“GOS Conditions Precedent”) unless anysuch condition has been waived by the PE as hereinafter provided:

(i) GOS shall have executed and delivered to the PE a counterpart of theShareholders Agreement.

(ii) GOS shall have executed and delivered to the PE a counterpart of the

TRA Agreement.

(iii) GOS shall have executed and delivered the necessary documentsauthorizing/ permitting the operation of the Terminal Market Complexthrough a single license in the state, sourcing of Agriculture Producedirectly from farmers and selling the produce directly to the end users.

(iv) GOS shall designate a Nodal Officer and set-up a Nodal Office, as perClause 6.6

(v) GOS shall exempt the PE from the payment of Market Fee 37

(vi) The GOS shall authorise the PE to grant, renew and cancel license(s) toUsers38 on behalf of the GOS as prescribed by the GOS

(vii) The GOS shall authorise the PE to carry out functions, whether on its ownaccord or on behalf of the GOS, as prescribed in the OMDA and partthereof

(viii) GOS Equity Support

The GOS agrees to contribute ____ % equity of the project through direct

funding or land/infrastructure support in the case where land has not

been provided free of cost.

37(wherever it is agreed; however such waiver can attract good private enterprise for the terminal

market)

38 Refers to third party to whom the PE will outsource/contract activities related to TMC



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3.2 Conditions Precedent to be satisfied by PE

The obligations of the GOS hereunder are subject to the satisfaction by PE of thefollowing conditions precedent (“PE Conditions Precedent”) unless any suchcondition has been waived by the GOS as hereinafter provided:

(i) The PE shall deliver to the GOS the original copy of the PerformanceBond (in accordance with Clause 6.8).

(ii) The PE shall have executed and delivered to the GOS a counter part of theLease Deed/ Sale Deed

(iii) The PE shall have executed and delivered to the GOS a counterpart of theTRA Agreement.

(iv) The Successful Bidder, GOS and GOI shall have executed theShareholders Agreement and undertaken initial capitalisation of the PE

(v) Submission of the Master Plan to the Nodal Officer within four (4) monthsof the Agreement Date

3.3 The obligations of the Parties are subject to the satisfaction of the following

conditions precedent (“Common Conditions Precedent”):

3.3.1 The conditions for the draw down of the Equity have been fulfilled/ satisfied andthe PE has access to the project Equity

3.3.2 All Clearances (then requisite) for construction, operation and management ofthe Terminal Market Complex by PE on the identified project site should havebeen provided by the concerned authorities.

3.4 The PE and GOS shall take reasonable steps to ensure expeditious fulfillment ofthe PE’s Condition Precedent and the GOS Conditions Precedent respectivelyand jointly for expeditious fulfillment of the Common Conditions Precedent.



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3.5 Non-fulfillment of Conditions Precedent

In the event that any of the conditions set forth in Clauses 3.1, 3.2 or 3.3 have notbeen fulfilled within 6 months from the date of this Agreement, or such later dateas may be mutually agreed by the Parties, the PE (in case of non-fulfilment of anyof the GOS Conditions Precedent), the GOS (in case of non-fulfilment of any of

the PE Conditions Precedent) and both Parties (in case of non-fulfilment ofCommon Conditions Precedent) may terminate this Agreement.

Provided however that in the event this Agreement is terminated by GOS fornon-fulfilment of the PE Conditions Precedent, the GOS shall be entitled toencash the Bid Bond/ Performance Bond (as the case may be).

Provided further that upon any such termination, each Party shall return to theother Party, any monies (other than the termination payments mentioned above)received from such Party prior to such termination.



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CHAPTER IVREPRESENTATIONS AND WARRANTIES

4.1 Representations and Warranties by PE

The PE hereby represents and warrants to the GOS that on the date hereof:

(a) the PE is a private limited company by shares incorporated under thelaws of India and has been properly constituted and is in continuousexistence since incorporation;

(b) the PE has the corporate power and authority and has taken all corporateactions necessary to execute and deliver validly and to exercise its rightsand perform its obligations validly under this Agreement;

(c) the obligations of the PE under this Agreement will be legally valid,binding and enforceable obligations against the PE in accordance with theterms hereof;

(d) no proceedings against the PE are pending or threatened, and no fact orcircumstance exists which may give rise to such proceedings that wouldadversely affect the performance of its obligations under this Agreement;

(e) the PE is a special purpose company incorporated only for the purpose ofoperating and managing the Terminal Market Complex;

(f) the shareholding pattern of the PE is as follows:

[to be inserted]

(g) no sums in cash or kind, have been paid to, or accepted by any person or

will be paid to, or accepted by, any person or on its behalf by way of fees,commission or otherwise to induce GOS to enter into this Agreement, orto keep this Agreement in continuance, except as provided for in thisAgreement.

4.2 Representations and Warranties by GOS

GOS hereby represents and warrants to the PE that on the date hereof:

(a) the GOS has the right, power and authority and has taken all actionsnecessary to execute this Agreement, exercise its rights and perform itsobligations, under this Agreement;

(b) the obligations of GOS under this Agreement will be legally valid,binding and enforceable obligations against GOS in accordance with theterms hereof.



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4.3 Disclosure

In the event at any time after the date hereof, any event or circumstance comes tothe attention of either Party that renders any of its abovementionedrepresentations or warranties untrue or incorrect, then such Party shallimmediately notify the other Party of the same. Such notification shall not have

the effect of remedying any breach of the representation or warranty that hasbeen found to be untrue or incorrect or adversely affect or release any obligationof either Party under this Agreement.



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CHAPTER V39

ACCEPTANCE OF SITE

5.1 Acceptance of Site

5.1.1 For the purposes of this Agreement, the PE shall be deemed to have:-40

(a) inspected the State Assets(b) satisfied itself as to the nature of the climatic, hydrological and general

physical conditions of the State Assets, the nature of the ground andsubsoil, the form and nature of the State Assets,

(c) satisfied itself as to the means of communication with, access to andaccommodation on the State Assets it may require or as may be otherwisenecessary for the performance of its obligations under this Agreement;

(d) obtained for itself all necessary information as to the risks, contingenciesand all other circumstances which may influence or affect the PE and itsrights and obligations hereunder and its other rights and obligations

under or pursuant to this Agreement.

5.1.1.1 GOS Support and Authorisation to PE

In consideration for the PE entering into the OMDA and the covenants and

obligations set out therein, GOS hereby undertakes to provide to the PE the

following support (“GOS Support”):

5.1.1.2 Land for TMC Development

So long as the PE is not in breach of its obligations under OMDA, GOS agrees toprovide41 the land required for construction of the TMC (the Site) for peaceful useof land and operations at the Site by the PE under and in accordance with theprovisions of the OMDA without any let or hindrance from GOS or personsclaiming through or under it. The land shall be brought in as Equity contributionof GOS where land is not provided free of cost.

5.1.1.3 ClearancesGOS, agrees to facilitate grant of Clearances which are required by ApplicableLaw for or in connection with the Project, within the relevant statutory period (ifany), and where no statutory period is prescribed, GOS shall use all reasonableefforts to grant such Clearances, as are required for or in connection with theProject within forty five (45) days after the relevant application duly completedand in full compliance with Applicable Laws has been submitted by PE.

40Applicable in case GOS provides land/ state assets for the project

41The land would be provided at a token price of Re. xxx by the GOS. In the event land is directly

procured by the PE, GOS shall facilitate smooth transfer of land to PE.



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5.1.1.4 Statutory Fee

The GOS hereby authorizes the PE to collect the Market Fee 42on behalf of GOSTowards this, the PE should use services of any scheduled commercial bankincluding special agri banking services offered by the National Consultant to theproject.

The GOS hereby authorisez the PE to collect applicable User Charges to becollected from the buyers that are based on commercial considerations.

5.1.2 PE acknowledges that prior to the execution of this Agreement, it has, after acomplete and careful examination, made an independent evaluation of the StateAssets as a whole and each of its facilities, buildings, assets, machinery,equipment, personnel and know-how and has determined the nature and extentof the difficulties, upgradations, inputs, costs, time, resources, risks and hazardsthat are likely to arise or may be faced by it in the course of the performance of itsobligations under this Agreement and the extent and manner of modernisation

required.

5.1.3 PE acknowledges and hereby accepts the difficulties, upgradations, inputs, costs,time, resources, risks and hazards associated with the performance of itsobligations hereunder and hereby agrees that GOS shall not be liable for the samein any manner whatsoever to PE, other than as expressly provided in thisAgreement.

5.1.4 The PE shall not be entitled to make any claim against the GOS or anyGovernment Authority whether for rescission, in damages or otherwise on thegrounds of any misunderstanding or misapprehension in respect of incorrect orinsufficient information given to it by any Entity, whether or not in the

employment of the GOS or any Government Authority, nor, unless expresslyprovided otherwise in this Agreement, shall the PE be relieved from anyobligations or risks imposed on or undertaken by it in relation to the works orotherwise on any such ground or on the ground that it did not or could notforesee any matter which may, in fact, affect or have affected the performance ofits obligations hereunder.

5.1.5 It is clarified that all fossils, antiquities, structures and/or other remains or thingseither of archaeological or of particular geological interest discovered at the StateAssets or in the course of carrying out any work shall not be the property of thePE and PE shall have no right or interest in such fossils, antiquities andstructures.

5.2 Deemed Knowledge and Disclaimer

Subject to the provisions of this Agreement, the PE shall be fully and exclusivelyresponsible for, and shall bear the financial, technical, commercial, legal andother risks in relation to the design, financing, modernization, construction,completion, commissioning, maintenance, operation, management and

42In the event it is not exempted







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for which it is required as stated in or as may be reasonably inferred fromthe Master Plan and the Major Development Plan.

(v) Neither the submission of any drawing or document under or pursuant toany provision of this Agreement or otherwise, nor its approval ordisapproval, nor the raising of queries on, or the making of objections to

or the making of comments, suggestions or recommendations on the sameby the GOS shall prejudice or affect any of the PE’s obligations orliabilities in relation to design and construction, which shall not berelieved, absolved or otherwise modified in any respect.

6.2 Mandatory Capital Projects

6.2.1 The PE shall, latest within 2 years of the Effective Date, complete the MandatoryCapital Projects set out under Schedule 7 at the times set forth therein and inaccordance with the terms and conditions set forth therein. The PE shall beproviding quarterly updates on the progress to the NO and the IC. The IC shallbe responsible for monitoring the progress of aforesaid on its timeliness and

quality.

6.2.2 In the event that the PE delays in commencement of construction of a MandatoryCapital Project at the time set forth in Schedule 7 and no explanation for delay isprovided by the PE to IC that is satisfactory to IC(at its sole discretion), NO onthe recommendation of IC shall have the right to levy liquidated damages on thePE equivalent to 0.5 percent of the estimated capital cost of the such MandatoryCapital Project for each month (or part thereof) of delay in commencement ofconstruction of such Mandatory Capital Project.

6.2.3 NO, on the recommendation of the IC, shall further have the right to levyliquidated damages on PE at the same rate in the event the time period for the

completion of any Mandatory Capital Project exceeds the time period forcompletion of such Mandatory Capital Project as set out in Schedule 7, subject tothe delay not being on account of delay in commencement, in respect of whichliquidated damages have been paid by PE to the GOS.

Provided however that the total liability of the PE under this Clause 6.2 for delayin respect of a particular Mandatory Capital Project shall not exceed 10percentError! Bookmark not defined. of the capital cost of the relevant Mandatory CapitalProject.

NO, on the recommendation of the IC, shall further have the right to levyliquidated damages on PE at the rate of 0.5% of the estimated capital cost in the

event the capital cost of any Mandatory Capital Project is lower than theMandatory Capital Projects capital cost.

Provided however that the total liability of the PE under this Clause 6.2 for delayor lower capital cost incurred in respect of a particular Mandatory Capital Projectshall not exceed 10 % of the capital cost of the relevant Mandatory CapitalProject.



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6.3 Master Plan

(a) Master Plan Approval

The PE hereby undertakes to prepare and submit the Master Plan (incl Major

Development Plans) to the Nodal Officer within four months from the EffectiveDate and thereafter update and resubmit the same for approval periodically,

every _____ years. Provided however that the Master Plan shall be updated atshorter intervals, if the PE finds that the volumes of produce growth is such as torequire more frequent updates, or at such intervals as may be notified by theNodal Officer the event the TMC reaches initial capacity restraints.

(b) The GOS, through the NO, shall assess and communicate to the PE, adecision on the Master Plan no later than thirty (30) days of receipt of the same.In the event approval is not given, the GOS shall specify its concerns along with

reasons and provide the PE with a further fifteen (15) day period to address theconcerns and incorporate any suggestions into the Master Plan. This process ofincorporation of changes and addressing of concerns shall be repeated for amaximum period of three (3) months from the date that the Master Plan was firstsubmitted to the GOS for its approval. After the expiry of the abovementionedthree (3) month period, if the Master Plan is still not approved, then the MasterPlan, as amended by the incorporation of all of GOS’s suggestions/ comments. Itis clarified that the GOS shall be entitled to seek clarifications on the Master Plan,only in the following circumstances

o Produce volume concerns

o Development does not meet the produce volume forecasts

o Development does not meet the development standards

o The Master Plan is not consistent with the Initial Development Plan andthere are no satisfactory reasons to explain the variance

o Non consistent with the ultimate vision for TMC

o Non consistent with the provisions of OMDA

o Any circumstances or factors, analogous to the foregoing circumstances

(c)

6.3.1 The PE shall prepare a Master Plan for the Terminal Market Complex setting outthe proposed development for the entire Terminal Market Complex, plannedover a 15 year time horizon. The Master Plan shall include volume forecasts forthis period and link all planned major development to these forecasts. The MasterPlan shall be prepared in accordance with and to include the following:



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1. A statement of the overall development strategy and philosophy;2. The Development Planning Principles set forth in Schedule 4 hereof.3. Details of planned developments separately for each section of TMC,4. Details of volume forecasts and provide the volume trigger points for all

developments which are linked to volume growth, indicating at what volume

level the project will be commenced and finished; to be divided betweendomestic and export volumes

5. Vision of how the Terminal Market Complex and each of its precincts will look at

the end of 15 years and at critical intermediate stages and the socio-economic impact on the key stakeholders at the end of the period when itreaches full capacity;

6. Report on the outcome of consultations with Users, community, businesses andthe government

7. such other matters that may be specified by the GOI .

6.3.2 The first Master Plan for the Terminal Market Complex must be consistent withthe Initial Development Plan and must incorporate the Mandatory Capital

Projects alongwith the Mandatory Capital Projects capital cost. Any significantdeviations from the Initial Development Plan must be fully explained. TheMaster Plan shall be made pursuant to full consultation with all majorstakeholders.

6.3.3 The Master Plan must demonstrate that it is consistent with the quality andservice performance standards as set out in this Agreement. The Master Planmust further demonstrate that the Terminal Market Complex development shalltake place such that the Terminal Market Complex Site is developed for thepurposes of development and enhancement of Transfer Assets and that theTerminal Market Complex Site is not exploited for purely Non Market Assets.The Master Plan shall at all times envisage and ensure availability of land andspace for development and enhancement of Transfer Assets. Utilisation of landand space for Non Market Assets shall at all times be subject to development andenhancement of Transfer Assets. In this regard, it is clarified that PE shall ensurethat sufficient portions of the lands constituting the Terminal Market ComplexSite, as may be required for the development and enhancement of TransferAssets, keeping in mind future volume growth, shall be reserved for TransferAssets, and only the remaining lands constituting the Terminal Market ComplexSite shall be used for Non Market Assets. The PE shall ensure that the MasterPlan clearly demarcates those portions of the Terminal Market Complex Site thatare used and proposed to be used for the development of Market Assets, NonMarket Assets, and Essential Assets. The PE shall ensure that all developments atthe Terminal Market Complex are in accordance with the Master Plan.

6.3.4 The Master Plan shall inter alia provide for identifiable volume triggers forundertaking specific capital expenditure projects and shall provide for volumelinked capacity expansions

6.3.5 The PE hereby undertakes to submit the Master Plan to the NO for itsinformation and for its approval within four (4) months from the AgreementDate, which thereafter must be updated and resubmitted to the NO for its



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information and for its approval periodically, every 3 years. Provided howeverthat the Master Plan shall be updated at shorter intervals, if the PE finds that thevolume growth is such as to require more frequent updates, or at such intervalsas may be notified by NO or MOA in the event the Terminal Market Complexreaches capacity restraints.

6.3.6 The PE hereby undertakes to procure the approval of the NO and IC in respect ofthe Master Plan.

6.3.7 The PE shall develop the Market Services and Essential Services of the TerminalMarket Complex in accordance the then applicable Master Plan, as approved bythe NO and IC. It is clarified that:

(a) All developments (Market Assets, , State Assets and Essential Assets) atthe Terminal Market Complex shall be as per the Master Plan;

(b) No development (Market Assets, State Assets and Essential Assets) that isnot envisaged in the Master Plan shall be allowed to be undertaken unlessspecific approvals for the same are taken; and

(c) The Terminal Market Complex, inclusive of Market Assets, State Assetsand Essential Assets shall at all times comply with the approved MasterPlan.

6.3.8 The Master Plan will incorporate target dates for construction of individualfacilities/sections (the “Targets”) linked to volume trigger points or otherwise forMarket and Essential Assets. These could be independently presented as MajorDevelopment Plan.

The PE shall ensure that each of the Targets is met fully and on time. To theextent not already covered under Clause 6.2.2, in the event that a project set outin the approved Master Plan is not commenced at the designated volume trigger

and there is no explanation provided by the PE to NO and IC that is satisfactoryto NO and IC (at its sole discretion), NO, on recommendation of IC, shall havethe right to levy liquidated damages on PE equivalent to 0.5% of the estimatedcapital cost of the project for each month the project is delayed, on the PE. NOshall further have the right to levy liquidated damages on PE at the same rate inthe event the time period for the completion of the project exceeds the timeperiod of construction set out in the Master Plan, subject to the delay not being onaccount of delay in commencement, in respect of which liquidated damages havebeen paid by PE to the GOS. Provided however that in the event there is delay incommencement of a project, and liquidated damages have been paid in respect ofsuch delay, and in spite of delay in commencement, the relevant project iscompleted within the time period set forth in the Master Plan, then the liquidated

damages already received in respect of delay in commencement shall be returnedby GOS to the PE. Provided further that the total liability of the PE under thisClause 6.3.8 for delay in respect of a particular project shall not exceed 10 % ofthe capital cost of the relevant project.





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contract to the GOS in the event of termination hereof. Every contractentered into by the PE shall contain an express provision recognising theright of the GOS to acquire the Transfer Assets and the Non-TransferAssets in the manner provided herein, and contain an undertaking by thecounter-party (ies) to transfer the relevant Transfer Asset and/ or theNon-Transfer Asset, as the case may be, upon the exercise of such right by

GOS.

(ii) Management and Control

(a) Notwithstanding anything contained above, under no circumstances shallthe PE sub-contract the overall operation and management of theTerminal Market Complex and the PE shall at all times exercise and beresponsible for overall management control and supervision of theTerminal Market Complex through its senior management staff,irrespective of any sub-contracting of activities and/or services.

(b) The PE shall establish fair, reasonable and objective criteria for the grantof sub-contracts. In granting, and in determining whether or not to grant,any sub-contract to any Entity, and in determining whether to amend,waive, terminate or extend any such rights, the PE shall consistentlycomply with and apply such criteria.

(c) Neither the PE nor any sub-contractor shall:

(i) adopt, in relation to any activities carried on by it at theTerminal Market Complex, any trade practice, or anypricing policy, which unreasonably discriminates against

any class of Users of the Terminal Market Complex or anyparticular User or which unfairly exploits its bargainingposition relative to Users of the Terminal Market Complexgenerally or which directly causes the adoption by anyother Entity of a practice which has a similar effect.

(ii) adopt, in relation to the granting of any sub-contracts, anypractice which:

(aa) unreasonably discriminates against Entities grantedany class of such rights, or any particular grantee ofsuch a right, or unfairly exploits its bargaining

position relative to the grantees of such rightsgenerally; or

(bb) unreasonably discriminates against any class ofEntities applying for such rights or any particularapplicant, or unreasonably limits the number ofsuch rights that are granted in the case of anyparticular services or facilities.



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or which directly causes the adoption by any other Entityof a practice which has a similar effect.

6.4.5 In addition to the obligations listed in Clause 6.1 to 6.4 above the PE will have therights and obligations as detailed in Schedule 16

6.5 Independent Consultant

(i) Appointment of Independent Consultant

(a) An Independent Consultant shall be appointed for the purpose ofdetermining and ensuring compliance with technical standards,specifications, costs and time schedules during any operation,development, design, modernisation, repair, maintenance,replacement or construction at the Terminal Market Complex Siteand performing the duties mentioned in Schedule 13 hereof.

(b) The procedure of the appointment of the Independent Consultant

shall be as follows:

NOf shall nominate a panel of three (3) Consultants with expertisein Terminal Market Complex development supervision to the PE.These consultans shall be from the list of empanelled consultantsprovided to the GOS. The PE shall have the right to object to oneor more of such nominees. In the event the PE objects to:

(i) any one nominee, then NO shall appoint any one of theremaining two (2) nominees to whom PE has not objectedas the Independent Consultant;

(ii) any two nominees, then NO shall appoint the third

nominee to whom PE has not objected as the IndependentConsultant; and

(iii) all three, nominees, then NO shall propose another three(3) Consultants with expertise in Terminal MarketComplex development supervision to act as theIndependent Consultant. The PE shall have the right toobject to a maximum of two (2) nominees from this secondpanel of Consultants. In the event the PE objects to:A. any one nominee, than NO shall appoint any one of the

remaining two (2) nominees to whom PE has notobjected as the Independent Consultant; and

B. any two nominees, then NO shall appoint the third

nominee to whom PE has not objected as theIndependent Consultant

(c) All costs of, including costs associated with the appointment of,the Independent Consultant shall be initially provided for in thecapital expenditure of the Market Assets and shall be borne by thePE.

6.6 Nodal Officer



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In order to perform its obligations of, inter alia, the Nodal Officer, designated bythe empowered State Committee, will be responsible for supervision, monitoring,regulatory facilitation and interacting with PE in relation to all mattersconcerning the Parties’ mutual rights and obligations hereunder (the “NodalOfficer”) as described in Schedule 15 . The Nodal Officer shall be the ‘single pointof contact’ for the PE for all matters concerning this Agreement. The Nodal

Officer would meet at least quarterly, inter alia, with representatives of the PEand conduct a joint review of emerging issues and concerns and keep anoversight of the development of the Terminal Market Complex.

6.7 Complaints Register

(i) PE shall maintain a public relations office at the Terminal Market Complex where

it shall keep a register (the "Complaint Register") with access at all times for

recording of complaints by any person (the "Complainant"). Immediately, after

a complaint is registered, PE shall give a receipt to the Complainant stating the

date and complaint number.

(ii) The Complaint Register shall be securely bound and each page thereof shall be

duly numbered. It shall have appropriate columns including the complaint

number, date, name and address of the Complainant, substance of the complaint

and the action taken by PE. Information relating to the availability of and access

to the Complaint Register shall be prominently displayed by PE at the

Terminal Market Complex.

(iii) PE shall inspect the Complaint Register every day and take prompt and

reasonable action for redressal of each complaint. The action taken shall be

briefly noted in the Complaint Register and a reply stating the particulars thereof

shall be sent by PE to the Complainant under a certificate of posting or by fax

with confirmation of transmission.

6.8 Performance Bond

(a) The PE shall furnish a Performance Bond in the form of a bank guaranteefrom a reputed scheduled commercial bank in India with a minimum



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validity of 12 months for an amount of 10% of the Mandatory CapitalProject cost.

(b) Upon submission of the Performance Bond, GOS shall return/ release theBid Bond. The Performance Bond shall be rolled over periodically overthe Term and shall be renewed three (3) months prior to its expiry.

(c) The whole or part of the Performance Bond shall be encashable, inter alia,in the following situations:

(i) Non completion of the Market Assets and Essential Assets withinthe agreed time frame;

(ii) Non incurrence of the Mandatory Capital Project Cost of theMarket Assets and Essential Assets;

(iii) Non-compliance with Development Standards and Requirements,Objective Service Quality Requirements and Product Standards inaccordance with the terms hereof;

(iv) Any other material breach /non-performance of /under this

Agreement.

(d) In the event any portion of the Performance Bond is en-cashed pursuantto sub-clause (c) of this Clause 6.8 then immediately following suchencashment, the PE shall replenish the Performance Bond. In the event thePerformance Bond is not replenished within one (1) month of itsencashment, the GOS shall have the right to en-cash the entirePerformance Bond.



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CHAPTER VIISERVICE QUALITY REQUIREMENTS, DEVELOPMENT STANDARDS AND

PRODUCT STANDARDS

7.1 It is the intention of the Parties that the PE shall design, construct, develop,finance, manage, operate, maintain the Terminal Market Complex to bring it

to and maintain it at a world class standard of major international TerminalMarket Complexes in terms of the quality of the facilities, Terminal MarketComplex management and the quality of service provided to all Terminal MarketComplex Users. These would be achieved through a set of guidelines andstandards, which need to be implemented within a given time frame. Withoutprejudice to the generality of the forgoing, the PE shall undertake the followingin order to establish mechanisms to review and assess performance in respect toservice delivery, management systems and product quality.

7.1.1 ISO 9000 certification:

(a) Requirement:

The PE will, within four years from the Effective Date achieve andthereafter maintain throughout the Term ISO 9000 certification (orappropriate substitute certification in the event of ISO 9000 certificationbeing discontinued) for all facilities relating to Market Services of theTerminal Market Complex.

(b) Report:

The PE shall provide to NO, in a timely manner a copy of the ISO 9000certification.

(c) Default:

At any time after the expiry of four (4) Years after Effective Date, in theevent that that the Terminal Market Complex has not achieved ISO 9000certification, the PE shall produce an action plan within 30 days that setsout how it will address the deficiencies and these initiatives shall beimmediately implemented.

Should the PE fail to produce such an action plan within 30 days or if theTerminal Market Complex (or any part thereof) continues not to achieveISO 9000 certification, for further 6 months from the date of submission ofaction plan or fails to maintain the certification at any time during the

Term after having achieved certification, the PE shall thereafter pay to theGOS 0.5% of the Revenue for every month, that the Terminal MarketComplex does not achieve or maintain ISO 9000 certification, as the casemay be, as liquidated damages.



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7.1.2 Objective Service Quality Requirements

(a) Requirement

The PE shall within the time frame mentioned therein, achieve theObjective Service Quality Requirements set out in Schedule 5.

(b) Report

The PE shall on a quarterly basis, measure compliance of ObjectiveService Quality Requirements in accordance with Schedule 5 and providecompliance reports to GOS in a timely manner.

(c) Default

At any time after the PE is obligated to achieve and maintain a particularObjective Service Quality Requirement, in the event that the immediatelysucceeding quarterly report show that the Terminal Market Complex (or

any part thereof) is rated below the respective Objective Service QualityRequirement, the PE will achieve the particular Objective Service QualityRequirement within 30 days of the last submitted quarterly report.

Should the PE fail to achieve the above, or if the Terminal MarketComplex (or any part thereof) continues to perform below the targetsmentioned in Schedule 5, the PE shall pay to the NO 0.5% of the Revenuefor every month, that the standards are below any of the Objective ServiceQuality Requirements, as liquidated damages.

7.1.3 Development Standards and Requirements

(a) Requirement

It is the intention of the Parties to achieve a Terminal Market Complex

with world class facilities. The design, construct, develop, finance,manage, operate, maintain the Terminal Market Complex (including allTransfer Assets will comply with all appropriate technical requirementsas set out in international, national and local standards and laws and inparticular will comply with the requirements set out in Schedule 4.

(b) Report

The PE shall provide to the GOS in a timely manner full information andreport on each development that is completed in accordance with anydevelopment plan and a quarterly report in respect of developmentscompleted or under progress for the entire Terminal Market Complex andon the results achieved for each completed development for each of theDevelopment Standards and Requirements measures.



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(c) Default

(i) If after the review of such reports furnished by the PE andindependent verification carried out by the IndependentConsultant, the Independent Consultant certifies that a particular

development under progress at the Terminal Market Complex (orany portion thereof) is below the respective DevelopmentStandards and Requirement, which post notification of GOS to PEis not rectified prior to completion of that development; or

(ii) the completion report of any development submitted by the PEshows that the development at the Terminal Market Complex (orany portion thereof) is below the respective DevelopmentStandard and Requirement; or

(iii) two consecutive quarterly reports of various developments inprogress show that the Terminal Market Complex (or any portion

thereof) is rated below the respective Development Standard andRequirement,

In respect of any of the aforesaid default, the PE shall pay to the GOS 0.5%of the capital cost of each relevant development for every month that thestandards are below any of the Development Standards andRequirements as liquidated damages.

7.1.4 In the event the PE believes that some of the measures or targets mentioned inany of Schedules 4, 5 or 6 should be revised or changed (as a result oftechnological changes, or changes to business practices, rendering the existingmeasures or targets redundant), it shall provide a full written explanation of its

proposals to GOS, which shall assess and finally decide, at its sole discretion,whether any changes should be made.

7.1.5 In the event the GOS believes that some of the measures or targets mentioned inany of Schedules 4, 5 or 6 should be revised or changed for any reason, it shallprovide a full written explanation of its proposals to PE, and the Parties shallmutually consult with each other to determine if any changes to the saidmeasures or targets should be made.

7.1.6 Product Standards

The PE should endeavor to supply products through the Terminal Market

Complex that adhere to accredited quality standards as prescribed in theSchedule 6. It should be the aim of the PE to be accepted as a market managerensuring accredited supply of goods over a defined time frame. The PE mustsubmit its program for the same in its Master Plan.



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CHAPTER VIIIMONITORING AND INFORMATION

8.1 The PE shall submit the following reports to the NO and IC on a regular basis:

(a) Monthly activity report

(b) Other operating statistics as required by MOA, GOS and RelevantAuthorities

(c) Reports on various indicators of performance measurement as specified inthis Agreement

(d) Quarterly financial accounts

(e) Annual budget

(f) Annual update of Master Plan

(g) If so required by the GOS, the PE shall deliver to the NO and IC the DailyVolume & Price Record.

(h) Such other reports/ information (or analysis thereof) that GOS or IC mayrequest from time to time.

8.2 Maintenance of Records

(a) The PE shall maintain accurate, up-to-date and complete financial recordsin accordance with the requirements of Applicable Laws and thisAgreement.

(b) The PE shall maintain accurate, up-to-date and complete records relatingto the operation and maintenance of assets, which it owns or operates,and operational performance of the Terminal Market Complex.

(c) The PE shall make available and, if reasonably requested by the NO andIC, provide copies of, on reasonable notice by the NO and IC and atreasonable times, the records referred to in Clause 8 for inspection by theNO and IC. The NO shall be entitled to appoint one or more authorised

representatives to check and take copies of any such records. The PE shallprovide the NO and IC with such further information, explanations andother assistance as may be reasonably required by the NO and IC or anyof its authorised representatives for the purpose of checking any of suchrecords.

(d) All records required to be maintained in accordance with this Clause shallbe held for a period of five years from the date of creation of the relevantrecords or until twenty four months after the expiry or earlier termination



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of the Term, whichever is the later. However, the period is extendable soas to meet the Comptroller and Auditor General (CAG)’s requirement.

8.3 Provision of Accounts

(a) If required, the PE shall deliver to the NO, copies of the annual report,

audited profit and loss account, balance sheet and cash flow statement forthe PE (and (if applicable) for any subsidiary of the PE) as at the end ofand for that accounting reference period, together with copies of allrelated director’s and auditor’s reports.

(b) Each set of accounts delivered hereunder shall, save as stated in the notesthereto, be prepared and audited in accordance with accountingprinciples and auditing standards and practices generally accepted inIndia and consistently applied and in accordance with all ApplicableLaws and, together with those notes and subject to any qualificationscontained in any relevant auditor’s report, shall give a true and fair viewof the state of affairs and profits or loss for the period covered by such

accounts.

(c) The accounting reference period of the PE shall be a twelve month period.

8.4 Changes in Business

The PE shall inform the NO of any material change or proposed material changein the conduct or condition of the Terminal Market Complex Business, as soon asreasonably practicable prior to (or, if it is not reasonably practicable prior to, assoon as reasonably practicable after the occurrence of) any such change,(including the termination of any key contracts, any litigation or other disputewhich may have a material effect on the Terminal Market Complex Business and

any material change in or restructuring of the capitalisation or financing of thePE).

8.5 Rights of Inspection

The GOS and its representatives shall be permitted to inspect at any time anypart of the Terminal Market Complex Site or any of the assets at the TerminalMarket Complex and undertake any survey or other check in order to monitorcompliance with the PE’s obligations under this Agreement, or check the qualityof service performance by the PE or any Relevant Authority, or for any other

reason whatsoever, for which purpose the PE shall grant such access or procurethe grant of such access (including to or from third parties) as they shallreasonably require in connection therewith, provided that such persons shall notinterfere with the performance of the relevant works or give any instruction inrelation thereto or interfere with the carrying on of the Terminal Market ComplexServices.



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8.6 Access to Management

The GOS shall be entitled to reasonable access, from time to time to the seniormanagement staff and other relevant officers and employees of the TerminalMarket Complex Business at reasonable times and following reasonable notice tothe person(s) concerned.

8.7 Notification of Disputes

The PE shall notify the NO of any dispute that arises or is threatened against thePE and/or the Terminal Market Complex, the adverse outcome of which mighthave a material adverse effect on the PE or the Terminal Market Complex, or anyof the Terminal Market Complex Services.

8.8 Information Warranty

8.8.1 The PE hereby warrants to the GOS that:

(a) each set of audited accounts provided/to be provided by the PE underthis Agreement are and will be a true and fair state of the financial affairsand condition of the PE as for the period for which such accounts relate;

(b) each of Master Plan and Major Development Plans is and will be preparedin good faith with proper care and diligence and represents/ willrepresent fair, reasonable and complete information, estimates andforecasts and has no/ would have no material omissions;

(c) all other information provided to the NO, IC and GOS under thisAgreement is true, accurate and complete in all material respects.



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CHAPTER IXMARKET FEE

9 GOS Authorization

The PE shall be exempted from payment of [Market Fee43] to the [GOS/ state

marketing board] for Agricultural Perishable Produce which is transactedthrough the electronic auction system of the TMC. (wherever it is agreed);however such waiver can attract good private enterprise for the terminal market)

Wherever the PE is not exempt from payment of Market Fee, the GOSshall authoriz the PE to collect the Market Fee on behalf of GOS. Towardsthis, the PE should use services of any scheduled commercial bankincluding special agri-banking services offered by the National Consultantto the project.

The GOS further authorizes the PE to collect applicable User Charges to be

collected from the buyers that are based on commercial considerations.

9.1 In consideration of the aforementioned Grant, the PE hereby agrees to make thefollowing payments to the GOS in the manner and at the times mentionedhereunder.

9.1.1 Market Fee

The PE will be liable for payment of [Market Fee44] to the [GOS/ state marketingboard] for Agricultural Perishable Produce which is transacted through theelectronic auction system of the TMC, unless exempted

The PE will be liable for payment of [Market Fee45] to the [GOS/ state marketingboard] for Agricultural Perishable Produce which is not transacted through theelectronic auction system of the TMC.

The Market Fee shall be provided for in the TRA Agreement on an ongoing basis.The PE shall at all times be liable to pay the Market Fee on a monthly basis priorto the 7th day of each month.

In case of non-payment of Market Fee to the GOS/ state marketing board, withinthe time period as stipulated as above, the PE will be liable to pay an interest rateof calculated on a daily basis on the outstanding arrears in this respect.

9.2 The applicable Revenue used for final verification/reconciliation of the MarketFee shall be the Revenue of the PE as certified by the Independent Auditor.



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9.2 Right of Inspection

The GOS and its representatives shall be permitted to inspect at any reasonable timethe books, records and other material kept by or on behalf of the PE in order to checkor audit any information (including the calculation of Revenue) supplied to the GOSunder this Agreement. The PE shall make available to the GOS and its

representatives such information and grant such access or procure the grant of suchaccess (including to or from third parties) as they shall reasonably require inconnection therewith. If any such exercise reveals that information previouslysupplied to the GOS was in any material respect inaccurate on the basis ofinformation available to the PE at the time, the costs of any such exercise shall beborne by the PE.



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CHAPTER XUSER CHARGES

10.1 Market Charges

10.1.1 The PE shall at all times ensure that the Market Charges levied at the Terminal Market

Complex shall be in line with the market conditions.

10.1.3 The Market Charges for Market Services as listed in Schedule 1 (a) (i), 1 (a) (v), 1(b) (i), 1 (b) (iv) shall not be borne by the seller of the produce

10.1.4 The Market Charges for Market Services other than those specified in 10.1.3above shall be borne by the respective user of the Market Service

10.2 Non Market Charges

Subject to Applicable Law, the PE shall be free to fix the charges for Non MarketServices, subject to the provisions of the existing contracts and other agreements.The Non Market Charges would be payable by the person/ entity availing theservice/ facility.

10.3 Charges for Essential Services

10.3.1 Notwithstanding the foregoing, Essential Services, shall be provided free ofcharge to Users unless otherwise specified in Schedule 3



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CHAPTER XI

FINANCING ARRANGEMENTS & SECURITY

11.1 Financing Arrangements and Security

(a) It is expressly understood that the PE shall arrange for financing and/ormeeting all financing requirements through suitable Debt and Equitycontributions in order to comply with its obligations hereunder includingdevelopment of the Terminal Market Complex pursuant to the MasterPlan and the Major Development Plans. The GOS, shall provide its shareof the Equity to be used for the creation of the Market and EssentialAssets as per the Shareholders Agreement.

(b) Security

(i) This Agreement shall not be assigned by the PE. Providedhowever that Lenders may be given a right of substitution by

execution of the Substitution Agreement. Provided further that atany given time, the GOS shall enter into only one (1) SubstitutionAgreement with one (1) lenders’ agent; such lenders’ agent beingan agent for one consortium of Lenders. The Lenders shall be freeto modify the composition of the consortium of Lenders. It isfurther expressly clarified that lenders that provide financing forNon-Transfer Assets shall not be given any right of step-in.

(ii) The PE shall be allowed to create or permit to subsist anyEncumbrance over or otherwise transfer or dispose of all or any ofits rights and benefits under this Agreement or any Project

Agreements or the Transfer Assets and the Non – Transfer Assets..In this respect, the PE shall clearly demarcate and distinguish, inthe Master Plan, Transfer Assets and Non-Transfer Assets.Provided further, any Encumbrance on the Transfer Assets andNon-Transfer Assets shall be subject to the land usage restrictionsset forth in the Master Plan.

(iii) The PE shall have different set of loan facilities for the TransferAssets and Non – Transfer Assets.

(iv) Lenders may exercise the rights of step in or substitution asprovided in the Substitution Agreement provided that the person

substituting the PE shall be deemed to be the PE under thisAgreement and shall enjoy all rights and be responsible for allobligations under this Agreement as if it were the PE.

(v) It is clarified that for the purpose of securing itsborrowings for the purpose of the Terminal Market Complex, PEmay encumber any assets including Non-Transfer Assets,including an encumbrance or charge creation and hypothecation

of any portion of its Revenue , except that portion of the



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Revenue that is in the “Statutory Fee Account” under the terms of

the TRA Agreement.



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CHAPTER XIISTEP IN RIGHTS OF GOS

12.1 Requisition of Terminal Market Complex

(a) In the event of an emergency (as communicated by GOI, through GOS or

otherwise, ), GOS, shall have the right, to temporarily assume control ofthe Terminal Market Complex in place of the PE. During the period inwhich GOS assumes control of the Terminal Market Complex, GOS shallbe deemed to be the PE for the purpose of discharging the obligations ofthe PE under this Agreement for the limited period during which theTerminal Market Complex is under the control of GOS. The duties andobligations of the PE shall be suspended during such period and GOSshall operate and maintain the Terminal Market Complex in accordancewith the provisions of this Agreement.

(b) Any charges in relation to provision of Market Services, Non MarketServices or Commercial Activities levied and collected by GOS during

such period shall be held by GOS for and on behalf of the PE and shall begiven to the PE subject to the subsequent sub-paragraph (d) of this Clause12.1.

(c) In the event, the period of step-in, exceeds six months, the same shall betreated as an event of Force Majeure under Clause 12.1 and dealt withaccordingly.

12.2 Interruption of Operation

(a) If following the Effective Date and otherwise than as a result of an event

of Force Majeure, PE ceases or substantially ceases the operation of theTerminal Market Complex for more than 7 days, at the request of eitherParty, GOS will meet with PE to discuss and agree a plan and theappointment of a joint operation and management committee (and theterms and conditions upon which such committee is to be appointed), toprocure that operation of the Terminal Market Complex recommences assoon as practicable. If GOS and PE are unable to meet or to agree a planand appoint a joint operation and management committee, GOS shall beentitled, at the risk and cost of the PE, to operate the Terminal MarketComplex either itself or through a nominee. It is expressly agreed that theGOS will be entitled to collect all Market Charges (that are receivable byPE on its own account) applicable during such time and set them off

against operation costs and expenses incurred by GOS.

(b) Before the expiry of 48 hours from the time that GOS or its nomineeassumed control of the Terminal Market Complex under this Clause 12.2,PE shall produce an action plan for rectifying the causes of theinterruption that caused GOS or its nominee to take-over the TerminalMarket Complex and upon the production of an action plan as acceptableto GOS, have the right to resume control and operation of the Terminal





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CHAPTER XIIIDISPUTES

13.1 Disputes

13.1.1 Amicable Settlement

The Parties shall use their respective reasonable endeavors to settle any Disputeamicably. If a Dispute is not resolved within sixty (60) days after written noticeof a Dispute by one Party to the other Party then the provisions of Clause 13.2shall apply.

13.2 Arbitration

13.2.1 All Disputes arising under this Agreement, that remain unresolved pursuant tothis Clause 13, shall be referred to a tribunal comprising three (3) arbitratorsunder the (Indian) Arbitration and Conciliation Act, 1996. Each Party to thearbitration shall appoint one arbitrator and the two arbitrators thus appointed

shall choose the third arbitrator who will act as a presiding arbitrator of thetribunal (together forming the “Arbitral Tribunal”).

13.2.2 The decision(s) of the Arbitral Tribunal, shall be final and binding on the Parties.

13.2.3 The venue of arbitration shall be capital of the state.

13.2.4 This Clause 13.2 shall survive the termination or expiry of this Agreement.

13.2.5 The governing law of the arbitration shall be the substantive laws of India.

13.2.6 Subject to Clause 13.2.1, the High Cout of shall have jurisdiction over this

Agreement.

13.3 Continue performance

While any Dispute under this Agreement is pending, including thecommencement and pendency of any Dispute referred to arbitration, the Partiesshall continue to perform all of their respective obligations under this Agreementwithout prejudice to the final determination in accordance with the provisionsunder this Clause 13.

13.4 Governing Law and Dispute Resolution

13.4.1. Governing Law And Dispute Resolution :13.4.1.1. This Agreement and all questions of its interpretation shall be

construed in accordance with the OMDA.

13.4.1.2 The Parties agree that they shall attempt to resolve through

good faith consultation, disputes arising in connection with

this Agreement, and such consultation shall begin promptly



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after a Party has delivered to the other Party a written request

for such consultation.

13.6 Severability

13.6.1 In the event that any or any part of the terms, conditions or provisions

contained in this Agreement shall be determined by any competent

authority to be invalid, unlawful or unenforceable to any extent, such

terms, conditions or provisions shall to that extent be severed from the

remaining terms, conditions and provisions which shall continue to be

valid and enforceable to the fullest extent permitted by law.



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CHAPTER XIVFORCE MAJEURE

14.1 Force Majeure

14.1.1 The PE, or GOS, as the case may be, shall be entitled to suspend or excuse

performance of its respective obligations under this Agreement to the extent thatthe PE or GOS, as the case maybe, is unable to render such performance by anevent of Force Majeure (a "Force Majeure").

14.1.2 In this Agreement, “Force Majeure” shall mean:

(i) war (whether declared or undeclared), invasion, armed conflict or act offoreign enemy in each case involving or directly affecting India/ State;

(ii) revolution, riot, insurrection or other civil commotion, act of terrorism orsabotage in each case within India/ State;

(iii) nuclear explosion, radioactive or chemical contamination or ionizingradiation directly affecting the Terminal Market Complex, unless thesource or cause of the explosion, contamination, radiation or hazardousthing is brought to or near the Terminal Market Complex by the PE or anyaffiliate of the PE or any contractor or sub-contractor of the PE or anysuch affiliate or any of their respective employees, servants or agents;

(iv) strikes, working to rule, go-slows and/or lockouts which are in each casewidespread, nationwide or political;

(v) any effect of the natural elements, including lighting, fire, earthquake,tidal wave, flood, storm, cyclone, typhoon or tornado, within India/ State;

(vi) explosion (other than a nuclear explosion or an explosion resulting froman act of war) within India/ State;

(vii) epidemic or plague within India/ State;

(viii) Any period of step-in by GOS, under Clause 12.1(c) exceeding a period ofsix months;

(ix) any event or circumstances of a nature analogous to any events set forthin paragraphs (i) to (viii) of this Clause 14.1.2 above within India/ State.

14.1.3 Procedure for Force Majeure

(a) If a Party claims relief on account of a Force Majeure event, then the Partyclaiming to be affected by the Force Majeure event shall, immediately onbecoming aware of the Force Majeure event, give notice of and describe indetail: (i) the Force Majure event(s) that has occurred;(ii) the obligation(s)that have become impossible or unviable to perform; (iii) the dates ofcommencement and estimated cessation of such event of Force Majeureand (iv) the manner in which the Force Majeure event(s) affect the Party's



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obligation(s) under this Agreement. No Party shall be able to suspend orexcuse the non-performance of its obligations hereunder unless suchParty has given the notice specified above.

(b) The affected Party shall have the right to suspend the performance of thespecific obligation that is directly made impossible or unviable, upon

delivery of the notice of the occurrence of a Force Majeure event inaccordance with sub-clause (a) above.

(c) The Party receiving the claim for relief under Force Majeure shall, if itwishes to dispute the claim, give a written notice of dispute to the Partymaking the claim within 15 days of receiving the notice of claim. If thenotice of claim is not contested within 15 days as stated above, all theParties to this Agreement shall be deemed to have accepted the validity ofthe claim. If any Party disputes a claim, the Parties shall follow theprocedures set forth in Clause 13.

14.1.4 Mitigation

The Party claiming to be affected by an event of Force Majeure shall take allreasonable steps to prevent, reduce to a minimum and mitigate the effect of suchevent of Force Majeure.

14.1.5 Termination Due to Force Majeure

(a) If Force Majeure event continues for more than 365 days either Party shallhave the right to terminate this Agreement by giving a notice oftermination in respect thereof.

(b) In the event of any such termination, GOS shall-

(i) acquire all of PE’s rights, title and interests in and to the TransferAssets in the manner set out in Clause 17. In the event the lendersare not accepting this change, GOS shall , within 6 months ofTransfer Date, make a payment of of 90% of Debt Due in respect ofthe Transfer Assets as recorded in the books of the PE, asdetermined in accordance with Clause 17.6.

(ii) have the right but not the obligation to acquire all of PE’s rights,title and interests in and to all or any of the Non-Transfer Assets inthe manner set out in Clause 17, on payment within 6 months ofTransfer Date of Discounted Fair Value (Lower of Book Value (as

recorded in the books of the PE) and the Net Present Value) ofsuch Non-Transfer Assets, as determined in accordance withClause 17.6.



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CHAPTER XVDEFAULT

15.1 GOS’s Events of Default

Each of the following events or circumstances, to the extent not caused by adefault of the PE or Force Majeure, shall be considered for the purposes of thisAgreement as events of default of the GOS ("GOS’s Event of Default") which, ifnot cured within the time period permitted, shall provide the PE the right toterminate this Agreement in accordance with Clause 15.3:

(a) any breach of its obligations under this Agreement which has a MaterialAdverse Effect and such breach is not remedied within 180 days of receiptof written notice from the PE specifying such breach and requiring theGOS to remedy the same; provided that if such breach cannot be curedwithin a period of 90 days after such notice with the exercise of reasonablediligence, then such 90-day period shall be extended for an additional

period of 45 days so long as GOS is exercising reasonable diligence to curesuch breach;

(b) a breach of any representation or warranty by GOS which materiallyadversely affects the PE’s ability to perform its obligations under thisAgreement and such breach, if capable of being remedied, is notremedied within 90 days of receipt of written notice from the PEspecifying such breach and requiring the GOS to remedy the same;

(c) GOS suspends the performance of its obligations for a period exceeding90 consecutive days; or

15.2 PE Event of Default

Each of the following events or circumstances, to the extent not caused by adefault of the GOS or Force Majeure shall be considered for the purposes of thisAgreement as events of default of the PE ("PE Event of Default") which, if notcured within the time period permitted, shall provide the GOS the right toterminate this Agreement in accordance with Clause 15.3:

(a) any material breach by the PE of its obligations under the Agreement orunder the license as issued in Clause 3.1 (vi) and such breach is notremedied within 90 days of receipt of written notice from the GOSspecifying such breach and requiring the PE to remedy the same; provided

that if such breach cannot be cured within a period of 90 days after suchnotice with the exercise of reasonable diligence, then such 90-day periodshall be extended for an additional period of 45 days so long as PE isexercising reasonable diligence to cure such breach;

(b) a breach of any representation or warranty by the PE which materiallyadversely affects the GOS’s ability to perform its obligations under thisAgreement or under the license as issued in Clause 3.1 (vi) and suchbreach, if capable of being remedied, is not remedied within 90 days of











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CHAPTER XVITERM, EXPIRY & TRANSFER

16.1 Term And Expiry

(a) Unless terminated earlier in accordance with Clause 15.3 or Clause 14.1.5Clause 16.1 (a), or Clause 16.1 (b), or by mutual agreement between theParties in writing, this Agreement shall continue in full force and effectfrom its commencement from the Effective Date until the 15th anniversaryof the Effective Date.

(b) Prior to the expiry of 15 years from Effective Date, PE shall have the rightto extend the term hereof by a written notice for an additional term of 10years on the same terms and conditions as contained herein subject to thefollowing:

(i) No PE Event of Default or any other default by PE triggering levy ofliquidated damages, has occurred during the preceding five (5) years ofthe from the Effective Date; and

(ii) such right of extension being exercised prior to the 12th anniversary fromthe Effective Date.

Provided however, if PE Event of Default or any other default by PEtriggering levy of liquidated damages occurs at any time from time ofexercise by PE of right of extension until 15th anniversary of the EffectiveDate, then PE right of extension of an additional term of 10 years shall

lapse unless otherwise agreed by GOS.

(c) In the event this Agreement in not extended by an additional period of 10years in the manner provided hereinabove, then the Agreement shallexpire on the 15th anniversary of the Effective Date, PE shall acquireunconditionally all rights, title and interests in the Transfer Assets andshall be free to operate the Terminal Market Complex in compliance withthe Applicable Laws for private terminal markets.

(d) In the event this Agreement is extended by an additional period of 10years in the manner provided hereinabove, and this Agreement is notterminated prior thereto, then the Agreement shall expire on the 25 th

anniversary of the Effective Date. PE shall acquire unconditionally allrights, title and interests in the Transfer Assets and shall be free to operatethe Terminal Market Complex in compliance with the Applicable Lawsfor private terminal markets.

(c) The total duration of the validity of this Agreement from the EffectiveDate for an initial period of 15 years, and if extended by an additional



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period of 10 years, then such 25 years, unless terminated earlier inaccordance with the term hereof, shall be the Term hereof.

f) Subject to Clause effective date, this Agreement shall come into full force

and effect from the Effective Date and shall, unless terminated earlier,

continue in full force and effect for the entire term of the OMDA (“Term”)

and shall be co-terminus with the OMDA. For abundant caution, it is hereby

expressly clarified that this Agreement shall terminate automatically with the

expiry or early termination of the OMDA.



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CHAPTER XVII

TRANSFER PROVISIONS

17.1 Transfer of Transfer Assets

17.1.1 Upon termination of this Agreement in the GOS/PE event of default and eventspertaining to force Majeure and consequent obligation of GOS to acquire theTransfer Assets under Clauses 15.3 and 14.1.5 hereof, , the PE shall ensure that onthe Transfer Date the interest of PE in:

(i) all movable property, stocks, materials, vehicles and spares relatable toTransfer Assets shall be transferred to GOS or its nominee, clear of anyEncumbrances;

(ii) all immovable property, assets, structures, buildings, edifices, court-areas, ways, walls, compounds relatable to Transfer Assets shall betransferred to GOS or its nominee, clear of any Encumbrances;

(iii) the rights and obligations under or pursuant to all contracts relatable toTransfer Assets and other arrangements entered into in accordance withthe provisions of this Agreement between PE and any third party shall (inconsideration of GOS’s assumption of the obligations under or pursuantto the contracts and other arrangements) be vested in GOS or its nominee,clear of any Encumbrance; and

(iv) the rights and obligations under or pursuant to all other contracts andarrangements, assets, property and rights relatable to Transfer Assetsshall (in consideration of GOS’s assumption of the obligations under orpursuant to the contracts, arrangements, assets, property and rights) be

vested in GOS or its nominee, clear of any Encumbrance.

(v) Notwithstanding anything contained in Clause 17.1.1 (ii) and (iii), prior toany transfer of the Terminal Market Complex, GOS shall have the right toconduct a due diligence of the contracts and agreements, the rights andobligations of which it is assuming and shall not be bound to assume therights and obligations of contracts that, in the sole opinion of GOS areunreasonably onerous, and would be considered onerous at the time thatthe contracts were entered into. In relation to all such contracts that arenot transferred to GOS, no third Entity, including the counter-party ofsuch contract shall have any right, license title, interest, benefit, claim ordemand against or over any Market Asset.

17.1.2 Furthermore, notwithstanding anything contained in this Clause 17.1, no liability(accrued or contingent) of PE or relating to the Terminal Market Complex arisingon account of actions or inactions prior to the Transfer Date shall be assumed ortransferred to GOS or its nominees. GOS or its nominees shall only be liable forliabilities in relation to the Terminal Market Complex arising pursuant to theTransfer Date. In the event of any such liability being assumed or transferred toGOS or its nominee or any Encumbrance existing on any of the Transfer Assets,the quantum of such liability and/or amount corresponding to such



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Encumbrance, shall be reduced from the amount payable by GOS to PE in respectof the transfer of Transfer Assets.

17.1.3 Without prejudice to the foregoing, PE agrees to indemnify and keep indemnifiedthe GOS from and against all actions, proceedings, losses, damages, liabilities,claims, costs and expenses whatsoever which may be sustained or suffered by the

GOS as a result of any actions or omissions of the PE prior to the transfer of theTransfer Assets. It is expressly understood by the Parties that this Clause shallsurvive the termination or expiry of this Agreement.

17.2 Transfer of Non-Transfer Assets

17.2.1 On exercise of the right (at its sole discretion) of GOS to acquire any or all theNon-Transfer Assets under Clauses 15.3 and 14.1.5 hereof, the PE shall ensurethat on or before the Transfer Date the interest of PE in:

(i) all movable property, stocks, materials, vehicles and spares relatable tosuch Non-Transfer Assets as are selected by GOS shall be transferred to

GOS or its nominee, clear of any Encumbrances;

(ii) all immovable property, assets, structures, buildings, edifices, court-areas, ways, walls, compounds relatable to such Non-Transfer Assets asare selected by GOS shall be transferred to GOS or its nominee, clear ofany Encumbrances;

(iii) the rights and obligations under or pursuant to all contracts relatable tosuch Non-Transfer Assets as are selected by GOS and other arrangementsentered into in accordance with the provisions of this Agreement betweenPE and any third party shall (in consideration of GOS’s assumption of theobligations under or pursuant to the contracts and other arrangements) be

vested in GOS or its nominee, clear of any Encumbrance; and

(iv) the rights and obligations under or pursuant to all other contracts andarrangements, assets, property and rights relatable to such Non-TransferAssets as are selected by GOS shall (in consideration of GOS’s assumptionof the obligations under or pursuant to the contracts, arrangements,assets, property and rights) be vested in GOS or its nominee, clear of anyEncumbrance.

(v) Notwithstanding anything contained in Clause 17.2.1 (ii) and (iii), prior toany transfer of the Terminal Market Complex, GOS shall have the right toconduct a due diligence of the contracts and agreements, the rights andobligations of which it is assuming and shall not be bound to assume therights and obligations of contracts that, in the sole opinion of GOS areunreasonably onerous, and would be considered onerous at the time thatthe contracts were entered into. In relation to all such contracts that arenot transferred to GOS, no third Entity, including the counter-party ofsuch contract shall have any right, license title, interest, benefit, claim ordemand against or over any Non-Transfer Asset.



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17.2.2 Furthermore, notwithstanding anything contained in this Clause, no liability(accrued or contingent) of PE or relating to the Terminal Market Complex arisingon account of actions or inactions prior to the Transfer Date shall be assumed ortransferred to GOS or its nominees. GOS or its nominees shall only be liable forliabilities in relation to the Terminal Market Complex arising pursuant to theTransfer Date. In the event of any such liability being assumed or transferred to

GOS or its nominee or any Encumbrance existing on any Non-Transfer Assets,the quantum of such liability and/or amount corresponding to suchEncumbrance, shall be reduced from the amount payable by GOS to PE in respectof the transfer of any Non-Transfer Assets.

17.2.3 Without prejudice to the foregoing, PE agrees to indemnify and keep indemnifiedthe GOS from and against all actions, proceedings, losses, damages, liabilities,claims, costs and expenses whatsoever which may be sustained or suffered by theGOS as a result of any actions or omissions of the PE prior to the transfer of anyNon-Transfer Assets. It is expressly understood by the Parties that this Clauseshall survive the termination.

17.3 PE shall in accordance with Good Industry Practice ensure that all property,assets, rights and other items (constituting Transfer Assets and such Non-Transfer Assets as are selected by GOS, as the case may be) which are vested in ortransferred to GOS shall be in good working order and in a good state of repairand that the Terminal Market Complex is transferred to GOS as a going concernin good operating order. For this purpose, the Parties shall appoint anIndependent Consultant to conduct an audit of the assets being transferred. Inthe event any of assets which are vested in or transferred to GOS are not fit forpurpose/ in a good state of repair/ as would be expected of an internationalworld class Terminal Market Complex, as certified by such IndependentConsultant, then the cost or capital expenditure required to be incurred to bring itto good state of repair of all such assets shall be payable by the PE to the GOS,

and the same may be deducted from any termination payment payable by GOSto PE.

17.4 Pre-termination obligations

Termination of this Agreement shall be without prejudice to all rights andobligations then having accrued to GOS and/or PE (or which may thereafteraccrue in respect of any act or omission prior to such termination) and withoutprejudice to those provisions which expressly provide for continuing obligationsor which are required to give effect to such termination or the consequences ofsuch termination.

17.5 Other rights of termination

The Parties’ rights to terminate this Agreement shall be limited to those expresslyset out in this Agreement.





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CHAPTER XVIIIGENERAL

18.1 Indemnification

18.1.1 The PE hereby agrees and undertakes that during the Term and thereafter, it

shall indemnify and keep indemnified and otherwise save harmless, GOS, itsagents and employees, from and against all claims, demands made against and /or loss caused and / or damages suffered and / or cost, charges / expensesincurred or put to and / or penalty levied and / or any claim due to injury to ordeath of any person and / or loss or damage caused or suffered to propertyowned or belonging to GOS, its agents and employees or third party as a result ofany acts, deeds or thing done or omitted to be done by PE or as a result of failureon the part of PE to perform any of its obligations under this Agreement or on thePE committing breach of any of the terms and conditions of this Agreement or onthe failure of the PE to perform any of its statutory duty and / or obligations orfailure or negligence on the part of PE to comply with any statutory provisions oras a consequence of any notice, show cause notice, action, suit or proceedings,

given, initiated, filed or commenced by any third party or Government Authorityor as a result of any failure or negligence or default of PE or its contractor(s) and/ or sub-contractors and / or invitees as the case may be, in connection with orarising out of this Agreement and / or arising out of or in connection with PE’suse and occupation of Terminal Market Complex Site and / or Terminal MarketComplex and/or the provision of Terminal Market Complex Services.

18.1.2 It is expressly understood by the Parties that this Clause shall survive thetermination or expiry hereof .

18.1.3 It is hereby expressly agreed that GOS shall not be liable to indemnify PE, itsagents or employees, in respect of any claims, demands made against and / or

loss caused and / or damages suffered and / or cost, charges / expenses incurredor put to and / or penalty levied and / or any claim due to any actions oromission of GOS in relation to the Terminal Market Complex after the EffectiveDate.

18.2 Procedure in Case of Third Party Claims18.2.1 In the event of any demand or claim by any third Entity against a Party hereof,

which claim or demand would be payable by a Party at first instance (the“Payee”), but would sought to be claimed from the other Party hereof (the“Indemnifier”) pursuant to clause 20.1.1 above, then the Payee shall without

undue delay from becoming aware of the matter notify the Indemnifier of suchmatter in writing, describing the potential claim in reasonable detail and, to theextent possible, state the estimated amount of such claim.

18.2.2 Furthermore, the Payee shall make available to the Indemnifier a copy of thethird party claim or demand and give the Indemnifier the opportunity to defendthe Payee against such claim, employing their own counsel at their sole costs,expense and risk. The Indemnifier, at its own cost, shall have the right to defendthe claim by all appropriate proceedings and shall have the sole right to directand control such defence. In particular, without limitation, the Indemnifier may



158

(i) participate in and direct all negotiations and correspondence with the thirdparty, (ii) appoint and instruct counsel acting, if necessary, in the name of thePayee (with all costs and expenses to be borne by the Indemnifier), and (iii)require that the claim be litigated or settled in accordance with the Indemnifier'sinstructions. The Indemnifier shall conduct such proceedings in good faith andtake into account the interest of the Payee. As long as the Indemnifier is

defending a claim, the Payee shall provide or cause to be provided to theIndemnifier or its representatives any information reasonably requested by itand/or them relating to such claim, and Payee shall otherwise cooperate with theIndemnifier and its representatives in good faith in order to contest effectivelysuch claim. The Indemnifier shall inform the Payee in writing without unduedelay of all developments and events relating to such claim, and the Payee shallbe entitled, at its expense, to employ its own counsel and to attend allconferences, meetings and proceedings relating to such claim.

18.2.3 If the Indemnifier does not assume control of a defence of a specific claim, thePayee may assume full control of such defence and such proceedings. Ifrequested by the Payee, the Indemnifier shall cooperate in good faith with thePayee in order to contest effectively such claim. The Indemnifier shall be entitled,

at its expense, to employ its own counsel and to attend all conferences, meetingsand proceedings relating to such claim.

18.2.4 In no event shall the Payee be entitled to acknowledge or settle a claim or permitany such acknowledgement or settlement without the Indemnifier's prior writtenconsent, insofar as an indemnification is sought in respect of such claim from theIndemnifier.

18.3 Miscellaneous

18.3.1 Amendments

No amendment or waiver of any provision of this Agreement, nor consent to anydeparture by any of the Parties therefrom, shall in any event be effective unlessthe same shall be in writing and signed by the Parties hereto and then suchwaiver or consent shall be effective only in the specific instance and for thespecific purpose for which it is given.

18.3.2 Agreement to Override Other Agreements; Conflicts

(a) This Agreement supersedes all previous agreements or arrangementsbetween the Parties, including any memoranda of understanding entered

into in respect of the contents hereof and represents the entireunderstanding between the Parties in relation thereto.

(b) In the event of a conflict between the terms of this Agreement and thoseof any other Project Agreement, the terms of this Agreement shall prevail.

18.3.3 No Waiver; Remedies



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No failure on the part of any Party to exercise, and no delay in exercising, anyright, power or privilege hereunder shall operate as a waiver thereof or a consentthereto; nor shall any single or partial exercise of any such right, power orprivilege preclude any other of further exercise thereof or the exercise of anyother right, power or privilege. The remedies herein provided are cumulativeand not exclusive of any remedies provided by applicable law.

18.3.4 Severance of Terms

If any provisions of this Agreement are declared to be invalid, unenforceable orillegal by any competent arbitral tribunal or court, such invalidity,unenforceability or illegality shall not prejudice or affect the remainingprovisions of this Agreement which shall continue in full force and effect.

18.3.5 Language

All notices, certificates, correspondence or other communications under or inconnection with this Agreement, any other Project Agreeement or the Project

shall be in English

18.3.6 Notices

Any notice to be given hereunder shall be in writing and shall either be deliveredpersonally or sent by registered post, telex, facsimile transmission, electronic mailor other means of telecommunication in permanent written form. The addressesand numbers for service of notice shall be given to the parties at their respectiveaddresses set forth below:

PE : [ ]

GOS : [ ]

or such other address, telex number, or facsimile number as may be notified bythat Party to any other Party from time to time, and shall be deemed to have beenmade or delivered (i) in the case of any communication made by letter, whendelivered by hand, by recognized international courier or by mail (registered,return receipt requested) at that address and (ii) in the case of anycommunication made by telex or facsimile, when transmitted properly addressedto such telex number or facsimile number. In case any Party changes its address,communication numbers, or directed attention as set forth above, it shall notifythe other Parties in writing prior to the adoption thereof.

18.3.7 Governing Law

This Agreement shall be governed by and construed in accordance with the lawsof India and the state law.



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18.3.8 Original Document

This Agreement is made in two (2) original copies, each having the same contentsand the Parties have read and thoroughly understand the contents hereof andhave hereby affixed their respective signatures and seals before witnesses.

18.3.9 Confidentiality

Neither the PE nor the GOS shall, unless otherwise agreed (which agreementmay be on such general or specific terms as the parties may determine), discloseto any third party any information which is the property of the other party to thisAgreement or which otherwise relates to its business, secrets, dealings,transactions or affairs unless, and to the extent that, such disclosure:

(a) is reasonably required for the exercise or performance by either party ofits rights or obligations under this agreement; or

(b) is required pursuant to any relevant statutory or regulatory requirements

or duties or any relevant terms of the Applicable Laws; or

(c) relates to information which is already in the public domain, other than asa result of breach of this Clause by the party seeking to make suchdisclosure;

Provided that, in the case of any disclosure in accordance herewith, the Partydisclosing such information shall, so far as reasonably practicable, impose on thethird party receiving such information such obligations as may be appropriate tomaintain its confidentiality.

18.3.10 Assignment

(i) By PE

The PE shall not assign, transfer, mortgage, charge, sub-let, deal with,sub-contract, sub-license or otherwise grant rights in or over all or any ofthe rights, or all or any of its obligations or liabilities under thisAgreement.

(ii) By GOS

Without thereby implying any restriction on the GOS otherwiseassigning, transferring, dealing with or granting rights in or over all or

any of its rights or obligations under this Agreement, it is expresslyrecognized that, without requiring the consent of the PE:

(i) the GOS may assign the benefit of or create any otherencumbrance upon all or any of its rights hereunder; and

(ii) the GOS may assign and transfer all or any of its rights andobligations under this Agreement subject to the GOS guaranteeing



161

to procure full and complete observance and performance of allsuch obligations by the assignee.

18.3.11 Change in Law

It is expressly clarified that any event or occurrence after the last date of

submission of a binding offer that may constitute a ‘change in law’ or alleged‘change in law’ shall not be a ground for any alteration or amendment to anyterm hereof or of any rights and obligations flowing from this Agreement. Therights and obligations hereunder shall not be prejudiced by any event that mayconstitute a ‘change in law’ or an analogous event or circumstance.

18.3.12 Time is of the Essence

Time shall be of the essence of this Agreement, both as regards the dates, periodsor times of day mentioned and as regards any dates, periods or times of daywhich may be substituted for them in accordance with this Agreement.

18.3.14 In consideration of the grant of the rights hereunder to PE, GOS shall have the

right to nominate one (1) Director on the Board of the PE at all times.

18.3.15 Survival

Clauses [1, 15, 17, 18] shall continue to bind the Parties notwithstanding thetermination of this Agreement.



162

Notice

18.3.16 Any notice required or permitted under the terms of thisAgreement or required by law shall (unless otherwise agreed) be in writingand shall be delivered in person, sent by registered mail or air mail as

appropriate, properly posted and fully prepaid in an envelope properlyaddressed or sent by facsimile to the respective parties as follows:

GOS:

Address:

Fax No.:

The PE:

Address:

Fax No.:

Entire Agreement

8.3.1 This Agreement, together with all Schedules and attachments hereto,

represents the entire agreement and understanding between the Parties

with respect to the subject matter of this Agreement and supersedes any

prior agreement or understanding, written or oral, that the Parties may

have had.

8.4 Amendment

8.4.1 No addition, amendment or to or modification of this Agreement shall be

effective unless it is in writing and signed by both Parties.

8.5 Assignment

8.5.1 Notwithstanding any change in the Applicable Law after the date hereof

which might otherwise permit the assignment of this Agreement, no Party

may assign this Agreement or any right or obligation arising under or

pursuant to it or any benefit or interest herein.

8.5.2 Provided however that notwithstanding the foreGOSng, the GOS hereby

expressly agrees to transfer and novate this Agreement in favour of a



163

substitute entity selected pursuant to the terms of the Substitution

Agreement.

8.6 No Partnership

8.6.1 This Agreement shall not constitute or be interpreted to constitute apartnership between the Parties. Neither Party shall have any authority

(unless expressly conferred in writing by virtue of this Agreement or

otherwise and not revoked) to bind any other Party as its agent or

otherwise.

8.7 No Waiver

8.7.1 No failure on the part of GOS or the PE to exercise, and no delay on their

part in exercising, any right, power, privilege or remedy under this

Agreement will operate as a waiver thereof, nor will any single or partialexercise of any right, power, privilege or remedy preclude any other or

further exercise thereof or the exercise of any other right, power, privilege

or remedy. Unless specified otherwise, the rights, powers, privileges and

remedies provided in this Agreement are cumulative and not exclusive of

any other rights, powers, privileges or remedies (whether provided by law

or otherwise).

8.8 Sovereign Immunity

8.8.1 GOS unconditionally and irrevocably:

i. agrees that the execution, delivery and performance by it of this

Agreement to which it is a party constitute private and commercial acts

rather than public or governmental acts;

ii. agrees that, should any proceedings be brought against it or its assets

in relation to this Agreement or any transaction contemplated by

this Agreement, no sovereign immunity from such proceedings shall

be claimed by or on behalf of itself or with respect to its assets.

8.9 Bi laterals

8.9.1 Without impinging on or in any way restricting the sovereign rights of theGovernment of India, GOS shall, where feasible, endeavour to renew allexisting air services agreements and endeavour not to revoke or terminateany existing air services agreements affecting the TMC . For the avoidanceof doubt, GOS shall be entitled to revoke or terminate any air services



164

agreement for reason of the failure of another state or its designatedcarrier(s) to comply with their obligations under, or as a result of a breachby or default of the other party to, such air services agreement.

IN WITNESS WHEREOF the Parties have caused this Agreement to be executed

by their duly authorized officers and representatives as of the day and year firstabove written.

Signed by

For and on behalf of GOS

In presence of (1)

(2)

Signed by

For and on behalf of the PE

In presence of (1)

(2)



165

IN WITNESS WHEREOF this Agreement has been executed by the duly authorizedrepresentatives of the Parties hereto on the day and year first above written.

For and on behalf of GOSWITNESS:

1. ___________________

2. ___________________

For and on behalf of [ ]

WITNESS:

1. __________________

2. __________________



166

Schedule 1

Market Services

THIS PAGE INTENTIONALLY LEFT BLANK



167

“Market Services” means the provision of the following User facilities and services atthe TMC

(a) Facilities and services to be provided at the central terminal market complex for

Perishable Agricultural Produce handled by the PEi. electronic auction facility

ii. cold storage facility

iii. temperature controlled warehouse

iv. ripening chamber

v. sorting, grading, washing and packing lines

vi. labeling of produce

vii. quality testing facility

viii.

material handling equipment (palletisation and plastic crates )ix. movement and parking facility for vehicles

x. futures trading facility

xi. transport services (including cool chain)

xii. banking services including settlement of transactions

xiii. Vehicle fuelling services

xiv. Waste and refuse treatment and disposal

xv. Basic lodging services

xvi. Storage area of plastic cratesxvii. Standards for the produce arriving at the market

xviii. Bulk Weighment etc

xix. Price displays / bulletin service

(b) Facilities and services to be provided at the collection centre for PerishableAgricultural Produce handled by the PE

i. washing, grading, sorting, weighment services

ii. transport services to central terminal market complex

iii. plastic crates

iv. facility for collection and aggregation of produce

v. banking services including settlement of payment

vi. multi-modal transport



168

In addition to the above which can be chargeable, the TMC will provide the following

User facilities and services free of charge to the TMC Users:

(a) price information display screens both at the central Terminal Market Complex and

the collection centres for Perishable Agricultural Produce

(b) advisory on inputs, prices, quality for Perishable Agricultural Produce

The minimum capacity shall be the capacity of the Market Assets providing Market

Services as submitted and approved in the Initial Development Plan.

The PE shall collect user charges for these services in line with prevailing market

conditions.



169

Schedule 2

Non Market Services

“Non Market Services” means the provision of the following indicative User facilitiesand services at the TMC:

(a) Business Centre services

(b) Catering services

(c) Freight consolidators/forwarders or agent services

(d) General retail shops

(e) Hotels and Motels services including reservation services

(f) Locker rental

(g) Logistic Centers

(h) Messenger services

(i) Porter service

(j) Restaurants, and other refreshment services

(k) Vehicle rental services

(l) Vending services

(m) Leisure service Facilities

(n) Shopping Complex

(o) Processing facilities

The PE shall collect user charges for these services in line with prevailing market

conditions.







172

Quality Station:

(a) Separate and Trained staff should be appointed for the quality station(b) Adequate facilities to check the quality of produce being marketed must be provided

Pre-cooling Unit:

(a) Development of pre-cooling facilities must be done required as per the nature ofdifferent produce

(b) Must provide for quality and hygiene standards(c) It should meet the all technical and quality criteria as per the Master Plan by the PE

IT Application and Networking

(a) The Terminal Market Complex must be adequately supported by IT andautomated data processing systems with provisions for networking with otheragricultural markets and market boards and such other institutions as decided bythe GoS



173

Development Standards

1 National Building Code (India)

Confirm to the National Building Code (NBC) which sets out safety and durabilityaspects to be incorporated into building structure.

2 Indian Standard Codes

Confirm to the relevant code for the specific aspect of development. The IndianStandard Codes are a comprehensive range of Standards and practices as per Bureau ofIndian Standards, to be adopted in all aspects of design and construction in India.

3 Electrical Specifications

All electrical equipments, wiring and provisions for the supply of power and lighting atTMC shall conform to the relevant standards laid down in the Indian Electricity Act

4 Fire Safety

Conform to appropriate Fire Safety Standards as applicable

5 Statutory Agency Requirements

Meet all requirements of the statutory agencies, including Ministry of Agriculture,Customs authorities, Ministry of Environment & Forests, Pollution Control Board.

6 Applicable Laws:

Adhere to all conditions, regulations, measures and all requirements of whatever kind

imposed by local bye-laws and other applicable Central, State and Local Governmentlaws.





175

Complex in the provision of the GOS Services wherever and whenever

required, at terms and conditions applicable to GOI agencies;

( x) The PE shall at all times maintain and upgrade the Market equipment asper the provisions of the Master Plan

OBJECTIVE SERVICE QUALITY STANDARDS46

Minimum Service Levels for Terminal Market Operations

S.No. Parameters Indicative Minimum

Service Level

(at the start of

Project)

Indicative Minimum Service Level

(after 3 years of completion of Project)

1 Vehicle traffichandling capability

per ha of total

area[i]

200

800vii

2 Vehicle Parking 95% of drivers takenless than 3 minutes to

park in and go out

95% of drivers taken less than 2 minutes topark in and go out

3 Maximum Timefor Traffic

Congestion during

Peak

Hours(minutes)

5

Under 3

4 Maximum No of people working per

ha of total area[ii]

1000

1000

5 Population handledper ha of total

area[iii]

2500

4000vii

6 Labor Availability 98% of all instancesinspected on a random

basis

99% of all instances inspected on a randombasis

7 Loading and

Unloading Bayavailability for

Material

99% of all instances

inspected on a randombasis

99% of all instances inspected on a random

basis

8 Availability of cold

storage space for

material

At least 10% free space


inspected on a random

basis

At least 10% free space 95% of all

instances inspected on a random basis

9 DocumentProcessing

Time(minutes)iv

15

5

46The standards for collection centre would be decided as per the discussions with the GOS



176

10 Receipt of docs to

handover of Cashto farmer

20

5

11 Turn-around–time(from material

entry into TerminalMarket to Auction

(minutes)

90

30

13 Waiting Time in

queue perindividual

operationv

(minutes)

10

5

15 Processing Time inqueue per

individualoperation

v

(minutes)

20

5

16 Maximum time forproduce to be inopen environment

(minutes)

30

15

17 Maximumcomplaint handling

time(hours)

24

12

18 Cleanliness Achieve a satisfactory

Cleanliness rating of 95% of all instances


basis

Achieve a satisfactory Cleanliness rating of


19 Availability of water for animals

99% of all instancesinspected on a random

basis


20 Access to

Emergency

Services



basis

100% of all instances inspected on a

random basis

Notes:

[i] During auction time

[ii] Includes employees and labor force

[iii] Includes population incident during peak hours including visitors and traders

[iv] Includes registration and procedural documents such as receipts and records,etc

[v] Operation is defined as an activity related to the core material flow such as weighment, bagging,loading and unloading of each material lot of 10 metric tonnes

[vii]Assumes expansion in operations



177

Schedule 6

Product Standards

The Terminal Market Complex should follow the following product standards:

(i) “AGMARK' Standards”

It is mandatory for the Terminal Market Complex to meet the Agmark Standards ofgrading and sorting for fresh fruits and vegetables defined by Directorate of Marketingand Inspection (DMI), MoA India at the commencement of operations.

(II) EUREPGAP STANDARD

It is desirable to fulfill the requirement of the EurepGAP standards or other equivalentStandard in case of export to European countries and other over a period of time. Thesame shall mandatorily need to be in place by the PE within four years of thecommencement of the operation of the market.

(III) ISO 17025

It is mandatory to meet the ISO standards for the processes and the services such as ISO17025 standard in the Quality station. The same shall mandatorily need to be in placewithin two years of the commencement of the operation of the market

(iv) Any other required and well accepted standard can be followed to meet the

quality standard of produce in the terminal market complex and the same shouldbe provided in the master plan.





179

Schedule 8

Form of Substitution Agreement

[to be provided ]



180

Schedule 9

TRA Account Agreement47

Between

[•]

as the Company

and

GOVERNMENT OF THE STATE OF

and

[•]

as TRA Bank

47In the event the PE is exempt from the Market Fee, the TRA Agreement shall not be executed.



TABLE OF CONTENTS





183

NOW, THEREFORE, in consideration of the premises contained herein and for othergood and valuable consideration, the receipt and adequacy of which isacknowledged, the Parties hereto agree as follows:

1. DEFINITIONS

1.1 For the purposes of this Agreement, capitalised terms shall have the meaningset forth hereunder.

“Applicable Law” means all laws, brought into force and effect by GOIincluding rules, regulations and notifications made thereunder and judgements, decrees, injunctions, writs and orders of any court of record, asmay be in force and effect during the subsistence of this Agreement.

“Authorised Investments” means investment in securities rated at least AAAby CRISIL or with equivalent ratings by CARE/ICRA or fixed deposits inbanks with at least a AAA rating by CRISIL or equivalent rating byICRA/CARE or any other liquid securities.

“Beneficial Parties” means collectively the Company and GOS and“Beneficial Party” refers individually to each of them;

“Business Day” means any day of the week (excluding Saturdays, Sundayand public holidays) on which banks in New Delhi are open for business;

“Company” means the special purpose vehicle formed by the PE for

executing the Project.

“Dispute” shall mean any dispute, difference, question or controversybetween the Parties arising out of, in connection with or in relation to thisAgreement.

“Event of Default” shall mean an event of default of the PE under theOMDA, as certified by the GOS in a written notice in this regard to the TRABank.

“Market Fee" shall mean the statutory fee payable to the GOS for transactions

in Agricultural produce

“Month” shall mean a calendar month.

“Person” means any individual, corporation, company, partnership, joint

venture, association or trust or any other entity or organization;

“Priority Cash-flow Application” shall have the meaning ascribed to theterm in Section 3.5(B)(a) hereunder;



184

“Project” means the operation, maintenance, development, design,construction, upgradation, modernization, financing and management of theTerminal Market Complex;

“Receivables” means any and all cash flows and cash realizations of the PEaccruing from or in relation to the Terminal Market Complex from any

source, including all proceeds from any draw-downs under its loanagreements, any equity funding received by the PE, refund of taxes, any andall monies due or to become due to the PE from any source including fromany performance bonds, letters of credit and instruments of a similar natureand proceeds from any insurance contracts;

“Statutory Dues” for any Month, shall mean the taxes, duties, charges, cess,levies and other such analogous payments due under Applicable Law duringsuch Month, as certified by the statutory auditor of the Company.

“Terminal Market Complex” means assets both at the collection centers andthe central terminal market for providing Essential Services, Market Services

and Non-Market Services 48

In this Agreement, unless the context otherwise requires, the following rules ofinterpretation and construction shall apply:

A reference to the singular shall include a reference to the plural and vice-versa; anda reference to any gender shall include a reference to the other gender.

A reference to any Article, Clause, Appendix, Schedule, Attachment or Annex shallbe to an article, clause, appendix, schedule, attachment or annex of thisAgreement.

The Appendices, Schedules, Attachments and Annexes, if any, form an integral partof this Agreement. In the event of any conflict between any provision of theArticles and any provision of the Appendices, Schedules, Attachments orAnnexes, the provision of the Articles shall prevail.

Reference to any law or regulation having the force of law includes a reference tothat law or regulation as from time to time amended, modified,

supplemented extended or re-enacted.

Any reference to time shall, except where the context otherwise requires, beconstrued as a reference to the time in India. Any reference to the calendarshall be construed as reference to the Gregorian calendar.




185

The headings of the Articles, Clauses, Appendices, Schedules, Attachments andAnnexes in this Agreement are inserted for convenience of reference only andshall not affect the meaning or interpretation of this Agreement.

The words “include” or “including” shall be deemed to be followed by “withoutlimitation” or “but not limited to” whether or not they are followed by such

phrases.

Unless the context otherwise requires, any period of time referred to shall be deemedto expire at the end of the last date of such period.

If any provision in Article 1.1 is a substantive provision conferring rights or imposingobligations on any Party, effect shall be given to it as if it were a substantiveprovision in the body of this Agreement;

The rule of construction, if any, that a contract should be interpreted against theparty/parties responsible for the drafting and preparation thereof, shall notapply;

All references to agreements, documents or other instruments include (subject to allrelevant approvals) a reference to that agreement, document or instrument asamended, supplemented, modified, substituted, novated or assigned fromtime to time.

Establishment of TRA account and declaration of trust

Establishment of the Accounts

The Company and the TRA Bank confirm that the TRA Bank has established,in the name of the Company at the TRA Bank’s State Governemnt branch, an

account titled the “TRA Account”. The TRA Account shall have the followingsub accounts, maintained, controlled and operated by the TRA Bank for thepurposes of this Agreement, namely:

a sub account maintained, controlled and operated by the TRA Bank,titled the “Receivables Account”;

a sub account maintained, controlled and operated by the TRA Bank,titled the “Proceeds Account” which shall have the following subaccounts:

a sub-account maintained, controlled and operated by the TRABank, titled the “Market Fee Account;

a sub-account maintained, controlled and operated by the TRABank, titled the “Statutory Dues Account;

a sub-account maintained, controlled and operated by the TRABank, titled the “Surplus Account”.





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(A) Deposits into the Proceeds Account

(i)The TRA Bank shall in accordance with Section 3.1 of thisAgreement, immediately on such deposit, transfer moniesdeposited in the Receivables Account, into the Proceeds Account.

(B) Withdrawals from the Proceeds Account

(a) As long as there is no Event of Default, on any date, the TRABank shall withdraw amounts deposited in the ProceedsAccount only towards the following purposes and in thefollowing order of priority (hereinafter the “Priority Cash-flow Application”):

(i) to pay amounts into the Market Fee Account such thatby no later than the seventh day of any Month the

amounts so transferred in that Month are equal to theMonthly Statutory Dues for the Preceeding Month

(ii) to pay amounts into the Statutory Dues Account suchthat by no later than the last day of any Month theamounts so transferred in that Month are equal to themonthly Statutory Dues for the following Month.

(iii) to pay any and all balance amounts into the SurplusAccount.

(b) It is hereby expressly clarified that if, in any Month, the fundsavailable in the Proceeds Account for transfer to any sub-account in accordance with Section 3.2(B)(a) are insufficient topay the amount required to be paid in each of the sub-accountsin accordance with Section 3.2(B)(a), then the TRA Bank shalltransfer funds to the relevant sub-account in accordance withthe Priority Cash-flow Application.

3.3 Market Fee Account

The Statutory Dues Account shall be established by the TRA Bank at StateGovernment Branch in the name of the Company.

(A) Withdrawals from the Market Fee Account

On the deposit of any amounts in the Statutory Dues Account inaccordance with Section 3.2(B)(a)(i), the TRA Bank shall withdraw



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amounts from the Market Fee Account as are required by theCompany to make payments of Market Fee as required underApplicable Law.

3.4 Statutory Dues Account

The Statutory Dues Account shall be established by the TRA Bank at NewDelhi in the name of Company.

(A) Withdrawals from the Statutory Dues Account

On the deposit of any amounts in the Statutory Dues Account inaccordance with Section 3.2(B)(a)(ii), the TRA Bank shall withdrawamounts from the Statutory Dues Account as are required by theCompany to make payments of Statutory Dues.

3.5 Surplus Account

The Surplus Account shall be established by the TRA Bank in the name of theCompany.

(A) Withdrawals from the Surplus Account

The TRA Bank shall pay, from time to time, to the Company, withinseven (7) days of receiving directions in this regard from theCompany, such amounts from the Surplus Account as the Companymay direct.

4. Authorised Investments

4.1 Power to Invest

(i) So long as the TRA Bank is not notified of an Event of Default, theTRA Bank shall, from the amounts standing to the credit of theTRA Account (and any sub-accounts thereunder), invest inAuthorised Investments as provided in this Agreement(“Permitted Investment”) and in each case with respect to thoseamounts next anticipated to be transferred or withdrawn, thePermitted Investment in relation thereof, shall have a scheduledmaturity no later than such next anticipated cash withdrawal ortransfer from such Account in accordance with this Agreement.

(ii) Upon the occurrence and during the continuance of an Event ofDefault, investment of such funds and reinvestment shall be madein Authorised Investments with the consent of GOS.

(iii) Section 20 of the Indian Trusts Act, 1882 shall not apply toinvestments of amounts in the TRA Account in AuthorisedInvestments.

5. TRA Bank provisions



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5.1 TRA Bank and the Beneficial Parties

The Beneficial Parties hereby appoint the TRA Bank for benefit of theBeneficial Parties in connection herewith, and authorise the TRA Bank toexercise such rights, powers, authorities and discretions as are specificallydelegated to the TRA Bank by the terms hereof together with all such rights,

powers, authorities and discretions as are reasonably incidental hereto, andthe TRA Bank accepts such appointment pursuant to the terms hereof.

5.2 Obligations of the TRA Bank

The TRA Bank:

(a) undertakes to perform only such duties as are specifically set forth to beperformed in this Agreement, in accordance with the terms andconditions contained herein, and further undertakes to act in good faithand without negligence;

(b) may, in the absence of bad faith or gross negligence on its part, rely as toany matters of fact which might reasonably be expected to be within theknowledge of the Company upon a certificate signed by or on behalf ofthe Company;

(c) may, in the absence of bad faith or gross negligence on its part, rely uponthe authenticity of any communication or documents believed by it to beauthentic;

(d) shall, within five (5) Business Days after receipt, deliver a copy to GOS ofany notice or document received by the TRA Bank (in its capacity as theTRA Bank) from the Company or any other Person;

(e) Shall, within five (5) Business Days after receipt, deliver a copy to theCompany of any notice or document received by the TRA Bank (in itscapacity as the TRA Bank) from GOS or any Person in connectionherewith; and

(f) Shall within seven (7) Business Days prior to any date on which anypayment is due to a Beneficial Party in accordance with the terms andconditions of this Agreement, provide notice to GOS of any anticipatedshortfall in the TRA Account (or any account thereunder) for making anypayments due in accordance with the terms and conditions of thisAgreement.

6. TERM AND TERMINATION

6.1 This Agreement shall, unless terminated earlier by the mutual consent of theParties or otherwise in accordance with the provisions of this Section bywritten notice from the Beneficial Parties to the TRA Bank, remain in fullforce and effect for the duration of the OMDA.

6.2 GOS may, after consultation with the Company, at any time may remove the



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TRA Bank, with or without cause, and appoint a successor TRA Bank bywritten notice of such action to the Company, the TRA Bank and thesuccessor TRA Bank.

Provided however GOS shall not be required to consult with the Company (asrequired above) if an Event of Default has occurred and is subsisting.

6.3 If, at any time, the TRA Bank shall become a Beneficial Party, the TRA Bankshall resign as TRA Bank immediately upon the occurrence of an Event ofDefault, if in the sole judgement of the other Beneficial Parties (which, for thispurpose, shall not include the TRA Bank), there shall be, or be reasonablylikely that there will arise, any conflict in or impediment to the TRA Bank’sperformance as TRA Bank under this Agreement.

6.4 The TRA Bank shall be entitled to terminate its services under this Agreementif the Company/GOS fails to comply with any of its material obligationsowed to the TRA Bank under this Agreement and fails to remedy the failurewithin sixty (60) days after receipt of notice thereof from the TRA Bank to the

Company, provided however, GOS has arranged for the appointment of asuccessor TRA Bank and arrangements are made for the transfer of amountsdeposited in the TRA Account (including any sub-accounts thereof) to newaccounts established with successor TRA Bank.

6.5 (i) Any successor TRA Bank appointed as provided in accordance withthis Section 6 shall execute, acknowledge and deliver to, and for thebenefit of, the Beneficial Parties and to its predecessor TRA Bank aninstrument accepting such appointment, and thereupon theresignation or removal of the predecessor TRA Bank shall becomeeffective and such successor TRA Bank, without any further act, deedor conveyance, shall become vested with all the rights, powers, duties

and obligations of its predecessor hereunder, as if it was originallynamed as TRA Bank;

(ii) provided that on the written request of the Beneficial Parties or of thesuccessor TRA Bank, the TRA Bank ceasing to act shall take such stepsor actions as are required of it by the Beneficial Parties, includingwithout limitation the execution and delivery of an instrument orinstruments transferring and assigning to such successor TRA Bank(without obligation to indemnify such successor) all the rights andpowers of the TRA Bank so ceasing to act, delivery to the BeneficialParties all documents, instruments, etc. relating to its obligations

under this Agreement.

(iii) Upon the reasonable request of any such successor TRA Bank, theBeneficial Parties shall execute any and all instruments in writing inorder more fully and certainly to vest in and confer to such successorTRA Bank all such rights and powers.

6.6 Any corporation into which the TRA Bank may be merged or converted orwith which it may be consolidated or any corporation resulting from anymerger, conversion or consolidation to which the TRA Bank shall be a party,





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6.10 Confidentiality

The TRA Bank agrees to keep all information (“ Information”) (including the terms andconditions of this Agreement and/or any and all of the Project Agreements) made available(whether before or after the date of this Agreement) by any of the Parties to the TRA Bank

concerning the Company or the Project, confidential, and hereby undertakes and covenants

not to communicate any Information, or allow any Information to be communicated to anythird party unless:

(a) in connection with any proceedings arising out of or in connectionwith this Agreement to the extent that such party may consider it necessary toprotect its interest or the interests of the TRA Bank; or

(b) required to do so by an order of a court of competent jurisdictionwhether or not in pursuance of any procedure for discovering documents; or

(c) pursuant to any Applicable Law in accordance with which such party

is required to act; or

(d) to its auditors for the purposes of enabling the auditors to complete anaudit of the TRA Bank or to its legal advisers when seeking bona fide legaladvice in connection with this Agreement; or

(e) in circumstances where the relevant Information has been publishedor announced by the Company and/or any other Beneficial Party inconditions free from confidentiality or has otherwise entered the public

domain without default on the part of the relevant Party; or

(f) the Information was obtained by such TRA Bank from an independentor third party source who was not in breach of any confidentiality obligations

with the Beneficial Parties.

6.11 Not Acting in Individual Capacity

In accepting the trusts hereby created, the TRA Bank acts solely in its capacityas a TRA Bank and not in its individual capacity and all Persons having anyclaim against the TRA Bank by reason of the transactions contemplated bythe Project Agreements shall look only to the Company for payment orsatisfaction thereof, save and except as provided in this Agreement, otherthan as a result of its wilful misconduct or gross negligence.

6.12 Indemnity

The Company shall indemnify the TRA Bank for any and all liabilities,obligations, losses, damages, penalties, actions, judgments, suits, costs,expenses, claims or disbursements of any kind or nature whatsoever whichmay be imposed upon, incurred by or asserted against the TRA Bank in anyway in connection with or arising out of the negotiation, preservation orenforcement of any rights under, or in carrying out its duties under thisAgreement (other than those incurred on account of gross negligence orwillful default on the part of the TRA Bank).



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7. Representations and warranties of the TRA Bank and the Company

Each of the TRA Bank and the Company represent and warrant that it is dulyorganised and validly existing under the laws of India with power to enterinto this Agreement and to exercise its rights and perform its obligationshereunder and has taken all corporate and other actions required for the

execution of this Agreement and the performance of its obligationshereunder. The TRA Bank represents and warrants that it shall hold all fundsin the TRA Account in trust for the benefit of the Beneficial Parties inaccordance with the provisions of this Agreement and further represents andwarrants that it has obtained all approvals, permits and other clearancesrequired for the execution of this Agreement and the performance of itsobligations hereunder.

8. Miscellaneous

8.1 Restriction on Assignment

Save as provided in Section 6, the Company and the TRA Bank, shall notassign or transfer any part of their respective rights or obligations under thisAgreement without the prior consent of GOS. It is expressly agreed betweenthe Parties that nothing in this Section 8.2 shall prevent GOS from assigning,novating or transferring its rights, benefits and obligations under thisAgreement to any Person.

8.2 Notices

All notices shall be sent to a Party hereto at its address and contact number specifiedin Schedule A appended hereto, or at such other address and contact number as isdesignated by such Party in a written notice to the other Parties hereto.

All such notices and communications shall be effective (i) if sent by telex,when sent (with the correct answerback), (ii) if sent by telecopier, when sent(on receipt of a confirmation to the correct telecopier number), (iii) if sent byperson, when delivered, (iv) if sent by courier, (a) one Business Day afterdeposit with an overnight courier if for inland delivery and (b) five BusinessDays after deposit with an international courier if for overseas delivery and(c) if sent by registered letter when the registered letter would, in the

ordinary course of post, be delivered whether actually delivered or not.

An original of each notice and communication sent by telex or telecopy shallbe dispatched by person, overnight courier (if for inland delivery) or

international courier (if for overseas delivery) and, if such person or courierservice is not available, by registered airmail (or, if for inland delivery,registered first class mail) with postage prepaid, provided that the effectivedate of any such notice shall be determined in accordance with Section 8.3.2,as the case may be, without regard to the dispatch of such original.



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8.3 No Waivers; Remedies

No failure on the part of any Party to exercise, and no delay in exercising, anyright, power or privilege hereunder shall operate as a waiver thereof or aconsent thereto; nor shall any single or partial exercise of any such right,power or privilege preclude any other of further exercise thereof or the

exercise of any other right, power or privilege. The remedies herein providedare cumulative and not exclusive of any remedies provided by ApplicableLaw.

8.5 Severability

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent ofprohibition or unenforceability but that shall not invalidate the remainingprovisions of this Agreement or affect such provision in any other

jurisdiction.

8.5 Amendments or Waiver

No amendment or waiver of any provision of this Agreement, nor consent toany departure by any of the Parties therefrom, shall in any event be effectiveunless the same shall be in writing and signed by the Parties hereto and thensuch waiver or consent shall be effective only in the specific instance and forthe specific purpose for which given.

8.6 Governing Law

This Agreement shall be governed by and construed in accordance with thelaws of India.

8.7 Dispute Settlement

The Parties shall use their respective reasonable endeavours to settle any Disputeamicably. If a Dispute is not resolved within sixty (60) days after writtennotice of a Dispute by one Party (or a group or Parties) (the “Claimant(s)”)to the other Party (or group of Parties) (the “Respondent(s)”) then theprovisions of Section 8.8.2 to Section 8.8.7 shall apply.

Any and all Disputes arising out of, or in relation to, this Agreement or theinterpretation or construction of any provisions herein, which are notsettled amicably by the Parties pursuant to Section 8.8.1 hereinabove, shallbe finally settled, as per the provisions set out herein, by arbitration inaccordance with the Arbitration and Conciliation Act, 1996.

Any Dispute shall be referred to an arbitral tribunal consisting of three (3)arbitrators (hereinafter “Arbitral Tribunal”). The Claimant(s) and the



195

Respondent(s) shall each appoint one (1) arbitrator to the Arbitral Tribunaland the two arbitrators thus appointed shall choose the third arbitrator,who shall also act as the presiding arbitrator of the Arbitral Tribunal.

The decision(s) of the Arbitral Tribunal, supported by reasons for suchdecision shall be final and binding on the Parties.

The venue of arbitration shall be New Delhi.

The governing law of the arbitration shall be the substantive laws of India.

This Clause 8.8 shall survive the termination of this Agreement.

8.8 Regulatory Approvals

The Company shall procure and shall thereafter maintain and comply with

all regulatory approvals required for it to establish and operate the TRAAccount.

8.9 Notification of Balances

Within seven (7) days following the end of each calendar Month, the TRABank shall notify GOS of the respective balances in the TRA Account(including balances in each of the sub-accounts thereunder) as on the lastBusiness Day (of the Month) and a statement of balances in TRA Account onthe first Business Day of each Month.

8.10 Additional Rights

Any rights conferred on the Parities pursuant to this Agreement shall be inaddition to and not in substitution for or in derogation of any other rights andremedies which the Parties may at any time have under the Project Agreementsor otherwise.

IN WITNESS WHEREOF the Company has caused its Common Seal to be affixedhereto and to a duplicate hereof on the date first above written and the TRA Bank

and GOS have caused the same to be executed by the hand of an authorised official.

The COMMON SEAL OF [COMPANY]has been affixed pursuant to theresolution of its Board of Directorsdated the ______ day _______________________, [2005] whichhas hereunto been affixed in thepresence of Shri ________, and Shri _______, Directors who have signedthese presents in token thereof and



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countersigned by __________, theauthorised officer / Company Secretary

SIGNED AND DELIVERED by [TRA

BANK] by the hand of _________________________________ itsauthorised official.

SIGNED AND DELIVERED by GOS bythe hand of ____________________________ itsauthorised official.

SCHEDULE A

NOTICE TO PARTIES

THE COMPANY

Name of Party:

Address:

Tele No:

Fax No:

Attention:

TRA BANK

Name of Party:

Address:

Tele No:

Fax No:



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Attention:

GOS

Name of Party: GOVERNMENT OF THE STATE OF

Address:

Tele No:

Fax No:

Attention:



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SCHEDULE 10

INITIAL DEVELOPMENT PLAN

[ As approved ]



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SCHEDULE 11

FORM OF BID BOND GUARANTEE

B.G. No. _______________________________________ dated ______________.

This Deed of Guarantee (“Bid Bond”) executed at ______________ by ________________ (Name of Bank) having its Head/Registered office at

_______________________________ (hereinafter referred to as “the Guarantor”)which expression shall unless it be repugnant to the subject or context thereofinclude its executors, administrators, successors and assigns;

In favour of

The Government of the State of (hereinafter called “GOS”), having its office at __________________________________________, which expression shall unless it be

repugnant to the subject or context thereof include its executors, administrators,successors and assigns:

Whereas M/s. _____________________, a [Entity]49 [registered under provisions ofthe Companies Act, 1956 having its registered office]50 at ________________ (hereinafter called “the Applicant”) which expression shall unless it be repugnant tothe subject or context therefore include its executors, administrators, successors andassigns, has bid for the Restructuring and Modernisation of the ____________ 51 Terminal Market Complex (hereinafter referred to as “the Project”)

Whereas in terms of the Request for Proposal Document dated ____________________ (hereinafter referred to as “RFP Document”) the Applicant isrequired to furnish to the GOS an unconditional and irrevocable bank guarantee for

49Type of Entity as appropriate

50Registration details

51Insert name of the Terminal Market Complex as applicable



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an amount of Rs. Five lakhs (Rs 5,00,000 only) as Bid Bond and the Guarantor has at

the request of the Applicant agreed to provide such Guarantee being these presents:

Now this deed witnesseth that in consideration of the premises, We,

____________________________the Guarantor hereby declare, undertake and agreeas follows:

a) We as primary obligor shall, without demur, pay to the GOS an amount notexceeding Rs. 5 lakhs (Rupees 5,00,000 only), within 5 days of receipt of awritten demand from the GOS stating that the Bid Bond has been invokedand forfeited upon the Applicant being declared and notified by GOS as aSuccessful Bidder and the Applicant not fulfilling the requirements as perterms of the RFP Document. Any such demand made on us by the GOS shallbe conclusive and absolute as regards to the invocation and the forfeiture of

the Bid Bond and the amount due and payable under this Guarantee.

b) The above payment shall be made by us without any reference to theApplicant or any other person and irrespective of whether the claim of theGOS is disputed by the Applicant or not.

c) This Guarantee shall remain in full force for a period of 6 52 months from(date) _______ or for such extended period as may be mutually agreed

between the GOS and the Applicant and shall continue to be enforceable tillall amounts under this Guarantee are paid.

d) In order to give full effect to this Guarantee, the GOS shall be entitled to treatthe Guarantor as the principal debtor and the obligations of the Guarantorshall not be affected by any variations in the terms and conditions of the RFPDocument or other documents or by extension of time of performance of anyobligations by the Applicant or any postponement for any time of the powersexercisable by the GOS against the Applicant or forebear or enforce any of theterms and conditions relating to non-compliance of the RFP Document by theApplicant and we shall not be relieved from our obligations by reason of anyvariation or extension being granted to the Applicant or forbearance oromission on the part of the GOS or any indulgence by the GOS to theApplicant to give such matter or thing whatsoever which under the lawrelating to sureties would but for this provision have effect of so relieving us.

52Bidder to ensure that the Bid Bond is valid for the Bid Period as per the RFP



201

e) This Guarantee shall be irrevocable and shall remain in full force and effect

until all our obligations under this Guarantee are duly discharged.

f) The Guarantor has power to issue this Guarantee and the undersigned is duly

authorised to execute this Guarantee pursuant to the power granted under ___________.

In Witness whereof the Guarantor has set its hands hereunto on the day,month and year first hereinabove written.

Signed and Delivered by ______________

Bank by the hand of Shri ______________

Its ___________________ and authorised official.



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SCHEDULE 12

FORM OF PERFORMANCE GUARANTEE

[ON THE LETTERHEAD OF THE ISSUER BANK]

Dated [•]

To

GOS

[•]

Subject: Performance Bank Guarantee

This PERFORMANCE BANK GUARANTEE (hereinafter the “Guarantee”) is madeat [New Delhi] on the [●] day of [●] 2005

WHEREAS

A. PE, a company incorporated under the Companies Act, 1956 having itsregistered office at [•] (hereinafter referred to as the “PE”, which expressionshall, unless repugnant to the context or meaning thereof, include itssuccessors and permitted assigns) has entered into an Operations,Management and Development Agreement dated [•] (hereinafter suchagreement, as amended and supplemented, referred to as the “OMDA”) withGovernment of the State of (hereinafter referred to as “GOS”, whichexpression shall, unless repugnant to the context or meaning thereof, includeits successors and assigns) for undertaking the Project.



203

B. As per the terms and conditions of the OMDA, the PE is obliged to furnish toGOS an irrevocable, unconditional and automatic revolving bank guaranteefrom a scheduled commercial bank in India, of a value and validity as setforth hereunder.

C. [•] having its registered office at [•] and a branch office at [ ], India,(hereinafter referred to as the “Bank”, which expression shall unlessrepugnant to the context or meaning thereof be deemed to mean and includeits successors), being a schedule commercial bank in India, has at the requestof the PE, agreed to issue this performance bank guarantee, in accordancewith the terms and conditions set forth hereunder, in favour of GOS.

NOW THEREFORE, the Bank hereby undertakes the pecuniary responsibility of thePE to the GOS for the due performance of the OMDA and hereby issues in favour ofthe GOS this irrevocable and unconditional performance and payment bankguarantee (hereinafter referred to as the “Guarantee”) on behalf of the PE.

1. The Bank for the purpose hereof unconditionally and irrevocably undertakesto pay to the GOS without any demur, reservation, caveat, protest orrecourse; immediately on receipt of first written demand from the GOS, asum or sums (by way of one or more claims) without the GOS needing toprove or to show to the Bank grounds or reasons for such demand for the

sum specified therein and notwithstanding any dispute or difference betweenthe GOS and the PE in respect of the performance of the OMDA or moneyspayable by PE to the GOS or any matter whatsoever.

2. The Bank acknowledges that any such demand by the GOS of the amountspayable by the Bank to the GOS shall be final, binding and conclusiveevidence in respect of the amounts payable by the PE to the GOS.

3. The Bank hereby waives the necessity for the GOS from demanding theaforesaid amount or any part thereof from the PE and also waives any rightthat the Bank may have of first requiring the GOS to pursue its legal remediesagainst the PE, before presenting any written demand to the Bank forpayment under this Guarantee.



204

4. The Bank further unconditionally agrees with the GOS that the GOS shall beat liberty, without the Bank’s consent and without affecting in any manner theBank’s obligation under this Guarantee, from time to time to:

(i) vary and/or modify any of the terms and conditions of the OMDA,(ii) extend and / or postpone the time for performance of the obligations

of the PE under the OMDA, or(iii) forbear or enforce any of the rights exercisable by the GOS against the

PE under the terms and conditions of the OMDA.

and the Bank shall not be relieved from its liability by reason of any such actor omission on the part of the GOS or any indulgence by the GOS to the PE orother thing whatsoever which under the law relating to sureties would, butfor this provision, have the effect of relieving the Bank of its obligations under

this Guarantee.

5. The Bank’s obligations under this Guarantee shall not be reduced by reasonof any partial performance of the OMDA. The Bank’s obligations shall not bereduced by the failure by GOS to timely pay or perform any of its obligationsunder the OMDA.

6. Any payment made hereunder shall be made free and clear of and without

deduction for, or on account, any present of future taxes, levies, imposts,duties, charges, fees, commissions, deductions or withholdings of any naturewhatsoever and by whom ever imposed; and here any withholding on apayment is required by law, the Bank shall comply with such withholdingobligations and shall pay such additional amount in respect of such paymentsuch that the GOS receives the full amount due hereunder as if no such

withholding had occurred.

7. This Guarantee shall be a continuing bank guarantee and shall not bedischarged by the change in constitution of any member of the PE and theGuarantee shall not be affected or discharged by the liquidation, winding up,bankruptcy, reorganization, dissolution of insolvency of the PE or anymember of the PE or any other circumstances whatsoever.

8. This Guarantee shall have a minimum validity of at least twelve (12) monthsand shall be rolled over and renewed at least three (3) months prior to itsexpiry so as to keep it valid until the expiry or early termination of the



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OMDA, whichever is earlier. Provided however that in the event the Bankdoes not renew the Guarantee three (3) months prior to its expiry in themanner provided above, the GOS shall have the right to encash the entireamount of the Guarantee. This Guarantee shall remain valid and subsistinguntil released by GOS in writing.

9. This Guarantee shall be in addition to and not in substitution or in derogationof any other security held by the GOS to secure the performance of theobligations of the PE under the OMDA.

10. The Bank agrees that the GOS at its option shall be entitled to enforce thisGuarantee against the Bank, as a principal debtor in the first instance withoutproceeding at the first instance against the PE or any other security/guarantee that GOS may have.

11. The quantum of the Guarantee shall be Rs. 5 crore (Rupees 5,00,00,000 only)during the first five (5) years after the effective date of the OMDA; and Rs. 3crore (Rupees 3,00,00,000 only) during the period after the expiry of the five(5) years after the effective date for the remainder of the term of the OMDA(such amount being the “Full Amount” of the Guarantee). In the event anyportion of the Guarantee is en-cashed pursuant hereto, then immediatelyfollowing such encashment, the Bank shall replenish the Guarantee to its FullAmount. In the event the Guarantee is not replenished to its Full Amountwithin one (1) month of its encashment, the GOS shall have the right to en-

cash the entire Guarantee.

12. This Guarantee is subject to the laws of India. Any suit, action, or otherproceedings arising out of this Guarantee or the subject matter hereof shall be

subject to the exclusive jurisdiction of courts of New Delhi, India.

13. The Bank has the power to issue this Guarantee in favour of the GOS.

14. Capitalised terms not otherwise defined herein shall have the respectivemeanings given such terms set forth in the OMDA.

In witness whereof the Bank, through its authorized officer, has set its hand andstamp on this ____ day of ____ 2006.



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In presence of (1)

(2)



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SCHEDULE 13

DUTIES OF INDEPENDENT CONSULTANT

The scope of duties of Independent Consultant are:

(a) review all designs, drawings, specifications and procurement documents. These

may, inter-alia, take account of conformity and reasonableness of various aspects

including technical, architectural, Master Plan and Major Development Plans

prepared by the PE.

(b) Carry out a ‘benchmarking’ exercise for the project specifications and cost against

national and international Terminal Market Complex projects of similar scope

and nature.

(c) Monitoring of the construction, operation and management of the TMC as per

the agreement including monitoring on the basis of objective service quality

requirements, development standards and requirements, monthly activity report

, other operating statistics, performance indicators, financial plans, other suchreports, information (or analysis thereof) submitted by PE.

(d) Monitoring of progress of Mandatory Capital Projects with respect to timeliness

and quality

(e) Review and approval of the Master Plan

(f) Prescribe procedures and formats for accurate, up-to-date and complete records

relating to the operation and maintenance of assets, which it owns or operates,

and operational performance of the Terminal Market Complex with respect to

specified standards as per the Master Plan.

(g) Any other duties as would be deemed necessary and specified in his

appointment letter

The duties so outlined in the Agreement or part hereof shall impart an implicit

responsibility on the IC of immediate reporting of any deviations from the work

plan, proposed as per the conditions in the Agreement, to the NO.



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SCHEDULE 14

GOVERNMENT EQUITY HOLDING FEATURES OF THE PE

NHM/ GOI body

NHM/GOI body will be among the constituent Prime Members of the PE having anequity holding of not greater than 49%. The equity will be contributed in form ofcash and will only be used for creation of Market Assets of the TMC and not for Non-Market Assets. Disinvestment of Government equity will be done at an appropriatetime at market/ fair value as per the procedure prescribed by the ExecutiveCommittee of NHM. The right of first refusal with regard to buy-back theGovernment equity will be given to the PE. In case of refusal by the PE, NHM/GOIbody will have the option to exercise its right of divestment in favour of FarmerAssociations of the area at an agreed nominal value enabling them in becomingshareholders of the PE. In such a case, the Farmer Associations will have equal rightsas other private partners in line with the number of shares held by them after the

transfer and will not have any preferential rights (as may have been given to NHMor COS or any other agency).

The NHM/GOI body Equity structure may be subject to change based on legalvalidation and finalization of the Shareholders’ Agreement.



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SCHEDULE 15

RIGHTS AND OBLIGATIONS OF NODAL OFFICER

RIGHTS

1. Details on rules of operation of the Terminal Market Complex2. Progress report on the development of the Terminal Market Complex3. Levying liquidated damages on the PE equivalent on delay in

commencement of construction of such Mandatory Capital Project.4. Levying liquidated damages on PE for the completion of any Mandatory

Capital Project5. Levying liquidated damages on PE for non incurrence of Mandatory Capital

Project Capital cost.6. Progress and achievement of ISO within the defined time frame7. Collection % of Revenue in the event of default of PE in achieving Objective

Service Quality as per the Master Plan

OBLIGATIONS

1. Approve the Master Plan2. Nomination of a panel of three consultants for selection of IC.3. Assistance in obtainment of Clearances for the PE4. Assistance in obtainment of necessary infrastructure and utilities including

water, electricity, and telecommunication facilities.5. Assistance in obtainment of land by the PE

6. Provide regulatory facilitation for purposes of co-ordination between the

aggrieved party and the concerned regulatory agency(ies)



210

SCHEDULE 16

RIGHTS AND OBLIGATIONS OF THE PE

The PE should ensure that in the Terminal Market Complex shall comprise of thecentral Terminal Market (the hub) which is linked to a number of collection centres

(the spokes). The collection centres must be located in key production centres toestablish backward linkages with growers and to allow easy access to farmers for themarketing of their produce.

In addition to the rights and obligations with respect to construction, operation,design, develop, finance, management, maintain, upgrade and modernization of theTerminal Market Complex specified above, the PE shall be specifically responsiblefor and shall enjoy the following rights:

1. ensure that 100% of the daily throughput (in volume) of the TMC is washed,sorted, graded and labeled prior to being transacted in any form

2. ensure that a minimum of 25% of the daily throughout (in volume) at the

TMC is sold through the electronic auction process3. ensure transparent price discovery for 100% of the market throughput

irrespective of whether the price for the produce is realized through theelectronic auction process or through direct buyer-seller transaction(s)settlement

4. The TMC shall grant, renew and cancel license(s) to market users on behalf ofthe GOS as prescribed by the GOS as described in Clause 3.1 (vii)

5. register or refuse registration to market functionaries and renew, suspend orcancel such registration, supervise the conduct of the market functionariesand enforce conditions of Registration;

6. regulate or supervise the auction of Perishable Agricultural Produce inaccordance with the provision and procedure laid down under the rules andregulations made by the PE as per Clause 6.1 (iii)

7. regulate the making, carrying out and enforcement or cancellation ofagreements of sales, Weighment, delivery, payment and all other mattersrelating to the market of Perishable Agricultural Produce in the mannerprescribed;

8. provide for the settlement of all disputes between the seller and the buyerarising out on any kind of transaction connected with the marketing ofPerishable Agricultural Produce and all matters ancillary thereto;

9. take all possible steps to prevent adulteration of Perishable AgriculturalProduce or other products sold in the market;

10. take measures for the prevention of purchases and sales below the minimumsupport prices as fixed by the Government from time to time whereverapplicable;

11. levy, take, recover and receive rates, charges, fees and other sums of moneyto which the PE is entitled;

12. inspect and verify scales, weights and measures in use in the TMC,maintained by the market functionaries in such manner as may be prescribed

13. carry out publicity about the system of transaction, facilities provided in themarket complex etc. through such means as poster, pamphlets, hoardings,



cinema slides, film shows, group meetings, electronic media etc., or throughany other means considered more effective or necessary;

14. ensure payment in respect of transactions which take place in the TMC to bemade on the same day to the seller, and in default to seize the agriculturalproduce in question along with other property of the person concerned andto arrange for re-sale thereof and in the event of loss, to recover the same

from the original buyer together with charges for recovery of the losses, ifany, from the original buyer and effect payment of the price of theagricultural produce to the seller;

15. collect and maintain information in respect of production, sale, storage,processing, prices and movement of Perishable Agricultural Produce anddisseminate such information as directed by the GOS

16. the maintenance of proper checks on all receipts and payment by its officers;17. keep a set of standard weights and measure in the TMC against which

weighment and measurement may be checked;18. the maintenance of proper checks on all receipts and payment by its

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