Common use of Without prejudice to the provisions of Clause Clause in Contracts

Without prejudice to the provisions of Clause. 6.1, if any Lender or the Agent or the Trustee on the Lender’s behalf is required to make any payment on account of Tax (not being a tax imposed on the net income of its Office by the jurisdiction in which it is incorporated or in which its Office is located or any other tax existing and applicable on the date of this Deed under the laws of any jurisdiction) on or in relation to any sum received or receivable hereunder by such Lender or the Agent or the Trustee on the Lender’s behalf (including, without limitation, any sum received or receivable under this Clause 6) or any liability in respect of any such payment is asserted, imposed, levied or assessed against such Lender or the Agent or the Trustee on the Lender’s behalf, the Guarantor shall, upon demand of the Agent, indemnify such Lender or the Agent or the Trustee against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith, other than interest, penalties, and expenses: 6.2.1 that accrue during any periods of time beginning on the thirty first (31st) day (or such longer period as any Lender may reasonably require) following the day on which the Lender or the Agent or the Trustee, as applicable, has actual knowledge of the imposition or assertion of such Taxes or other Taxes; or 6.2.2 that are otherwise imposed or asserted on account of the bad faith or wilful neglect of such Lender or the Agent or the Trustee. If any Lender proposes to make a claim under the provisions of this Clause 6.2 it shall certify to the Guarantor in reasonable detail within thirty (30) days (or such longer period as any Lender may reasonably require) after becoming aware of the event by reason of which it is entitled to make its claim or claims the basis of its claim or claims, such certificate to be conclusive, save for manifest error. Without affecting the Guarantor’s obligations under Clause 6.1 and in consultation with the Agent, the affected Lender will then take all such reasonable steps as may be open to it to mitigate the effect of the event (for example (if then possible) by changing its Office or transferring some or all of its rights and obligations under the Loan Agreement to another financial institution reasonably acceptable to the Borrower, the Guarantor, the Hermes Agent and the Agent). The reasonable costs of mitigating the effect of any such change shall be borne by the Guarantor save where such costs are of an internal administrative nature and are not incurred in dealings by any Lender with third parties.

Without prejudice to the provisions of Clause. 6.110.3.1, if any Lender the Parties hereto agree that on or prior to the Agent or Appointed Date, the Trustee on Authority shall have granted vacant access and Right of Way such that the Lender’s behalf Appendix shall not include more than 50% (fifty per cent) of the total area of the Site required and necessary for the Eight-Lane Project Road., and in the event Financial Close is required to make any payment delayed solely on account of Tax delay in grant of such vacant access and Right of Way, the Authority shall be liable to payment of Damages under and in accordance with the provisions of Clause 4.2. 10.3.3 On and after signing the memorandum referred to in Clause 10.3.1, and until the Transfer Date, the Concessionaire shall maintain a round-the-clock xxxxx over the Site and shall ensure and procure that no encroachment thereon takes place, and in the event of any encroachment or occupation on any part thereof, the Concessionaire shall report such encroachment or occupation forthwith to the Authority and undertake its removal at its cost and expenses. 10.3.4 The Authority shall make best efforts to procure and grant, no later than 90 (ninety) days from the Appointed Date, the Right of Way to the Concessionaire in respect of all land included in the Appendix. 10.3.5 Upon receiving Right of Way in respect of any land included in the Appendix, the Concessionaire shall complete the Construction Works thereon within a reasonable period to be determined by the Independent Engineer in accordance with Good Industry Practice; provided that the issue of Provisional Certificate shall not be affected or delayed on account of vacant access to any part of the Site not being a tax imposed on granted to the net income of its Office by the jurisdiction in which it is incorporated or in which its Office is located Concessionaire or any other tax existing and applicable construction on such part of the Site remaining incomplete on the date of this Deed under the laws of any jurisdiction) on or in relation to any sum received or receivable hereunder by such Lender or the Agent or the Trustee on the Lender’s behalf (including, without limitation, any sum received or receivable under this Clause 6) or any liability in respect of any such payment is asserted, imposed, levied or assessed against such Lender or the Agent or the Trustee on the Lender’s behalf, the Guarantor shall, upon demand of the Agent, indemnify such Lender or the Agent or the Trustee against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith, other than interest, penalties, and expenses: 6.2.1 that accrue during any periods of time beginning on the thirty first (31st) day (or such longer period as any Lender may reasonably require) following the day on which the Lender or the Agent or the Trustee, as applicable, has actual knowledge of the imposition or assertion of such Taxes or other Taxes; or 6.2.2 that are otherwise imposed or asserted Tests on account of the bad faith delay or wilful neglect denial of such Lender access thereto. For the avoidance of doubt, it is expressly agreed that Construction Works on all lands for which Right of Way is granted within 90 (ninety) days of the Appointed Date shall be completed before the Project Completion Date. It is further agreed that the obligation of the Concessionaire to complete the affected Construction Works shall subsist so long as the Authority continues to pay the Damages specified herein, and upon the Authority ceasing to pay such Damages after giving 60 (sixty) days’ notice thereof to the Concessionaire, the obligation of the Concessionaire to complete such works on such part of the Site shall cease forthwith. It is also expressly agreed that completion of the respective Construction Works within the time determined by the Independent Engineer hereunder shall be deemed to be Project Milestones for the purposes of levy and recovery of Damages under and in accordance with the provisions of Clause 12.4.2. 10.3.6 The Concessionaire shall, if so required by the Authority, procure on behalf of the Authority, on the terms and to the extent specified by the Authority, the additional land required for [Toll Plazas, Traffic Aid Posts, Medical Aid Posts, under passes and over passes or for] construction of works specified in Change of Scope Order issued under Article 16, in accordance with this Agreement and upon procurement, such land shall form part of the Site and vest in the Authority; provided that the Concessionaire may, by notice given to the Authority no later than 60 (sixty) days from the Appointed Date or the Agent or date of Change of Scope Order, as the Trustee. If any Lender proposes case may be, require the Authority to make a claim initiate and undertake proceedings for acquisition of such land under the provisions of this Clause 6.2 it the Applicable Laws and the Authority shall certify to the Guarantor in reasonable detail within thirty (30) days (or such longer period as any Lender may reasonably require) after becoming aware of the event by reason of which it is entitled to make its claim or claims the basis of its claim or claims, such certificate to be conclusive, save for manifest error. Without affecting the Guarantor’s obligations under Clause 6.1 and in consultation with the Agent, the affected Lender will then take all such reasonable steps as may be open to it to mitigate reasonably necessary for such land acquisition forthwith; provided further that the effect cost of the event (for example (if then possible) by changing its Office or transferring some or all of its rights and obligations land acquired under the Loan Agreement to another financial institution reasonably acceptable to the Borrower, the Guarantor, the Hermes Agent and the Agent). The reasonable costs of mitigating the effect of any such change this Clause 10.3.6 shall be borne by the Guarantor Concessionaire on behalf of the Authority in accordance with the Act; provided also that the land to be acquired by the Authority hereunder as a part of the Site shall be deemed to be included in the Appendix referred to in this Clause 10.3 and dealt with in accordance with the provisions thereof. For the avoidance of doubt, it is agreed that the minimum area of land to be acquired for the Toll Plazas and approach roads thereof shall conform to the provisions of Schedule-B and Schedule-C. It is further agreed that the Authority may, at any time after the Bid Date, suo moto acquire the land required hereunder. 10.3.7 The Concessionaire may procure at its cost and expense and on its own the land that may be required by it for Additional Facilities and the Authority shall have no obligation or liability in respect thereof. For the avoidance of doubt, the Concessionaire shall seek prior consent of the Authority to connect any Additional Facility to the Project Road and such consent shall not be unreasonably withheld. 10.4 Site to be free from Encumbrances Subject to the provisions of Clause 10.3, the Site shall be made available by the Authority to the Concessionaire pursuant hereto free from all Encumbrances and occupations. For the avoidance of doubt, it is agreed that existing rights of way, easements, privileges, liberties and appurtenances to the Licensed Premises shall not be deemed to be Encumbrances. It is further agreed that the Concessionaire accepts and undertakes to bear any and all risks arising out of the inadeqacy or physical condition of the Site. 10.5 Protection of Site from encroachments During the Concession Period, the Concessionaire shall protect the Site from any and all occupations, encroachments or Encumbrances, and shall not place or create nor permit any Contractor or other person claiming through or under the Concessionaire to place or create any Encumbrance or security interest over all or any part of the Site or the Project Assets, or on any rights of the Concessionaire therein or under this Agreement, save where and except as otherwise expressly set forth in this Agreement. 10.6 Special/temporary right of way The Concessionaire shall bear all costs and charges for any special or temporary right of way required by it in connection with access to the Site. The Concessionaire shall obtain at its cost such costs facilities on or outside the Site as may be required by it for the purposes of the Project Road and the performance of its obligations under this Agreement. 10.7 Access to the Authority and Independent Engineer The licence, right of way and right to the Site granted to the Concessionaire hereunder shall always be subject to the right of access of the Authority and the Independent Engineer and their employees and agents for inspection, viewing and exercise of their rights and performance of their obligations under this Agreement. 10.8 Geological and archaeological finds It is expressly agreed that mining, geological or archaeological rights do not form part of the licence granted to the Concessionaire under this Agreement and the Concessionaire hereby acknowledges that it shall not have any mining rights or interest in the underlying minerals, fossils, antiquities, structures or other remnants or things either of particular geological or archaeological interest and that such rights, interest and property on or under the Site shall vest in and belong to the Authority or concerned Government Instrumentality. The Concessionaire shall take all reasonable precautions to prevent its workmen or any other person from removing or damaging such interest or property and shall inform the Authority forthwith of the discovery therof and comply with such instructions as the concerned Government Instrumentality may reasonably give for the removal of such property. For the avoidance of doubt, it is agreed that any reasonable expenses incurred by the Concessionaire hereunder shall be reimbursed by the Authority. It is also agreed that the Authority shall procure that the instructions hereunder are of an internal administrative nature and are not incurred in dealings issued by any Lender with third partiesthe concerned Government Instrumentality within a reasonable period. 10.9 Deleted

Without prejudice to the provisions of Clause. 6.1, if any Lender or the an Agent or the Trustee Trustees on the Lender’s its behalf is required to make any payment on account of Tax (not being a tax imposed on the net income of its Office by the jurisdiction in which it is incorporated or in which its Office is located or any other tax existing and applicable on the date of this Deed under the laws of any jurisdiction) on or in relation to any sum received or receivable hereunder by such Lender or the Agent or the Trustee Trustees on the Lender’s its behalf (including, without limitation, any sum received or receivable under this Clause 6) or any liability in respect of any such payment is asserted, imposed, levied or assessed against such Lender or the Agent or the Trustee Trustees on the Lender’s its behalf, the Guarantor shall, upon demand of the relevant Agent, indemnify such Lender or the Agent or the Trustee Trustees against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith, other than interest, penalties, and expenses: 6.2.1 that accrue during any periods of time beginning on the thirty first (31st) day (or such longer period as any Lender may reasonably require) following the day on which the Lender or the an Agent or the TrusteeTrustees, as applicable, has actual knowledge of the imposition or assertion of such Taxes or other Taxes; or 6.2.2 that are otherwise imposed or asserted on account of the bad faith or wilful neglect of such Lender or the Agent or the TrusteeTrustees. If any Lender proposes to make a claim under the provisions of this Clause 6.2 it shall certify to the Guarantor in reasonable detail within thirty (30) days (or such longer period as any Lender may reasonably require) after becoming aware of the event by reason of which it is entitled to make its claim or claims the basis of its claim or claims, such certificate to be conclusive, save for manifest error. Without affecting the Guarantor’s obligations under Clause 6.1 and in consultation with the relevant Agent, the affected Lender will then take all such reasonable steps as may be open to it to mitigate the effect of the event (for example (if then possible) by changing its Office or transferring some or all of its rights and obligations under the relevant Loan Agreement to another financial institution reasonably acceptable to the Borrower, the Guarantor, the Hermes Agent and the relevant Agent). The reasonable costs of mitigating the effect of any such change shall be borne by the Guarantor save where such costs are of an internal administrative nature and are not incurred in dealings by any Lender with third parties.