37.1 The Concessionaire shall be responsible for all defects in the Project Highway for a further period of 24 (twenty four) months after the Termination of the Concession Period or any extension thereof and shall have the obligation to rectify at its own cost any defects observed in the Project Highway including any Project Facilities during the said period failing which NHAI shall get the same rectified at the Concessionaire’s risk and cost and all such costs shall be paid by the Concessionaire to NHAI within 7 (seven) days of receipt of demand in this regard from NHAI.

37.2 In the event of failure of the Concessionaire to effect the payment pursuant to Clause 37.1 to NHAI within the 15 (fifteen) days period set forth therein, NHAI shall be entitled to recover the same from the Project Escrow Account and/or the Termination Payment for which purpose a sum equal to the Fees realisable during the last two year of the Concession Period for a traffic volume calculated at the rate of 20,000 (twenty thousand) PCUs per day per year shall notwithstanding anything to the contrary contained in this Agreement, be retained in the Escrow Account provided that if a Bank Guarantee of an equivalent sum in the form and content acceptable to NHAI has been furnished by the Concessionaire to NHAI, no such retention shall be made. Provided further that the Independent Consultant shall carry out an inspection of the Project Highway at any time within two year before the Termination Date and if it recommends that the status of the Project Highway is such that a large amount should be retained in the Escrow Account, then such larger amount as recommended by the Independent Consultant shall be retained in the Escrow Account.

XXXVIII ASSIGNMENTS AND CHARGES

38.1 Subject to Clauses 38.3 and 38.4, this Agreement shall not be assigned by the Concessionaire save and except with prior consent in writing of NHAI, which consent NHAI shall be entitled to decline without assigning any reason whatsoever.

38.2 Subject to Clause 38.3, the Concessionaire shall not create nor permit to subsist any encumbrance over or otherwise transfer or dispose of all or any of its rights and benefits under this Agreement or any Project Agreements to which Concessionaire is a party except with prior consent in writing of NHAI, which consent NHAI shall be entitled to decline without assigning any reason whatsoever.

38.3 Restraint set forth in Clauses 38.1 and 38.2 shall not apply to:

liens arising by operation of law (or by an agreement evidencing the same) in the ordinary course of business of the Project Highway;

mortgages/pledges/hypothecation of goods/assets other than Project Assets, and those covered by the Substitution Agreement and their related documents of title arising or created in the ordinary course of business of the Project Highway and as security only for indebtedness to the Senior Lenders under the Financing Documents and/or for working capital arrangements for the Project Highway;

assignment of rights, title and interest to or in favour of the Lenders pursuant to and in accordance with the Substitution Agreement in respect of financing by the Senior Lenders under the Financing Documents for the Project; and

liens or encumbrances required by any Applicable Law.

38.4 Senior Lenders may exercise the rights of step-in or substitution as provided in the Substitution Agreement to be entered into among the Concessionaire, NHAI and Senior Lenders in the form set forth in Schedule ‘Y’ provided that the person substituting the Concessionaire shall be deemed to be the Concessionaire under this Agreement and shall enjoy all rights and be responsible for all obligations under this Agreement as if it were the Concessionaire. Provided, however, that in the event of such step-in or substitution, an additional Cure Period of 90 (ninety) days shall be provided by NHAI to enable the Concessionaire to cure any breach or default subsisting on the day of such step-in or substitution. Provided further that if the Senior Lenders step-in to operate and manage the Concession for a period not exceeding 90 (ninety) days, their liabilities shall be restricted to the obligations relating to and arising during such 90 (ninety) days period.

38.5 Notwithstanding anything to the contrary contained in this Agreement NHAI may assign any of its rights and benefits and/or obligations under this Agreement pursuant to any direction of GOI or by operation of law or in the course of its own business.

XXXIX CHANGE IN LAW

39.1 If as a result of Change in Law, the Concessionaire suffers an increase in costs or reduction in net after tax return or other financial burden, the aggregate financial effect of which exceeds Rs.10 million (Rupees ten million) in any Accounting Year, the Concessionaire may notify NHAI and propose amendments to this Agreement so as to put the Concessionaire in the same financial position as it would have occupied had there been no such Change in Law resulting in such cost increase, reduction in return or other financial burden as aforesaid. Upon notification by the Concessionaire as aforesaid, the Parties shall meet as soon as reasonably practicable but no later than 30 (thirty) days and either agree on amendments to this Agreement or on alternative arrangements to implement the foregoing.

Provided that if no agreement is reached as aforesaid by the Parties within 90 (ninety) days of the meeting pursuant to this Clause 39.1, the Concessionaire may be notice in writing require NHAI to pay in an amount that would put the Concessionaire in the same financial position it would have occupied had there been so such Change in Law resulting in such cost increase, reduction in return or other financial burden as aforesaid. Such notice shall be accompanied by necessary particulars duly certified by the Statutory Auditors of the Concessionaire. If NHAI shall dispute the quantum of such compensation claim of the concessionaire, the same shall be finally settled in accordance with the Dispute Resolution Procedure. NHAI shall make payment of such compensation within of receiving such notice or with interest @ SBI PLR if the payment thereof is delayed beyond such 15 (fifteen) days. If NHAI shall dispute the quantum of such compensation claim of the Concessionaire, the same shall be finally settled in accordance with the Dispute Resolution Procedure.

39.2 If as a result of Change in Law, the Concessionaire enjoys a reduction in costs or increase in net after tax return or other financial benefit, the aggregate financial effect of which exceeds Rs.10 million (Rupees ten million) in any Accounting Year, NHAI may so notify the Concessionaire and propose amendments to this Agreement so as to put the Concessionaire in the same financial position as it would have occupied that there been so such Change in Law resulting in such decreased cost, increase in return or other financial benefit as aforesaid. Upon notification by the NHAI as aforesaid, the Parties shall meet as soon as reasonably practicable but no later than 30 (thirty) days and either agree on such amendments to this Agreement or on alternative arrangements to implement the foregoing.

Provided that if no agreement is reached as aforesaid by the Parties within 90 (ninety) days of the meeting pursuant to this Clause 39.2, NHAI may by notice in writing require the Concessionaire to make cash payment of an amount that would put the Concessionaire in the same financial position it would have occupied had there been no such Change in Law resulting in such decreased cost, increase in return or other financial benefit as aforesaid. Such notice shall be accompanied by necessary particulars duly certified by the NHAI Representative. If the Concessionaire shall dispute such claim of NHAI, the same shall be finally settled in accordance with the Dispute Resolution Procedure. The Concessionaire shall make such payment within 15 (fifteen) days of receiving such notice or with interest @ SBI PLR if the payment is delayed beyond such 15 (fifteen) days. If the Concessionaire shall dispute such claim of NHAI, the same shall be finally settled in accordance with the Dispute Resolution Procedure.

39.3 Notwithstanding anything to the contrary contained in this Agreement, neither NHAI nor STG shall be liable to reimburse to the Concessionaire any sums on account of any Change in Taxes if the same are recoverable from the users of the Project Highway or if the aggregate financial effect of such changes in any accounting year is less than or equal to Rs.10 million (Rupees ten million).

XL LIABILITY AND INDEMNITY

40.1 General Indemnity

The Concessionaire will indemnify, defend and hold NHAI harmless against any and all proceedings, actions and, third party claims (other than a claim by NHAI or GOI for loss, damage and expense of whatever kind and nature arising out of the design, engineering, construction, Procurement, operation and maintenance of the Project Highway or arising out of a breach by Concessionaire of any of its obligations under this Agreement except to the extent that any such claim has arisen due to NHAI Event of Default).

NHAI will, indemnify, defend and hold harmless the Concessionaire against any and all proceedings, actions, third party claims for loss, damage and expense of whatever kind and nature arising out of defect in title and/or the rights of NHAI in the land comprised in the Site adversely affecting the performance of the Concessionaire’s obligations under this Agreement and/or arising out of acts done in discharge of their lawful functions by NHAI, its Officers, servants, agents, subsidiaries and contractors ("NHAI Indemnified Persons") including NHAI. Events of Default except to the extent that any such claim has arisen due to a negligent act or omission, breach of contract or breach of statutory duty on the part of the Concessionaire, its Subsidiaries, affiliates, contractors, servants or agents including due to Concessionaire Event of Default.

40.2 Without limiting the generality of Clause 40.1 the Concessionaire shall fully indemnify, save harmless and defend NHAI including its officers, servants, agents and subsidiaries from and against any and all loss and damages arising out of or with respect to (a) failure of the Concessionaire to comply with Applicable Laws and Applicable Permits, (b) payments of taxes relating to the Concessionaire contractors, suppliers and representatives income or other taxes required to be paid by the Concessionaire without reimbursement hereunder, or (c) non-payment of amounts due as a result of materials or services furnished to the Concessionaire or any of its Contractors which are payable by the Concessionaire or any of its contractors.

40.3 Without limiting the generality of the provisions of this Article XL, the Concessionaire shall fully indemnify, save harmless and defend the NHAI indemnified Person from and against any and all damages which the NHAI Indemnified Persons may hereafter suffer, or pay by reason of any demands, claims, suits or proceedings arising out of claims of infringement of any domestic or foreign patent rights, copyrights or other intellectual property, proprietary or confidentiality rights with respect to any materials, information , design or process used by the Concessionaire or by the Concessionaire’s Contractors in performing the Concessionaires obligations or in any way incorporated in or related to the Project. If in any such suit, claim or proceedings, a temporary restraint order or preliminary injunction is granted, the Concessionaire shall make every reasonable effort, by giving a satisfactory bond or otherwise, to secure the suspension of the injunction or restraint order. If, in any such suit claim or proceedings, the Project, or any part, thereof or comprised therein is held to constitute an infringement and its use is permanently enjoined, the Concessionaire shall promptly make every reasonable effort to secure for NHAI a licence, at no cost to NHAI, authoring continued use of the infringing work. If the Concessionaire is unable to secure such licence within a reasonable time, the Concessionaire shall, at its own expense and without impairing the specifications and standards either replace the affected work, or part, or process thereof with non-infringing work or parts or process, or modify the same so that it becomes non-infringing.

40.4 In the event that either Party receives a claim from a third party in respect of which it is entitled to the benefit of an indemnity under this Article XL (the `Indemnified Party’) it shall notify the other Party ("Indemnifying Party") within 14 (fourteen) days of receipt of the claim and shall not settle or pay the claim without the prior approval of the Indemnifying Party, such approval not to be unreasonably withhold or delayed. In the event that the Indemnifying Party wishes to contest or dispute the claim it may conduct the proceedings in the name of the Indemnified Party subject the Indemnified Party being secured against any costs involved to its reasonable satisfaction.

40.5 Defence of Claims

40.5.1 The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate any claim, action, suit or proceeding by any third party alleged or asserted against such party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder and their reasonable costs and expenses shall be indemnified by the Indemnifying Party. If the Indemnifying Party acknowledges in writing its obligation to indemnify the person indemnified in respect of loss to the full extent provided by this Article XL, the Indemnifying Party shall be entitled, at its option, to assume and control the defence of such claim, action, suit or proceeding liabilities, payments and obligations at its expense and through counsel of its choice provided it gives prompt notice of its intention to do so to the Indemnified Party and reimburses the Indemnified Party for the reasonable cost and expenses incurred by the Indemnified Party prior to the assumption by the Indemnifying Party of such defence. The Indemnifying Party shall not be entitled to settle or compromise any claim, action, suit or proceeding without the prior written consent of the Indemnified Party unless the Indemnifying Party provides such security to the Indemnified Party as shall be reasonably required by the Indemnified Party to secure, the loss to be indemnified hereunder to the extent so compromised or settled.

40.5.2 If the Indemnifying Party has exercised its rights under Clause 40.4, the Indemnified Party shall not be entitled to settle or compromise any claim, action, suit or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

40.5.3 If the Indemnifying Party exercises its rights under Clause 39.4 then the Indemnified Party shall nevertheless have the right to employ its own counsel and such counsel may participate in such action, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party, when and as incurred, unless:

the employment of counsel by such party has been authorised in writing by the Indemnifying Party; or

the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defence of such action; or

the Indemnifying Party shall not in fact have employed independent counsel reasonably satisfactory to the Indemnified Party to assume the defence of such action and shall have been so notified by the Indemnified Party; or

the Indemnified Party shall have reasonably concluded and specifically notified the Indemnifying Party either:

that there may be specific defences available to it which are different from or additional to those available to the Indemnifying Party; or

that such claim, action, suit or proceeding involves or could have a material adverse effect upon it beyond the scope of this Agreement;

provided that if clauses (ii), (iii) or (iv) shall be applicable, counsel for the Indemnified Party shall have the right to direct the defence of such claim, action, suit or proceeding on behalf of the Indemnified Party and the reasonable fees and disbursements of such counsel shall constitute legal or other expenses hereunder.

XLI RIGHTS AND TITLE OVER THE SITE

XLI DISPUTE RESOLUTION

42.1 Amicable Resolution

Save where expressly stated to the contrary in this Agreement, any dispute, difference or controversy of whatever nature howsoever arising under, out of or in relation to this Agreement including incompletion of the Project Highway between the Parties and so notified in writing by either Party to the other (the "Dispute") in the first instance shall be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Sub-clause (b) below.

In the event of any Dispute between the Parties, either Party may call upon the Independent Consultants to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Independent Consultants or without the intervention of the Independent Consultants, either Party may require such Dispute to be referred to the Chairman of NHAI and the Chairman of the Board or Directors of the Concessionaire, for the time being for amicable settlement. Upon such reference, the said two Chairman shall meet not later than 7 (seven) days of the date of such request to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the said period or the Dispute is not amicably settled within 15 (fifteen) days of such meeting between the said two Chairmen, either Party may refer the dispute to arbitration in accordance with the provisions of Clause 42.2.

If the Dispute is not resolved as evidenced by the signing of the written terms of settlement within 30 (thirty) working days of the aforesaid notice in writing or such longer period as may be mutually agreed by the Parties then the provisions of Clause 42.2 shall apply.

42.2 Arbitration

42.2.1 Any Dispute, which is not resolved amicably as provided in Clause 42.1 shall be finally decided by reference to arbitration by a Board of Arbitrators, appointed pursuant to Clause 42.2.2 sub clause (b) below. Such arbitration shall be held in accordance with the Rules of Arbitration of the Indian Council of Arbitration and shall be subject to the provisions of the Arbitration Act.

42.2.2 There shall be a Board of three arbitrators of whom each party shall select one and the third arbitrator shall be appointed in accordance with the Rules of Arbitration of the Indian Council of Arbitration.

42.2.3 The arbitrators shall issue a reasoned Award.

42.2.4 The venue of such arbitration shall be New Delhi, India.

42.3 Arbitration Awards to be Binding

42.3.1 The Concessionaire and NHAI undertake to carry out any decision or award of the arbitrators (the "Award") without delay. Awards relating to any Dispute shall be final and binding on the Parties as from the date they are made.

42.3.2 The Concessionaire and NHAI agree that an Award may be enforced against the Concessionaire and/or NHAI, as the case may be and their respective assets wherever situate.

42.3.3 This Agreement and rights and obligations of the Parties shall remain in full force and effect pending the Award in any arbitration proceeding hereunder.

XLIII DISCLOSURE

43.1 The Concessionaire shall make available for inspection by members of public free of charge during normal business hours on all working days copies of this Concession Agreement, the O&M Contract, the Tolling Contract and the State Support Agreement (hereinafter collectively referred to as "Public Documents") at the Concessionaire’s Site office during the subsistence of this Agreement. The Concessionaire shall prominently display at the Toll plazas public notices about the availability of the Public Documents for inspection and shall make available upon request and payment in advance of copying charges on no profit no loss basis to members of public copies of the said Public Documents.

XLIV REDRESSAL OF PUBLIC GRIEVANCES

44.1 The Concessionaire shall maintain a Public Office adjacent to each Toll Plaza and keep it open to public access at all times. At each such office, the Concessionaire shall open and maintain a register (the "Complaints Register") for recording of complaints by any person (the Complainant") at any time of the day. The availability of and access to such office and the Complaints Register shall be prominently displayed by the concessionaire at each Toll Plaza so as to bring it to the attention of all persons who are entering and existing the Project Highway.

44.2 The Complaints Register shall be securely bound and kept in proper custody at the Public Relations office. Each page of the Register shall be duly numbered and each complaint recorded therein shall also be duly numbered. Soon after a complaint is registered the Complainant shall be given a receipt by such office stating the date and complaint number, which the Complainant may refer to in any subsequent correspondence or claim. The Complaints Register shall have appropriate columns including but not limited to the complaint number and date, name and address of the Complainant, the complaint and the action taken by the Concessionaire thereon.

44.3 The Concessionaire shall inspect the Complaints Register at reasonable intervals and take prompt steps for redressal of the grievances stated in each complaint. The action so taken by the Concessionaire shall be briefly noted in the `Action taken’ column of the Complaints Register and a suitable reply shall also be sent to the Complainant by post under a certificate of posting.

44.4 Within one week following the close of each calendar month, the Concessionaire shall send to NHAI a true photocopy of such pages of the Complaints Register on which any entries have been recorded of any Complaint or the Concessionaire during the course of such month. NHAI may in its discretion direct the concessionaire to take such further reasonable action as NHAI may deem appropriate for a fair and just redressal of any grievance. Where NHAI is of the opinion that the Complainant is entitled to any further redressal or compensation beyond what the Concessionaire is willing to provide, NHAI may refer the matter to the Consumer Redressal Forum having jurisdiction for its disposal in accordance with the provisions of the Consumer Protection Act, 1986.

XLV ADVERTISING ON THE SITE

XLVI GOVERNING LAW AND JURISDICTION

XLVII MISCELANEOUS

47.1 Video Recording

The Video Recording: During the Construction Period, the Concessionaire shall provide a video recording to NHAI every calendar quarter which will be compiled into a 3 (three) hour cassette, covering the construction of the Project Highway in that quarter. Such video recording shall be provided no later than fifteen days after the close of each quarter.

47.2 Waive

Waiver by either Party of any default by other Party in the observance and performance of any provision of or obligations of or under this Agreement.

• shall not operate or be construed as a waiver of any other or subsequent default hereof or of other provisions of or obligations under this Agreement;
• shall not be effective unless it is in writing and executed by a duly authorised representative of the Party; and

• shall not affect the validity or enforceability of this Agreement in any manner.

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

47.3 Survival

Termination of this Agreement (a) shall not relieve the Concessionaire or NHAI of any obligations hereunder which expressly or by implication survives Termination hereof, and (b) except as otherwise provided in any provision of this Agreement expressly limiting the liability of either Party, shall not relieve either Party of any obligations or liabilities for loss or damage to the other Party arising out of or caused by acts or omissions of such Party prior to the effectiveness of such Termination or arising out of such termination.

All obligations surviving the cancellation, expiration or Termination of this Agreement shall only survive for a period of 5 (five) years following the date of such Termination or expiry of this Agreement.

47.4 Entire Agreement:

This Agreement and the Schedules together constitute a complete and exclusive statement of the terms of the agreement between the Parties on the subject hereof and no amendment or modification hereto shall be valid and effective unless expressly previously approved in writing by NHAI and executed by the person expressly authorised by a resolution of NHAI in this behalf.

47.5 Notices

Any notice or other communication to be given by Party to the other Party under, or in connection with the matters contemplated by this Agreement shall be in writing and shall:

(a) in the case of the Concessionaire, be given by letter delivered by hand to address given and marked for the attention of the person set out opposite the corresponding signature below or to such other address marked for such other attention as the Concessionaire may from time to time designate by notice to NHAI, provided that notices or other communications to be given to an address outside New Delhi may (if they are subsequently confirmed by sending a copy thereof by first class registered airmail or by courier) be sent by facsimile to the number as the Concessionaire may from time to time designate by notice to NHAI; and

(b) in the case of NHAI, be given by letter delivered by hand and be addressed to the Chairman, NHAI

Copies of all notices shall also be sent by facsimile and by registered acknowledgement due pre-paid post or courier.

Copies of all notices shall also be sent to the NHAI Representative.

47.6 Severability

If for any reason whatever any provision of this Agreement is or becomes invalid, illegal or unenforceable or is declared by any court of competent jurisdiction or any other instrumentality to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not be affected in any manner, and the Parties will negotiate in good faith with a view to agreeing one or more provisions which may be substituted for such invalid, unenforceable or illegal provisions, as nearly as is practicable to such invalid, illegal or unenforceable provision. Failure to agree upon any such provisions shall not be subject to dispute resolution under this Agreement or otherwise.

47.7 No Partnership

Nothing contained in this Agreement shall be construed or interpreted as constituting a partnership between the Parties. Neither Party shall have any authority to bind the other in any manner whatsoever.

47.8 Language

All notices required to be given by one Party to the other Party and all other communications, documentation and proceedings which are in any way relevant to this Agreement shall be in writing and in English language.

47.9 Exclusion of Implied Warranties etc.

This Agreement expressly excludes any warranty, condition or other undertaking implied at law or by custom or otherwise arising out of any other agreement between the Parties or any representation by either Party not contained in a binding legal agreement executed by both Parties.

47.10 Counterparts

This Agreement may be executed in two counterparts, each of which when executed and delivered shall constitute an original of this Agreement.

XLVIII FINANCIAL MODEL

48.1 Custody Arrangements

Immediately on execution of this Agreement, 2 copies of the Financial Model and 2 electronic copies of the Financial model shall be lodged with the NHAI.

48.2 Costs

The costs of any storage shall be met in the first instance by the NHAI and it shall be reimbursed one half of such costs by the Concessionaire.

48.3 Base Case

A copy of the Base Case is attached in Schedule ‘A1’.

48.4 IN WITNESS WHEREOF THE, PARTIES HAVE EXECUTED AND DELIVERED THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.

SIGNED SEALED AND DELIVERED

For and on behalf of

NATIONAL HIGHWAYS AUTHORITY OF INDIA

By Accepted and

__________ (Signature) Countersigned for

and on behalf of the

__________(Name) Ministry of Surface Transport

Government of India by:

___________(Designation) ________(Signature)

________(Name)_________(Designation)

SIGNED, SEALED AND DELIVERED

For and on behalf of

CONCESSIONAIRE by:

______________(Signature)

______________(Name)

______________(Designation) Accepted and

Countersigned for and on behalf of the Government of Rajasthan by:

In the presence of: ___________(Signature)

____________(Name)

2) ____________(Designation)