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DEPARTMENT OF TOURISM

GOVERNMENT OF UTTAR PRADESH

DRAFT LEASE CUM DEVELOPMENT AGREEMENT

Between

And

For

Development of Tourism Properties at __________________________

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This LEASE CUM DEVELOPMENT AGREEMENT mutually agreed and entered into on

the _______ day of _______ (month) ___________ (year) at Lucknow.

Between

Government of Uttar Pradesh (GoUP) acting through its Director General, Department of

Tourism having its office at Paryatan Bhawan, C-13, Vipin Khand, Gomti Nagar, Lucknow:

226 010, (hereinafter referred to as the “Lessor” or “Authority which expression shall

unless repugnant to the context include its successors) of the One Part.

And

____________________________, a company incorporated under the provisions of the

Companies Act, 1956 and having its registered office at __________________, represented

through its authorised representative Mr. __________________(hereinafter referred to as the

“Lessee or Developer” which expression shall include unless repugnant to the context its

successors ) on the Other Part.

Authority and Developer are hereinafter collectively referred to as “Parties” and individually

as “Party”.

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WHEREAS

1. The Authority is an agency established by Government of Uttar Pradesh (“GoUP”) for

the purpose of development of tourism, operation, management and maintenance of

tourism properties like Rahi Tourist Bunglows, Hotels, Motels, Resorts, Restaurants

etc. (hereinafter referred to as the “Unit”) and other activities in the state of Uttar

Pradesh.

2. With the objective of providing upgraded facilities to users, better management,

promoting tourism and unlocking the commercial value of the Properties, the Authority

proposes to lease these Properties to private sector party for design, finance,

development, construction, up-gradation, modernisation, operation, maintenance and

management (the “Project”), in accordance with the terms and conditions set forth

herein.

3. Accordingly, the Authority invited proposals from interested parties through a single

stage transparent and competitive bidding process to develop these identified

Properties. In response thereto, the Authority received proposals from various parties

for implementing the Project. Pursuant thereto, after evaluation of all the proposals

received for ________________ Property located at_________________, the Authority

accepted the proposal of the Selected Bidder and accordingly issued a Letter of Award

bearing No. ______ dated _____ requesting the Selected Bidder to execute the Lease

cum Development Agreement, which the Selected Bidder has acknowledged through

the Letter of Acceptance No. _______ dated __________.

4. Thereafter, the Authority has agreed to grant the lease to Develop, Operate, Manage

and Maintain the Property throughout the Lease Period in accordance with the

provisions of this Lease cum Development Agreement.

5. In lieu of Grant of the Lease, the Developer has paid the Annual Lease Rent of Rs ___

Crore (Rupees ______ Crore only) to the Authority.

6. The Developer has also submitted an Upfront Fee of Rs ___ (Rupees ______ Lakhs

only) to the Authority.

7. The Developer has also submitted the requisite Performance Security in the required

form to The Authority.

The Developer represents and warrants that they have duly fulfilled all the terms and

conditions necessary for the execution of this Agreement as per the terms contained in the

RFP documents and are in a position to execute this Agreement and implement the Project as

envisaged in the Bid and this Agreement.

The Developer has fulfilled all the Conditions Precedent to signing the Lease Agreement.

NOW THERFORE in consideration of the foregoing and respective covenants and

agreements set forth in this Agreement, the sufficiency and adequacy of which is hereby

acknowledged, and intending to be legally bound hereby, the Parties agree as follows:

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ARTICLE 1 : DEFINITIONS AND INTERPRETATION

1.1. Definition

In this Agreement, the following words and expressions shall, unless repugnant to the

context or meaning thereof, have the meaning hereinafter respectively ascribed/

assigned to them hereunder:

“Agreement or Lease cum Development Agreement” shall mean this Agreement

including the Schedules hereto, and any amendments thereto made in accordance with

the provisions contained in this Agreement.

“Annual Lease Rent” shall mean the Annual Lease Rent payable by Developer to the

Authority.

“Annual Revenue Share” shall mean 5% (five per cent) of the Gross Revenue of each

Financial Year.

“Applicable Laws” shall mean all laws in force and effect as on date hereof and which

maybe promulgated or brought into force and effect hereinafter in India by Government

of India or Government of Uttar Pradesh including regulations and rules made

thereunder, and judgements, decrees, injunctions, writs and orders of any court of

record, as may be in force and effect during the subsistence of this Agreement and

applicable to the Project.

“Applicable Permits” means all notifications, clearances, permits, authorisations,

licenses, consents, permissions, rulings, exemption, approvals or any other permit of

whatsoever nature which is required to be obtained and maintained by the Developer

under or pursuant to Applicable Laws, in connection with the Project during the

subsistence of this Agreement.

“Appointed Date” shall mean the date of execution of this Agreement.

“Approval” shall mean all authorisations, consents, approvals, notifications and

permissions and any license, permit, ruling, exemption or other authorization of

whatsoever nature which is required to be granted by, or any registration or filing with,

any authority under Applicable Law for or in respect of this Agreement including for

performance of any obligation or exercise of any right by a Party herein but excluding a

Clearance.

“Arbitration Act” means the Arbitration and Conciliation Act, 1996 and shall include

any amendment/modifications to or any re-enactment thereof as in force from time to

time.

“Bid” shall mean the Bid (Technical & Financial) submitted by the Selected Bidder in

response to the Request for Proposal (RFP) issued by the Authority for this Project.

“Building” shall mean the building or the built-up spaces forming part of the Property.

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“Clearance” means the written consent, licence, approval, permit, rulings, exemption,

notification, no objection certificate or other authorisation or permission of whatsoever

nature which is required to be obtained from any authority from time to time in

connection with the Project.

“Completion Certificate” means the certificate issued by the Authority pursuant to

Clause 11.3.3.

“Contractor” means the person with whom the Developer has entered into / may enter

into all or any of the Project Agreements other than this Agreement, License

Agreement and Financing Documents.

“Cure Period” means the period specified in this Agreement for curing any breach or

default of any provision of this Agreement by the Party responsible for such breach or

default.

“Development Phase” shall mean the period of 5 year from the Appointed Date in

which the Developer has to carry out major Development/Construction Works.

“Dispute” shall have the meaning ascribed thereto in Article 16.

“Dispute Resolution Procedure” means the procedure for resolution of Dispute set

forth in Article 16.

“Drawings” means all drawings, designs, calculations and documents pertaining to the

Project prepared in accordance with Applicable Law and Good Industry Practice and

submitted by the Developer.

“Due Date” shall mean the date for making payment of Annual Lease Rent i.e April

30th

of every Financial Year.

“Emergency” means a condition or situation that is likely to endanger the security of

the individuals on or about the Property and / or Project Facility including users thereof

or which poses an immediate threat of material damage to the Property and / or Project

Facility.

“Encumbrance” means any encumbrance such as mortgage, charge, pledge, lien,

hypothecation, security interest, assignment, privilege or priority of any kind having the

effect of security or other such obligations and shall include without limitation any

designation of loss payees or beneficiaries or any similar arrangement under any

insurance policy pertaining to the Project, physical encumbrances, claims for any

amount due on account of taxes, cesses, electricity, water and other utility charges and

encroachments on the Property and / or Project Facility.

“Escrow Account” shall mean the escrow account established pursuant to/ under the

Escrow Agreement.

“Escrow Agreement” shall mean the escrow agreement to be entered into between the

the Authority, the Developer and a bank in the form set forth in Schedule 7 hereof.

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“Existing Leases” shall mean the leases presently valid and subsisting for any portion

of the Property, entered between the the Authority and various third parties, details of

which are set out in Schedule 6 appended hereto;

“Expiry” shall mean expiry of the Lease at the end of the Lease Period.

“Expiry Date” shall mean the date on which this Agreement expires.

“Fair Market Value” in relation to Transfer Date means the market value of the entire

asset prevailing as on the Transfer Date.

“Financing Documents" shall mean the documents executed by the Developer in

respect of financial assistance to be provided by the Lenders by way of loans, advances,

guarantees, risk participation, take-out financing or any other form of credit

enhancement and shall include loan agreements, guarantee agreements, subscription

agreements, notes and any documents providing security for such financial assistance

and includes amendments or modifications made thereto.

“Financial Closure” shall mean the date on which the Financing Documents providing

for funding by the Lenders for the Project have been executed and have become

effective such that the Developer has immediate access to such funding under the

Financing Documents.

“Financial Year” shall mean the period commencing from 1st April of any given year

and ending on 31st March of the succeeding year.

“Force Majeure” shall mean events as described in Article 18.

“General Employees” shall mean all the permanent employees of the Authority who

are posted at the Property as on the Appointed Date.

“GoI” shall mean the Government of India and any of its duly authorised agency,

authority, department, inspectorate, ministry or person (whether autonomous or not).

“GoUP” shall mean the Government of the State of Uttar Pradesh and any of its duly

authorised agency authority, department, inspectorate, ministry or person (whether

autonomous or not) under the lawful and effective control and direction of Government

of Uttar Pradesh

“Good Industry Practice” shall mean the exercise of that degree of skill, diligence,

efficiency, reliability, prudence and foresight in compliance with the undertakings and

obligations under this Agreement which would reasonably and ordinarily be expected

of a skilled and an experienced person engaged in the implementation, operation,

maintenance, supervision or monitoring thereof or any of them of a Project similar to

that of this Project.

“Government Agency” means Government of India (GoI), Government of Uttar

Pradesh (GoUP), or any state government or governmental, department, commission,

board, body, bureau, agency, authority, instrumentality, court or other judicial or

administrative body, central, state, or local, having jurisdiction over the Developer, the

Project, the Property, the Project Facility or any portion thereof, or the performance of

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all or any of the services or obligations of the Developer under or pursuant to this

Agreement.

“Gross Revenue” shall mean the total annual receipts of business and all sources of

revenue or amounts of money, by whatever name called, that arise, accrue to and/or are

received by the Developer from the Project Facility/implementation of the Project by

the Developer at the Property but excluding the service tax, value added tax, sales tax

and luxury tax but not the income tax that are payable/paid by the Developer on such

receipts and amounts of money.

“Handback Requirements” shall have the meaning ascribed thereto in Article 15.

“Hospitality/Tourism Services” shall include service activities pertaining to

development, operation, maintenance of hotels, motels, guest houses, tourist

bungalows, resorts, bar & restaurants or such businesses that provide transitional or

short term lodging/fooding and leisure services and/ or facilities, tourism that may be

based on the cultural, historic, and social attractions of a place or on the appeal of a

different environment, and tours and ancillary services for tourists, development of

package holidays, health resorts, medical tourism, Convention/ Banquet Halls.

“Independent Auditor” shall mean a reputed firm of Chartered Accountants

Practising in India that may be appointed by the Authority pursuant to and in

accordance with Article 10.

“Independent Engineer” shall mean a reputed individual / firm / company having

expertise in the field of Engineering and Project Management appointed by the

Authority for supervision and monitoring the compliance by the Developer of the

Project requirements.

“Initial Phase” shall mean a period of 1 year from the Appointed Date, in which the

Developer has to carry out works related to renovation, restoration, refurbishment of

the Property, Project Facility and Project Asset such that the Property shall be fully

operational by the end of such period. The statement holds good for the closed units

also.

“Implementation Works” shall mean works related to the implementation of the

Project including but not limited to investigation, design, renovation, redevelopment,

augmentation, of the Property into the Project Facility and financing the same.

“Lenders” shall mean financial institutions, banks, funds, trusts or trustees of the

holders of debentures or other securities their successors and assigns, who have

provided financial assistance to the Developer under any of the Financing Documents.

“Lease” shall have the meaning ascribed thereto in Clause 3.1.

“Lease Period” shall have the meaning ascribed thereto in Clause 3.2.

“Material Adverse Effect” shall mean material adverse effect on (a) the ability of the

Developer to exercise any of its rights or perform / discharge any of its duties /

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obligations under an in accordance with the provisions of this Agreement and/or (b) the

legality, validity, binding nature or enforceability of this Agreement.

“Material Breach” shall mean a breach by either Party of any of its obligations under

this Agreement which has or is likely to have a Material Adverse Effect on the Project

and which it shall have failed to cure within the Cure Period.

“Operation and Management” shall mean the operation and management of the

Project Facility during the Lease Period and includes but is not limited to functions of

operation, maintenance, renovation, upgradation and performance of other services

incidental thereto.

“Performance Security” shall mean the Performance Security as mentioned in Article

7.

“Person” shall mean (unless otherwise specified or required by the context) any

individual, company, corporation, partnership, joint venture, trust, unincorporated

organisation, government or Government Agency or any other legal entity.

“Property” shall mean land admeasuring ______ acres, and the Building titled

“___________________” standing upon it having built up area of ___________sq.ft

(approx), located at __________________, bearing Mouza: ___________________,

Khata: _________, Plot No.: _______,___________, Uttar Pradesh.

“Project” shall have the meaning ascribed thereto in Clause 2.1.1.

“Project Agreements” shall collectively mean this Agreement and any contracts for

engineering, procurement, design, renovation, augmentation, operation or management

of the Project Facility and any other material contract (other than the Financing

Documents) entered into or may hereafter be entered into by the Developer in

connection with the Project.

“Project Assets” means the physical, tangible, intangible and other assets of

whatsoever nature existing at the Property as on the date hereof except working capital

assets other than inventory, stores and spares.

"Project Facility" means the Project Asset and all assets and facilities including

moveable, fittings and fixtures comprised therein which the Developer shall provide or

procure within the Project Asset for compliance to the provisions of this Agreement and

for better commercial utilisation of the Project Asset, consistent with the

Hospitality/Tourism services and the terms of this Agreement. Further, it shall include

all the works related to design, finance, development, construction, up-gradation,

modernisation, operation, maintenance and management of the Property in accordance

with the provisions of this Agreement, along with the structures, common areas,

infrastructure and facilities and services relating thereto, that shall be developed,

designed, financed, constructed, completed, commissioned, operated and maintained on

the Property by the Developer.

“Rs.” or “Rupees” refers to the lawful currency of the Republic of India.

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“SBI Base Rate” means the rate per annum for loans with 1 (one) year maturity as

fixed from time to time by State Bank of India, and in the absence of such rate, the

average of the rates for loans with 1 (one) year maturity fixed by Bank of India and

Bank of Baroda and failing that any other arrangement that substitutes such rate as

mutually agreed between the Parties.

“Specifications and Standards” means the specifications and standards relating to the

Project Facility and forming part of the Minimum Development Obligations that the

Developer is required to adhere to.

“Statutory Auditors” means a reputed firm of Chartered Accountants duly licensed to

practice in India.

“Tax or Taxes” shall mean and include all taxes, duties, cess, levies that may be

payable by the Developer under Applicable Law.

“Termination” means termination of this Agreement and the Lease hereunder pursuant

to the delivery or deemed delivery of a Termination Notice or otherwise in accordance

with the provisions of this Agreement but shall not, unless the context otherwise

requires, include the expiry of this Agreement/Lease due to expiry to the Lease

Agreement in the normal course.

“Termination Date” means the date on which the Termination occurs which shall be

the date on which Termination Notice has been delivered or deemed to have been

delivered by a Party issuing the same to the other Party in accordance with the

provisions of this Agreement.

“Termination Notice” means a communication in writing by a Party to the other Party

seeking Termination in accordance with the applicable provisions of this Agreement.

“Termination Payment” means the amounts payable by a Party to the other Party

under this Agreement upon the Termination of this Agreement in accordance with the

provisions of this Agreement.

1.2. Interpretation

1.2.1 In this Agreement, unless the context otherwise requires

(i) any reference to a statutory provision shall include such provision as is from

time to time modified or re-enacted or consolidated so far as such modification

or re-enactment or consolidation applies or is capable of applying to any

transactions entered into hereunder;

(ii) references to laws of Uttar Pradesh, laws of India or Indian law or regulations

having the force of law shall include the laws, acts, ordinances, rules,

regulations, bye-laws or notifications which have the force of law in the

territory of India and as from time to time may be amended, modified,

supplemented, extended or re-enacted;

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

construed as a reference to any individual, firm, company, corporation,

society, trust, government, state or agency of a state or any association or

partnership (whether or not having separate legal personality) of two or more

of the above and shall include successors and assigns;

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(iv) the table of contents, headings or sub-headings in this Agreement are for

convenience of reference only and shall not be used in and shall not affect the

construction or interpretation of this Agreement;

(v) the words importing singular shall include plural and vice versa and a

reference to any gender shall include a reference to the other gender;

(i) terms and words beginning with capital letters and defined in this Agreement

shall have the meaning ascribed thereto herein and the terms and words

defined in the Clauses/Articles/Schedules and used therein shall have the

meaning ascribed thereto in the Clauses/Articles/Schedules;

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

shall be deemed to be followed by “without limitation” or “but not limited to”

whether or not they are followed by such phrases;

(iii) references to “construction, renovation, augmentation” includes, unless the

context otherwise requires, investigation, design, engineering, procurement,

delivery, transportation, installation, processing, fabrication, testing,

commissioning and other activities incidental to the construction;

(iv) any reference to any period of time shall mean a reference to that according to

Indian Standard Time;

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

(vi) any reference to month shall mean a reference to a calendar month;

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

than Sunday) on which banks in Lucknow are generally open for business;

(viii) the Schedules to this Agreement form an integral part of this Agreement and

will be in full force and effect as though they were expressly set out in the

body of this Agreement;

(ix) any reference at any time to any agreement, deed, instrument, licence or

document of any description shall be construed as reference to that agreement,

deed, instrument, license or other document as amended, varied,

supplemented, modified or suspended at the time of such reference provided

that this clause shall not operate so as to increase liabilities or obligations of

the Authority hereunder or pursuant hereto in any manner whatsoever;

(x) references to Recitals, Articles, Clauses, Sub-clauses, Paragraphs, or

Schedules in this Agreement shall, except where the context otherwise

requires, be deemed to be references to Recitals, Articles, Clauses, Sub-

clauses, paragraphs, and Schedules of or to this Agreement;

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

information or report required under or pursuant to this Agreement from or by

any Party shall be valid and effectual only if it is in writing under the hands of

duly authorised representative of such Party, as the case may be, in this behalf

and not otherwise;

(xii) any reference to any period commencing “from” a specified day or date and

“till” or “until” a specified day or date shall include both such days or dates;

(xiii) the damages payable by either Party to the other of them as set forth in this

Agreement, whether on per diem basis or otherwise, are mutually agreed

genuine pre-estimated loss and damage likely to be suffered and incurred by

the Party entitled to receive the same and are not by way of penalty (‘the

Damages”)

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

incurred as principal or surety) for the payment or repayment of money,

whether present or future, actual or contingent;

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(xv) unless otherwise expressly provided in this Agreement any documentation

required to be provided or furnished by the Developer to the Authority shall be

provided free of cost and in three copies and if the Authority is required to

return any such documentation with their comments and/or approval, then they

shall be entitled to retain two copies thereof;

(xvi) The rule of construction, if any, that a contract should be interpreted against

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

(xvii) Any word or expression used in this Agreement shall, unless otherwise defined

or construed in this Agreement, bear its ordinary English meaning and, for

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

1.2.2 Measurements and Arithmetic Conventions

All measurements and calculations shall be in metric system and calculations done to 2

decimal places, with the third digit of 5 or above being rounded up and below 5 being

rounded down.

1.2.3 Priority of contract documents and errors/discrepancies

This Agreement, and all other agreements forming part of this Agreement are to be

taken as mutually explanatory to one another and, unless otherwise expressly provided

elsewhere in this Agreement, the priority of this Agreement and other documents and

agreements forming part hereof shall, in the event of any conflict between them, be in

the following order:

i this Agreement;

ii Schedules, Annexures and Appendices of this Agreement;

iii Bidding/RFP Documents;

iv LOI and other communication issued by the Authority to the Selected Bidder or

to the Developer;

v all other documents forming part of this Agreement;

i.e. the agreement at (i) above shall prevail over the agreements and documents at (ii

to v) above.

1.2.4 In case of ambiguities or discrepancies within this Agreement the following shall apply:

i between two or more Articles and or Clauses of this Agreement, the provisions

of the specific Article and or Clause relevant to the issue under consideration

shall prevail over those in other Articles or Clauses;

ii between the written description on the Drawings and the Specifications and

Standards, the latter shall prevail;

iii between the dimension scaled from the Drawing and its specific written

dimension, the latter shall prevail;

iv between any value written in numerals and that in words, the higher value shall

prevail, whether written in words or numerals;

v between the clauses of this Agreement and the Schedules, the Clauses shall

prevail and between Schedules and Annexes, the Schedules shall prevail.

ARTICLE 2: SCOPE OF THE PROJECT

2.1 Project

2.1.1 Project shall mean and include but not limited to:

a. Design, finance, develop, construct, upgrade, modernise, manage, operate, and

maintain the Property exclusively for Hospitality/Tourism Services during the

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Lease Period and handing over full and peaceful possession of the Property

along with Project Facility to the Authority at the end of the Lease Period,

without any Encumbrance and/or liability and at value to the effect that the

Developer shall have no claim on the aforesaid Property.

b. perform and fulfill all the obligations of the Developer in accordance with the

provisions of this Agreement.

c. Renovation, upgradation, modernization, value addition and augmentation to be

done in accordance with the Minimum Development Obligations specified in

Clause 2.2

2.2 Minimum Development Obligations

2.2.1 The Developer shall meet the following minimum development obligations (the

“Minimum Development Obligations”) while designing, renovating, developing,

augmenting the Property:

a. The Developer shall upgrade/renovate/modernise the existing Project Facility

and create/add other assets including overall development as required for the

Property and shall make an investment of an amount equal to or greater than Rs

________ (Rupees________________________).

b. Commit to finance, upgrade, develop, operate, manage and maintain the

Property, Project Facility and Project Asset as per Good Industry Practice from

the Appointed Date.

c. The Property, Project Facility and Project Asset under consideration shall be

used only for providing Hospitality/Tourism services.

d. Complete the Initial Phase within 1 year from the Appointed Date and

Modernisation Phase within 5 years from Appointed Date.

e. Augmentation/expansion/Development of the Property with prior approval from

the Authority to be in line with the local building regulations, and other

Applicable Laws.

f. Follow the Building bye-laws and Regulation of the nearest Urban Area for

additional construction/development in case the Unit/Property is located in

Rural Area.

g. Carry out new construction for providing additional rooms or additional

facilities in the Property.

h. Non-violation of all applicable Environmental Standards and Pollution Control

Norms as laid down by Central / State Pollution Control Board.

i. Existing local development controls, if any, will be binding if they are more

limiting than the Project Specifications / Minimum Requirements.

j. Operate the Project without disturbing the natural surroundings and ensuring

that the local flora and fauna are not disturbed.

k. Create an adequate waste disposal system for management and disposal of the

waste generated through the Project.

l. Responsible for maintaining hygiene and quality standards at the Property and

Project Facilities and providing quality services to tourists.

m. Responsible for providing adequate security for the tourists using the Project

Facilities, and ensuring there is no damage or loss to Project Facilities.

ARTICLE 3: GRANT OF LEASE

3.1 Grant of Lease

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3.1.1 Subject to and in accordance with the terms and conditions set forth in this

Agreement, Applicable Laws and Applicable Permits, the Authority hereby grants to

the Developer possession of the Property, Project Asset and Project Facility as set

forth in Schedule 4 on ‘as is where is basis’ for the sole purpose of the Project, and

grants and authorizes the Developer the exclusive rights and privilege to develop,

conceptualise, design, finance, renovate, construct, maintain, operate and manage the

Property and Project Facility and to exercise or to enjoy the rights, powers, benefits,

privileges, authorizations and entitlements as set forth in this Agreement (the

“Lease”) for the entire duration of the Lease Period or until the earlier Termination of

the Lease in accordance with the provisions of this Agreement, and the Developer

hereby accepts the Lease and agrees to implement the Project subject to and in

accordance with the terms and conditions set forth herein.

3.1.2 Subject to and in accordance with the provisions of this Agreement, the Lease hereby

granted shall entitle the Developer to enjoy and oblige the Developer to undertake the

following in accordance with the provisions of this Agreement, the Applicable Laws

and Applicable Permits:

a. to investigate, study, design, engineer, procure, finance, renovate, augment,

commission, operate, maintain and manage the Property, Project Facility and

Project Asset according to the provisions of this Agreement. ;

b. demand, collect and appropriate money/charges from persons enjoying the

facilities of the Project Facility or any part thereof;

c. to carry out any activity or business related or ancillary to the activities referred

above or which the Developer considers desirable or appropriate to be carried

on or engaged in connection therewith;

d. perform and fulfil all of the Developer’s obligations under this Agreement;

e. bear and pay all expenses, costs, charges, and taxes incurred in the fulfilment of

the Developer’s obligations under this Agreement;

f. not to assign or create any Encumbrance on the whole or any part of the

Property or Project Facility or Project Asset nor transfer, sub-lease or part

possession therewith save and except as expressly permitted by this Agreement.

g. contract and/or sub contract and License with third parties to undertake

functions on behalf of the Developer;

h. not to use the Property, Project Facility and Project Asset for any purpose other

than the purpose of the Project and purposes incidental or ancillary to as

permitted under this Agreement.

3.1.3 For the purpose of exercising its rights and/or performing its obligations pursuant to

Clause 3.1.2, the Developer may subject to and in accordance with the provisions of

this Agreement, at any time, grant Service Provider Rights to any person for the

purpose of carrying out the activities described in Clause 3.1.2, on such terms and

conditions as the Developer may determine to be reasonably appropriate, subject to

the same being within the framework of this Agreement and not being contrary to the

terms and conditions of the Agreement. The grant by the Developer of a Service

Provider Right shall not relieve the Developer of any of its responsibilities, duties and

obligations under this Agreement.

3.2 Lease Period

3.2.1 The Lease hereby granted is for a period of thirty (30) years commencing from the

Appointed Date and ending on the Expiry Date (“the Lease Period”). Provided that

in the event of Termination, the Lease Period shall mean and be limited to the period

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commencing from the Appointed Date and ending with the Termination Date.

3.2.2 At the end of the Lease Period, the Authority shall have the right to invite fresh bids

from interested parties to develop, operate and manage the Project. In this scenario,

the Developer shall have the Right of First Refusal i.e. the right to match the highest

financial bid received by the Authority, provided the Authority is satisfied with the

Developer with regard to observance of the terms & conditions of the Lease

Agreement during its validity.

3.2.3 Subject to Clause 3.2.2, the Developer shall on the last date of Lease Period hand over

the Project Assets, Project Facilities including the Property on which the same has

been developed and all rights thereto to the Authority at Rs 1/ value and free of all

encumbrances.

3.3 Acceptance of the Lease

3.3.1 In consideration of the rights, privileges and benefits conferred upon by the Authority

and other Good and valuable consideration expressed herein, the Developer hereby

accepts the Lease and agrees and undertakes to implement the Project and to

perform/discharge all of its obligations in accordance with the terms and conditions

set forth in this Agreement.

ARTICLE 4: CONDITIONS PRECEDENT

4.1 Conditions Precedent

4.1.1 Save and except as expressly provided in this Agreement, the respective rights and

obligations of the Parties under this Agreement shall be subject to the satisfaction in

full of the conditions precedent specified in this Clause 4.1 (the “Conditions

Precedent”).

4.1.2 The obligations of the Developer hereunder are subject to the satisfaction by the

Authority of the following Conditions Precedent unless any such condition has been

waived by the Developer as hereinafter provided:

a. provides possession of the Property, Project Asset and Project Facility to the

Developer on ‘as is where is basis’.

4.1.3 The obligations of the Authority hereunder are subject to the satisfaction by the

Developer of the following Conditions Precedent unless any such condition has been

waived by the Authority as hereinafter provided:

a. procured all the Applicable Permits/Clearances required for operation of the

Project unconditionally or if subject to conditions then all such conditions shall

have been satisfied in full and such Applicable Permits are in full force and

effect;

b. achieved Financial Close, executed the Financing Documents and delivered to

the Authority 3 (three) copies thereof, duly attested by a Director of the

Developer;

c. delivered to the Authority a legal opinion from the legal counsel of the

Developer with respect to the Developer entering into this Agreement and the

enforceability of the provisions thereof;

d. confirmed in writing that all the representations and warranties of the Selected

Bidder set forth in its Bid are true and correct as on the date of execution of this

Agreement;

e. Confirmed in writing that all the representations and warranties of the

Developer setforth in this Agreement are true and correct as on the date of

execution of this Agreement;

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f. Opened the Escrow Account and executed the Escrow Agreement;

Provided that upon request in writing by the Developer, the Authority may in its

discretion, waive any of the Conditions Precedent set forth in this Clause 4.1.3.

4.1.4 Each Party shall make all reasonable endeavours to satisfy the Conditions Precedent

within the time stipulated herein and shall provide the other Party with such

reasonable cooperation as may be required to assist that Party in satisfying the

Conditions Precedent for which that Party is responsible.

4.1.5 The Parties shall notify each other in writing at least once a month on the progress

made in satisfying the Conditions Precedent. Each Party shall promptly inform the

other Party when any Condition Precedent for which it is responsible has been

satisfied.

4.2 Obligations to fulfil Conditions Precedent

4.2.1 The Parties shall fulfil the Conditions Precedent within 180 (one hundred and eighty)

days from the Appointed Date, and the date on which both the Parties fulfil the

Conditions Precedent, as forthwith jointly certified in writing by the authorised

representatives of the Parties, shall be the Compliance Date (the “Compliance

Date”).

4.3 Non-fulfilment of Conditions Precedent

4.3.1 In the event of non-fulfilment of Developer Conditions Precedent within 180 (one

hundred and eighty) days from the Appointed Date, the Authority may terminate this

Agreement in accordance with the provisions of this Agreement and arrogate and

retain the Performance Security and all payments made by the Developer, including

the Upfront Fee and the Lease Rent, till the date of termination.

4.3.2 In the event of non-fulfilment of the Authority Conditions Precedent within 180 (one

hundred and eighty) days from the Appointed Date, the Developer may terminate this

Agreement, in accordance with the provisions of this Agreement, and require, the

Authority to return / refund in full the Performance Security, along with the Upfront

Fee and the Lease Rent till the date of termination of this Agreement, provided there

are no outstanding claims of the Authority on the Developer.

4.3.3 Notwithstanding anything contained in the Clauses 4.2 and 4.3, the Parties may, by

mutual consent, extend the time for fulfilling the Conditions Precedent subject to a

maximum period of 240 days from Appointed Date.

ARTICLE 5: PROPERTY / PROJECT FACILITY/PROJECT ASSET

5.1 Handover of Property

5.1.1 The Authority hereby undertakes to handover to the Developer physical possession of

the Property along with the Project Asset and Project Facility free from Encumbrance

within 180 (one eighty) days from the Appointed Date, for the purpose of

implementing the Project in accordance with this Agreement on “As-Is-Where-Is”

basis.

5.1.2 The Authority confirms that upon the Property being handed over pursuant to the

clause 5.1.1, the Developer shall have the exclusive right to enter upon, occupy and

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use the Property, Project Facility and Project Asset and to make at its costs, charges

and expenses such investigation, design, renovation, development, augmentation and

improvements in the Property as may be necessary or appropriate to implement the

Project and develop the Property, Project Facility in accordance with the provisions of

this Agreement.

5.2 Rights, Title and Use of the Property

5.2.1 The Developer shall have exclusive rights to use the Property, Project Asset and the

Project Facility in accordance with the provisions of this Agreement and for this

purpose it may regulate the entry and use of the same by third parties.

5.2.2 The Developer shall not part with or create any Encumbrance on the whole or any part

of the Property, Project Facility and Project Asset save and except as set forth and

permitted under this Agreement.

5.2.3 The Developer shall be allowed to outsource/ sub-contract functions of operations/

maintenance/ management for the purpose of provision of services at the Project

Facility such as food & beverages (restaurant), laundry, housekeeping, landscaping,

pest control, etc during the term of the Lease with such agencies, with established and

relevant track record, as it may deem fit. Such sub-contracting shall not be in any way

detrimental to the Agreement entered into between the Developer and the Authority.

Under all circumstances, the Developer would all times be responsible for discharging

all obligations under the Lease Agreement without any reference to any other party

operating in the Property.

5.2.4 The Property, Project Asset and the Project Facility shall continue to remain under the

ownership of the Authority during the Lease Period and its physical possession shall

be transferred to the Authority after expiry of the Lease Period or on Termination.

Developer shall take all reasonable due care of the Property, Project Asset and the

Project Facility as the case may be. Developer shall be fully responsible for any loss

or damage to the Property, Project Asset and the Project Facility during the Lease

Period, caused as a result of any negligence on its part.

5.2.5 Developer declares that in entering into this Agreement on the terms and conditions

set out herein, Developer has made its own assessment of the Property and income-

potential thereof.

5.2.6 Developer shall have to obtain all such Applicable Permits (including but not limited

to building permit, hotel permit, etc) unconditionally or if subject to conditions then

all such conditions have been satisfied in full and such Applicable Permits are and

shall be kept in full force and effect during the Lease Period.

5.3 Information about the Property

5.3.1 The information about the Property set out to the extent in this Agreement is provided

by the Authority in Good faith and with due regard to the matters for which such

information is required by the Developer. The Authority agrees to provide to the

Developer, upon a reasonable request, any further information relating to the Property,

which the Authority may now possess or may hereafter come to possess. Subject to

this the Authority makes no representation and gives no warranty to the Developer in

respect of the condition of the Property or any information in relation to the same.

5.4 Peaceful Possession

5.4.1 The Authority warrants that:

a. the Property having been acquired through the due process of law belongs to

and is vested in the Authority, and that the Authority has full powers to hold,

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dispose of and deal with the same consistent, inter alia, with the provisions of

this Agreement;

b. the Developer shall have no obligation/liability as to payment of any

compensation whatsoever to or the rehabilitation and resettlement of any Person

from whom the Property or any part thereof had been acquired and that the same

shall be the sole responsibility of the Authority; and

c. the Developer shall, subject to complying with the terms and conditions of this

Agreement, remain in peaceful possession and enjoyment of the Property,

Project Facility and Project Asset during the Lease Period. In the event the

Developer is obstructed by any Person claiming any right to the title or interest

in or over the Property or Project Facility or any part thereof or in the event of

any enforcement action including any attachment, distraint, appointment of

receiver or liquidator being initiated by any Person claiming to have any interest

in/ charge on the Property or Project Facility or any part thereof, the Authority

shall, if called upon by the Developer, defend such claims and proceedings and

also keep the Developer indemnified against loss or damages which the

Developer might suffer, on account of any such right, title, interest or charge.

5.5 Applicable Permits

5.5.1 The Developer shall obtain and maintain all Applicable Permits and Clearances in

such sequence as is consistent with the requirements of the Project.

ARTICLE 6: LEASE RENT & OTHER PAYMENTS

6.1 Lease Rent

6.1.1 The Authority acknowledges the receipt of a payment of Rs. ___________ (Rupées

_____________________________________________) DD No. ___________ dated

__________ drawn on ______________________________ towards the Annual

Lease Rent prior to the Appointed Date pro rata for the months balance in the current

Financial Year _________.

6.1.2 In consideration of the Lease hereby granted, the Developer shall pay to the

Authority, Annual Lease Rent on the Due Date.

6.1.3 The Annual Lease Rent shall be incremented by 5% (Five percent) each year over that

of the previous year during the Lease Period.

6.1.4 However, after the Development Phase (5 years after Appointed Date), the Developer

shall pay the higher amount of Annual Lease Rent or Annual Revenue Share as

applicable.

6.1.5 All subsequent Annual Lease Rent shall be made on or before April 30th

of each

Financial Year.

6.1.6 Any delay in making any Annual Lease Rent payment shall, without prejudice to any

other consequences under this Agreement, entail payment of interest on the amount in

default at the rate of SBI Base Rate plus 3 percent per annum from the relevant Due

Date till the date of payment/ realisation.

6.2 Upfront Fee

6.2.1 The Authority acknowledges the receipt of a payment of Rs. ___________ (Rupées

_____________________________________________) DD No. ___________ dated

__________ drawn on ______________________________ towards the Upfront Fee

prior to the Appointed Date.

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6.3 Mode of Payment

6.3.1 Annual Lease Rent shall be paid by way of Demand Draft in favour of

_____________, payable at Lucknow and shall be sent sufficiently in advance of the

Due Date to the following address:

Attn. of Director General

Address Department of Tourism

Government of Uttar Pradesh

Paryatan Bhawan, C-13, Vipin Khand, Gomti Nagar

Lucknow: 226 010

6.4 Taxes, duties & levies

6.4.1 The Developer agrees to pay service tax and/or any applicable taxes, duties, charges,

surcharges or levies in relation to the various payments to be made by the Developer

as also all other duties, taxes and levies related to the Lease or the grant of the Lease

by the appropriate authorized agencies, authorities or bodies.

6.5 Certified Accounts

6.5.1 During the subsistence of this Agreement, the Developer shall maintain all documents

and supporting evidences for its financial statements including agreements and

documents with respect to all capital and debt raised by the Developer, capital and

revenue expenses towards the Project. The Developer shall submit to the Authority

periodic reports on financial statement of the Gross Revenue duly certified by its

Statutory Auditors as per the provisions of Clause 8.11.

6.5.2 The Authority shall appoint an Independent Auditor to conduct a special audit of the

Gross Revenue and the financial statements, documents and supporting evidences

thereto as may be mandated by the Authority and report to the Authority such

information as may be desired by the Authority for any period and the Gross Revenue

(“Special Audit”).

6.5.3 In the event that the Gross Revenue reported by the Independent Auditor is higher

than that reported by the Statutory Auditor of the Developer, the auditors shall meet to

resolve such differences and if they are unable to resolve the same, then for the

purpose of calculating the Annual Lease Rent, the Gross Revenue reported by the

Independent Auditor shall be considered.

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6.6 Escrow Account

6.6.1 The Developer shall maintain an escrow account with a bank approved by the Lenders

(“Escrow Account”), during the subsistence of this Agreement and enter into an

agreement substantially in the format prescribed in Schedule 7 with such bank to

ensure that all proceeds for financing the Project and all revenues and other receipts

arising from the Project and under any agreements, including this Agreement received

by the Developer are deposited into such Escrow Account.

a) Withdrawals and appropriations during the Lease Period, at any relevant time,

from the Escrow Account shall be in the following order of priority

i. for all taxes due payable by the Developer;

ii. towards payment of Annual Lease Rent;

iii. all construction/implementation expenses relating to the Project/Project

Facilities and Services, subject to limits if any set out under the Financing

Documents;

iv. all expenses relating to operations and management of the Project/Project

Facilities and Services, subject to limits if any set out under the Financing

Documents;

v. towards its debt service obligations under the Financing Documents;

vi. towards payment of other sums payable to the Authority and liquidated

damages, if any;

vii. towards any reserve requirements in accordance with the Financing

Documents;

and the Developer shall be at liberty to withdraw any sums outstanding in the

Escrow Account after all the aforesaid payments due in any Quarter have been

made and/or adequate reserves have been created in respect thereof for that

Quarter. Provided, upon issuance of Termination Notice and/or suspension of the

Developer in accordance with the provisions of this Agreement, withdrawal from

the Escrow Account shall be made only in accordance with the written

instructions of the Authority and the Lenders.

b) All amounts standing to the credit of the Escrow Account at the end of the Lease

Period including amounts credited to the Escrow Account towards compensation

payable in accordance with Clause 14.9 shall be appropriated in the following

order of priority:

i. towards taxes and statutory dues payable by the Developer;

ii. compensation to Lenders in terms of the Financing Documents towards

discharge of the Developer’s liability under such Financing Documents;

iii. all amounts due to the Authority and amounts payable towards transfer of

the Project Facilities and Services by the Developer in accordance with

this Agreement;

and the Developer shall be at liberty to withdraw any sums outstanding in the

Escrow Account after all the aforesaid payments due have been made and/or

adequate reserves have been created in respect thereof to the satisfaction of the

Lenders and the Authority.

ARTICLE 7: PERFORMANCE SECURITY

7.1 Performance Security

7.1.1 The Developer has for due and faithful performance of its obligations during the

Lease Period furnished to the Authority, simultaneously with the execution of this

Agreement, an irrevocable bank guarantee from a Scheduled/Nationalised bank

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acceptable to the Authority (the “Performance Security”). The Performance Security

for an amount equivalent to 5 (five) times the Annual Lease Rent for the first year i.e.

Rs._____________ (Rupees_______________________). A valid bank guarantee

should always be in place at any time during the Lease Period. The details of above

Bank Guarantee are as follows:

Bank Guarantee Details: ____________________________________________

____________________________________________

7.1.2 An amount equal to 3 (three) times the Annual Lease Rent for the first year shall be

released within 120 days of the successful completion of the Minimum Development

Obligation (i.e. within 120 days of issuance of Completion Certificate as per Clause

11.3.3) and remaining Performance Security [equal to 2 (two) times the Annual Lease

Rent for first year] shall be retained till the completion of Lease Period and shall be

released after 6 months from the end of Lease period.

7.1.3 Provided if the Agreement is terminated due to any event other than a Developer

Event of Default, the Performance Guarantee, subject to the Authority’s right to

receive amounts, if any, due from the Developer under this Agreement, shall be

refunded to the Developer.

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7.2 Appropriation of Performance Security

7.2.1 Upon occurrence of a Developer Event of Default or as per other provisions stipulated

in this Agreement, the Authority shall, without prejudice to its other rights and

remedies hereunder or in law, be entitled to encash, invoke and appropriate the

relevant amounts from the Performance Security as damages. Upon such encashment,

invocation and appropriation from the Performance Security, the Developer shall

within 30 (thirty) days thereof, replenish, in case of partial appropriation, to its

original level the Performance Security, and in case of appropriation of the entire

Performance Security provide a fresh Performance Security as aforesaid failing which

the Authority shall be entitled to terminate this Agreement in accordance with

provisions of this Agreement.

ARTICLE 8: DEVELOPER’S OBLIGATIONS AND UNDERTAKINGS

In addition to and not in derogation or substitution of any of the obligations set out in this

Agreement, the Developer agrees and undertakes as under:

8.1 Performance Security

8.1.1 The Developer has for due and punctual performance of its obligations hereunder

relating to the Project, furnished to the Authority, simultaneously with the execution

of this Agreement, Performance Security in accordance with the provisions of Article

7.

8.2 Financing Arrangement

8.2.1 The Developer shall at its own cost; expenses and risk make such financing

arrangements as would be necessary to implement the Project and to meet all of its

obligations under this Agreement, in a timely manner.

8.2.2 The Developer shall not in any way transfer, sell, alienate, encumber, mortgage or

create any charge on the Property, Project Facility and Project Asset during the Lease

Period.

8.3 Drawings

8.3.1 The Developer shall, at its cost, charges and expenses, cause Drawings to be prepared

in accordance with Minimum Development Obligations and the Specification and

Standards for providing the Project Facility.

8.3.2 All Drawings whether relating to the Property and Project Facility shall be subject to

review by the Authority.

8.4 Development Phase

8.4.1 The Developer shall at its own cost and expense, investigate, design, finance,

renovate, develop and augment the Property, subject to adherence to Applicable Law

and obtaining Applicable Permits for such renovation, construction, development and

or augmentation;

Provided that such renovation, construction, development and/or augmentation, shall

not at any time cause any damage or have a dangerous effect on either the stability of

the Property or Project Facility or Project Asset or otherwise affect the users of the

Project Facility or Property.

8.4.2 The Developer shall adhere to the Minimum Development Obligations and Standards

and Specifications.

8.4.3 The Developer shall, before commencement of Development Phase;

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a. submit to the Authority, a Detailed Project Report and the Project

Implementation Schedule for the Project;

b. have requisite organisation and designate and appoint suitable officers/

representatives as it may deem appropriate to supervise the Development Phase

and to deal with the Authority and to be responsible for all necessary exchange

of information required pursuant to this Agreement;

c. undertake, do and perform all such acts, deeds and things as may be necessary

and to achieve completion of Development Phase within 5 year from the

Appointed Date;

8.4.4 The Developer shall be responsible for getting all relevant approvals deemed

necessary as per laws of Union of India/State of Uttar Pradesh/ Local bodies related to

construction, renovation and augmentation of the Property and for operation,

management and maintenance of the Project Facility;

8.4.5 The Developer shall organise shifting of utilities including payment of respective

authority charges if any;

8.4.6 Developer shall co-operate with the Authority and provide all facilities and assistance

required by the Independent Engineer.

8.5 Construction, Alteration and Modification

8.5.1 The Developer shall be at liberty to carry out necessary alterations or modifications to

the Property or undertake new construction in order to meet his obligation of

providing the Project Facilities and, subject to his adherence to Applicable Law and

obtaining Applicable Permits for such alteration, modification or new construction.

Provided however that such alteration, modification or new construction and, shall not

at any time cause any damage or have a dangerous effect on either the stability of the

Property/Project Asset/Project Facilities or otherwise adversely affect the safety of the

users of the Property/Project Asset/Project Facilities.

8.5.2 If in the opinion of the Developer, the said alteration, modification or new

construction requires demolition of any part or whole of the Property/Project

Asset/Project Facilities (including the cutting of trees), then such demolition shall be

undertaken only after obtaining prior written approval from the Authority, which

approval shall not be unreasonably withheld. For this purpose, the Developer shall

submit to the Authority a proposal (hereinafter referred to as Modification Proposal)

clearly describing such demolition and its impact on the structural stability of the

Property/Project Asset/Project Facilities, at least sixty (60) days prior to carrying out

such demolition whereupon the Authority shall respond as per provision of Clause

9.1.

8.5.3 The Developer would be required to obtain Applicable Permits and adhere to

Applicable Laws for any demolition.

8.5.4 No demolition (including the cutting of trees) would be allowed during the last 5 years

of the Lease Period, unless specifically approved by the Authority.

8.6 Environmental Compliance

8.6.1 The Developer shall ensure that all aspects of the Project and Project Facility and

processes employed in the design, renovation, construction, operation and

maintenance thereof shall conform to the laws pertaining to environment, health and

safety including policies and guidelines related thereto.

8.7 Operation Period

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8.7.1 Developer shall be responsible for the operation and maintenance of the Project

Facility at its cost and shall provide a high level of service to its guests in accordance

with specifications, standards and instructions of the Authority, if any.

8.7.2 Developer, at its cost during the subsistence of this Agreement, would obtain all

requisite licenses/permission for operating the Project Facility, it being understood

that the licenses/permissions and all deposits or securities given or provided in

relation thereto by the Developer shall always be the property of the Authority and

Developer shall have no right or lien or claim to on the same, even if Developer’s

name is endorsed or mentioned in the license or permission as manager or Developer

of the Project Facility or otherwise;

8.7.3 Developer shall not cause, permit or suffer any use of the Project Facility or any part

thereof for any other purpose other than that authorised by the Authority.

8.7.4 Developer shall protect and promote the image, status and stated aims of the

Authority.

8.7.5 Developer shall be allowed to put up its sign board on the main entrance of the Project

Facility clearly specifying the following in addition to the name and logo of the

Developer:

“Unit of Department of Tourism, Government of Uttar Pradesh”

8.7.6 Developer shall maintain the Project Facility in proper cleanliness and hygienic

surroundings and in accordance with terms and conditions set forth in this Agreement;

8.7.7 Developer shall not store any goods not permitted by Applicable Law including

hazardous, explosive, flammable or combustible in nature that may cause risk by fire,

explosion or goods/material which on account of their weight or nature may cause

damage or endanger the safety of the Project Facility and/or Project Asset and or its

inhabitants;

8.7.8 The Developer will not at any time do, cause or permit any nuisance in or around the

Property and Project Facility and/or Project Asset or anything which shall cause

unnecessary annoyance, inconvenience or disturbance to the occupiers of any other

property;

8.7.9 Developer shall at its own cost and expenses pay:

a. All heat, light and power expenses including air-conditioning costs;

b. All costs and expenses of the management and operation of the Project Facility;

c. All expenses for the internal upkeep and maintenance of the Project Facility

including but not limited to painting, polishing, sanitary, plumbing, electric

maintenance, as well as repairs and replacements;

d. The Developer shall pay all taxes including Ground Rent, Land Tax, Property

Tax, Service Tax, Duties, Levies etc. which are payable in relation to the

Property / Project Facility;

8.7.10 The Developer shall provide fire fighting equipment in the Project Facility and ensure

that periodic fire drills are conducted in order to guide and inculcate the procedures

and operations of fire fighting/safety;

8.7.11 The Developer shall take necessary action to remedy the lapses, if any, stated in the

Inspection Report issued by the Authority for ensuring compliance with the provisions

of this Agreement.

8.7.12 During the Operations Period, the Developer shall:

a. have requisite organisation and designate and appoint suitable officers/

representatives as appropriate to supervise the operation and maintenance and to

deal with the Authority and to be responsible for all necessary exchange of

information required pursuant to this Agreement;

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b. undertake, do and perform all such acts, deeds and things as may be necessary

or required to adhere to the operation and maintenance Requirements;

8.7.13 The Developer shall be deemed to be in Material Breach of the operation and

maintenance Requirements, if the Authority acting reasonably and in accordance with

the provisions of this Agreement, has determined that due to breach of obligations by

the Developer:

a. the maintenance of the Property and Project Facility or any part thereof has

deteriorated to a level which is below the acceptance level of the Authority

b. there has been a serious or persistent breach in adhering to the operation and

maintenance Requirements and thereby the Project Facilities or any part thereof

are not safe for operation

For avoidance of doubt, persistent breach shall mean:

a. any breach of operation and maintenance Requirements by the Developer which

has not been remedied by the Developer despite a notice to remedy in respect of

the same issued by the Authority

b. recurrence of a breach by the Developer, during the pendency of the notice to

remedy issued by the Authority

c. repeated occurrence of a breach notwithstanding that earlier breaches have been

remedied or otherwise pursuant to notice to remedy

8.7.14 Upon occurrence of a Material Breach of operation and maintenance Requirements,

the Authority shall without prejudice to and notwithstanding any other consequences

provided thereof under this Agreement, be entitled to terminate this Agreement.

8.8 Hygiene and Quality Standards

8.8.1 The Developer shall abide by the following Hygiene and Quality Standards

a. Quality of water has to be hygienic.

b. The storage, handling of raw materials and cooking etc will have to be in

extreme hygienic conditions.

c. The provisions of Prevention of Food Adulteration Act, 1954, and any law

relating to hygiene and quality shall be binding.

d. The Authority reserves the right to get the food samples/raw materials tested at

Laboratories at the cost of the Developer.

e. The Developer will be duly bound to reveal the source of procurement of raw

material if asked by the Authority.

f. The Developer shall maintain the Property and surrounding areas in proper

cleanliness and hygienic conditions at its own cost and shall also be bound to

follow such directions of the Authority issued from time to time in this respect.

g. The Developer will ensure clearance of all the rubbish and the waste generated

at their location and ensure safe and quick scientific disposal of all such material

and will also coordinate with concerned civic agencies for disposal of garbage

even outside the Property.

h. In case the Developer fails to maintain the hygienic standards, the Developer

shall pay a penalty of Rs 500 per day for the first 10 days and Rs 1000 per day

subsequently to The Authority till such time the hygienic conditions are met.

The penalty will be payable ten days after receipt of written notice from the

Authority.

8.9 Transfer Period

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8.9.1 At the end of the Lease Period or early termination thereof, the Property, Project Asset

and Project Facility should be in a useable condition and handed over to the Authority

by the Developer as per the terms of this Agreement;

8.9.2 The Developer shall not make any modifications to the Property or Project Facility

which could have an adverse impact on the operations of the Property or Project

Facility during the last 5 years of the Lease Period;

8.9.3 The Developer shall provide support and further do all such acts including execution

of necessary writings/documents as desired by the Authority for deleting the name of

Developer from, or diluting or dissolving any apparent right or interest, in license or

permission obtained in relation to the Project Facility at the end of Lease Period.

8.10 General Obligations

8.10.1 The Developer shall at its own cost, expenses and risk:

a. investigate, study, design, develop, renovate, construct, operate, maintain and

manage the Property / Project Facility/ Project Asset in accordance with the

provisions of this Agreement, Good Industry Practice and Applicable Laws;

b. assume responsibility relating to designing, financing, renovation, construction,

augmentation, operation, maintenance and management of the Project Facility to

standards commensurate with the character of the Authority and transfer of the

Property, Project Facility and Project Assets after the expiry of the Lease

Period.

c. The Developer shall get Lease Agreement registered in two counterparts with

the concerned registration authority within 30 days of the signing of the Lease

Agreement and cost of stamping and registration of this Lease Agreement shall

be borne by the Developer. The original Lease Agreement shall be kept with the

Authority and the copy of the counterpart of Agreement shall be with the

Developer.

d. pay all taxes and charges including but not limited to utility charges, service tax,

duties, levies etc. which are payable in relation to the design, finance,

renovation, augmentation, operation and management of the Property / Project

Facility during the Lease Period..

e. provide required reports to the Authority on regular basis during the

Development Phase, Operation and Transfer period;

f. punctually settle and pay amounts owed to the Authority (including but not

limited to Annual Lease Rent within the time agreed and not to allow the same

to fall in arrears. All such amounts paid after the time agreed will be paid with

interest @ SBI Base Rate plus three percent (3%) per annum;

g. provide at its own cost and expense adequate personnel, qualified and

experienced, for the purposes of design, renovation, augmentation, construction,

operation, management and transfer of the Property and the due discharge of the

obligations of the Developer;

h. Provide Job Training to one trainee per room as per the guidelines of “Hunar Se

Rozgaar Tak” Scheme of Ministry of Tourism, GoI. The cost of training shall be

reimbursed to the Developer as per the aforesaid guidelines.

i. ensure and procure that each Project Agreement contains provisions that would

entitle the Authority or a nominee of the Authority to step into such agreement

at the Authority’s discretion, in place and substitution of the Developer in the

event of Termination pursuant to the provisions of this Agreement;

26

j. take all reasonable precautions for the prevention of accidents on or about the

Property / Project Facility and provide all reasonable assistance and Emergency

medical aid to accident victims;

k. indemnify and keep the Authority fully and comprehensively indemnified from

and against all claims and demands, actions, proceedings, damages, costs,

charges and expenses and/or liabilities that may arise after the Appointed Date

or be caused to the Authority in consequence or as a result of an act or default or

breach or non-observance of any laws, rules, regulations, requirements,

conditions etc. of Developer in design, finance, renovation, construction,

operation, management or transfer of the said Project and/or Property and /or

Project Facility and or Project Asset;

l. duly discharge and settle all payments and dues including but not limited to

salary/wages/provident fund/employees insurance and any other dues or claims

whatsoever as per Applicable Law, whether statutory or contractual, and also

including any termination compensation or dues, owed to its personnel and staff

including any contract labour engaged by Developer for the purposes of design,

renovation, constructing, maintaining and operation of the Property / Project

Facility and to keep the Authority fully indemnified against all claims and

demands from or on behalf of any such personnel or staff of the Developer and

all actions, proceedings, damages, costs and expenses resulting from any such

claims and demands.;

m. make efforts to maintain harmony and good industrial relations among the

personnel employed in connection with the performance of the Developer's

obligations under this Agreement;

n. be responsible for safety, soundness and durability of the Property and the

Project Facility including all structures forming part thereof and their

compliance with the Specifications and Standards;

o. provide access to the Property / Project Facility/Project Asset to the Authority

and officer of any Government Agency having jurisdiction over the Property,

including those concerned with safety, security or protection to inspect the

Property / Project Facility/Project Asset and to investigate any matter within

their authority and upon reasonable notice. The Developer shall provide to such

persons reasonable assistance necessary to carry out their respective duties and

functions;

p. ensure that the Property, Project Facilities and Project Asset remain free from all

encroachments and take all steps necessary to remover encroachments, if any;

q. appoint an authorised representative to take and carry out the instructions given

to it by the Authority and intimate the following about abovesaid authorised

representatives to the Authority of the same :

1. Name:________________

2. Designation:________________

3. Address:________________

r. change the authorised representative, if required and in such event, provide

advance written notice of 30 (thirty) days to the Authority of any such change.

s. be responsible for all health, security, environment and safety aspects of the

Project / Property / Project Facility

8.11 Financial and Project Information

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8.11.1 The Developer shall deliver to the Independent Engineer and Independent Auditor and

the Authority the following documents and information at the intervals described

below:

a) Financial Information

a. annual audited accounts (in compliance with Indian General Accounting

Practices) of the Developer duly Certified by its Statutory Auditors,

delivered within 180 days of the end of each Financial Year;

b. unaudited financial statements (in compliance with Indian General

Accounting Practices) of the Developer:

i monthly reports within 15 days of the end of each such period and

ii quarterly reports within 30 days of the end of each such period;

c. notification of any material change in the financial condition of the

Developer and/or the Project promptly following such occurrence.

d. all reports, notifications and information including construction progress

reports with respect to the execution of the Works.

e. all reports, notifications and information including operations reports with

respect to the performance of the operation and management of the Project

Facility.

b) Additional Information

The Developer agrees to provide to the Authority, the Independent Engineer

and the Independent Auditor such further information as any of them may

reasonably request in order for them to monitor the progress and Performance

Standards for the Project.

c) Budgets

At the commencement of each Financial Year the Developer will prepare and

submit to the Independent Engineer and the Independent Auditor a statement

confirming:

(i) the expenditure incurred or committed or to be incurred by the Developer

for the period from the date of the last such statement to and including the

date of the current statement; and

(ii) future expenditure anticipated to be made during the next Financial Year.

d) Financial Year

The Developer shall not change its Financial Year without the prior written

approval of the Authority.

8.12 No breach of obligations

8.12.1 The Developer shall not be considered to be in breach of its obligations under this

Agreement nor shall it incur or suffer any liability if and to the extent performance of

any of its obligations under this Agreement is affected by or on account of any of the

following:

a. Force Majeure Event

b. the Authority Event of Default

c. Compliance with instructions of the the Authority or the directions of any

government agency other than instructions issued as a consequence of a breach

by the Developer of any of its obligations as set forth in this Agreement: or

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d. Closure of Project Facility or part thereof with the approval of the Authority

ARTICLE 9: THE AUTHORITY’S OBLIGATIONS AND UNDERTAKINGS

In addition to and not in derogation or substitution of any of the obligations set out in this

Agreement, the Authority agrees and undertakes as under:

9.1 Obligations and Undertakings 9.1.1 the Authority shall:

a. hand over the physical possession of Property together with necessary right of

way / way leaves to the Developer within 180 (one eighty) days from Appointed

Date, free from any Encumbrance;

b. grant or where appropriate provide necessary assistance to the Developer in

securing applicable permits;

c. grant in a timely manner all such approvals, permissions and authorisations

which the Developer may require or is obliged to seek from the Authority in

connection with implementation of the Project and the performance of the

Developer’s obligations under this Agreement;

d. upon written request from the Developer, assist the Developer in obtaining

access to all necessary infrastructure facilities and utilities, including water,

electricity and telecommunication facilities;

e. ensure peaceful use of the Property by the Developer under and in accordance

with the provisions of this Agreement without any hindrance from the Authority

or persons claiming through or under it;

f. Accept the right of the Developer to affix the brand name on the rooftop or any

part or space relating to the Premises upon prior permission from the Authority.

g. observe and comply with all its obligations set forth in this Agreement.

9.1.2 The Authority shall inspect the Project Facility at least once every six months and

prepare a report of such inspection (the “Inspection Report”). It shall send a copy of

its Inspection Report to the Developer.

ARTICLE 10: INDEPENDENT ENGINEER AND INDEPENDENT AUDITOR

10.1.1 Appointment

10.1.2 The Authority shall appoint an individual / firm / company as the Independent

Engineer and a reputed firm of Chartered Accountants practising in India as the

Independent Auditor to undertake and perform the duties, work, services and

activities set forth in this Article 10 and otherwise as set out in this Agreement and

the Schedules. The Authority shall complete the appointment of Independent

Engineer and Independent Auditor within 60 days from the Appointed Date.

10.1.3 The Independent Engineer and the Independent Auditor shall report to the Authority

about their work, services, and activities pursuant hereto through regular periodic

reports as the situation may warrant. Such report of the Independent Engineer and

the Independent Auditor shall include such matters as appropriate to ensure that the

Authority is properly informed.

10.2 Payments of Independent Engineer and Independent Auditor

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10.2.1 All fees, costs, charges and expenses payable to the Independent Engineer and

Independent Auditor in accordance with the terms of appointment shall be borne by

the Authority.

ARTICLE 11: PROJECT IMPLEMENTATION AND OPERATIONS

11.1 Preparation of Designs and Drawings

The Developer shall at its cost, charges and expenses, prepare the Designs and

Drawings in conformity with the Project Requirements.

11.2 Review of the Designs and Drawings

a) The Developer shall submit the Designs and Drawings for the review of the

Independent Engineer. Simultaneously, the Developer shall also provide the

Authority with a set of the Designs and Drawings.

b) The Independent Engineer shall review the Designs and Drawings submitted by

the Developer and provide its comments/observations and suggestions on the

same (including taking into account the comments/observations of the

Concessioning Authority in respect thereof as it may in its sole discretion deem

fit) within 21 (twenty one) Days from the date of the receipt of such Designs and

Drawings.

c) In the event that the Independent Engineer has observed that the Designs and

Drawings are not in conformity with the Project Requirements, the Developer

shall promptly and without any undue delay revise and resubmit the Designs and

Drawings or satisfy the Independent Engineer with regards its compliance.

d) If the Independent Engineer does not make any observation/comments with

respect to the Designs and Drawings submitted to it by the Developer within 21

(twenty one) Days of the submission, it shall be deemed that the Independent

Engineer has no suggestions to make with respect to the Designs and Drawings

and the Developer shall be entitled to proceed with the Project accordingly.

e) The Developer shall not be entitled to any extension of time for completing

construction or any other relief on account of delay caused due to providing any

clarification or in resubmitting the Designs and Drawings. Provided however the

Authority at its sole discretion may suitably extend the Construction Phase or

provide other relief to compensate for any such delay not attributable to the

Developer.

f) The Developer shall not change any Designs and Drawings reviewed by the

Independent Engineer under this Agreement, without submitting such revised

Designs and Drawings for the review of the Independent Engineer.

g) Notwithstanding the review by the Independent Engineer, the Developer shall be

solely responsible for any defect and/or deficiency in the Designs and Drawings

relating to the Project or any part thereof and accordingly the Developer shall at

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all times remain responsible for its obligations under this Agreement.

h) Any review of the Designs and Drawings conducted by the Authority is solely for

the Authority’s own information and that by conducting such review, the

Authority does not accept any responsibility for the same.

i) The Developer shall in no way represent to any Person that, as a result of any

review by the Independent Engineer, the Authority has accepted responsibility for

the engineering or soundness of any work relating to the Project/ the Project

Facilities and Services or part thereof carried out by the Developer and the

Developer shall, in accordance with the provisions of this Agreement, be solely

responsible for the technical feasibility, operational capability and reliability of

the Project/ the Project Facilities and Services or any part thereof.

11.3 Construction Phase

The Developer shall promptly commence and complete the works, including

installation of equipment in accordance with the Project Schedule and shall also obtain

from the Independent Engineer a certificate as to completion of construction of Project

Facilities and Services in accordance with the provisions of this Agreement

(“Completion Certificate”) not later than 60 Months (Sixty months) from the date of

commencement of the Appointed Date.

11.4 Obligations of the Developer

Without prejudice to the any other clause in this agreement and in addition to any of

its other obligations under this Agreement, during the Construction Phase, the

Developer shall:

a) arrange for, in a timely manner all necessary financial and other resources

required for construction and installation of the Project Facilities and Services.

b) engage professionally competent Persons for project management and

construction and ensure that all works are carried out in compliance with the

Construction Standards;

c) give written notice to the Authority within 7 (seven) Days of any material

modification or change to any of the Financing Documents and/or any Equity

Documents and shall simultaneously therewith also furnish copies of such

modified/ amended documents to the Authority. Provided no such

modification/amendment will be made if it in any manner whatsoever has the

effect of imposing an additional financial obligation or increasing the financial

obligation of the Authority in addition to that contemplated under the Financing

Documents provided on Financial Close, without the prior written consent of the

Concessioning Authority. For avoidance of doubt any such

modifications/amendments made without the prior written consent of the

Authority will not be enforceable against the Authority;

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d) obtain Applicable Permits, comply with Applicable Laws and Applicable Permits

and give priority to safety in its construction and planning activities in order to

protect life, health, property and environment;

e) provide to the representative(s) of the Authority, at reasonable times and upon

prior intimation, access to the Project Site to review progress in construction and

to ascertain compliance with any of the requirements of this Agreement. Provided

that non-inspection by the Authority of any works shall not, in relation to such

works, (i) amount to any consent or approval by the Authority nor shall the same

be deemed to be waiver of any of the rights of the Authority under this

Agreement; and (ii) release or discharge the Developer from its obligations or

liabilities under this Agreement in respect of such work;

f) provide monthly reports on the progress of Construction Works or such other

relevant information as may be required by the Independent Engineer;

g) promptly carry out at its cost such further works as may be necessary to remove

any defects or deficiencies observed by the Independent Engineer and ensure

timely completion of construction of the Project / the Project Facilities and

Services in all respects in accordance with the provisions of this Agreement; and

h) to ensure safe and timely construction and completion of the Project/Project

Facilities and Services, the Developer may, at its cost, interrupt and divert/create

barriers on the flow of water or on the road or port traffic, adjacent to the Project

Site if such interruption and diversion is imperative for the efficient progress of

Construction Works and conforms to Good Industry Practice; provided that such

interruption and diversion shall be undertaken by the Developer only with the

prior written approval of the Independent Engineer which approval shall not be

unreasonably withheld. For the avoidance of doubt, it is agreed that the Developer

shall at all times be responsible for ensuring safe operation of Construction Works

and shall remove the interruption or diversion within the period specified by the

Independent Engineer.

11.5 Obligations of the Authority

In addition to any of its other obligations under this Agreement, during the

Construction Phase, the Concessioning Authority shall:

a) in matters falling within its authority, grant, the Applicable Permits, approvals and

consents as may be required by the Developer and on a best efforts basis assist the

Developer in obtaining all other Applicable Permits as may be required by the

Developer;

b) upon written request from the Developer, assist the Developer, on a best effort

basis, in obtaining immigration clearances, employment permits and residential

premises for any foreign personnel engaged or employed by the Developer in

connection with the implementation of the Project; and

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c) subject to the Developer / Contractor complying with the requirements under the

Applicable Laws including but not limited to payment of customs and any other

duty, assist the Developer or Contractor, on a best effort basis, to import into India

all items of equipment and materials required for the Project.

11.6 Suspension of Works

a) Upon recommendation of the Independent Engineer to this effect, the

Concessioning Authority may by notice require the Developer to suspend

forthwith the whole or any part of the Construction Works if, in the reasonable

opinion of the Authority, such work is not in accordance with the Construction

Standards / Safety Standards.

b) The Developer shall, pursuant to the notice under the foregoing provision suspend

the Construction Works or any part thereof for such time and in such manner as

may be specified by the Authority and thereupon represent to the Authority /

Independent Engineer, the remedial measures to remedy the defects notified. The

Developer may by notice require the Independent Engineer to inspect such

remedial measures forthwith and make a report to the Authority recommending

whether or not the suspension hereunder may be revoked. Any dispute as regards

the suspension of works or the remedial measures proposed, if cannot resolved

within 30 (thirty) Days of the suspension or proposal of the remedial measures,

shall be submitted for dispute resolution in accordance with this Agreement

hereof.

11.7 Issue of Completion Certificate

a) At least 60 (sixty) Days prior to the likely completion of the Project, the

Developer shall notify the Independent Engineer of the date when it intends to

commence commercial operations. The Independent Engineer shall then proceed

to inspect the Construction Works with the intention of issuing the Completion

Certificate and determine and notify to the Developer the schedule and manner of

the tests that it shall carry out to ensure that the Project meets with the

Construction Standards (“the Tests”). The date and time of each of the Tests shall

be determined by the Independent Engineer in consultation with the Developer,

and notified to the Authority who may designate its representative to witness the

Tests. The Developer shall provide such assistance as the Independent Engineer

may reasonably require for conducting the Tests. In the event of the Developer

and the Independent Engineer failing to mutually agree on the dates for

conducting the Tests, the Developer shall fix the dates by not less than 10 (ten)

Days notice to the Independent Engineer;

b) Upon completion of each Test, the Independent Engineer shall provide to the

Developer and the Authority copies of all Test data including detailed Test results;

c) Upon completion of Construction Works and the Independent Engineer

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determining all the Tests to be successful, it shall forthwith issue to the Developer

and the Authority a Completion Certificate;

d) The Independent Engineer may, at the request of the Developer, issue a

provisional certificate of completion substantially (the “Provisional Certificate”) if

the Tests are successful and the Project can be safely and reliably placed in

commercial operation though certain works or things forming part thereof are

outstanding and not yet complete. The Provisional Certificate shall have appended

thereto a list of outstanding items signed jointly by the Independent Engineer and

the Developer (the “Punch List”) to be completed by the Developer within a

stipulated time. All items in the Punch List shall be completed by the Developer

within 90 (ninety) Days of the date of issue of the Provisional Certificate or such

other extended period that the Concessioning Authority may in its sole discretion

determine, failing which the Provisional Certificate shall lose its validity and the

Authority shall be entitled to terminate this Agreement;

11.8 Liquidated Damages

Subject to any of the provisions of this Agreement providing for extension of time for

performance or excuse from performance, as the case may be, of any of the

obligations of the Developer under this Agreement, the Developer shall pay to the

Authority liquidated damages at the rate of 0.1% (zero point one percent) of the

Performance Guarantee for every Day of delay in fulfilling the specified obligations

on or before a Milestone Date including a delay in obtaining the Completion

Certificate or the Provisional Certificate on or before the Scheduled Project

Completion Date. Provided such liquidated damages shall not in aggregate exceed 5%

(five percent) of the Minimum Development Obligation and unless the delay is in

obtaining of the Completion Certificate or the Provisional Certificate, shall not be

payable for less than 15 (fifteen) Days of delay from a Milestone Date, in fulfilling a

specified obligation. The Parties agree that the liquidated damages as provided are a

genuine pre-estimate of the damages the Authority is likely to suffer and are not by

way of a penalty. In case the aggregate delay exceeds 180 (one hundred and eighty)

Days or the aggregate liquidated damages paid and/or payable under this provision

exceeds the specified limit of 5% (five percent) of the Minimum Development

Obligation, the Authority shall be entitled to terminate this Agreement and the

consequences of termination as laid down in Article 14 shall follow. The

Concessioning Authority may, at its discretion recover any amounts with respect to

liquidated damages from the Performance Guarantee.

11.9 OPERATIONS & MAINTENANCE

11.9.1 Obligations of the Developer

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In addition to any of its other obligations under this Agreement, the Developer shall

manage, operate, maintain and repair the Project Facilities and Services, entirely at its

cost, charges, expenses and risk in accordance with the provisions of this Agreement.

The Developer’s obligations under this Article shall include but shall not be limited

to the following:

(i) Operations & Maintenance:

The Developer shall:

a) promptly commence operations upon the Project Facilities and Services being

declared by the Authority as ready for operations;

b) make efforts to achieve optimal utilization of the Project Facilities and Services;

c) ensure compliance of the Project Facilities and Services at least with the Project

Requirements;

d) ensure compliance of the Project Facilities and Services at least with the Good

Industry Practice;

e) ensure that the Project Facilities and Services shall adhere to the Operations and

Maintenance Standards and Safety Standards;

f) make available all necessary financial, technical, technological, managerial and

other resources for operation, maintenance, repair and replacement of the Project

Facilities and Services in a timely manner;

g) ensure maintenance of proper and accurate record/data/accounts relating to

operations of the Project Facilities and Services and the revenue earned therefrom;

h) obtain, maintain and comply with Applicable Permits and comply with the

Applicable Laws including those relating but not limited to safety, health,

environment and labour; and

i) prevent, with the assistance of concerned law enforcement agencies, any

encroachment or unauthorized use of the Project Facilities and Services.

(ii) Repairs and Maintenance

The Developer shall at its own cost:

a) repair as necessary and maintain the Project Facilities and Services or any part

thereof in accordance with the Project Requirements and for this purpose carry out

routine preventive measures and maintenance of the Project Facilities and

Services including resurveying of pavement, repair structures and repair and

refurbish equipments; and

b) maintain the Project Facilities and Services in accordance with the provisions of

this Agreement and Good Industry Practice with the objective of providing

adequate service standards and ensuring that the Project Facilities and Services to

be transferred to the Authority upon expiry of the Lease Period are in good

35

condition, normal wear and tear excepted.

(iii) Replacement of Equipment

The Developer shall at its cost, plan for replacement of the equipment well ahead of

the time when the utility thereof is reasonably expected to expire and replace the

equipment in accordance with Good Industry Practice so as to ensure that the Project

facilities and Services commensurate with the Project Requirements, at all times

during the Lease Period.

(iv) Repairs, Replacement or Restoration

The Developer shall at its own costs, promptly and diligently repair, replace or restore

any of the Project Facilities and Services or part thereof which may be lost, damaged,

or destroyed for any reason whatsoever.

(v) Removal / Replacement of Assets

Except as provided/authorized under this Agreement the Developer shall not, without

the prior written permission of the Authority, remove or replace any assets comprised

in the Project Facilities and Services. Such notice shall contain the exact details of the

assets that the Developer intends to remove and/or replace, its reasons for doing so and

the likely period for replacement.

(vi) Payments to the Concessioning Authority

The Developer shall make/ensure payments to the Concessioning Authority as per

Article 6.

(vii) Access for Inspection

The Developer shall be obliged to extend all co-operation to Experts appointed by the

Authority for purposes of verifying that the Project/the Project Facilities and Services

are operated and maintained in compliance with the Good Industry Practice and

adhere to the operations and maintenance standards and safety standards. Such

verification shall be made annually. Additionally, the Developer shall upon prior

intimation by the Authority provide the authorized representatives of the Authority

access to the Project Facility Assets/the Project Facilities and Services for inspection

and review of operations and also to ascertain compliance with any of the

requirements under this Agreement. Without prejudice to the generality of this

provision, it is agreed by the Developer that it shall in particular extend all co-

operation and information required by the Experts appointed by the Authority for

conducting a safety audit and verifying that the Project/Project Facilities and Services

are in strict compliance with the Safety Standards.

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(viii) Reports

The Developer shall provide to the Authority, Daily and Monthly reports on revenue

earned and collected in respect of Project Facilities and Services, and any other

information relating to operations which the Authority may require from time to time.

In addition to Physical Copy, the Developer shall provide the reports in prescribed

formats and in electronic form so as to provide online access to the Concessioning

Authority and its representatives.

(ix) Computer System and On Line Network

The Developer shall install, operate and maintain such computer system and network

(such as Electronic Data Interchange and Real time on line Monitoring System) and

follow such protocol as the Authority may specify from time to time.

(x) Security Arrangements

The Developer may make his own arrangements for security in the Project Site/Port

Assets and with respect to the Project provided the Developer shall abide by the

security regulations/ procedures prescribed by the Authority or a Government

Authority from time to time.

(xi) Employment of Personnel

The Developer shall employ qualified and skilled personnel required to operate the

Project Facilities and Services. The terms of employment may be as deemed fit by the

Developer and the Developer shall comply with all Applicable Laws and bear all

costs in this regard. Without prejudice to the generality of this provision, all requisite

approvals for employment of personnel of foreign origin or nationality shall be

obtained by the Developer prior to engaging such personnel. Failure to obtain

approval will not amount to a Force Majeure Event. All employees shall always

remain the Developer’s responsibility. All labour law compliances shall be that of the

Developer alone.

11.9.2 Approvals

The Authority shall promptly grant approvals/ consents sought by the Developer as

required under this Agreement subject to the Developer having complied with all

Applicable Laws/requirements in this regard.

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ARTICLE 12: FINANCIAL CLOSE

12.1 Financial Close

12.1.1 The Developer hereby agrees and undertakes that it shall achieve Financial Close

within 180 days from the Appointed Date. The Developer shall, upon occurrence of

Financial Close, notify the Authority forthwith, and shall have provided to the

Authority, at least 2 (two) days prior to the Financial Close, 3 (three) true copies of

the Financial Package.

12.1.1 Notwithstanding anything to the contrary contained in this Agreement, in the event

that the Financial Close does not occur, for any reason whatsoever, within the period

set forth in Clause 12.1.1, all rights, privileges, claims and entitlements of the

Developer under or arising out of this Agreement shall be deemed to have been

waived by and to have ceased with the concurrence of the Developer, and this

Agreement shall be deemed to have been terminated by mutual agreement of the

Parties.

12.1.2 For the avoidance of doubt the Parties agree that no amendment made to the

Financing Documents without prior express consent of the Authority shall have the

effect of enlarging in any manner, the obligations of the Authority under this

Agreement.

ARTICLE 13: INSURANCES

13.1 Insurance during Lease Period

13.1.1 The Developer shall, at its cost and expense, purchase and maintain during the Lease

Period such insurance policies as are necessary, including but not limited to the

following:

a. Developers’ all risk insurance;

b. Comprehensive third party liability insurance including injury or death to

personnel / representative of Persons who may enter the Property;

c. Workmen’s compensation insurance;

d. loss, damage or destruction of the Project Facility, at replacement value;

e. the Developer’s general liability arising out of the Lease;

f. liability to third parties; and

g. any other insurance that may be necessary to protect the Developer, its

employees and its assets against loss, damage, destruction, business

interruption or loss of profit including insurance against all Force Majeure

Events that are insurable and not otherwise covered in items (a) to (f).

13.1.2 The Developer shall at its cost and expense, purchase and maintain by due

reinstatement or otherwise, during the Lease Period all insurances in respect of the

Property/ Project Asset / Project Facilities in accordance with the Good Industry

Practice. The Developer shall maintain a register of entry in order of premiums paid

towards the Property/ Project Asset / Project Facilities and proof of payments made

shall be submitted to the Authority whenever requested for.

13.2 Insurance Companies

13.2.1 The Developer shall insure all insurable assets comprised in the Project Facility

through insurance companies.

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13.3 Evidence of Insurance Cover

13.3.1 The Developer shall, from time to time, in case of demand from the Authority

provide copies of all insurance policies (or appropriate endorsements, certifications

or other satisfactory evidence of insurance) obtained by the Developer in accordance

with this Agreement.

13.4 Application of Insurance Proceeds

13.4.1 Subject to the provisions of the Financing Documents and unless otherwise provided

herein, all proceeds received under insurance policies shall be promptly applied by

the Developer towards repair or renovation or re-instatement of the Property /

Project Facility/Project Asset or any part thereof, which may have been damaged or

destroyed. The Developer may designate the Lenders as the loss payees under the

insurance policies / assign the insurance policies in their favour as security for

financial assistance. The Developer shall carry out such repair or renovation or re-

instatement to the extent possible in such a manner that the Property / Project

Facility/Project Asset or any part thereof, shall, after such repair or renovation or

restoration or re-instatement be as far as possible in the same condition as they were

before such damage or destruction, normal wear and tear excepted.

13.5 Validity of the Insurance Cover

13.5.1 The Developer shall pay the premium payable on such insurance policy (or policies)

so as to keep the policy (or policies) in force and valid throughout the Lease Period.

ARTICLE 14: EVENTS OF DEFAULT AND TERMINATION

14.1 Event of Default

14.1.1 Event of Default means the Developer Event of Default or the Authority Event of

Default or both as the context may admit or require.

14.2 Developer Event of Default:

14.2.1 The following events shall constitute an event of default by the Developer (a

“Developer Event of Default”) unless such Developer Event of Default has

occurred as a result of the Authority Event of Default or a Force Majeure Event;

a. The Developer fails to satisfy the Conditions Precedent within the time frame

specified in this Agreement.

b. The Developer creates any Encumbrance on the Property in favour of any

person save and except as otherwise expressly permitted under this

Agreement.

c. The Developer is in Material Breach of any of its other obligations under this

Agreement and the same has not been remedied for more than 60 days after

receipt of Notice thereof by the Authority;

d. Any representation made or warranties given by the Developer under this

Agreement are found to be false or misleading.

e. A resolution is passed by the shareholders of the Developer for voluntary

winding up of the Developer entity;

f. The Developer is adjudged bankrupt or insolvent;

g. Any petition for winding up of the Developer has been admitted and

liquidator or provisional liquidator has been appointed or the Developer has

been ordered to be wound up by Court of competent jurisdiction, except for

the purpose of amalgamation or reconstruction with the prior consent of the

39

Authority, provided that, as part of such amalgamation or reconstruction the

amalgamated or reconstructed entity has unconditionally assumed all

surviving obligations of the Developer under this Agreement

h. A default has occurred under any of the Financing Documents and any of the

Lenders has recalled its financial assistance and demanded payment of the

amounts outstanding under the Financing Documents or any of them as

applicable.

i. The Developer repudiates this Agreement or otherwise evidences an

intention not to be bound by this Agreement.

j. The Developer suffers an attachment being levied on any of its assets causing

a Material Adverse Affect on the Property / Project Facility/Project Assets

and such attachment continues for a period exceeding 90 days.

k. The Developer has delayed any payment that has fallen due under this

Agreement and if such delay exceeds 90 (ninety) days from the Due Date.

l. The Developer abandons the operations of the Project Facility for more than

30 (thirty) consecutive days without the prior consent of the Authority.

m. The Developer fails to meet the Minimum Development Obligations as set

out in this Agreement during the Lease Period and has failed to remedy the

same within ninety (90) days.

n. The Developer fails to pay the necessary insurance premium towards the

Property/ Project Facility / Project Assets and thereby causes the insurance

coverage on the Property/ Project Facility / Project Assets to diminish,

terminate or expire.

14.3 The Authority Event of Default:

14.3.1 Any of the following events shall constitute an event of default by the Authority

("Authority Event of Default”), when not caused by a Developer Event of Default

or due to a Force Majeure Event:

a. The Authority fails to fulfil any of its Conditions Precedents in accordance

with the provisions of this Agreement;

b. The Authority unlawfully repudiates this Agreement or otherwise evidences an

irrevocable intention not to be bound by this Agreement;

c. Any representation made or warranties given by the Authority under this

Agreement are found to be false or misleading.

d. The Authority fails to adhere to the Authority Obligations as listed in Article 9

within the corresponding stipulated timelines

14.4 Termination Due to Developer Event of Default

14.4.1 Without prejudice to any other right or remedy which the Authority may have in

respect thereof under this Agreement, upon the occurrence of a Developer Event of

Default, the Authority may terminate this Agreement in the manner as set out under

Clause 14.2.2 and 14.2.3

14.4.2 If the Authority decides to terminate this Agreement pursuant to preceding clause

14.2.1 (i), it shall in the first instance issue Preliminary Notice to the Developer.

Within thirty (30) days of receipt of the Preliminary Notice, the Developer shall

submit to the Authority in sufficient detail, the manner in which it proposes to cure

the underlying Event of Default (the “Developer's Proposal to Rectify”). In case of

on submission of the Developer's Proposal to Rectify within the said period of 30

days, the Authority shall be entitled to terminate this Agreement by issuing

Termination Notice, and to appropriate and invoke the Performance Security

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14.4.3 If the Developer's Proposal to Rectify is submitted within the period stipulated

therefor, the Developer shall have further period of 30 days to remedy/ cure the

underlying Event of Default. If, however the Developer fails to remedy/cure the

underlying Event of Default within such further period allowed, the Authority shall

be entitled to terminate this Agreement, by issue of Termination Notice and to

appropriate and invoke the Performance Security

14.5 Termination for the Authority Events of Default

14.5.1 Without prejudice to any other right or remedy which the Developer may have in

respect thereof under this Agreement, upon the occurrence of Authority Event of

Default, the Developer shall be entitled to terminate this Agreement by issuing

Termination Notice.

14.5.2 If the Developer decides to terminate this Agreement pursuant to preceding clause

14.3.1 it shall in the first instance issue Preliminary Notice to the Authority. Within

30 days of receipt of Preliminary Notice, the Authority shall forward to the

Developer its proposal to remedy/ cure the underlying Event of Default (the

"Authority Proposal to Rectify”). In case of non submission of Authority Proposal to

Rectify within the period stipulated therefore, Developer shall be entitled to

terminate this Agreement by issuing Termination Notice.

14.5.3 If the Authority Proposal to Rectify is forwarded to the Developer within the period

stipulated therefor, the Authority shall have further period of 30 days to remedy/

cure the underlying Event of Default. If, however the Authority fails to remedy/ cure

the underlying Event of Default within such further period allowed, the Developer

shall be entitled to terminate this Agreement by issuing Termination Notice

14.6 Termination Notice

14.6.1 If a Party having become entitled to do so decides to terminate this Agreement

pursuant to the preceding Clause 14.2 and 14.3 it shall issue Termination Notice

setting out:

a. in sufficient detail the underlying Event of Default;

b. the Termination Date which shall be a date occurring not earlier than 60 days

from the date of Termination Notice;

c. the estimated termination payment including the details of computation

thereof;

d. And any other relevant information

14.7 Obligation of Parties

14.7.1 Following issue of Termination Notice by either Party, the Parties shall promptly

take all such steps as may be necessary or required to ensure that;

a) until Termination the Parties shall, to the fullest extent possible, discharge

their respective obligations so as to maintain the continued operation of the

Project Facilities,

b) the Termination payment, if any, payable by the Authority is paid to the

Developer on the Termination Date and

c) the Property, Project Asset and Project Facilities are handed over to Authority

by the Developer on the Termination Date free from any Encumbrance along

with any payment that may be due by the Developer to the Authority.

14.8 Withdrawal of Termination Notice

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14.8.1 Notwithstanding anything inconsistent contained in this Agreement, if the Party who

has been served with the Termination Notice cures the underlying Event of Default

to the satisfaction of the other Party at any time before the Termination occurs, the

Termination Notice shall be withdrawn by the Party which had issued the same.

14.8.2 Provided that the Party in breach shall compensate the other Party for any direct

costs/consequences occasioned by the Event of Default which caused the issue of

Termination Notice.

14.9 Termination Payments

14.9.1 Upon Termination by the Authority on account of occurrence of a Developer Event

of Default, the Authority shall be entitled to receive Termination Payment equal to

sum of succeeding two Annual Lease Rent Payments and invoke the Performance

Security.

14.9.2 Upon Termination of this Agreement by the Developer due to the Authority Event of

Default, the Developer shall be entitled to receive from the Authority, by way of

Termination Payment a sum equal to:

i. the total debt due, plus

ii. 100% (one hundred percent) of the Equity subscribed in cash and actually

spent on the project.

14.10 Rights of the Authority on Termination

14.10.1 Upon Termination of this Agreement for any reason whatsoever, the Authority shall

have the power and authority to

a. take possession and control of Property / Project Facility / Project Assets

forthwith;

b. prohibit the Developer and any person claiming through or under the

Developer from entering upon the Property / Project Facility /Project Assets

or any part thereof;

c. Notwithstanding anything contained in this Agreement, the Authority shall

not, as a consequence of Termination or otherwise, have any obligation

whatsoever including but not limited to obligations as to compensation for

loss of employment on any ground, in relation to any person in the

employment of or engaged by the Developer in connection with the Project,

and the hand back of the Project/Project Facility/Project Assets by the

Developer to the Authority shall be free from any such obligations.

d. Appoint a third party to step in and succeed upon election by the Authority

without the necessity of any further action by the Developer, to the interests

of the Developer under such of the Agreements as the Authority may in its

discretion deem appropriate with effect from the date of communication of

such election to the counter party to the relative Agreements. Provided any

sums claimed by such counter party as being due and owed to for work and

services performed or accruing on account of any act, omission or event prior

to such date of election shall and shall always constitute debt between the

Developer and such counter party and the Authority shall in no way or

manner be liable or responsible for such sums.

14.11 Accrued Rights of Parties

14.11.1 Notwithstanding anything to the contrary contained in this Agreement, any

Termination pursuant to the provisions of this Agreement shall be without prejudice

to accrued rights of either Party including its right to claim and recover money

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damages and other rights and remedies which it may have in law or contract. All

rights and obligations of either Party under this Agreement, including without

limitation Termination Payment, shall survive the Termination of this Agreement to

the extent such survival is necessary for giving effect to such rights and obligations.

14.12 Lenders’ Step-in Rights

14.12.1 Notwithstanding anything to the contrary contained in this Agreement, the Parties

hereby agree that :

a) upon the Lenders recalling and demanding the debt outstanding under the

Financing Documents (following an Event of Default under the Financing

Documents), or

b) upon a Termination Notice being issued by the Authority,

14.12.2 The Lenders shall, without prejudice to any other remedy available to them, have the

option to propose to the Authority the substitution of the Developer by another

developer (Proposed Developer). Any such proposal shall contain in sufficient detail

all the relevant information about the Proposed Developer and the terms and

conditions of the substitution.

14.12.3 Upon receipt of the Lenders’ proposal pursuant to the preceding Clause 14.10.2, the

Authority shall at its discretion have the right to accept substitution of the Developer

on such terms and conditions as it may deem fit.

Provided that any such substitution shall,

a) be on terms and conditions of the Lease which are not less favourable to the

Authority than those prevailing at the time of substitution, and

b) be for the remaining period of Lease only.

14.12.4 In the event of substitution as aforesaid, all the rights, privileges and the benefits of

the Lease shall be deemed to have been transferred to and vested in the Proposed

Developer and the Authority and the Proposed Developer shall take such steps and

enter into such documents as may be necessary to give effect to the substitution.

14.12.5 Upon Substitution of the Developer becoming effective as aforesaid, the Developer

shall hand back to the Authority or upon instruction of the Authority to the Proposed

Developer and for the purpose of giving effect to this provision, the Authority shall

have all such rights as are provided in Clause 14.7.

ARTICLE 15: HANDBACK OF PROPERTY / PROJECT FACILITY

15.1 Ownership

15.1.1 Without prejudice and subject to the Developer, the ownership of the Property,

Project Facility and Project Assets including all improvements made therein by the

Developer, shall at all times remain that of the Authority.

15.2 Handing over of the Property

15.2.1 Upon the expiry of the Lease in the normal course, the Developer shall within one

month from the end of the Lease Period, hand over vacant and peaceful possession

of the Property including Project Facility and Project Assets at no cost to the

Authority in good operable condition. However, the Authority shall pay Rs 1/ to

Developer for the improvement/upgradation etc. made by the Developer in the

Property/Project Assets/Project Facility at the timing of handing over. The

Developer shall have no right, title, claim or interest whatsoever therein nor shall it

have any claim in respect thereof against the Authority.

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15.2.2 The Developer shall provide support and further do all such acts including execution

of necessary writings/documents as desired by the Authority for deleting the name of

Developer from, or diluting or dissolving any apparent right or interest, in any

license or permission obtained in relation to the Property/Project Facility/Project

Assets at the end of the Lease Period.

15.3 Joint Inspection and Removal of Deficiency

15.3.1 The handing over process shall be initiated at least 12 months before the actual date

of expiry of the Lease Period through a joint inspection by the Authority and the

Developer. The Authority shall, within 15 days of such inspection prepare and

furnish to the Developer a list of works/jobs/additions/alterations, if any, to be

carried out to bring the Property, Project Facility and Project Assets at least to the

level of service condition that existed on the Appointed Date and these works need

to be completed by the Developer at least two months prior to the date of expiry of

the Lease Period. In case the Developer fails to carry out the above works, within the

stipulated time period, the Authority shall be at liberty to get these works executed

by any other party at the risk and cost of the Developer and any cost incurred by the

Authority in this regard shall be reimbursed by the Developer to the Authority

within 7 days of receipt of demand. For this purpose, the Authority shall without

prejudice to any other right/remedy available to it under this Agreement, have the

right to appropriate and invoke the Performance Security and/or to set off any

amounts due, if any, and payable by the Authority to the Developer to the extent

required/ available and to recover deficit amount, if any, from the Developer.

15.4 Transfer of Intellectual Property Rights

15.4.1 The Intellectual Property Rights related to the Property / Project Facility/Project

Assets other than the Trade Marks shall automatically stand transferred to the

Authority on termination of this Lease Agreement.

ARTICLE 16: DISPUTE RESOLUTION

16.1 Amicable Resolution

16.1.1 Save where expressly stated otherwise in this Agreement, any dispute, difference or

controversy of whatever nature howsoever arising under, out of or in relation to this

Agreement, including non-completion of the Project, between the Parties and so

notified in writing by either Party to the other Party (the "Dispute") in the first

instance shall be attempted to be mutually resolved amicably. Failing resolution of

the same amicably, the dispute resolution would be in accordance with the procedure

set forth in Clause 16.1.2 below.

16.1.2 Either Party may require the Dispute to be referred to the Director General,

Department of Tourism, GoUP and the Chairman of the Board of Directors of the

Developer, for the time being for amicable settlement. Upon such reference, the two

shall meet at the earliest mutual convenience and in any event within 15 days of such

reference to discuss and attempt to amicably resolve the Dispute. If the Dispute is

not amicably settled within 15 (fifteen) days of such meeting between the two, either

Party may refer the Dispute to arbitration in accordance with the provisions below.

16.2 Arbitration

16.2.1 Arbitrators

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Any Dispute which is not resolved amicably as provided in Clause 16.1 shall be

finally settled by binding arbitration under the Arbitration and Conciliation Act,

1996. The arbitration shall be by a panel of three arbitrators, one to be appointed by

each Party and the third to be appointed by the two arbitrators appointed by the

Parties. A Party requiring arbitration shall appoint an arbitrator in writing, inform the

other Party about such appointment and call upon the other Party to appoint its

arbitrator. If the other Party fails to appoint its arbitrator within 7 days of the receipt

of notice from the other Party, then the Party appointing the arbitrator shall take

steps in accordance with Arbitration and Conciliation Act, 1996.

16.2.2 Place of Arbitration

The place of arbitration shall be Lucknow but by agreement of the Parties, the

arbitration hearings, if required, can be held elsewhere from time to time.

16.2.3 English Language

The request for arbitration, the answer to the request, the terms of reference, any

written submissions, any orders and rulings shall be in English and, if oral hearings

take place, English shall be the language to be used in the hearings.

16.2.4 Procedure

The procedure to be followed within the arbitration, including appointment of

arbitrator / arbitral tribunal, the rules of evidence which are to apply shall be in

accordance with the Arbitration and Conciliation Act, 1996.

16.2.5 Enforcement of Award

Any decision or award resulting from arbitration shall be final and binding upon the

Parties. The Parties hereto hereby waive, to the extent permitted by law, any rights to

appeal or review of such award by any court or tribunal. The Parties hereto agree

that the arbitral award may be enforced against the Parties to the arbitration

proceeding or their assets wherever they may be found and that a judgement upon

the arbitral award may be entered in any court having jurisdiction thereof.

16.2.6 Fees and Expenses

The fees and expenses of the arbitrators and all other expenses of the arbitration

shall be initially borne and paid by respective Parties subject to determination by the

arbitrators. The arbitrators may provide in the arbitral award for the reimbursement

to the prevailing party of its costs and expenses in bringing or defending the

arbitration claim, including legal fees and expenses incurred by Party.

16.2.7 Performance during Arbitration

Pending the submission of and / or decision on a Dispute, difference or claim or until

the arbitral award is published; the Parties shall continue to perform all their

obligations under this Agreement without prejudice to a final adjustment in

accordance with such award.

ARTICLE 17: REPRESENTATIONS AND WARRANTIES, DISCLAIMER

17.1 Representations and Warranties of the Developer

17.1.1 The Developer represents and warrants to the Authority that:

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a. it is duly organised, validly existing and in Good standing under the laws of

India;

b. it has full power and authority to execute, deliver and perform its obligations

under this Agreement and to carry out the transactions contemplated hereby;

c. it has taken all necessary corporate and other action under Applicable Laws

and its constitutional documents to authorize the execution, delivery and

performance of this Agreement;

d. it has the financial standing and capacity to undertake the Project;

e. this Agreement constitutes a legal, valid and binding obligation enforceable

against it in accordance with the terms hereof;

f. it is subject to civil and commercial laws of India with respect to this

Agreement and it hereby expressly and irrevocably waives any immunity in

any jurisdiction in respect thereof;

g. the execution, delivery and performance of this Agreement will not conflict

with, result in the breach of, constitute a default under or accelerate

performance required by any of the terms of the Developer's Memorandum

and Articles of Association or any Applicable Laws or any covenant,

agreement, understanding, decree or order to which it is a party or by which

it or any of its properties or assets is bound or affected;

h. there are no actions, suits, proceedings, or investigations pending or, to the

Developer's knowledge, threatened against it at law or in equity before any

court or before any other judicial, quasi-judicial or other authority, the

outcome of which may result in the breach of or constitute a default of the

Developer under this Agreement or which individually or in the aggregate

may result in any Material Adverse Effect;

i. it has no knowledge of any violation or default with respect to any order,

writ, injunction or any decree of any court or any legally binding order of any

Government Agency which may result in any Material Adverse Effect or

impairment of the Developer's ability to perform its obligations and duties

under this Agreement;

j. it has complied with all Applicable Laws and has not been subject to any

fines, penalties, injunctive relief or any other civil or criminal liabilities

which in the aggregate have or may have Material Adverse Effect;

k. subject to receipt by the Developer from the Authority of the Termination

Payment and any other amount due under any of the provisions of this

Agreement, in the manner and to the extent provided for under the applicable

provisions of this Agreement all rights and interests of the Developer in and

to the Project Facility shall pass to and vest in the Authority on the

Termination Date free and clear of all Encumbrances without any further act

or deed on the part of the Developer or the Authority;

l. no representation or warranty by the Developer contained herein or in any

other document furnished to the Authority or to any Government Agency in

relation to Applicable Permits contains or will contain any untrue statement

of material fact or omits or will omit to state a material fact necessary to

make such representation or warranty not misleading; and

m. no sums, in cash or kind, have been paid or will be paid, by or on behalf of

the Developer, to any person by way of fees, commission or otherwise for

securing the Lease or entering into this Agreement or for influencing or

attempting to influence any officer or employee of the Authority in

connection therewith.

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17.2 Representations and Warranties of the Authority

17.2.1 The Authority represents and warrants to the Developer that:

a. The Authority has full power and authority to grant the Lease;

b. The Authority has taken all necessary action to authorise the execution,

delivery and performance of this Agreement;

c. this Agreement constitutes a legal, valid and binding obligation enforceable

against it in accordance with the terms hereof.

17.3 Lock-in

Subject to and in accordance with the terms and conditions set forth in this

Agreement, the Developer agrees to the following lock-in restrictions:

17.3.1 Period commencing from the Appointed Date and ending on expiry of first Five (5)

years from Appointed Date shall be the lock-in period (hereinafter referred to as

“Lock-in-Period”) during which neither Party shall have the right to terminate this

Lease Agreement. Notwithstanding the above, the Authority shall have the exclusive

right to terminate this Lease Agreement within the Lock-in-Period in the event of a

breach by the Developer of the provisions of the Lease Agreement or any Applicable

Law .

17.3.2 The Lead Member of the Selected Bidder shall subscribe to and hold at least fifty

one percent (51%) equity shareholding in Developer (SPV) executing the Project

until the expiration of five (5) years from the Appointed Date.

17.4 Disclaimer

17.4.1 Without prejudice to any express provision contained in this Agreement, the

Developer acknowledges that prior to the execution of this Agreement, the

Developer has after a complete and careful examination made an independent

evaluation of the Specifications and Standards, Property and all the information

provided by the Authority and has determined to the Developer's satisfaction the

nature and extent of such difficulties, risks and hazards as are likely to arise or may

be faced by the Developer in the course of performance of its obligations hereunder

17.4.2 The Developer further acknowledges and hereby accepts the risk of inadequacy,

mistake or error in or relating to any of the matter set forth in Clause 17.4.1 above

and hereby confirms that the Authority shall not be liable for the same in any manner

whatsoever to the Developer.

17.5 Obligation to Notify Change

17.5.1 In the event that any of the representations or warranties made/given by a Party

ceases to be true or stands changed, the Party who had made such representation or

given such warranty shall promptly notify the other of the same.

ARTICLE 18: FORCE MAJEURE

18.1 Force Majeure Event

As used in this Agreement, Force Majeure Event means the occurrence of any of the

Non-Political Events, the Political Events or the Other Events in India, set out in

Clauses 18.1.1, 18.1.2 and 18.1.3 respectively including the impact/consequence

thereof which :

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a) is beyond the control of the Party claiming to be affected thereby (the “Affected

Party”);

b) prevents the Affected Party from performing or discharging its obligations under

this Agreement; and

c) the Affected Party has been unable to overcome or prevent despite exercise of

due care and diligence.

18.1.1 Non-Political Events

Any of the following events which prevent the Affected Party from performing any

of its obligations for a continuous period of not less than 7 (seven) Days from the

date of its occurrence, shall constitute a Non-Political Event:

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

earthquake, cyclone, flood, volcanic eruption, chemical or radioactive

contamination or ionizing radiation, fire or explosion (to the extent of

contamination or radiation or fire or explosion originating from a source

external to the Project Site and by reasons not attributable to the Developer or

the Contractor or any of the employees or agents of the Developer or the

Contractor);

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

their respective employees/representatives, or attributable to any act or omission

of any of them), and not being an Other Event set forth in Clause 18.1.3, labour

disruptions or any other industrial disturbances not arising on account of the acts

or omissions of the Developer or the Contractor;

c) any failure or delay of a Contractor caused by any of the Non-Political Events,

for which no offsetting compensation is payable to the Developer or on behalf of

the Contractor;

d) the discovery of geological conditions, toxic contamination or archaeological

remains on the Project Site that could not reasonably have been expected to be

discovered through a site inspection; or

e) any event or circumstance of a nature analogous to any of the foregoing.

18.1.2 Political Events

Any of the following events shall constitute Political Event:

a) Change in Law for which no relief is provided under the provisions of this

Agreement, resulting in Material Adverse Effect;

b) action of a Government Authority having Material Adverse Effect including but

not limited to (i) acts of expropriation, compulsory acquisition or takeover by

any Government Authority of the Project/Project Facilities and Services or any

part thereof or of the Developer’s or the Contractor’s rights under any of the

Project Contracts, and (ii) any unlawful, unauthorized or without jurisdiction

refusal to issue or to renew or the revocation of any Applicable Permits, in each

case, for reasons other than the Developer’s or the Contractor’s breach or failure

in complying with the Project Requirements, Applicable Laws, Applicable

Permits, any judgment or order of a Governmental Agency or of any contract by

which the Developer or the Contractor as the case may be is bound;

c) early determination of this Agreement by the Authority for reasons of national

emergency, national security or the public interest;

d) any failure or delay of a Contractor caused by any of the aforementioned

Political Events, for which no offsetting compensation is payable to the

Developer by or on behalf of the Contractor; or

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e) any event or circumstance of a nature analogous to any of the foregoing.

18.1.3 Other Events

Any of the following events which prevents the Affected Party from performing any

of its obligations under this Agreement for a continuous period of not less than 7

(seven) Days from the date of its occurrence, shall constitute the Other Event:

a) an act of war (whether declared or undeclared), invasion, armed conflict or act

of foreign enemy, blockade, embargo, riot, insurrection, terrorist or military

action, civil commotion or politically motivated sabotage;

b) industry wide or State wide strikes or industrial action;

c) any civil commotion, boycott or political agitation which prevents collection of

Fee by the Developer;

d) any judgment or order of a court of competent jurisdiction or statutory authority

in India made against the Developer or the Contractor in any proceedings which

is non-collusive and duly prosecuted by the Developer; and any judgment or

order of a court of competent jurisdiction or statutory authority in India made

against the Developer or the Contractor in any proceedings which is non-

collusive and duly prosecuted by the Developer other than relating to

proceedings (i) pursuant to failure of the Developer to comply with any

Applicable Law or Applicable Permit, or (ii) on account of breach of any

Applicable Law or Applicable Permit or of any contract, or (iii) enforcement of

this Agreement or (iv) with respect to exercise of any of its rights under this

Agreement by the Authority; or

e) any event or circumstance of a nature analogous to any of the foregoing.

18.2 Notice of Force Majeure Event

18.2.1. The Affected Party shall give written notice to the other Party in writing of the

occurrence of any of the Force Majeure Event (the “Notice”) as soon as the same

arises or as soon as reasonably practicable and in any event within 7 (seven) Days

after the Affected Party knew, or ought reasonably to have known, of its occurrence

and the adverse effect it has or is likely to have on the performance of its obligations

under this Agreement.

18.2.2. The Notice shall inter-alia include full particulars of:

i. the nature, time of occurrence and extent of the Force Majeure Event with

evidence in respect thereof;

ii. the duration or estimated duration and the effect or probable effect which such

Force Majeure Event has or will have on the Affected Party’s ability to perform

its obligations or any of them under this Agreement;

iii. the measures which the Affected Party has taken or proposes to take, to alleviate

the impact of the Force Majeure Event or to mitigate the damage; and

iv. any other relevant information.

18.2.3. So long as the Affected Party continues to claim to be affected by a Force Majeure

Event, it shall provide the other Party with periodic (fortnightly/monthly) written

reports containing the information called for by Clause 18.2.2 and such other

information as the other Party may reasonably request.

18.3 Performance of Obligations

18.3.1. If the Developer is rendered wholly or partially unable to perform any of its

obligations under this Agreement because of a Force Majeure Event, it shall be

49

excused from performance of such obligations to the extent it is unable to perform

the same on account of such Force Majeure Event provided that:

a. due notice of the Force Majeure Event has been given to the Authority as

required by the preceding Article ;

b. the excuse from performance shall be of no greater scope and of no longer

duration than is necessitated by the Force Majeure Event;

c. the Developer has taken all reasonable efforts to avoid, prevent, mitigate and

limit damage, if any, caused or is likely to be caused to the Property/Project

Asset/Project Facilities as a result of the Force Majeure Event and to restore

the Property/Project Asset/Project Facilities, in accordance with the Good

Industry Practice and its relative obligations under this Agreement;

d. when the Developer is able to resume performance of its obligations under

this Agreement, it shall give to the other Party written notice to that effect

and shall promptly resume performance of its obligations hereunder, the non

issue of such notice being no excuse for any delay for resuming such

performance;

e. the Developer shall continue to perform such of its obligations which are not

affected by the Force Majeure Event and which are capable of being

performed in accordance with this Agreement;

f. any insurance proceeds received shall be entirely applied to repair, replace or

restore the assets damaged on account of the Force Majeure Event, in

accordance with Good Industry Practice, unless otherwise agreed to by the

Authority.

ARTICLE 19: MISCELLANEOUS

19.1 Assignment and Charges

19.1.1 The Developer shall not assign in favour of any person this Agreement or the rights,

benefits and obligations.

19.1.2 The Developer shall not create nor permit to subsist any Encumbrance over

Property/Project Facility/Project Assets or otherwise transfer or dispose of all or any

of its rights and benefits under this Agreement.

19.1.3 Restraint set forth in Clauses 19.1.1 and 19.1.2 above shall not apply to:

a. Liens / encumbrances arising by operation of law in the ordinary course of

business of the Project;

b. Mortgages / pledges / hypothecation of goods / assets other than Property and

Project Facility, as security for indebtedness, in favour of the Lenders and

working capital providers for the Project;

c. assignment of Developer’s rights, title and interest under this Agreement to

or in favour of the Lenders pursuant to and in accordance with the

Substitution Agreement as security for their financial assistance.

19.1.4 Upon occurrence of the Developer Event of Default, the Lenders shall have the right

of substitution as provided in the Substitution Agreement.

19.2 Treatment to Existing Employees

19.2.1 The General employees will have the option of working with the Developer on

mutually agreed terms (However, the Developer has no obligation to accommodate

the existing employees). In that case the employee will be treated as an employee of

the Authority for the benefit of retiral dues but the current salary and related

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emoluments will be paid by the Developer. The statutory deduction will be made

and deposited under relevant heads by the Developer.

19.2.2 Employees can opt for Voluntary Retirement Scheme (VRS).

19.2.3 The Employees who are not opting for any of the above options will continue with

the Authority.

19.3 Liability And Indemnity

19.3.1 General Indemnity

a. The Developer shall indemnify, defend and hold the Authority harmless

against any and all proceedings, actions and third party claims arising out of

a breach by Developer of any of its obligations under this Agreement except

to the extent that any such claim has arisen due to the Authority Event of

Default.

b. The Authority will, indemnify, defend and hold harmless the Developer

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 the Authority and/or arising of a breach by the Authority, its

officers, servants and agents of any obligations of the Authority under this

Agreement except to the extent that any such claim has arisen due to

Developer Event of Default.

19.3.2 Without limiting the generality of the Clause 19.3, the Developer shall fully

indemnify, hold harmless and defend the Authority 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 Developer to comply with Applicable Laws and

Applicable Permits, (b) payments of taxes relating to the Developer's Contractors,

suppliers and representatives’ income or other taxes required to be paid by the

Developer without reimbursement hereunder, or (c) non-payment of amounts due as

a result of materials or services furnished to the Developer or any of its Contractors

which are payable by the Developer or any of its Contractors.

19.3.3 Without limiting the generality of the provisions of this Clause 19.3, the Developer

shall fully indemnify, hold harmless and defend the Authority from and against any

and all damages which the Authority 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 Developer or by the Developer's Contractors in

performing the Developer’s 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 Developer 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 injuncted, the Developer shall promptly make every reasonable effort to

secure for the Authority a license, at no cost to the Authority, authorising continued

use of the infringe work. If the Developer is unable to secure such license within a

reasonable time, the Developer 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.

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19.3.4 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 the Clause 19.3 (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 shall not be unreasonably

withheld or delayed. In the event that the Indemnifying Party wishes to contest or

dispute the claim it may conduct proceedings in the name of the Indemnified Party

subject to the Indemnified Party being secured against any costs involved to its

reasonable satisfaction.

19.3.5 Defence of Claims

a. 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 the Clause 19.3, 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.

b. If the Indemnifying Party has exercised its rights under Clause19.3.4 above,

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).

c. If the Indemnifying Party exercises its rights under Clause 19.3.5 above, 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:

(i) the employment of counsel by such party has been authorised in

writing by the Indemnifying Party; or

(ii) 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

(iii) 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

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(iv) 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 sub-clauses (ii), (iii) or (iv) of Clause 19.3.5 (c) 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.

19.4 Governing Law and Jurisdiction

19.4.1 This Agreement shall be construed and interpreted in accordance with and governed

by the laws of Union of India and the Courts at Lucknow, Uttar Pradesh, India shall

have exclusive jurisdiction over all matters arising out of or relating to this

Agreement.

19.5 Waiver

19.5.1 Waiver by either Party of any default by the other Party in the observance and

performance of any provision of or obligations under this Agreement:

a. shall not operate or be construed as a waiver of any other or subsequent

default hereof or of other provisions or obligations under this Agreement:

b. shall not be effective unless it is in writing and executed by a duly authorised

representative of such Party; and

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

manner.

19.5.2 Neither the failure by either Party to insist on any occasion upon the performance of

the terms, conditions and provisions of this Agreement or any obligation there under

nor time or other indulgence granted by a Party to the other Party shall be treated or

deemed as waiver of such breach or acceptance of any variation or the

relinquishment of any such right hereunder.

19.6 Survival

19.6.1 Termination of this Agreement (a) shall not relieve the Developer or the Authority 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.

19.7 Amendments

19.7.1 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

53

and no amendment or modification hereto shall be valid and effective unless agreed

to by all the Parties hereto and evidenced in writing.

19.8 Notices

19.8.1 Unless otherwise stated, notices to be given under this Agreement including but not

limited to a notice of waiver of any term, breach of any term of this Agreement and

termination of this Agreement, shall be in writing and shall be given by hand

delivery, recognised international courier, mail, telex or facsimile transmission and

delivered or transmitted to the Parties at their respective addresses set forth below:

In the case of the Authority:

The Director General, Department of Tourism

Government of Uttar Pradesh

Paryatan Bhawan

C-13, Vipin Khand, Gomti Nagar

Lucknow: 226 010

In the case of Developer:

________________

Fax No.________________

Or such address, telex number, or facsimile number as may be duly notified by the

respective Parties from time to time, and shall be deemed to have been made or

delivered (i) in the case of any communication made by letter, when delivered by

hand, by recognised international courier or by mail (registered, return receipt

requested) at that address and (ii) in the case of any communication made by telex or

facsimile, when transmitted properly addressed to such telex number or facsimile

number.

19.9 Severability

19.9.1 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 upon one or more

provisions which may be substituted for such invalid, unenforceable or illegal

provisions, as nearly as is practicable. Provided failure to agree upon any such

provisions shall not be subject to dispute resolution under this Agreement or

otherwise.

19.10 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.

19.11 Language

54

All notices required to be given under this Agreement and all communications,

documentation and proceedings which are in any way relevant to this Agreement

shall be in writing and in English language.

19.12 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 any Party not contained in a binding legal

agreement executed by the Parties.

19.13 Counterparts

This Agreement may be executed in two counterparts, each of which when executed

and delivered shall constitute an original of this Agreement.

IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED AND DELIVERED

THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.

Signed on behalf of The Authority

_________________________

(Director General)

Department of Tourism, Government of Uttar

Pradesh

SIGNED, SEALED AND DELIVERED

Developer by the hand of its

Authorized representative

____________________

pursuant to Resolution dated........ of

its Board of Directors.

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SCHEDULE 1

RFP DOCUMENT ISSUED BY THE AUTHORITY

56

SCHEDULE 2

RFP DOCUMENT SUBMITTED BY THE DEVELOPER/SELECTED BIDDER

57

SCHEDULE 3

LETTER OF AWARD

58

SCHEDULE 4

PROPERTY DETAILS

SITE PLAN, PROJECT ASSET AND PROJECT FACILITY

59

SCHEDULE 5

PERFORMANCE SECURITY

60

SCHEDULE 6

EXISTING LEASES AND LICENSES

61

SCHEDULE 7

ESCROW AGREEMENT